By Satish Sekar © Satish Sekar (January 16th 2012)
Apology
In July 2003 history was made. South Wales Police became the first British force in the DNA age to resolve a miscarriage of justice by finding and convicting the real killer. It was quickly followed by an apology from the then Chief Constable Sir Anthony Burden to Lynette’s family and to the Cardiff Five.
That was followed by an investigation into what went wrong. It is the only miscarriage of justice case to have had such an investigation in the world even though there are approximately 150 vindication cases in various jurisdictions. It had a remit that allowed it to investigate anyone and everyone, going wherever the evidence led it. It was the type of investigation demanded over many cases and not just in those where doubt about innocence had been removed.
Farcical
Ultimately the process collapsed in farcical circumstances and justice was betrayed – not by that investigation, but its aftermath. The truth of how an egregious travesty of justice was allowed to occur has not only never been established, it has not been looked for and if the criminal justice system has its way, it never will be. The truth and its power to affect meaningful change in the criminal justice system will be consigned to history.
That will mean that a case – perhaps the only one – that had the potential to improve the performance of the criminal justice system by identifying and hopefully eradicating flaws that contributed to the miscarrying of justice will have its unique potential wasted. That in turn condemns others to share the fate of the Cardiff Five. After their experiences that will be unconscionable.
Nevertheless, it still has that potential and is uniquely placed to achieve meaningful changes that can prevent, or at least reduce the risk of repetition. Rarely has a miscarriage of justice been as glaring as this and rarely has the resolution of that miscarriage of justice been as impressive as it was here.1
Unacceptable
This case had one of the worst investigations of all time followed by one of the best investigations ever, but plenty happened in between. The vindication of the Cardiff Five was an essential part of the process. Without it there would have been no acknowledgement of responsibility for a case that destroyed lives and not just those of the Cardiff Five and Lynette’s family, but their wider families and even friends and the witnesses that were forced to lie and their families too.
Those witnesses were subjected to practices that a respected judge Sir David Maddison described as: “unacceptable in a civilised society”, but they were sent to jail for telling lies they were forced to tell. Perjury, as Maddison said, ‘strikes at the heart of the criminal justice system’. So too did the methods used to secure that evidence and more besides.
But the police should not be castigated in isolation. They would not have done as they did if they had not seen that these methods were effective in securing convictions and the kudos and promotions that follow. The methods used in this case are not unusual – far from it – and the prosecuting authorities have known about it for years, saying and doing nothing as it suited their interests then.
Values
In Wales these methods can be traced back to the Merthyr Rising of 1831, a miscarriage of justice that had the direst consequences possible. Those methods cost a young and innocent man his life. As the former Governor of Maryland Parris Glendening said: “The search for justice has no statute of limitations. When confronted with the possible miscarriage of justice, even from the distant past, our values compel us to take a second look”. It should not matter when the injustice occurred.
Ten, 20, a 100 years back or more makes no difference – only the evidence should matter, especially in this case. It is the father of vindication cases in Wales, occurring long before South Wales Police came into existence, but the methods used to secure the conviction of Dic Penderyn (Richard Lewis) for stabbing a soldier in the leg, absurdly described as attempted murder, in order to hang him, bear striking resemblance to those employed in the modern Welsh miscarriages of justice.
Like the current cases the perpetrators of that injustice not only were not brought to justice for their crimes. In fact, they were rewarded for their actions. What a shameful message to send to police and others too – one that was not wasted. If the consequences for securing shameful convictions are promotion, kudos and other incentives, how can they be expected to stop using methods that were spectacularly effective?
Culpability
But this tarred the honest police who recognised that miscarriages of justice helped nobody with the same brush as those that perpetrated the miscarriages of justice. That too is a grave injustice. Unless no crime occurred – and that has happened – the inevitable consequence of a miscarriage of justice is that they have achieved the one and only certain way to protect the real perpetrators who remain at liberty perhaps to commit further offences.
For several decades spanning almost two centuries there were no consequences for using these methods and they were used several times to terrible and tragic effect. But blaming the police alone for the modern miscarriages of justice is short-sighted at best. Blaming defence lawyers alone is equally deficient, although both deserve a liberal sprinkling of culpability.
1 Rather than rehearse the facts of that case here, which require far more space than I have, the reader is referred to my books Fitted In: The Cardiff 3 and the Lynette White Inquiry, published by the Fitted- In Project in 1998 and The Cardiff Five: Innocent Beyond Any Doubt (Waterside Press).
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