Thoroughly Discredited (Part One)

by Satish Sekar © Satish Sekar November 19th 2006

Disgraced

Disgraced expert witness Dr Michael Heath resigned as a Home Office pathologist two years ago. This followed a finding against him at the first Home Office Advisory Board tribunal into the competence of an experienced forensic pathologist, which led to a review of his involvement in several cases. But the then Attorney General chose not to conduct a thorough investigation of his previous cases and left it to the Criminal Cases Review Commission (CCRC).

This was unsatisfactory for a number of reasons: the review was conducted by a journalist who had become a Commissioner of the CCRC, David Jessel, rather than an experienced forensic pathologist or even a panel of such qualified experts and it did not look into cases that may have been wrongly classified by Heath as not being homicides.

This was the only examination of Heath’s work despite the finding against him, which includes by media. We find this disturbing because the full extent and consequences of errors made by Heath have not been subjected to adequate scrutiny – the tribunal only dealt with two cases: Kenneth Fraser and Steven Puaca – and Jessel’s review did not look into other proven examples of the poor quality of Heath’s work, claiming that it started from the belief that Heath was thoroughly discredited.

Unacceptable Standards

Although there is no doubt that Heath’s work was of an unacceptably low standard, such reviews do not and cannot redress the balance, because they ignore the possibility of similar fact errors that resemble other proven cases rather than Fraser or Puaca. It also completely ignored forensic pathology-related issues that could have helped to prove the innocence of people seeking to appeal. Such factors were not considered during the review or subsequently, and the failure to consider them could cause further delays in proving innocence.

“The Commission is considering the implications of the recent finding by the Home Office Advisory Board against Dr Michael Heath,” said Boris Worral, then Head of Communications at the CCRC. “This involves looking at the small number of current cases under review by the Commission as well as revisiting a number of previous applications in which Dr Heath features. A Commissioner, David Jessel, is co-ordinating the Commission’s response to this issue.”

In October 2006 the CCRC confirmed that eight cases – three under review at the time, and five previous cases – would be looked at again ‘in the light of the Home Office decision on Heath.’ However, the failure to stop Heath earlier is disturbing, as evidence of his shoddy work had been available and ignored for years.

Proven

Dr Heath took years to achieve membership of the Royal College of Pathologists because he repeatedly failed his exams. His work has been criticised by pathologists, lawyers or judges in at least eight cases other than those of Fraser and Puaca – the two that featured in the tribunal. Inquest verdicts were overturned: convictions were quashed and acquittals secured because courts could not have believed Heath’s evidence.

Some of these cases occurred over a decade ago, including that of Craig Kerwin. In 1997 Kerwin was acquitted of the March 1996 ‘murder’ of 73-year-old Jocelyn Strutt in Southborough, Kent – a ‘crime’ that two forensic pathologists and the trial judge insist did not occur. Forensic pathologists Nat Cary and Vesna Djurović strongly disputed Heath’s view that a blow had caused a myocardial infarct to rupture. Djurović’s opinion stated that “there was no pathological evidence whatsoever, to suggest that Mrs Strutt suffered a ‘heavy’ blunt impact to the chest.” Dr Cary agreed with Djurović’s findings.

Obfuscation

“The assumption that Dr Heath was assessed only on his actions in the Fraser and Puaca cases is untrue,” said Fiona Hickman the CCRC’s Corporate Affairs and Complaints Manager. “The CCRC is in a position to assess very many of Dr Heath’s cases, and it has done so on the very wide basis that his professional judgment has been called into question. It would be wrong, however to assume that every case in which Dr Heath had played any part – either as defence or prosecution expert – was for that reason unsafe.” But nobody had suggested that.

The CCRC was asked to clarify specifically whether the facts of these eight proven cases, which we named specifically, had been considered when deciding which of the fifty-four cases at the CCRC that Heath was involved in should be looked at again.

“We cannot make it any plainer that we reviewed all the Heath cases on the grounds that his expertise could not be relied on,” said Ms Hickman. “It would matter not if he had been found derelict in ten, twenty or a thousand cases. His expertise would still be equally unreliable. We are still at a loss to understand what point you are trying to make.”

We are at a loss to understand how they could miss the obvious point that we made so thoroughly and persistently. It should not have been difficult to understand and it should not have been difficult to confirm or deny that the review had considered those cases, but it steadfastly refused to do that and still hasn’t. If the CCRC had not looked into the specific facts of the eight proven cases that we mentioned, how could it possibly know whether the facts of applications that it was considering bore similarity to one of those eight cases rather than Fraser or Puaca and consequently, how could it be sure that a jury, properly directed, would have reached the same verdict if they had known that Heath had said the same thing previously and not been believed?

The CCRC should be aware that similar fact is a validated legal principle that can affect the credibility of a witness, but that discrediting a witness in another case means nothing if it cannot be shown that it affects a similar issue in the case under consideration. In other words the starting point of believing that Heath was thoroughly discredited means nothing if the complaint relates to an issue that he has not been discredited over in a proven case.

It cannot be plainer and it is not the first time that the CCRC has chosen to ignore the point that was being made in order to answer one that had not been. David Jessel’s review of the fifty-four cases involving Heath that had applied to the CCRC did not consider pathology-related issues. We are concerned by this and will demonstrate the flaws in this approach with reference to the case of Neil Sayers – a young man who has spent all of his twenties in prison for a crime that adequately conducted forensic pathology may have helped to prove he did not commit.