In May 2002 the CCRC referred the case of Gary Mills and Tony Poole back to the Court of Criminal Appeal, using the very arguments that it had ignored for almost three years – time it must accept responsibility for. The appeal judges considered whether the cumulative effect of the malpractice in this case rendered the convictions unsafe in April 2003. In effect they had to pass judgment on what a former Commissioner of the Metropolitan Police once infamously called, 'noble cause corruption.' Lord Justice Auld, sitting with Mr Justices Keith and Simon had the opportunity to say loud and clear that there is nothing noble about corruption, but sadly they lacked the courage to do so. They also failed to criticise serious failings of their colleagues in the previous appeal.

Lord Justice Otton quoted the definition of an abuse of process as 'something so unfair and wrong that the court should not allow the prosecutor to proceed with what is in all other respects a regular proceeding.' He described Gladding's conduct as 'reprehensible' and 'most unwise.' He did not describe it as perjury and perverting the course of justice. Had he done so, it would mean that perjury and perverting the course of justice were not acts so unfair and wrong that a prosecutor should intervene. The 1996 judgment only made sense if Gladding's conduct did not amount to perjury and perversion of the course of justice, but the 1998 libel trial showed that it did. The convictions should have been quashed on that alone, but it would require almost another five years for that to occur.

In his judgment Lord Justice Auld tried to reconcile these seemingly irreconcilable decisions. "The fact that Otton LJ, in giving the judgment of the Court, did not understandably feel able to give it the labels 'perversion of the course of justice' and 'perjury' in a proceeding to which he was not a party,1 does not affect the underlying conduct of which the first Court of Appeal was fully aware or its decision that it had not been such as to render the criminal trial an abuse of process or the convictions unsafe."

This appears to be suggesting that perjury and perverting the course of justice are not acts so unfair and wrong that the court should intervene and that they do not constitute an abuse of due process of law. If perjury and perverting the course of justice are not abuses of due process of law it is difficult to see what could ever constitute an abuse of due process, but unfortunately Auld was far from finished attempting to defend the indefensible. During this appeal it became clear that the passage relied on by Otton to dismiss the 1996 appeal was itself inadmissible as hearsay evidence. Auld said, "Of course, the Court of Appeal did not know, and nor did the House of Lords, which was focusing on the single issue of non-disclosure before it, that DS Jeynes had misrepresented to Mills in interview some of what Juke had alleged in his second witness statement."

Really? A simple solution to this problem would be for Court of Appeal judges and Law Lords to read passages of interview and witness statements before attempting to rely on them. Auld described that passage of interview as 'containing a graphically phrased, inaccurate, damning and inadmissible account.' However, he failed to refer to Otton's previous description of that same passage: 'Moreover, it was an accurate summary of the substance of Juke's second statement.'

The convictions were quashed on June 17th 2003. It has yet to receive the media scrutiny it deserves, which we hope to put right even at this late stage. It involved shocking police malpractice: serious flaws in the trial process, a judgment in the first appeal that was either utterly dishonest or the judges did not read the material they relied on to dismiss the appeals and much more besides. The House of Lords repeated the error of the appeal court, but despite changing the law because of it, wrongly ruled that Mills and Poole had suffered no miscarriage of justice. The CCRC failed to realise the merits of submissions put to it, requiring a judicial review to persuade it to look at this case again and refer it back for appeal and the judges of the second appeal seemed more concerned with protecting their colleagues from criticism than the interests of justice.

As the former Lord Chief Justice, Lord Woolf, said, "Almost every aspect of the prosecution is tarnished." The failure to hold the criminal justice system accountable for the persistent failings that occurred in this case is a sad indictment both of that system and the media that allow such abuses to pass without comment. Despite the decision of the libel trial jury Trevor Gladding has yet to face any charges. The Independent Police Complaints Commission (IPCC) agreed to supervise an investigation by the Metropolitan Police into Gladding's conduct in 2004. It is unclear if it investigated other instances of dubious conduct such as that of Paine and Cheminais. After four years the IPCC decided that no action would be taken against Gladding or any other officer without actually considering the merits of the evidence against him.2

Despite the swingeing criticism of Paul White, he has yet to face any investigation into his conduct,which has taken on greater significance in the light of recent events: the prosecution of Learnne Vilday, Angela Psaila and Mark Grommek for perjury in the case of the Cardiff Five. As with other victims of miscarriages of justice, both Mills and Poole face problems re-adjusting to normal life. They will be compensated for their ordeal, but no amount can ever compensate them for unjustly taking away more than fourteen years of their lives and what about the victim's family? Hensley Wiltshire should not have died, a fact acknowledged by the judges at the first appeal. If he had been treated properly on either visit to the Gloucester Royal Infirmary he would not have died and there is evidence never heard by any court that suggests that contrary to Otton's assertion that Wiltshire refused admission to hospital, he wanted to be treated, but never received it. This was in all respects an extremely shoddy case, but almost twenty years after Wiltshire needlessly lost his life and every tier of the criminal justice system performed abysmally, nobody has taken responsibility for any of the failings in this case or apologised to any of the victims of it. This case was and remains an affront to justice.

1 This ignores the fact that no appeal judge would have been party to such a proceeding.
2 See Same Old Story, which will be published by us shortly for further details.

© Satish Sekar (November 14th 2008)