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Accountability
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Next Time The Fire – The Expertise of Michael Heath |
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"This chapter is the unabridged version of the author's original manuscript and has been revised since publication by Mr Sekar, the author of it. It is published on this website by kind permission of the publishers Palgrave. The definitive edited version of this chapter appears as The Failure of the Review of the Possible Wrongful Convictions Caused by Michael Heath in The Criminal Cases Review Commission - Hope for the Innocent? edited by Michael Naughton which can be purchased from www.palgrave.com We recommend the book highly to our readers and support the work of the Innocence Network UK. http://www.innocencenetwork.org.uk/ is their website address. "
Next Time The Fire – The Expertise of Michael Heath
by Satish Sekar © Satish Sekar March 2007
Introduction:
Forensic pathology is undoubtedly a very important science, but one that is surrounded by misunderstanding of its limitations and significance. It cannot, for example, say precisely when a murder took place. There are far too many variables to enable anything more than a range of times within which death occurred. There are however, several indicators that should be established and not just the obvious ones such as body weight: body temperature, ambient temperature and the progress of rigour mortis. Analysis of stomach contents and the rate of dissipation of alcohol content in the body can all assist in establishing a likely range for when death occurred. However, despite ongoing research no science can give a precise time of death – yet. Normally the time of death is established not by pathology but by investigative circumstances ranging from collection of newspapers, reading of mail, usage of electricity in a house to the metabolism of alcohol. Doing an alcohol back calculation is really the only factor related to the body which is accurate and can give a time of death accurate within an hour – provided the victim has consumed alcohol of course.
In homicide cases the forensic pathologist will be the first to perform scientific examinations on the body. They will also take samples from it – some of which will be used by other forensic scientists. Consequently, the integrity and competence of forensic pathologists can also affect the ability of other experts to obtain and interpret scientific evidence. When a body is too decomposed for other methods forensic entomology – the study of the life cycles of insects recovered from crime scenes – is a science that can offer useful evidence, enabling investigators to establish the post-mortem-interval. It cannot say precisely when a murder occurred either, but it can often give investigators a range of a few days to work with.
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| Mark Grommek, Learnne Vilday and Angela Psaila were sentenced to eighteen months imprisonment for perjury on December 19th. They are the first witnesses to be convicted of perjury in a miscarriage of justice case, where even the prosecution accepted that their allegations of police malpractice including violence and threats of wrongful imprisonment were true. The case of the Cardiff Five (Yusef Abdullahi, John and Ronnie Actie, Stephen Miller and Tony Paris) was the first miscarriage of justice in Britain to be resolved by the conviction of the real murderer, Jeffrey Gafoor. The four alleged eyewitnesses – Paul Atkins was deemed unfit to stand trial – were the first to be charged with any offence in that case since Gafoor's conviction on July 4th 2003.
Grommek Vilday and Psaila pleaded guilty to perjury in October. There is no doubt that those witnesses perjured themselves, as they have admitted it and the conviction of Gafoor proved it, but such cases are rare and this is unique in terms of it being accepted that they were mistreated by police. Grommek was subjected to threats of violence by a then Detective Inspector Richard Powell, before he gave accounts that falsely implicated Abdullahi and Ronnie Actie, but will they be only witnesses to face trial over a miscarriage of justice case in such circumstances? Vilday was also put under intolerable pressure as was Psaila who believed that her blood had been found in the room was murdered until told differently in 2004. She reacted with shock at the news.
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There is no shortage of miscarriage of justice cases, but none of the major cases have resulted in such an investigation let alone convictions. The closest is the case of former Greater Manchester police officer Ged Corley, who was accused of a series of armed robberies. After it became clear that he was on duty at the time some offences occurred, several of Manchester's criminal fraternity were allowed to change their accounts and accuse him of master-minding the robberies instead. After his convictions were quashed in March 1990 an investigation resulted in perjury convictions. Another is Kevin Sarbutts whose false evidence resulted in the wrongful conviction of Alban Turner, who was freed in March 1990. Despite perjury convictions, the accusations of police malpractice were not accepted. In the Corley case the only convictions that were obtained of police officers were because they pleaded guilty to lesser offences, but not perjury or conspiracy to pervert the course of justice.
There is another case that involves lying witnesses and proven malpractice by police, but nobody is being investigated over it. Gary Mills and Tony Poole were freed after 14 years wrongful imprisonment in June 2003.Last April the Independent Police Complaints Commission announced that after an 'investigation' lasting over four years, no police officers would be charged or disciplined over the case of Mills and Poole, despite a libel trial, the then Lord Chief Justice, appeal judges and Law Lords reaching different conclusions. Even the 1996 appeal judges strongly criticised the police's conduct towards a crucial witness Paul White, who claimed to have seen a fist make a downward movement and heard a man shout “No Tony, no!” above the sound of a blaring sound system. Nobody else inside the flat heard that and if White had seen what he claims then he had to be at least ten feet tall, as the flat is on incline to street level.
Detective Constables Brian Paine and Mark Cheminais also allowed White to lie in his witness statement by saying he had gone there on his own when he had previously said that he had gone there with the late Andrew Neal. White was facing arson charges at the time, which were not prosecuted subsequently. He was described at trial as an important witness, but Lord Justice Otton as he then was dismissed his evidence as incapable of belief. Despite overwhelming evidence that White lied, he has never been investigated for perjury and perverting the course of justice. Why not?
Less than a month after the convictions of Mills and Poole were quashed, Jeffrey Gafoor pleaded guilty and the process that would result in perjurers being convicted over a miscarriage of justice began. Do Mills and Poole have to wait for similar resolution of their case before White's lies are even investigated? There is strong evidence of police malpractice in this case that has yet to be adequately investigated too. by Satish Sekar © Satish Sekar (December 24th 2008) |
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Same Old StoryThe extraordinary case of Gary Mills and Tony Poole is in the news again. After fourteen years of wrongful imprisonment, they were freed in June 2003 – the last seven because senior judges did not know or ignored the law. The main reason for the quashing of their convictions was the cumulative effect of the lack of integrity of the inquiry. More than four years ago they lodged a complaint with the Crown Prosecution Service (CPS) alleging criminal conduct by police. They claimed that the number two in the inquiry, former Detective Inspector Trevor Gladding, had perverted the course of justice and perjured himself. Allegations of serious malpractice were made against other officers as well. Two different sets of appeal judges: a high court jury and a former Lord Chief Justice were far from impressed with Gladding’s conduct. Eventually, the Criminal Cases Review Commission also declared itself dissatisfied with the the effect that several instances of police malpractice could have had on the safety of the convictions and referred it back to the Court of Criminal Appeal, which heard it in 2003.
The CPS referred their complaint for investigation, which was picked up by the Independent Police Complaints Commission (IPCC) in April 2004 and would become a major test of the independence of the new body. Nearly four years later it issued a provisional report dismissing the complaint. “The investigation report belongs to Gloucestershire Constabulary and it is for them to decide what can be released into the public domain,” said IPCC spokesperson David Nicholson. I raised eleven questions with them. He responded with: “It is for Gloucestershire to decide whether and how they answer.” To date, the IPCC, CPS and Gloucestershire Police have not answered the queries.
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Their complaint was a legacy case, meaning it was investigated under the old rules, so which meant that independent investigators were not used and there was no requirement of disclosure of the report. “The matter has now been concluded and the complaints were unsubstantiated,” said Nicholson. This finding contradicts all previous inquiries including the much criticised investigation for the Police Complaints Authority (PCA) conducted by George Hedges in the early 1990s. The IPCC was established to counter the culture of secrecy surrounding complaints against police. The Commissioner in charge of this complaint was Rebecca Marsh. She wrote: “On the evidence available, the IPCC is not satisfied that there is a realistic prospect that the conduct of the officers complained of fell below the required standard. We are therefore minded to conclude that misconduct proceedings cannot be justified.” And this in the case that the then Lord Chief Justice, Lord Woolf said: “Almost every aspect of this prosecution is tarnished.”
Nevertheless, we now know that perjury and perverting the course of justice do not constitute an abuse of due process of law1 and that such conduct does not fall below the required standard of conduct from police officers,2 but that it is not libellous to say that Trevor Gladding perverted the course of justice and perjured himself.3
“We agree that this has taken a very long time to resolve,” said Mr Nicholson. “The setting up of the IPCC was because of frustrations with the ‘previous system’ and the length of time that cases took to resolve.” The average IPCC investigation in the relevant region takes 166 days. This investigation took almost four years to reach incredible conclusions at great expense in a report that will almost certainly never see the light of day. The name has changed, but judging by this decision not much else. by Satish Sekar © Satish Sekar (April 10th 2008) |
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A Leap of Faith (Part One) |
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| For more than twenty-one years Michael O’Brien has waited for an apology. South Wales Police intend to keep him waiting, despite paying half a million pounds to O’Brien and one of his co-defendant’s Ellis Sherwood to keep allegations of bad faith from being aired in court more than two years ago. Despite writing a book, several media appearances, reopened investigations and legal action, he is still waiting. The decision to abolish the discretionary scheme for compensation and cap the amount awarded to the wrongly convicted may result in more civil actions being brought against police, eradicating the proposed savings. This case alone is likely to have cost the public around £1m. It was re-opened in September 2003 after a cold case review, the murderer(s) of Phillip Saunders have not been brought to justice, nor are we any closer to discovering what went wrong in the original investigation.
O’Brien has received no apology and the force has not admitted liability. It has been more than five years since the case was re-opened, yet there has been no breakthrough. It appears that attention was actually focused on the original defendants despite compelling evidence of innocence. During the re-opened investigation people close to O’Brien and Sherwood were arrested, but later released without charge. Over five years after the case was re-opened the perpetrator(s) remain at large.
On October 12th 1987 Phillip Saunders was viciously attacked and robbed outside his home in Anstee Road, Cardiff. He died five days later. O’Brien, Sherwood and Darren Hall were subsequently convicted of his murder. There was no credible evidence against them. Their convictions were quashed in 2000 after a year on bail pending their appeal.
After the historic settlement of the legal action by O’Brien and Sherwood, Deputy Chief Constable David Francis said, “Over a period of six years we [South Wales Police] have consistently maintained our position that the officers who worked on the inquiry into the murder of Phillip Saunders did so in good faith and the Force was not liable for malicious prosecution or misfeasance.”
The Newsagent’s Three as they came to be known were referred back to the appeal court in 1998 by the Criminal Cases Review Commission. Detective Superintendent Alan Partridge, then of Thames Valley Police, reviewed police conduct in this case. He found 115 violations of the Police and Criminal Evidence Act. This included handcuffing all of the defendants to radiators. “Presumably, Mr Francis, police lawyers and the Police Authority believe that handcuffing us to radiators is a sign of good faith,” said O’Brien. “They used criminals against us, threatened our witnesses with prosecution and dropped serious charges against known criminals to get evidence against us. And then they used prison informers and a police officer with a history of overhearing confessions that hadn’t been made.”
Francis claims that the action was settled in order to avoid unnecessary expense to the public. To date he has failed to explain why it was necessary to run up legal fees for six years including fighting all the way to the House of Lords O’Brien’s attempts to adduce evidence that the officer who claimed to have overheard incriminating admissions in the cell area of Canton Police station between O’Brien and Sherwood had a history of overhearing so-called confessions in the that area. Five years before the arrest of the Newsagent’s Three, Robert Griffiths – one of the defendants in the Cardiff Explosives Conspiracy trial – was acquitted despite a then Detective Sergeant Stuart Lewis swearing on oath that Griffiths had confessed in the cells area. Lewis was involved in other controversial cases and was unlikely to give evidence on medical grounds. If this investigation had been conducted in good faith and without misfeasance, why did they agree to compensate O’Brien and Sherwood and if the only reason was to save an unnecessary financial burden on the public, why did it take six years to reach this conclusion, racking up legal expenses on both sides in the process? by Satish Sekar © Satish Sekar January 19th 2009 |
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A Leap of Faith (Part Two) |
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| Michael O’Brien’s quest for an apology for over eleven years of wrongful imprisonment has so far been unsuccessful, but he secured the highest ever compensation to a victim of a miscarriage of justice in a civil action against the police. South Wales Police paid O’Brien and his then brother-in-law Ellis Sherwood a total of half a million pounds in 2006. “In accordance with counsel’s advice payment into court have been made in full and final settlement of the claims by Mr. O’Brien and Mr. Sherwood without an apology,” said Deputy Chief Constable Dave Francis. “It is emphasised that this has been done without any admission of liability.”
Francis went on to claim that O’Brien and Sherwood had chosen to accept the payments rather than take their allegations to court, but O’Brien says he had no choice but to accept the payment, because he faced bankruptcy if he pursued his claim and the court awarded him less than the police paid into court. “I stand by all of my allegations against the police,” said O’Brien. “They acted in bad faith. Let them sue me if they dispute this.”
His solicitor who helped him to bring the historic claim was unimpressed with the way the settlement had been portrayed as well. “South Wales police are trying to depict their payment of £500,000 plus legal costs of probably the same amount again as a commercial settlement,” said Sarah Ricca. “I wonder if anyone is fooled by such a claim.”
The Newsagent’s Three have yet to receive an apology from either the police or criminal justice system. Nor is there an investigation into unlawful conduct by police officers in this case despite the conclusions of former Detective Superintendent Alan Partridge and the endorsement of the appeal court.1
“Their refusal to apologise after all that they put me and my family through clearly shows that they refuse to accept the findings of the CCRC and appeal court,” said O’Brien. “I do not trust them to investigate this crime impartially any more. I tried to give them the benefit of the doubt, but they refuse to investigate my claims of bad faith in the original investigation, let alone allow the Crown Prosecution Service to decide whether there is sufficient evidence to prosecute any of them. Only a fully independent public inquiry can get to the truth of what happened in my case and other miscarriages of justice in South Wales.”
Since his release O’Brien has been the most vociferous critic of South Wales police over miscarriages of justice, including his own. A tireless campaigner for a public inquiry into several Welsh cases including the Cardiff Five and that of Annette Hewins, O’Brien has been a consistent thorn in their side. Ironically an apology and an investigation into proven police malpractice in his case could have avoided the expense to the public that Francis appears so keen to avoid years ago.
“The fact that they paid such a large amount into court has nothing to do with concerns for the public purse and everything to do with the strength of the evidence against South Wales officers,” said Ricca. “There now needs to be a public inquiry into this and other cases involving South Wales police officers which raise such serious allegations of police misconduct.” Nobody wants the murder of Phillip Saunders solved more than Michael O’Brien, so much so that he offered a reward of £50,000 for information leading to the convictions of the real murderer. All he ever wanted was justice.
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A Shoddy Prosecution (Part One) |
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In April 1996 a justifiably incandescent with rage David Jessel, the then presenter of Channel Four's sadly defunct Trial And Error, addressed the media brandishing a copy of Sir Phillip Otton's judgment. "This is yet another shoddy judgment in a shoddy case," fumed Jessel. It would take another seven years for the truth of just how shoddy the then Lord Justice Otton's judgment was to see the light of day. Gary Mills and Tony Poole had been convicted of the murder of Hensley Wiltshire in January 1990, after a year on remand, but it would take more than six years for the appeal to be heard and that judgment would be more than controversial – it was cravenly dishonest. Otton quoted a passage of an interview with Mills, arguing that it dispelled the prejudice of the refusal to disclose the statements of an eyewitness, Ian (Neville) Juke as the passage referred to claims allegedly made by Juke. Otton said, "Moreover, it was an accurate summary of the substance of Juke's second statement." But it wasn't. A fact that would be acknowledged by both police officers who conducted that interview in a libel trial two years later and many others too. Either Otton (sitting with Mr Justices Keene and Ian Kennedy as they then were) had not read Juke's statements and that passage of interview, or he had delivered a judgment that he must have known was untrue. |
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Accountability
