"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.

 
Forensic entomologists are not normally consulted immediately. Consequently, they may have to depend on others to establish the environmental data they require and collect entomological samples and to treat them in the manner recommended by them. Competent forensic pathologists have to be fully conversant with such requirements and, in the absence of a forensic entomologist, be prepared to ensure that the integrity and quality of the entomological evidence is guaranteed. This ensures that the best opportunity to establish the optimum evidence that entomological samples can give is preserved. Forensic entomology is capable of establishing a likely range of when a significant post-mortem event, such as burning or partially burning a body, or even death took place. However, that depends entirely on the efficiency, competence and even integrity of the forensic pathologist who took those samples.

Like any science, forensic pathology depends upon the skill of the practitioner. It would be churlish not to acknowledge that the vast majority of forensic pathologists perform their duties with due diligence and expertise. Some inevitably fall below their usual high standards on rare occasions. There is nothing sinister in that. There are others whose work is simply not up to standard. Among those who fit into that category is Paula Lannas.



Abuse of Process:

The trial of Brian Buchanan for the 1998 murder of his girlfriend’s baby son collapsed when it emerged that allegedly incriminating marks on the child’s neck had in all probability been caused by the ‘cack-handed autopsy’ performed by Dr Lannas.[i] Buchanan was subsequently acquitted in January 2000. He is not alone in experiencing the poor quality of Lannas’ work. Fevsi Demir was murdered some time between September 17th 1996 and April 21st 1997. Vedat and Serena Kayretli were found guilty of his manslaughter and Vedat pleaded guilty to other offences in December 1998. The convictions of Vedat and Serena Kayretli were quashed on appeal in May 2000 because Lannas’ pathology fell far below acceptable standards. The following month Lannas was suspended over these cases. It marked the beginning of the end of her career.

Following complaints from other forensic pathologists Lannas was subsequently referred to the Home Office Forensic Pathology Advisory Board. She was the first forensic pathologist to face a tribunal of her peers to determine whether she was fit to remain on the Home Secretary’s Register for Forensic Pathologists. She refused to go quietly – eventually succeeding in preventing the tribunal sitting by claiming a conflict of interest. That tribunal panel inevitably included competitors whom she claimed were biased against her. The tribunal was abandoned.

Nevertheless, a new method of evaluating the work of forensic pathologists was introduced. They were obliged to submit examples of casework to be evaluated. Lannas refused to comply. She had been referred to the General Medical Council (GMC) to determine whether she was fit to practice as a doctor. This was far from an adequate forum to determine whether she was competent to practice as a forensic pathologist. She won her hearing at the GMC, but was removed from the Home Secretary’s Register for Forensic Pathologists anyway because of her refusal to submit cases for evaluation in January 2003. She tried to judicially review the decision to remove her from the Home Secretary’s Register claiming bias against her. Her attempt failed in October 2003.

Paula Lannas became the first forensic pathologist to be removed from the Register. She would not be the last. Lannas worked at the Medico-Legal Centre in Greenwich along with David Rouse and Michael Heath. I first expressed an interest in forensic pathology issues as a result of the case of Gary Mills and Tony Poole.[ii] Their convictions were quashed in June 2003, but the medical and pathology issues in that case are still awaiting resolution. The forensic pathology issues that arose in it are symptomatic of a wider problem in the science. At the turn of the millennium top solicitors told me which ones to watch carefully. Two were on all of their lists. Paula Lannas was one. The other was her colleague and business partner, Michael Heath.



Before The Fall:

I followed up these recommendations and investigated some of Heath’s cases. It made very disturbing reading. Heath was an experienced forensic pathologist. Many police forces had relied on him for years and so had top barristers and QCs, yet for those who bothered to look there were signs that everything was not as it seemed with Dr Heath.

As far back as the early 1990s a controversial case occurred. Kenneth Carrera stood in the dock charged with murder. He maintained that he had acted in self defence. Carrera held strong views on mugging. He was accused of stabbing to death a man who tried to mug him. Carrera was represented by an up and coming barrister who is now one of the top QCs in the country – Michael Mansfield. Carrera told the jury that he fought for his life with the younger man and in the course of the struggle the mugger fell on his own knife, which went through his chest-bone.

Dr Heath’s version was radically different. He told the jury that Carrera had deliberately stabbed his attacker and used considerable force, but what does this term mean? Considerable force compared to what? Nevertheless, the accounts of the injuries sustained by the mugger given by Heath and Carrera were mutually exclusive. The jury acquitted Carrera. Sadly the precise reasons for the acquittal cannot be established, but in so far as the case depended on the accounts of Heath and Carrera, it is clear that the jury could not have believed Heath and acquitted Carrera unless this was a perverse verdict.

Nevertheless, years later Heath would claim that ‘considerable force’ was used in another case. He would also say that the knife Kenneth Noye used to stab Stephen Cameron had gone in to the hilt.[iii] Peter Jerreat a reputable pathologist disagreed. Heath’s opinion should have been based on physical medical evidence that the skin and underlying tissue showed the requisite damage.[iv] It should not be difficult therefore to establish whether Jerreat’s opinion or Heath’s should be relied on in this case. It is still unclear if this has been investigated again and resolved.

When Heath gave evidence in Carrera’s case he had yet to be appointed a Home Office pathologist. He was making a steady living, but already there were signs that something was not right. In 1997 Heath gave evidence at the inquest into the controversial death of Gambian refugee[v] Ibrahima Sey.[vi] He was cross-examined by Patrick O’Connor QC. It emerged that despite practising for several years Heath had not been admitted to Membership of the Royal College of Pathologists for some years because he repeatedly failed his exams. This ought to have raised questions regarding his competence years ago. It should have been used in cross-examination to discredit Heath regularly, especially after O’Connor opened the door more than a decade ago. Somewhat surprisingly this did not occur, but there were other cases that would raise serious questions about the competence and efficiency of Michael Heath both before and since that momentous inquest.

In 1992 Phillip Johnstone sadly lost his life. Dr Heath originally declared the cause of death to be neuroleptic malignant syndrome (NMS). However, during the inquest Heath unexpectedly changed the cause of death to acute exhaustive mania (AEM). Despite all literature establishing that the terms were not interchangeable, Heath claimed that they were and that he changed the cause of death to emphasise that use of neuroleptic drugs did not contribute to Johnstone’s death. Johnstone’s family had no knowledge that Heath would change his opinion and had cross-examined witnesses on the basis that his death was associated with neuroleptic drugs – having had no reason to doubt it until Heath’s change of opinion in the witness box. Believing Heath’s incorrect claims that NMS and AEM were interchangeable terms the coroner refused Johnstone’s family an adjournment to prepare expert evidence to challenge his change of opinion. It would require a judicial review heard by Lord Justice McCowan and a then Mr Justice Buxton to quash the original verdict and order a fresh inquest due to Heath’s conduct.

When cross-examined by O’Connor at the Sey inquest about this case Heath outrageously tried to claim that the major issue was that the coroner had wrongly allowed him to hear the evidence which caused him to change his opinion. Perusal of the judgment in the judicial review proceedings swiftly disabuses the reader of that interpretation. It contains strong criticism of Heath’s conduct. Sadly there would be many more before Heath would finally fall from grace.

In 1993 Sheila Bowler[vii] was wrongfully convicted of the 1992 ‘murder’ of her elderly aunt Flo Jackson. Time would eventually prove that no crime had occurred.[viii] Mrs Bowler would lose an appeal and have two documentaries made about her case by Channel Four’s Trial And Error before her case would be referred back to the appeal court by the Criminal Cases Review Commission (CCRC). A retrial would be ordered before she would finally be vindicated by a not guilty verdict. Michael Heath was the pathologist in Bowler’s case. The Crown did not rely on him at her retrial – with good reason.

Heath originally claimed that Mrs Jackson had been pushed down a steep bank into the River Brede where she drowned until a visit to the scene forced a rare change of mind from him as such a scenario required requisite injuries that were not present. He then suggested that Mrs Bowler had helped her aunt down a bank that it was clear would have challenged far more athletic people than Mrs Jackson before pushing her in the river. Dr Heath’s scenario of Mrs Jackson effectively assisting her killer to murder her was dismissed by the judge as ‘rather improbable.’ His response that his eighty-year-old mother could easily have climbed the slope in a couple of steps was treated with derision.

Information such as the weight: height and temperature of the body and indeed the river that could have assisted in establishing a range for the time of death was not recorded. Furthermore, the defence pathologist Dr Vesna Djurovic said that there was no pathological evidence to suggest the use of force, let alone attributing motive to some of them as Heath did.[ix] Suffice to say, this was not Heath’s finest hour, but worse would follow.

In March 1996 seventy-three-year-old Jocelyn Strutt died in her home in Southborough, Kent. A myocardial infarct had ruptured. She had fractured ribs as well. Petty burglar Craig Kerwin was arrested and charged over her death. The only evidence to justify the charge was the uncorroborated opinion of Michael Heath – an opinion that went far beyond the limits of forensic pathology. Heath claimed that Strutt’s death had been caused by a blow struck with a heavy instrument that had fractured her ribs and caused the myocardial infarct to rupture.

Kerwin had been caught burgling Strutt’s home. He claimed that he had not noticed her body in the kitchen, but had noticed a nasty smell. Forensic pathologists Vesna Djurovic and Nat Cary did not share Heath’s opinion. During the inquest into the death of Ibrahima Sey, Heath claimed that Djurovic might have agreed with his opinion in the Strutt case. In fact Djurovic had described Heath’s opinion as “unacceptable.” She wrote: “There is no pathological evidence whatsoever to suggest that Mrs. Strutt suffered a ‘heavy’ blunt impact to the chest.”

Dr Cary agreed with Djurovic, describing Heath’s suggestion as, “quite implausible and is readily countered not only by common sense but also by published data in relation to rupture of myocardial infarction.” Cary also wrote, “I can see no reason whatsoever from any of the evidence presented to suggest that this is anything other than a sudden natural death.” Cary’s report also stated: “There is no evidence of a weapon mark externally visible and furthermore there are no general features present to suggest a violent assault such as bruising or laceration to the facial area or defensive type injuries to the hands or forearms.” Cary concluded by saying: “There is no evidence that any external stimulus either could or in reality did contribute to the development of rupture of the heart in this case.”

In short, there was no pathological evidence at all to support Heath’s claim that Mrs Strutt’s death had in any way been caused by a violent assault. She had died of natural causes, yet Kerwin spent just over a year on remand awaiting trial. Heath’s opinion was the only ‘evidence’ capable of supporting a charge of murder or manslaughter. The judge decided that not only was Heath’s evidence not fit to be left to the jury, but also that there was no evidence to justify the charges.

In 1996 Malcolm Reid died as a result of injuries sustained during a fight. Victor Boreman, Malcolm Byrne and Michael Byrne were convicted of murder. Their convictions were quashed on appeal, but they were convicted again after retrial. Their next appeal failed. The case was referred back to the appeal court by the CCRC on the basis of Heath’s unreliability. Even by Heath’s standards this was an extraordinary case. Heath insisted that death had occurred after a fight, which is what placed the accused in the company of the deceased, but before the fire. The time that the fire was active was important as it could have meant that death occurred later than the prosecution case claimed. However, medical evidence established that there were fire products in the body. Obviously this proved that Reid was alive when the fire occurred and that Reid must have died later than the jury were led to believe. The appeal court quashed the convictions in 2006, but substituted convictions for assault.[x]

While Heath may not be quite as adept as Lannas at cack-handed autopsies, he has provided ample evidence of an inability to interpret poor practice by autopsy technicians. Steven Taylor spent ten months on remand charged with murdering his wife Beatrice.[xi] It was a case that would not come to trial. Heath believed that marks on Beatrice’s neck proved that she had been strangled. He was wrong.

Professor Derrick Pounder of Dundee University was one of two forensic pathologists to strongly disagree with Heath’s conclusions in this case. His report of August 1997 says: “In summary there is a high degree of probability that the haemorrhages observed in the deep neck structures were produced during dissection by autopsy technicians prior to the involvement of the forensic pathologist. There are no other autopsy findings to support an allegation of homicidal strangling. Such an allegation cannot be sustained on the existing pathological evidence.”

At Pounder’s suggestion the Crown instructed another forensic pathologist to review the pathology evidence. Dr John Clark supported Pounder’s view that the marks on Mrs Taylor’s neck were post-mortem artefacts. The charges against Steven Taylor were dropped as a result.

Textbooks show that dissecting the neck at autopsy in a manner that other dissections are routinely conducted will produce haemorrhages that can be mistaken for trauma produced in life. It is well known to competent forensic pathologists that special techniques are required for dissecting the neck. Derrick Pounder was distinctly unimpressed with Heath’s performance in this case. “It is a classical error,” said Pounder. “I can’t imagine any other forensic pathologist in the UK taking the same view as Dr Heath.”

Heath’s involvement in the Ibrahima Sey case is notorious. CS gas had been used to restrain Sey after he had been handcuffed. Heath suggested Sey had suffered sudden death due to mental illness but was forced to accept that there was no basis for his previous diagnosis of hypertensive heart disease. He also ruled out restraint as a factor in Sey’s death, but five other pathologists refused to discount the possibility. In 1997 Dr Heath gave evidence at the inquest into Sey’s death. He was thoroughly discredited during cross-examination by Patrick O’Connor QC. The jury concluded that Sey had been unlawfully killed. O’Connor’s cross-examination of Heath exposed Heath’s limitations for all to see. It is astonishing that he was allowed to continue practising afterwards, but continue he did.

Leon Murphy was beaten to death in his flat in 1999. Darren Cullen was found guilty of Murphy’s murder in May 2000. Cullen’s conviction was quashed in 2003.[xii] The defence case at trial was that there could have been two attacks some time apart. Heath discounted the possibility. In his summing-up His Honour Judge Watling said: “The pathologist, Dr Heath, about whose evidence I shall remind you in due course, was clearly of the view that there was one sustained attack.”

Although Watling pointed out that the defence contested this view at trial, they did so in the absence of expert evidence. The question of how Heath was able to dismiss the possibility of a gap between attacks in spite of the absence of scientific certainty was never resolved. In fact, this would prove to be yet another example of Heath giving an opinion that went beyond his expertise. It is possible that there was only one sustained attack, but there was no credible scientific evidence that could rule out the possibility of a gap between attacks, because medical science is not so precise.

After the conviction forensic pathologist Dr Iain Hill reviewed the pathology evidence and concluded that it was not possible to exclude the possibility that there had been a gap between attacks. As it had been put to the jury that there had been no gap, the appeal judges concluded that if Dr Hill had given evidence Watling’s summing-up would have been different. He had excluded the possibility of a gap based on Heath’s evidence. If the judge had heard Hill’s opinion he would have been obliged to put it to the jury and it might have affected their verdict. It was enough to quash Cullen’s conviction. Yet again Heath’s opinion had been found wanting.

By this stage Heath’s days were numbered. He made a complete mess of his post-mortem examination of Stuart Lubbock, who died in the entertainer Michael Barrymore’s pool. It was a case that would not go away. Lubbock’s father Terry doggedly pursued the truth about Stuart’s death in the entertainer Michael Barrymore’s pool. Before long the flaws in Heath’s pathology in this case had been exposed to the full glare of publicity. Suffice to say there is no question that Heath’s expertise was once again found wanting.[xiii]

The Beginning of the End:

Heath had already built up an alarming portfolio of cases that raised serious causes for concern. Patrick O’Connor established the poor quality of Heath’s work in 1997. It is deeply worrying that an expert of such limited efficiency was allowed to continue practising for almost a decade more. Heath remained extremely busy and continued to be relied on as an expert witness in many cases after the inquest into the death of Ibrahima Sey. It should never have been allowed to happen. He conducted post-mortem examinations for police in London: Essex, Kent and East Anglia after his abilities had been called into question. Lawyers failed to cross-examine him effectively. In some cases he was not cross-examined at all, even though his conduct in these cases made him vulnerable to challenge as a result.

However, some of Heath’s own colleagues in forensic pathology were deeply concerned about the quality of his work. Their complaints resulted in Heath facing a Home Office Advisory Board Tribunal last year over the cases of Kenneth Fraser and Steven Puaca after Heath’s attempts to prevent the tribunal convening failed. In November 2005 the appeal court quashed the 2002 conviction of Steven Puaca for murdering his girlfriend Jacqueline Tindsley. Puaca was found guilty largely due to Heath’s claim that Puaca had smothered Ms Tindsley. Cary disagreed at trial. Five pathologists – including Professor Christopher Milroy gave evidence at Puaca’s appeal, disagreeing with Heath. They concluded that there was no pathological evidence to support Heath’s view that Tindsley had been smothered. Heath even suggested that Tindsley’s face had been pressed into the bed – an opinion the appeal court found ‘surprising.’ Tindsley had a history of alcohol and drug abuse. She had taken prescription drugs, including one of sufficient quantity to cause death. Far from killing her, it appears that no crime occurred and that Puaca had raised the alarm. Puaca’s solicitor, Chris Brown said at the time: “Our concern, having dealt with this case, is that there may be several other Steven Puacas out there.”[xiv]

Kenneth Fraser was acquitted of the murder of his girlfriend Mary Ann Moore in 2002.[xv] He was accused of hitting her on the head with a wooden plank the previous year, causing her death. Three forensic pathologists raised their concerns that Moore’s injuries were consistent with falling down the stairs and wrote to the Home Office to express these concerns. They strongly criticised Heath’s opinion that Moore had been battered to death. It was possible that she had been pushed down the stairs, but thanks to Heath this was not the Crown’s case.

The complaints made against Heath by the pathologists in these cases resulted in the Home Office Advisory Board Tribunal that Heath faced. It took place in June and July 2006. Charles Miskin QC represented the Home Office. Jean Ritchie QC represented Dr Heath. The Board had learned from the failed attempt to bring Lannas before a disciplinary tribunal. This time the panel did not involve professional colleagues. It was chaired by John McGuinness QC. The other members of the panel were Peter Ackerley, Dr Bob Bramley and Professor Thomas Krompecher.

“Dr. Michael Heath is an extremely experienced consultant forensic pathologist who has been accredited by the Secretary of State on his Register for a long time, but it is the belief of the Home Office that Dr. Heath has fallen sort of the high standards required by the Secretary of State of forensic pathologists and it is the purpose of these proceedings to decide whether that view is correct or not.” These words were spoken by Miskin when he opened the case against Heath on June 19th 2006. During the course of the tribunal he cross-examined Heath about his practices and conduct in the cases of Fraser and Puaca. Miskin told the tribunal that: “in neither case was there any substantial evidence of unlawful killing save that of Dr. Heath. It was his, so to speak, forensic pathological and scene reconstruction evidence which, on both occasions, on any reasonable view, must have persuaded the Crown Prosecution Service to charge both Fraser and Puaca.”[xvi]

Heath began working as a forensic pathologist in 1979. He only became a Member of the Royal College of Pathologists in 1990 after repeatedly failing his examinations. In 1998 he became a Fellow of the Royal College and was accredited by the Home Office in 1991, when what became the Register was established. Heath is a very experienced, but controversial pathologist. Fraser and Puaca are not the only cases where his evidence tipped the scales towards prosecution even though the pathological evidence did not warrant it.

On August 22nd 2006 the panel found that several charges against Heath relating to his performance and conduct in both cases had been proved and that they raised the question of whether he was fit to remain on the Home Secretary’s Register. It was clear that he would lose his status as a Home Office pathologist. Just before the punishment was to be announced Heath resigned from the Home Secretary’s Register for Forensic Pathologists. He was thoroughly discredited, but was this sufficient?

The tribunal focussed on Heath’s performance and conduct in the cases of Kenneth Fraser and Steven Puaca. What about the other cases where Heath’s abilities had been called into question? The tribunal had not considered them at all. The Attorney General announced that he was reviewing the tribunal findings to decide if it was necessary to review all of Heath’s cases, but this review was limited to the tribunal cases alone.

Meanwhile, the CCRC decided to review fifty-four cases they had which Heath had been involved in. The review was conducted by one of its Commissioners, David Jessel – erstwhile presenter of Rough Justice and Trial And Error and whose career prior to joining the CCRC was in media. He has no training in forensic pathology or forensic science, which is a compelling reason for limiting his role to recommendations at most with actual cases reviewed by a panel of experienced forensic pathologists. Perhaps Jessel was chosen to conduct the review because he had previous knowledge of Heath’s limitations. In October 2006 the Attorney General announced that he would not review all of Heath’s cases, arguing that the CCRC’s review would suffice, but this approach inevitably was flawed, as it was limited to applications that had been made to the CCRC. As such no review considered the issue of whether live investigations had been conducted properly by Heath.

For example, Heath was the pathologist in the Child Adam – the ‘Torso in the Thames’ – case. Was his work up to the required standard in that case? And there is the possibility that Heath missed something in cases that he did not label as homicides. Perhaps some of them were in reality homicides. The CCRC’s review could not consider this possibility, let alone establish if it had occurred. That is not its fault. The Attorney General, however, could have investigated it. This is a compelling argument for a far wider review of Heath’s cases. The abdication of responsibility for investigating Heath by the Attorney General suggests that his main concern was to limit the damage caused by Heath’s disgrace to the criminal justice system.



The CCRC Review of Heath:

On October 31st 2006 the CCRC announced that David Jessel’s review of the fifty-four cases in which Heath was involved had been completed. Jessel decided that three cases that were currently being considered by the CCRC should be subjected to further review and five cases that had been considered previously would also be investigated further. Jessel’s review had special regard for cases in which medical evidence was critical to the conviction. The starting point of the CCRC’s review was that Heath was thoroughly discredited.

But was the review thorough enough? Forty-six cases were not deemed worthy of further investigation. Does this mean that Heath’s performance and conduct in these cases met the standard required of forensic pathologists by the Home Secretary? Ultimately who is responsible for ensuring that forensic pathologists meet the minimum standard in all of their cases, both past and present? The tribunal did not do so. The Attorney General abdicated his responsibility to ensure that this occurred. And the CCRC could only do so with respect to those cases where applications had been made to it. Consequently, it did not and could not resolve the issue of whether Heath met the required standard in all of his cases – something the public has a right to expect and demand.

While the CCRC cannot and should not be expected to deliver a full investigation of Heath’s cases, it can and must be held accountable for its investigation of the fifty-four cases. So has David Jessel’s review been of the quality that society is entitled to expect? I cannot speak with authority on all of these cases. Nevertheless, the case of Neil Sayers is disturbing. It raises several points of importance regarding the thoroughness of the investigation of Heath’s role in it. Although Sayers’ case is not currently at the CCRC, Jessel’s review considered it. Sayers is now represented by leading solicitor Steven Bird. Jessel wrote to Bird about Heath’s involvement in that case:

“In my review of those cases where Heath was the pathologist I have had special regard to those in which the medical evidence was critical to the conviction. Having revisited the Statement of Reasons in Mr Sayers’ case I have not found this to be the case. Mr Sayers’ defence was that the stab wounds had been inflicted by his co-accused, Mr Wallis, who pleaded guilty. I understand that the provenance, identity and ownership of the knife may have been an issue at trial, but I do not believe that this materially affected the case in terms of Dr Heath’s evidence. I further note that in his submissions to the CCRC he argues that there was no forensic evidence which linked him with the commission of the crime in which case any challenge to the evidence of a forensic pathologist would appear to be misplaced.

For those reasons I am not minded to re-open Mr Sayers’ case. Please let me know if you think I have missed anything significant.”

For reasons that will become abundantly clear below, I believe that the evidence clearly shows that very significant evidence was not considered. Heath’s opinions in that case affected the considerations of other experts and resulted in a serious error that will cost a small fortune to resolve. This was not considered by Jessel’s review of Sayers’ case. Medical evidence was not critical to Sayers’ conviction, but Heath’s work played a very important role behind the scenes.



A Wasted Opportunity:

I have investigated Neil Sayers’ case for more than six years. Albeit for different reasons, I find it as disquieting as that of the Lynette White Inquiry.[xvii] It offers a searing indictment, not only of the adversarial system of justice as practiced in our jurisdiction, but of the mechanisms for correcting the inevitable mistakes that occur within that system. Sayers was let down badly at trial. His case should have been one in which forensic science played a very important part. His defence at trial did not secure the expertise that could potentially have proved his innocence. At the very least it could have discredited the evidence that secured his conviction – the ‘confession’ of Graham Wallis, but this was more of an accusation against Sayers than an admission of Wallis’ guilt and it was not corroborated by forensic science when it could and should have been.

There were examples where forensic science comprehensively exposed Wallis as a liar regarding material issues, such as how and when mutilation occurred. And this goes to the heart of the issue of why the body of Russell Crookes was mutilated at all. Heath’s statement clearly says that at least some mutilation occurred after the body was partially burned and implies that the other mutilation may have occurred after the fire as well, yet this is totally inconsistent with Wallis’ account. When confronted with the suggestion Wallis changed his account, but this too was implausible as Wallis suggested that mutilation had occurred in a water-logged grave. It would have been very difficult to obtain sufficient force to achieve mutilation there. There is no evidence of bone spicules or fat globules on the clothes that the Crown insist Sayers’ was wearing on the two nights when mutilation was alleged to have occurred. Heath gave evidence at Sayers’ trial. He had previously said that no report would be complete without the results of forensic science examinations. Heath was not called on to explain what forensic science examinations he had in mind.

Charles Miskin QC – the very same man who would later present the Home Office’s case against Heath at the tribunal – did not ask Heath for clarification of this issue. Arguably it was not his responsibility to do so. Brian Higgs QC was defending Sayers. He did not resolve the mutilation issues either even though that was very important in the context of Wallis’ credibility. Once Wallis’ account was served on Sayers’ defence they should have realised the importance of this potential evidence that could have proved Wallis’ account false on this material issue. They could and should have sought clarification from the forensic pathologist that they instructed, especially as this was a firm that had previous experience of the woeful quality of Heath’s work in another case – that of Craig Kerwin. This was at the very least a pathology-related issue.

Either Heath’s pathology was so flawed that his evidence cannot be relied on against Sayers, in which case a review of his case is essential, or it can be relied on regarding the mutilation point in which case Wallis’ evidence cannot be relied on regarding a point of material significance. And if Wallis has lied about this, can the rest of his evidence be accepted at face value in the absence of corroborative evidence?

The significance of this appears to have been lost on the criminal justice system. It is unclear if the CCRC was aware of it when it conducted its review of Heath’s involvement in Sayers’ case. There are other examples of pathology-related issues in Sayers’ case as well. Miskin relied on Heath’s expertise during his prosecution of Sayers – expertise he robustly questioned during the tribunal against Heath.

The maggot-infested remains of Russell Crookes were discovered in woods near Hadlow College in the morning of May 26th 1998. Medical issues were not integral to the conviction of Neil Sayers. Nevertheless, there is compelling evidence to suggest that the performance and conduct of Dr Heath caused severe problems in this inquiry – an inquiry that may have resulted in the wrongful conviction of Neil Sayers – and that it did so from the earliest stages of this case. It was clear that Crookes had been dead for some time. Rigour-mortis had long since passed. The best chance to obtain scientific evidence that could establish the post-mortem-interval was clearly forensic entomology, but like any science it cannot perform miracles. It relies on minimum levels of competence.

Before Dr Heath began his post-mortem examination of the partially-burned remains found in the woods, he had already compromised important evidence. Heath took maggots from the body, which he fixed, as was proper. He then took a live sample. Both were handed to a Scene of Crime Officer (SOCO). It is unclear if Heath even provided Kent Police with advice on what to do with the maggots. This was, however, far from his only failing in relation to them. He failed to establish the temperature within the maggot mass. Heath failed to take the temperature under the remains. He did not establish the ambient temperature and he failed to take samples from other areas of infestation at the scene. He did not establish if maggots had left the body. Nor did he establish if there was any other entomological evidence at the scene, such as pupae casings that would have established if any maggots had completed the final stage of development before emerging as insects. The rate at which all this happens is very dependent on the temperature of the maggot mass, so temperature measurements at the scene are crucial, as Heath should have known.

Heath’s conduct betrays little more than rudimentary knowledge of forensic entomology. It was possible that different species of insect had been present. The greater the area sampled the higher the chance that different species would be detected. The analysis of the life cycles of different species could have enabled a more accurate post-mortem-interval to be established. Dr Heath’s failure to follow recommended procedure prevented this evidence – potentially vital evidence – from being established. Is this not a pathology-related issue? And does it not raise questions about Heath’s competence in this case?

Unfortunately, the consequences of Dr Heath’s conduct regarding the maggots would be dire. It is still unclear if Heath even advised Kent Police to consult a forensic entomologist. Clearly, the police did not know what to do and extremely important evidence was lost as a result. The live sample was put in a container with some liver, which was then left in the fridge. They died there without being observed. The best chance to establish the post-mortem-interval by the development and identification of the actual insect species had been lost. Even so, it need not have been disastrous. The fixed sample could still establish the post-mortem-interval. Data-logging experiments could have established a reliable estimate of the environmental conditions under which these maggots had developed. Neither Kent Police, nor Sayers’ defence instructed such experts. And worse was to follow.

After Sayers’ conviction he made an application to the CCRC. It was not an application of the standard that Sayers had a right to expect. It did not include several scientific issues that ought to have been pivotal to his application. The CCRC cannot and should not be criticised for dismissing that application, but it is proof of nothing more than that the solicitor representing Sayers at that time had no understanding of the vital issues of his case. As with much else the criminal justice system holds Sayers alone accountable for these failings. That solicitor refused to even ask Kent Police if any maggots still existed for examination. He laughed at the suggestion that they would be available. He was wrong. Another solicitor located them and had them examined by forensic entomologists Dr Mark Benecke and Dr Martin Hall. Outrageously, the fixed sample had been thrown away and the remaining maggots were in a very poor state. The decision to throw away evidence prevented them from obtaining the evidence that the maggots could and should have provided. Consequently, they could not confirm or refute Wallis’ claims, but it would later emerge that Heath’s failings on another pathology-related issue may have affected their conclusions.

Heath says that the body suffered extensive fire damage, but does not clarify what this means. It implies a fire of great intensity and that in turn suggests that maggots could not have survived the partial-burning of the body. The forensic entomologists therefore concluded that flies must have laid eggs after the fire had occurred and at a time when the remains had cooled down sufficiently for flies to lay their eggs. Photographs were taken of the post-mortem examination conducted by Heath. There is no question that fire-damage has occurred, but some of those photographs establish that there are important pathology-related issues that need to be resolved, such as how extensive was the fire-damage to the body of Russell Crookes? This is related to the issue of how intense the fire that caused this damage was. The post-mortem examination is also of significance in determining whether the fire-damage sustained by the body was consistent with the manner in which it was alleged to have been burned. Establishing the precise extent of fire-damage would have been essential to this task. Sadly the fire expert instructed by Kent Police wrongly advised them that it was not possible to resolve that issue. This is not entirely Heath’s fault, but more precise description could only have assisted in providing an answer to this important question. As such this too is a pathology-related issue.

Some of the post-mortem photographs show that at the very least there were areas of the body that did not suffer ‘extensive’ fire-damage. Clearly there were areas of the body that suffered fire-damage. However, some of the post-mortem photographs establish that not only was flesh raw, but that the fire did not generate sufficient heat to render body fat into the fire. In this context, it is impossible to eliminate the possibility that the maggots examined by Benecke and Hall had survived the fire by finding shelter from the heat within the body. That possibility could drastically affect the conclusions of the forensic entomologists as there would be no scientific evidence that could support Wallis’ account of when the fire occurred, while there is plenty of evidence suggesting that it in fact happened several days after Wallis claims. Heath’s performance and conduct in this case has adversely affected the ability of other forensic scientists to obtain evidence that could have been of vital importance. While these are not medical issues, they are pathology-related issues. Shouldn’t we be entitled to expect a thorough review of Heath’s involvement in Sayers’ case to discover these issues and realise their significance?

As was shown previously there are some cases other than Fraser and Puaca, where either forensic pathologists, lawyers or judges rejected Heath’s claims in circumstances that went beyond the disputes that would be expected in the adversarial system. One is of particular importance to Sayers’ case. Despite requests for clarification of whether the facts of proven cases other than the tribunal cases were considered by the CCRC when considering which cases deserved further scrutiny, the CCRC showed it had learned nothing from the case of Gary Mills and Tony Poole.[xviii] Despite naming the cases it claimed to be at a loss to understand the point being made. It was a glaringly obvious one and its obfuscation was disingenuous to put it mildly.

It is at least possible that the facts of one of those proven cases will have greater similarity to the facts of a rejected case than that of Fraser or Puaca. In other words, the point is similar fact – a validated ground of appeal. The CCRC began its review from the standpoint that Heath was thoroughly discredited. This does not begin to address the issue of similar fact to a proven case that was not considered by the tribunal. It seems clear that the review has not looked into this possibility, which may or may not apply in any of those cases.

Craig Kerwin’s case has enormous significance to that of Sayers. Heath’s pathology in that case was found sadly wanting. It is clear that like Fraser and Puaca, the decision to prosecute Kerwin for the death of Jocelyn Strutt depended upon the opinion of Michael Heath. There was no other evidence capable of justifying charging Kerwin, who was represented by Berry and Berry solicitors – the same firm that Sayers had. Only a year before Sayers’ arrest they represented Kerwin ably. It is clear that knowledge of Heath’s abilities was available to them due to this, yet the pathologist chosen in Sayers’ case was not involved in Kerwin’s case. Ironically, Wallis belatedly instructed Djurovic. Had Nat Cary been instructed by Sayers’ solicitor he would have brought knowledge of Heath’s previous performance and conduct to bear on Sayers’ case.

Despite knowledge of the severe limitations of Heath’s pathology being available to them, Sayers’ solicitor at trial Ian Reed did not research whether Heath’s conduct adversely affected the preparation and presentation of his clients’ defence. While Reed had access to knowledge of Heath’s involvement in Kerwin’s case, Sayers didn’t and had no reason to ask. Nevertheless, the criminal justice system holds Sayers alone responsible for the decision of his lawyers not to challenge Heath’s involvement in his case – a decision re-iterated by the CCRC’s inability to see how a case that did not hinge on medical evidence, or raise complaints about the pathologist previously could possibly have pathology-related issues that demand investigation.

If the CCRC investigated the possible impact of Kerwin’s case when considering which cases should be looked into further, it failed to establish that a senior police officer and SOCO who were involved in Kerwin’s case were also involved in Sayers’ case. On its own it may not prove anything, but the professional relationship between Heath and them is important. Why did Heath reach such an unjustifiable conclusion in Kerwin’s case? Was he acting entirely on his own? Was any pressure exerted on him to come to such a conclusion, without which Kerwin could not have been charged over Strutt’s death? If so, was this pressure overt or simply knowing what was wanted? If any pressure was brought to bear on Heath who pressured him? Sadly it appears that these questions were not even asked, let alone resolved by the CCRC’s review of Heath’s involvement in Sayers’ case.

There are several pathology-related issues in this extraordinary case that have not been resolved by the CCRC’s review of Heath’s involvement in Sayers’ case. And this is not the only case to have important pathology-related issues awaiting resolution.



Justice Denied

As the CCRC’s review was coming to an end Michael Stone applied to it to consider his convictions for the 1996 murders of Lin and Megan Russell and the attempted murder of Josie Russell.[xix] Stone was charged a year after the murders and subsequently convicted. His appeal was successful and resulted in a retrial, but he was convicted again in 2001. He appealed against those convictions unsuccessfully and applied to the CCRC in October 2006. He had already spent nine years in prison by then. This was his first application to the CCRC. It had taken several years to exhaust domestic remedy. Despite initial reports saying Stone’s case was one that would be subjected to further investigation, the CCRC decided that he must wait for a case worker to be appointed before it would be investigated at all.

A case-worker has now been appointed, but Stone had already suffered substantial delay in exhausting domestic remedy through no fault of his own. The CCRC responded by allowing further delay to occur. Heath’s role in Stone’s case will have to be investigated sooner or later. By not doing so then, it ensured that further delays will occur. Either Heath’s pathology was of the required standard in Stone’s case or it was not. If it fell below the standard demanded of forensic pathologists, then Stone would arguably have a ground of appeal. And if not, were there pathology-related issues to consider?

Heath suggested that a bootlace discovered near the crime-scene had been used as a ligature on Megan Russell. His account implied strong contact between the murderer and bootlace during the crimes. Heath demonstrated how the bootlace could have been used as a ligature to the jury with a police officer playing the victim. Heath made it clear that considerable pressure was required for several seconds and that suggested that the killer would have shed his DNA onto the bootlace. However, while Stone’s DNA is not on that lace, the DNA of a so far unidentified man is. It is unclear if the National DNA Database has been checked to see if that person can be identified now. Consequently, if Heath’s opinion is correct, it suggests that someone else had contact with the lace at the relevant time. Nevertheless, the Crown tried to explain the lack of Stone’s DNA on the lace and presence of another man’s on it by secondary transfer, claiming that it had been used as a tourniquet for injecting drugs and then Stone had access to it and used it in the crimes. However, they failed to provide any evidence to support this hypothesis and taken as a whole it seems probable that someone other than Stone used that bootlace on that dreadful day. If Heath’s opinion about the extent of contact that the murderer had with the bootlace is not correct, then his pathology is below the standard required in this case, or any other. Either way, it would appear that investigation of Heath’s role in this case could only be beneficial to Stone, yet the CCRC saw no reason to investigate it immediately, knowing that it will inevitably cause further delays. If justice delayed is justice denied, then the CCRC appear to be denying justice to Michael Stone and others.



Conclusion:

There is no evidence that Jessel’s review considered the issues raised in this chapter regarding Neil Sayers’ case. Implicit in Jessel’s decision that Sayers’ case does not warrant further investigation is blaming him for not raising these issues earlier – something Jessel had criticised the criminal justice system over previously during his career as a journalist. The previous application to the CCRC is evidence of nothing more than the severe limitations of the legal representation available to Sayers at trial and in his application to the CCRC. They did not understand the significance of the pathology-related evidence. The fact that Sayers did not raise the pathology-related issues earlier is entirely irrelevant. Why would a student at Hadlow Agricultural College know of them? And would a fair and impartial system hold him responsible for not knowing it when in reality the overwhelming majority would have known as little of this as Neil Sayers did? The CCRC had a chance to establish an important principle. Sadly it failed to do so and Sayers continues to be held responsible for his lack of knowledge. For most of us there are no consequences for not knowing of forensic pathology-related issues. For Neil Sayers it has cost over ten years and counting. As the Bostonian attorney Joseph Welch once famously said: “Have you no sense of decency?”[xx]

The criminal justice system sees nothing wrong in expecting a teenager of average intelligence to not only be up to speed in the latest techniques in forensic pathology and indeed forensic science, but to be confident enough to demand lawyers to secure the necessary expertise and make submissions accordingly. Far from critically reviewing the performance and conduct of Heath in Sayers’ case, the CCRC appears to have relied on the unrealistic and unfair expectations placed on Sayers that have dogged this inquiry from its inception. Neil Sayers is entitled to expect better – far better. Society and justice are also entitled to expect and demand the highest standards from experts and from those who dispense justice. We are also entitled to expect and demand the same of the CCRC. And if this has happened to Sayers, can we be certain that the review of the other cases has attained the requisite standard?

I can only comment with authority on Sayers’ case. The evidence suggests that the CCRC’s review of Heath’s involvement in Sayers’ case betrays a fundamental lack of understanding of the consequences of his conduct and knowledge of forensic pathology-related issues. One can only wonder if others have been as poorly served as Neil Sayers.

However, flawed as the CCRC’s review of Heath undoubtedly was, it is important to remember that it was never capable of delivering anything more than a review of cases that had applied to it. David Jessel’s review was not and never could be the definitive analysis of Michael Heath’s pathology. The Attorney General abdicated his responsibility to order such a review – something the public fully deserves. The CCRC cannot be held responsible for this, but it can and should be held fully accountable for trusting a review with serious ramifications on the lives of many people to the opinions of one of its Commissioners who had no qualifications in forensic pathology, rather than to a qualified forensic pathologist or team of such experts. Alternatively Jesssel’s opinion should have been no more than guidance to a team of experienced and qualified forensic pathologists to decide which cases they would look at in greater detail. After all, Sayers will not be alone in seeking the opinion of a reputed forensic pathologist rather than a CCRC Commissioner devoid of such qualifications, experience and expertise.

[i] The description of Lannas’ autopsy in that case was given by the late Dr Iain West.

[ii] For a more detailed review of that case and the CCRC’s handling of it see my chapter: Shoddy Judgments – The Case of Gary Mills and Tony Poole in the forthcoming book.

[iii] See Cheston, 2000.

[iv] See Sengupta, 2000.

[v] I dislike the term asylum-seeker as it places the burden on the individual to prove that he or she is fleeing persecution, rather than on the state to prove otherwise.

[vi] See INQUEST, 1997.

[vii] See Devlin and Devlin, 1998.

[viii] See Naughton, 2005a.

[ix] For a more detailed review of this case see the chapter on Mrs Bowler’s case in David Jessel’s book Trial and Error.

[x] See CCRC 2005b.

[xi] See BBC News 2002a.

[xii] See BBC News, 2004

[xiii] A google search for Stuart Lubbock and Michael Heath results in several sources of information.

[xiv] See Dyer in the Guardian: November 25th 2005

[xv] See Lewis, 2006.

[xvi] Transcripts of the tribunal are available

[xvii] My book Fitted In: The Cardiff 3 and the Lynette White Inquiry provides a detailed rehearsal of the facts of that case. Since it was published in 1998 the case was re-opened again, which resulted in the conviction of the real murderer, Jeffrey Gafoor, in 2003.

[xviii] See Bowcott, 2003.

[xix] See BBC News, 2003.

[xx] In 1954 Senator Joseph McCarthy tried to take on the army. On June 9th 1954 McCarthy responded to an attack by their lawyer Joseph Welch by accusing one of Welch’s team of having ties to a communist organisation during televised hearings. Welch responded with: “Until this moment, Senator, I never really gauged your cruelty or your recklessness.” McCarthy tried to continue the attack as he had done with many others. Welch cut him off with the words which finished McCarthy’s career and resulted in his political ostracism: “Let us not assassinate this lad further, Senator. You have done enough. Have you no sense of decency?” McCarthy’s popularity evaporated and he died a broken man three years later.