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May

Restraining Justice

Written by Satish Sekar

Warnings
Michael Stone's case was always going to be controversial. His conviction at the retrial in Nottingham in October 2001 depended almost entirely on the reliability of self-confessed perjurer Damien Daley. The trial judge, Mr Justice (Sir David) Poole, had to strike a balance between competing interests. Nigel Sweeney QC, prosecuting, had chosen to present Daley as a witness who could be relied on this time while then defence QC, William Clegg, begged to differ.

Daley's character was no so much bad, as appalling. Cell confessions were notoriously unreliable and regardless of the opinion of judges in this case, it was easy to concoct if the informer had access to the right information. Daley's statement made three days after the alleged confession was given by Stone contained considerable detail, but so what?
A detailed account could still be fabricated, especially in these circumstances. Daley had access to information and three days to prepare it. He had opportunity and the potential to benefit greatly from framing Stone. Meanwhile, Poole summarised Daley's bad character, but undermined that by saying that such witnesses could still tell the truth, just as good character does not guarantee that the truth will be told.

Hamstrung
Edward FitzGerald QC took over Stone's defence for that appeal, arguing that far stronger warnings were required both on character and cell confessions, but he was hamstrung by decisions that he had not taken. Clegg had made tactical decisions on what to ask Daley at the retrial, informed in part by his his testimony at the first trial. Daley's motivation was questioned, but Clegg wanted to avoid Daley saying that he still felt bad for Josie Russell, the 9 year-old girl who had survived the horrific attack in July 1996.

Why? Daley was a career criminal and self-confessed perjurer. Just because he said that was his motivation for coming forward, along with disgust of people that attack women and children, it did not and could not follow that this had to be true. There was also new evidence that undermined Daley's account that the jury never heard.

Nevertheless, FitzGerald had problems as he knew that criticising Clegg was likely to backfire and criticising the trial judge was likely to be even worse. The appeal judges used Clegg's decisions to justify both his decisions and those of Mr Justice Poole. However, there was in fact far stronger criticism of Stone's defence at Nottingham Crown Court that has yet to see the light of day.

Inadequate Review
Stone had not made any confession to police, had not been positively identified by the surviving victim and there was no scientific evidence tying him to the crimes. Despite this the CPS decided to proceed with the prosecution. Stone was an experienced criminal. During his stay in prison on remand, he was alleged to have made three separate cell confessions to Mark Jennings, who was paid for his troubles by a national newspaper, to Barry Thompson, who retracted several times, and to habitual criminal, accomplished liar and heroin addict, Damien Daley.

The CPS elected to believe all three were telling the truth. Despite an ongoing duty to review the strength of the evidence, it never concluded that the quality of this evidence was appalling and should not be basis of a safe conviction, even after dispensing with Thompson and Jennings for the retrial. Why not?

It also failed to investigate the scientific evidence adequately. Sadly, this is neither the first nor latest case that it has done so, preferring to abdicate its responsibility to ensure that only cases appropriate for trial reach that stage, after having continually reviewed the evidence to ensure that it remains of sufficient quality. It has retrospectively justified decisions to prosecute on the basis of securing convictions even if they later proved to be miscarriages of justice. Is Stone's another?

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