"I was on the Coral Sea," sneered David Elfer QC at Yusef Abdullahi's lawyers eighteen years ago, after a jury in Swansea Guildhall returned a guilty verdict against the weight of the evidence. "I am innocent," Abdullahi told the jury, "you have taken my life away from me." Some members of the jury started crying – perhaps because they even believed him and realised that maybe, just maybe, they had just made a terrible mistake that would have devastating consequences. Such protestations of innocence are not unheard of, although most prosecutors conduct themselves with dignity – far more than Elfer showed, especially to fellow lawyers, who tend to show friendliness and even respect to each other. None of this was on display towards Elfer during the trial of the Cardiff Five – Yusef Abdullahi, John and Ronnie Actie, Stephen Miller and Tony Paris – and there was good reason.

Elfer had a duty to only present admissible evidence that had been properly obtained to the jury, but like the Crown Prosecutor, Hywel Hughes, it appears that Elfer was more interested in shoring up a case that should never have troubled a jury than ensuring that only reliable evidence was placed before the jury. Five innocent men were robbed of a total of sixteen years of their lives – a fact nobody can dispute as the conviction of the real murderer, Jeffrey Gafoor, removed any doubt at all – yet only South Wales Police have voluntarily accepted any responsibility for their roles in facilitating one of the most shameful miscarriages of justice in Welsh history. The Crown Prosecution Service (CPS) allowed an inappropriate case to proceed to trial despite a dearth of credible evidence and Elfer failed to advise it that the evidence did not support prosecution. Both should accept responsibility for their part in allowing a case that should never have come to trial to result in shameful miscarriages of justice and they should have the decency and integrity to apologise.

The former Chief Constable of South Wales Police, Sir Anthony Burdon, apologised in writing to the Cardiff Five and ordered an investigation into possible criminal conduct in the original investigation, which, five years on, continues. To date thirty-four people have been arrested and interviewed under caution on suspicion of offences including perjury and conspiracy to pervert the course of justice – twenty are either serving or retired police officers, one is an expert witness and the remaining thirteen are civilian witnesses. Last month the alleged eyewitnesses who had falsely implicated some or all of the Cardiff Five, Learnne Vilday, Angela Psaila and Mark Grommek, took responsibility for giving perjured evidence that resulted in the wrongful convictions. They were charged along with Paul Atkins in February 2007, but Atkins was later declared unfit to stand trial. Vilday and Psaila chose to plead guilty to one count – the second trial that resulted in the wrongful convictions of Abdullahi, Miller and Paris – while Grommek insisted that he had acted under duress until Mr Justice Maddison ruled that duress only applied to threats of death or serious injury, not false imprisonment, and the threats had to be capable of execution immediately or at least imminently. Despite accepting that Grommek's allegations of police malpractice that included threats of violence and false imprisonment were true, Maddison's ruling left him no option but to plead to all three counts – the committal hearing and both trials. The CPS has not given any indication on whether there will be any further prosecutions, although it has made it clear that it does not approve of the way Grommek was treated by the police.

We detailed the previous failings of the CPS in our previous articles An Independent Eye Parts Two and Three,1 but there is more to tell – far more. The CPS cannot be sued and nor can lawyers such as Elfer who have Crown immunity, so there is little chance of either taking responsibility or being made to do so, but both the CPS and Elfer should review their conduct in the original prosecution and ask themselves if they performed to the high standards that society has a right to demand of them and if after examining their consciences they accept that they slipped below the standard required, they must ensure that the lessons are learned and ensure that there will not be further Cardiff Fives.

*****

Elfer had the duty to ensure that Miller's 'confession' had not been obtained through oppression, but this experienced barrister – a Queen's Counsel – didn't seem to know what the law demanded. Miller had been interviewed aggressively for almost thirteen hours over four days and had denied presence at the scene of the crime and involvement in the murder over three-hundred times. He was 'bullied' and 'hectored' by officers who shouted down his denials until he confessed to a crime he did not commit and this same set of officers had previously used the same methods on Grommek.

The then Lord Chief Justice, the late Lord Taylor of Gosforth, sitting with then Mr Justices Laws and Popplewell at the appeal of the Cardiff Three in December 1992, declared themselves horrified by what they had heard and described it [tape seven] as the type of interview that they never wanted to hear again and the interviews with Abdullahi were no better, but produced no confession. Miller was abnormally suggestible and his intelligence quotient was below average too, but Elfer demanded an impossible standard from him – he expected Miller to agree with everything that was put to him in interview to be considered suggestible. That strategy worked at trial, but in the appeal Roger Frisby QC, Phil Meredith and Graham Dobson had been replaced by the far more formidable team of Michael Mansfield QC, Nicholas Blake, who would soon become a QC in his own right, and the renowned solicitor Gareth Peirce and they made sure that the Court of Criminal Appeal was left in no doubt that Miller was an exceptionally vulnerable suspect who had been bullied shamefully into confessing to a terrible crime that he had no part in.

Abdullahi's defence lawyers served affidavits alleging police pressure on witnesses – especially those who supported Abdullahi's powerful alibi that he was on the MV Coral Sea working – on Elfer, who wanted and was denied an adjournment, but these allegations were not tested in the appeal court as Elfer's efforts to persuade the judges that the convictions were safe and satisfactory failed miserably. After several hints – devoid of subtlety from all three judges – Elfer finally conceded that the convictions could not be sustained, but he offered no apology and nor did the judges. Even after the conviction of Jeffrey Gafoor removed any doubt about the innocence of the Cardiff Five, Elfer and the CPS still failed to show the good grace to offer an apology.

*****

The man whose prosecution of the Cardiff Five secured three wrongful convictions later became His Honour Judge Elfer, but his hopes of becoming a red-robe judge and sitting at the Court of Appeal never materialised – rightly in our opinion as society has a right to expect the highest standards of professionalism and integrity from judges. We believe that the evidence shows that Elfer slipped far below those standards in the prosecution of the Cardiff Five and later in the appeal of the Cardiff Three and not just regarding his failure to grasp the meaning of oppression and suggestibility in Miller's case. Either Elfer knew that Abdullahi had a strong alibi that police had tried very hard to break and that contrary to his belief they failed miserably to do so, or he should have done. Police officers plainly lied to Abdullahi when they claimed that they had blown his alibi out of the water and more, as the evidence clearly showed that Abdullahi had been on the Coral Sea working as he insisted more than five-hundred times in his interviews. That was bad enough, but Elfer was an officer of the court and he misled judge and jury in relation to a vital witness – Brynley Samuel had worked on the Coral Sea on the night of the murder and made statements to that effect, which included what amounted to a complete alibi for Abdullahi at the most likely time of the murder. The CPS knew exactly what Samuel had said in those statements, but chose not to disclose them. Nevertheless, Elfer told the jury that Samuel did not help Abdullahi when he either knew full well that not only was Samuel helpful to Abdullahi's cause, but also that he would definitely have been a vital alibi witness if they had known exactly what he had said, or Elfer made those comments without reading Samuel's statements.

Elfer exercised his right to withhold Samuel's statements as prosecutors have the discretion not to disclose alibi statements and he cannot be criticised for that even though it would have been fairer had they been disclosed, but he had no right to give the court the impression that Samuel didn't help Abdullahi when he either knew or should have known that he did. This was an abuse of his duty as an officer of the court, which disgusted his colleagues in this case when they were made aware of it after the wrongful convictions were obtained and Samuel's statements were finally disclosed to them. Those lawyers have opposed each other in other cases, vigorously at times, but remain on friendly terms and respecting each other, but those sentiments are not extended to Elfer.

"I was on the Coral Sea," sneered Elfer to his lawyers after Yusef Abdullahi was found guilty of a crime he did not commit, but Abdullahi had told the truth during twenty gruelling interviews in which his standard reply was "I was on the Coral Sea working." He had mentioned the ship five-hundred-and-forty-five times, but the officers, CPS and David Elfer refused to believe the truth – that he was on the Coral Sea working. The CPS and Elfer cannot be sued, but they can take responsibility for their actions and offer a long overdue apology to all of the victims in this case. Elfer should start by personally apologising to Abdullahi, which should begin by saying: "I accept that you were on the Coral Sea working throughout the night of the murder of Lynette White and I sincerely apologise for my role in your wrongful conviction." It cannot roll back the years or spare them the ordeal they have been through, but it would be a start.

1Those articles can be seen at http://www.fittedin.com/eyetwo and http://www.fittedin.com/eyethree

by Satish Sekar © Satish Sekar (November 16th 2008)