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Lawyers
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Lessons Unlearned – Ineffective Safeguards – Lawyers (Part Six) |
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| Roger Frisby QC had failed to get Miller's confession ruled inadmissible during the trial within a trial, so he could not argue that Miller had been bullied. Worse still he didn't he want to. Frisby may have feared that if he had asked the judge to rule that Miller had been bullied and Mr Justice Leonard refused, that would open the door to David Elfer QC to counter his argument on suggestibility as well, but the door was not just ajar, it was wide open. Frisby had played into Elfer's hands. The confession was in and Elfer did not even have to argue that Miller had not been bullied, yet. He could concentrate on showing that Miller did not meet his impossible standard on suggestibility instead.
It was a woeful mistake by Frisby, as not only could he not say that Miller's confession was the product of bullying, but the jury would not hear the worst parts of it. Elfer was allowed to pick portions of the interviews where Miller did not accept exactly what was put to him, but avoid those that could shock the jury. He could even have the bullies testify that they had been 'firm but fair,' safe in the knowledge that there would be no effective cross-examination of them from Frisby, who even accepted that the officers were trying to get to the truth. Sadly they were not interested in establishing anything other than what they wanted to hear, but Elfer's strategy worked well at trial.
The confession was totally unreliable, but the jury was never given the context that had led to his admissions, which explained what he had said and why. Frisby called Dr Gisli Gudjonsson, but failed to use him to maximum effect. He also failed to call Dr James MacKeith to explain the effects of bereavement and anger on suggestibility. Furthermore, he did not commission Dr Olive Tunstall to put Miller's vulnerabilities in context and obviously he did not call Dr. Eric Shepherd to illustrate that Miller had been interviewed oppressively and unethically.
Consequently, Frisby could not get the jury to understand why Miller had agreed to some things, but not others. He gambled Miller's future on one card and played it very badly indeed. Miller neither confessed nor accepted what they said in the most oppressive interview. That came later – the following interview – so it did not appear to support the argument on suggestibility, but it did if put in context of the interviews as a whole and Miller's vulnerabilities. Frisby failed to do this, as Michael Mansfield QC later did exceptionally well at Miller's appeal. Frisby had let his client down badly and Elfer took advantage to help convict an innocent man. It was a terrible time for British justice, but good for Jeffrey Gafoor – the only person to benefit from the betrayal of justice that occurred in Swansea Guildhall in 1990. by Satish Sekar © Satish Sekar (December 29th 2008)
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Lessons Unlearned – Ineffective Safeguards – Lawyers (Part Seven) |
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| Roger Frisby QC had already let his client down badly over his confession, but there were other failings in his presentation of Stephen Miller's case. Not only had he failed to counter Miller's admissions as effectively as his client had a right to expect, but he also failed to ensure that evidence showing Miller's innocence was put before the jury. Witnesses had seen Miller playing pool in the now defunct Casablanca night-club minutes after the time that David Elfer QC told the jury the murder had occurred. It meant that had Miller been guilty he would have had to clean up all traces of blood and other scientific evidence in that flat that could have implicated him without interfering with it or betraying any attempt to do so. Then he had to clean himself and his clothes thoroughly without showing that he had done so and after achieving that go to the Casablanca to calmly play pool without a change in general demeanour. He had to manage to do all that with the intelligence quotient of a thirteen year old child.
The statements that proved this were disclosed to Miller's defence and gathered dust in the unused material. It was consistent with only one interpretation. Miller was and remains an entirely innocent man who was let down appallingly by the criminal justice system. Sadly that includes by professional lawyers that he trusted with his future twice. Twenty years later he still has nightmares about it. He began a life sentence declaring his innocence. Some believed him, but most didn't and they were wholly wrong. Miller was innocent then as now. Any impartial review of the evidence, even back then, led inexorably to that conclusion.
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Meanwhile, Elfer savoured his victory. Frisby's poor choice of tactic regarding the confession had helped him considerably. Elfer had persuaded the jury to accept Miller's confession and worse still that he was not suggestible or vulnerable. The criminal justice system had allowed a highly vulnerable young man to be bullied into making an utterly false confession. He had then been let down miserably by those he put his trust in and the entire system got away with denying his vulnerabilities to convict not just him falsely, but Yusef Abdullahi and Tony Paris as well. Elfer's victory – aided and abetted by Frisby's poor performance – had set back understanding of such vulnerabilities and with it the cause of justice. It could have been for several years. Thankfully, the diligence of the renowned solicitor Gareth Peirce and the superb performance of Michael Mansfield QC and Nicholas Blake in one of his last cases before taking silk (becoming a Queen's Counsel) redressed this comparatively quickly.
The law and criminal justice system would eventually move on and Stephen Miller's case would play an important part in that, but his was neither the first nor last where a highly vulnerable 'suspect' slipped through the safeguards – some of which would later be credited with helping to correct the miscarriage of justice. In our view the safeguards, some professionals upon whom the system depends daily and the criminal justice system performed abysmally in this case and can take no credit at all for correcting a miscarriage of justice that should have been prevented. It is a frightening thought that if Miller had not been able to prove his innocence, a particularly brutal killer would still be at large and vulnerable people would be targeted and wrongfully convicted with impunity. It was Miller's good fortune that this case was a high profile miscarriage of justice at a time when that could make a difference and that his conviction, which was secured by ambush, was not tolerated. by Satish Sekar © Satish Sekar (December 29th 2008)
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Lessons Unlearned – Ineffective Safeguards – Lawyers (Part Eight) |
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| Stephen Miller had put his trust in Graham Dobson to ensure that his interests were looked after by a local solicitor, but Gerraint Richards failed to do so and allowed a false and demonstrably ludicrous confession to be bullied and hectored out of his vulnerable client. Afterwards he was let down again by Roger Frisby QC, who did not argue that Miller's admissions were the result of shameful oppression in a case that is now one of the main texts on oppressive interviewing. Miller's interviews always breached the provisions of the Police and Criminal Evidence Act. That should have been realised by the Crown Prosecution Service long before the case came to trial. It should also have been the cornerstone of his defence – one that prevented a terrible miscarriage of justice from occurring at all.
After Miller was wrongfully convicted Frisby and his junior Phil Meredith submitted grounds of appeal that were rejected by the judge considering them. Not surprisingly those grounds did not include the poor quality of legal representation that Miller had received. At that point legal aid ended and he was advised to drop his appeal – advice that he acquiesced to. Fortunately for Miller that message failed to reach the appeal court. He gave us legal authority to find new legal representation for him. It was not an easy task, but we already knew who we were looking for – Gareth Peirce and Michael Mansfield QC. Miller had nobody bar us working on his case in the early months after being told that there was nothing more that Frisby and Dobson could do for him. Meanwhile, Gafoor was savouring his freedom, knowing that innocent men were in prison for his crime – a particularly brutal one that could have resulted in them suffering serious violence behind bars or even in their suicide.
Miller was left to fend for himself – well almost. While his lawyers had washed their hands of him, there were some who believed in him. It was already gaining a profile and a campaign was established to highlight the innocence of the Cardiff Five, although back then it was about overturning the convictions of the Cardiff Three. It took a year to wear her down, but eventually we persuaded Peirce to take Miller's case and it was prepared as it should have been in the first place. Meanwhile, the alibi statements that Elfer had used his discretion not to to disclose for trial had finally been handed over to defence lawyers. Bernard de Maid and Nick Lloyd, who would later branch out on his own, were not amused and Roger Backhouse QC and his junior Ian Pritchard-Witts were disgusted, but not surprised. It was now clear that David Elfer had ambushed them at trial.
Elfer had assured the jury that Brynley Samuel – one of the witnesses who worked on the MV Coral Sea on the night of the murder – did not help Yusef Abdullahi, knowing that he did. While possibly not being a complete alibi, the evidence that Samuel could have given made it clear that Abdullahi had been on the ship at important times that night, which made it extremely unlikely that he could have been guilty. He never retracted those claims. Elfer knew this, but Abdullahi's lawyers didn't. Elfer told the jury that the defence could have called him if they wanted to knowing that they did not know if there would be unpleasant surprises and would be unlikely to risk any. Elfer knew that there were none. He had every right legally to withhold that statement and others, but he had no right at all to give an assurance that he must have known was misleading or worse. This was a conviction secured by ambush, but the CPS and Elfer were determined to oppose any appeal. They have yet to even offer the small courtesy of an apology. They ought to be ashamed. by Satish Sekar © Satish Sekar (December 29th 2008)
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Lessons Unlearned – Ineffective Safeguards – Lawyers (Part Nine) |
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| Yusef Abdullahi's lawyers were disgusted with Elfer's behaviour and it affected their preparation of his appeal. Tony Paris' lawyers had different problems. The case against him was scandalously weak. At trial that was an advantage that should have resulted in his acquittal, but for appeal the burden had shifted to him. He had to show that his conviction was unsafe and unsatisfactory, but it required new evidence to interfere with the jury's verdict and in his case there wasn't much to begin with. Learnne Vilday and Angela Psaila had told the jury that they had seen him commit the murder. Of course they had seen no such thing – something they both acknowledged before their recent perjury convictions, but Paris did not have such damning material available for his appeal.
Abdullahi and Paris were swiftly granted leave to appeal and their lawyers worked hard on their behalf. Miller's case was not even being investigated then except by us. We were convinced that he had been bullied and that he was innocent, but we still had to convince Gareth Peirce who refused to take the case until she was convinced that a meaningful appeal could be prepared for him. Thankfully there was the court of last resort – the media. Documentaries were made, column inches filled and radio programmes broadcast too. It resulted in useful contacts being developed, some of whom had resources that we didn't.
Abdullahi and Paris benefited from a campaign ran by their family. Malik Abdullahi became an accomplished speaker and well known on the campaign circuit along with Tony's brother, Lloyd, both of whom have important stories to tell of the price they had to pay to fight against an injustice that was not of their making as well. They chose to campaign for Miller too and the profile raised had the desired effect. Doors opened and evidence began to emerge that could challenge Miller's confession. It wasn't difficult to argue that the full significance of Miller's vulnerability had been missed, but it was clearly available at trial and therefore not new. His interviews had been available too, as had the important statements regarding the Casablanca nightclub. It looked catastrophic as Miller had been failed miserably by his previous lawyers and then left to fend for himself. The criminal justice system held a vulnerable man with the intelligence of a child capable of running his defence. Such arrant nonsense could have kept an entirely innocent man behind bars for several years.
Meanwhile, Paris' lawyers had problems of their own. His conviction was not the fault of his lawyers. It was obvious that the jury had not believed Vilday or Psaila and that they had actually reached their verdicts by unlawfully relying on Miller's confession. Nothing else can explain the verdicts, but according to the law, this had not happened. Mr Justice Leonard had told them that they could not use the confession against the Actie cousins, or Abdullahi and Paris. That was enough as far as the criminal justice system was concerned, but it wasn't and worst of all this unlawfully used confession could not be challenged by Miller's co-accused effectively. They could not have him examined for signs of suggestibility, or hire experts to combat its credibility. The criminal justice system afforded them no greater protection than a few well chosen words in the summing-up of Mr Justice Leonard that were promptly ignored. This was bad enough, but worse was to follow; it wasn't even a ground of appeal as no research is permitted on how juries reached their verdict. Either the jury plucked its verdict from thin air, or it ignored the judge on a point of law – his function, both of which are equally unlawful, but despite being the victims of such verdicts the Cardiff Three remained in prison awaiting appeal and would do so for more than two years since their wrongful convictions. by Satish Sekar © Satish Sekar (December 29th 2008) |
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Lessons Unlearned – Ineffective Safeguards – Lawyers (Part Ten) |
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| The criminal justice system failed miserably to protect the interests of a vulnerable and innocent Stephen Miller. The law has moved on in cases since Miller, but sadly victims of injustice will continue to slip through the cracks in the system as long as the extent of such vulnerabilities remain misunderstood, especially by lawyers. It must also realise that lawyers are fallible and that wrongful convictions can occur due to poor quality legal representation as occurred in Miller's case, not once but twice. Expecting him to be as capable of defending his legal rights as a qualified lawyer is frankly absurd. He was always going to acquiesce with decisions taken by his lawyers and it cost him dear.
The law and criminal justice system must provide adequate safeguards for people like Miller including from lawyers, as he was incapable of doing it himself. Anything less shows that it permits children – Miller was effectively a child due to his vulnerabilities – to be shamefully bullied into confessing to serious crimes they did not commit and then be held responsible for the lacklustre performance of their lawyers at the cost of a life sentence. Society cannot tolerate convictions secured by ambush and nor should a competent and just criminal justice system. The system failed miserably to protect the interests of a vulnerable and innocent young man. Sadly it will continue to do so as long as the extent of such vulnerabilities remain misunderstood, especially by lawyers. It should also be more powerful grounds of appeal. Stephen Miller gave instructions to his lawyers, but they were meaningless. He acquiesced with their strategy and trusted them to look after his interests. He was not capable of actively participating in the preparation and conduct of his defence. He had to rely on others and he was incapable of understanding that he was being given poor advice and that the cost of accepting it would be borne by him alone. The law needs to provide adequate protection for such people and ensure that they are treated appropriately.
The wrongful convictions were quashed comparatively quickly. He won his first appeal, but contrary to the opinion of the Lord Chief Justice of the time Lord Taylor of Gosforth, this was not proof that the criminal justice system and the Police and Criminal Evidence Act (PACE) had performed as intended. It was a dismal failure that was corrected after it was allowed to happen against the weight of evidence, which proved that the system had allowed things to go horribly wrong. Both David Elfer and Roger Frisby owe Stephen Miller an apology, in Frisby's case for failing him miserably and in Elfer's for failing to understand Miller's vulnerability and shamefully trying to defend the indefensible in the Court of Criminal Appeal. It should start by saying, “I recognise that you are and always were completely innocent of any involvement in the murder of Lynette White and apologise to you unreservedly for failing to understand the depth of your vulnerability and for my role in your wrongful conviction.” It isn't much, but more than eighteen years later, it is surely not too much much to ask and is the very least that Stephen Miller deserves from them. by Satish Sekar © Satish Sekar (December 29th 2008) |
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Lessons Unlearned 