Anthony Evans QC was not available for the second trial. He had argued forcefully and correctly that Miller was abnormally suggestible and that he had been oppressed. It did not have the result that it should have had. In February 1990 Mr Justice [Sir David] McNeill died just as he was about to sum up. John Rogers QC, later to become the Leader of the Wales and Chester Circuit and a high court judge in his own right about some of McNeill's conduct in the case that he asked McNeill to excuse himself, but McNeill refused. By the time of his death McNeill had provided the barristers with a draft of the summing-up that he would never get the chance to deliver. Defence lawyers had counted at least forty points for appeal from it alone.

McNeill's untimely death offered an unexpected opportunity for sober reflection. The chance went begging. The CPS was obliged to conduct a review of its original decision to prosecute. Hywel Hughes could reassess the decision by referring back to the Code for Crown Prosecutors. He had an added advantage. Normally Crown {Prosecutors have to consider the likely impact witnesses may have when giving evidence. He had already had the advantage of knowing exactly what to expect from his four alleged eyewitnesses thanks to the committal hearing. The inconsistencies that were legion in their accounts were glossed over. Other prosecutors had this advantage too, but Hughes had the opportunity of knowing how all his witnesses would perform thanks to the first trial. He should have seen that this was a case that cried out not to be prosecuted. Neither he, the CPS, nor Elfer were prepared to concede defeat and they received an unexpected boost from the defence.

Having seen McNeill's previous ruling on oppression in the first trial Stephen Miller's new defence team had a difficult decision to make. Should they take a chance and argue again that Miller had been bullied in the voir dire [trial within a trial on admissibility] or throw all their eggs in the suggestibility basket. Roger Frisby had once been an outstanding advocate. In his prime Frisby was formidable, but Miller did not get the services of Frisby at his best. Sadly for Miller Frisby was past his best and that resulted in Miller's case not being put as effectively as it should have been. Evidence that could have proved Miller innocent gathered dust as unused material. It amounted to a complete alibi for the most likely time of the murder, but this was far from the only decision that Frisby got wrong. The worst was his failure to challenge Miller's confession as effectively as it could and should have been. It was a decision that had dire consequences, not only for Stephen Miller, Yusef Abdullahi and Tony Paris, but for the criminal justice system as a whole. It gave its representatives the opportunity to claim that this case was a triumph for British justice. It wasn't. It was and remains one of the worst ever failings of the entire criminal justice system.

by Satish Sekar © Satish Sekar (December 29th 2008)