This week marked the start of yet one more investigation into the collapse of the single biggest police corruption trial following the wrongful prosecution of five innocent men. Stephen Miller, John and Ronald Actie, Yusef Abdullahi and Anthony Paris were wrongly prosecuted for the brutal murder of Lynette White, in Cardiff on 14 February 1988.
- You can read Satish Sekar on the Cardiff Five case on www.thejusticegap.com here.
Three of those men – Miller, Abdullahi and Paris – would go on to be convicted and sentenced to terms of life imprisonment before being exonerated and released by the Court of Appeal two years later. This latest investigation will consider the aborted prosecution of a total of 13 police officers implicated in perverting the course or perjury, which collapsed in 2011. The trial of the first eight defendants – R v Mouncher – sensationally collapsed when the prosecuting counsel announced that he had ‘lost confidence in the disclosure process’.
The prosecution case was withdrawn and all of the defendants were formally acquitted. The Home Secretary announced last week that she wants to understand how this could have happened whilst declining to hold the full statutory inquiry which is long overdue.
Lynette White was just 20 years old when she was murdered by Jeffrey Gafoor following a petty dispute over £30. That it would take 15 years and the wrongful conviction of three innocent men, based on evidence which was so fundamentally flawed that it took, to quote Satish Sekar, ‘an extraordinary suspension of disbelief from several professionals, especially lawyers who should have known better [to do it]’ was an affront to justice all of its own. That, the only people prosecuted were the three prime prosecution witnesses – who themselves were subjected to such threatening, abusive and manipulative behaviour that they felt compelled to agree the false accounts the police suggested to them is a national disgrace.
The trial collapsed when it transpired that evidence held by the IPCC concerning the police complaints which followed the Cardiff Five’s acquittal and material relating to civil actions against the South Wales Police by a number of officers and former officers arrested as part of the criminal investigation which led to the trial, held by Swansea Police, was not disclosed to the defence. But worse still, the court was told it could not be disclosed because it had been destroyed, only for it to be discovered in the office of an IPCC investigator two months after the Crown withdrew its case.
There have now been several investigations. Her Majesty’s Chief Inspector of the Crown Prosecution Service (here) condemned every aspect of the prosecution, from initial disclosure planning to the appointment of insufficiently experienced counsel to deal with disclosure matters. In their response, the CPS could do little other than accept those criticisms but concluded that a subsequent review of disclosure management addressed those failings. In conducting one and supervising a second investigation, the IPCC also identified significant failings. However, for those officers still serving at the time (many had retired), no misconduct charges would be brought. Quite the opposite, the investigators were to be praised for their diligence and integrity in a ‘ground-breaking investigation’ which, for all its failings ‘provided the strength of evidence leading to the Crown Prosecution Service decision to charge witnesses with perjury and to charge former officers with perjury and conspiracy.’
That conclusion looks even more nonsensical in light of the subsequent discovery of 227 boxes of potentially disclosable evidence discovered at a police storage site on an RAF base in Wales. The extent to which this was considered in the IPCC investigations will be a matter for the new investigation team to be led by Richard Horwell QC as a non-statutory investigation.
In announcing her decision, the Home Secretary explained:
‘The purpose of the investigation is to understand how the collapse of the 2011 trial came about, covering all questions of resources, performance and conduct which were not addressed by the previous investigations. In particular, it will explore: The reasons why counsel for the Crown lost confidence in the disclosure process and the prosecution was therefore abandoned; whether 227 boxes of documents were overlooked and the contents not considered for the purposes of disclosure in the prosecution.’
The terms of reference continue that these issues will be considered with regard to the information garnered during the previous investigations and ‘what lessons are to be learnt from the process for recording, retaining and disclosing unused material.
It is hard to conceive of a more egregious example of a case which is a ’cause of public concern’ for the purposes of the Inquiries Act 2005, especially when the same force settled claims for malicious prosecution and unlawful imprisonment in strikingly similar circumstances arising out of the wrongful arrest of two men a year before the Cardiff 5 for £500,000, in addition to the compensation that was paid to Stephen Miller and his co-accused.
Whilst provision is made for the investigation to be converted into a public inquiry there is already an abundance of information that would justify conferring full public inquiry status. Absent that status, there is no power to compel witnesses to attend or require evidence under oath. Instead the investigation team will simply be entitled ‘to speak to anyone (including serving police officers)’. It is hard not question how much more we can really hope to understand from an investigation operating within such tight contours. It will be hoped that this does not simply add to the collection of piecemeal investigations but leads to real accountability. With the investigation report expected in the Summer, it will be hoped that the wait will be a short one, not least for those who have already had to wait the worst part of 30 years.
Michael is currently working at a national human rights NGO. He previously worked as a paralegal at a leading civil liberties law firm in a broad range of actions against state bodies. He was called to the Bar at Lincoln's Inn in 2012