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The Price of Justice:
A Shoddy Prosecution

            Justifiably incandescent with rage the then presenter of Channel Four’s sadly defunct Trial And Error, David Jessel, addressed the media brandishing a copy of Sir Phillip Otton’s judgment in April 1996. “This is yet another shoddy judgment in a shoddy case,” fumed Jessel.

            It would take another seven years for the truth of just how shoddy this judgment was to see the light of day. Lord Justice Otton delivered a scandalous judgment that would rob Gary Mills and Tony Poole of a further seven years of their lives. They had been convicted of the murder of Hensley Wiltshire in January 1990, after a year on remand. In 1996 Otton used a passage of an interview with Mills to dismiss the appeals arguing that it dispelled the prejudice of the refusal to disclose the statements of an eye-witness, Ian (Neville) Juke as the passage referred to claims allegedly made by Juke. Otton said, “Moreover, it was an accurate summary of the substance of Juke’s second statement.” But it wasn’t - a fact that would be acknowledged by both police officers who conducted that interview in a libel trial two years later. Either Otton had not read Juke’s statements and that passage of interview, or he had delivered a judgment that he must have known was untrue.

            Yusef Abdullahi of Cardiff Three fame and Winston Silcott first told me about the case of Mills and Poole in 1991. From the outset I was concerned about the conduct of Gloucestershire Police, especially that of former Detective Inspector Trevor Gladding and its impact on the integrity of the investigation that convicted Mr Mills and Mr Poole. The 1996 appeal revealed that the extent of police malpractice was greater than I had imagined. Detective Constables Brian Paine and Mark Cheminais had allowed the witness Paul White to give information in his statement that they knew to be untrue. The appeal judges - Otton sat with then Mr Justices Keene and Ian Kennedy - criticised the conduct of these officers, but decided that the jury would not have believed White anyway. Similarly they dismissed Juke as incapable of belief. They had substituted their own judgment for that of the jury.

            In 1996 this practice was far from rare even though the law demands that juries alone decide what is and is not a fact. Far too often appeal judges usurped the function of the jury. The case of Mills and Poole graphically illustrated the dangers of such an approach. The decision of the Law Lords in the case of Donald Pendleton reiterated that determining facts is the sole domain of the jury. It would prove to be a significant case for Mills and Poole. Sadly, usurping the role of the jury would not be the only point of law that these appeal judges would interpret wrongly.

            During their unsuccessful appeal in 1996 and their 1997 appeal to the House of Lords, it was acknowledged that there were three material irregularities, each of which related to police conduct. There was further evidence that cast the integrity of this inquiry in a very poor light. Nevertheless, the appeal court and the Law Lords were not convinced that a miscarriage of justice had occurred. By then I was firmly convinced that it had. Why, after all, would there be so much police malpractice in the one inquiry if this investigation and prosecution were beyond reproach?

            And before this there had been serious flaws in the trial process. Juke had been kept away from the trial due to the improper interference by Detective Inspector Gladding prior to the committal hearing. Mills and Poole’s defence lawyers had a tape of Gladding threatening Juke with arrest if he attended that hearing. Inexplicably this was not played to the jury at the 1990 trial.

            In October 1998 former Detective Inspector Gladding lost his libel action against David Jessel – now a Commissioner at the Criminal Cases Review Commission (CCRC) – and the publishers of Jessel’s book, which featured the case of Mills and Poole. A High Court jury unanimously found that Gladding had not been libelled when he was accused of perverting the course of justice and perjuring himself in Mills and Poole’s case. New evidence casting the investigation and prosecution in an even worse light emerged in that trial.

            Evidence relied on by the appeal judges to dismiss the 1996 appeal was itself tainted. The judges believed a passage of interview with Mills to be an accurate summary of the second statement of Ian Juke that dispelled prejudice from the non-disclosure of that statement. Both officers involved in that interview - a then Detective Sergeant John Jeynes who has since been promoted and Gladding - accepted in evidence that it wasn’t an accurate summary. Consequently, it increased the prejudice done to Mills rather than dispelled it.

            Despite this the CCRC initially refused to refer the case back to the appeal court. Mills and Poole judicially reviewed that decision in December 2001. The judges - Lord Woolf, the Lord Chief Justice, and Mr. Justice Ousley - took the extremely rare step of voicing their concern over the case. Lord Woolf said, “Almost every aspect of the prosecution is tarnished.”

            In May 2002 the CCRC referred Mills and Poole back to the Court of Criminal Appeal. The appeal judges considered whether the cumulative effect of the malpractice in this case rendered the convictions unsafe in April 2003. In effect they would pass judgment on what a former Commissioner of the Metropolitan Police once infamously called, “noble cause corruption.” Lord Justice Auld, sitting with Mr. Justices Keith and Simon had the opportunity to say loud and clear that there is nothing noble about corruption. Sadly they lacked the courage to do so. They also failed to criticise serious failings in the previous appeal.

            Lord Justice Otton quoted the definition of an abuse of process as ‘something so unfair and wrong that the court should not allow the prosecutor to proceed with what is in all other respects a regular proceeding.’ He described Gladding’s conduct as ‘reprehensible’ and ‘most unwise.’ He did not describe it as perjury and perverting the course of justice. Had he done so it would mean that perjury and perverting the course of justice were not acts so unfair and wrong that a prosecutor should intervene. The 1996 judgment only made sense if Gladding’s conduct did not amount to perjury and perversion of the course of justice. The 1998 libel trial showed that it did. The convictions should have been quashed on that alone. It would require almost five years for that to occur.

            In his judgment Lord Justice Auld tried to reconcile these seemingly irreconcilable decisions. “The fact that Otton LJ, in giving the judgment of the Court, did not understandably feel able to give it the labels ‘perversion of the course of justice’ and ‘perjury’ in a proceeding to which he was not a party [see note 1], does not affect the underlying conduct of which the first Court of Appeal was fully aware or its decision that it had not been such as to render the criminal trial an abuse of process or the convictions unsafe.”

            This appears to be suggesting that perjury and perverting the course of justice are not acts so unfair and wrong that the court should intervene and that they do not constitute an abuse of due process of law. If perjury and perverting the course of justice are not abuses of due process of law it is difficult to see what could ever constitute an abuse of due process.

            Sadly, Auld was far from finished. During this appeal it became clear that the passage relied on by Otton to dismiss the 1996 appeal was itself inadmissible as hearsay evidence. Auld said, “Of course, the Court of Appeal did not know, and nor did the House of Lords, which was focusing on the single issue of non-disclosure before it, that DS Jeynes had misrepresented to Mills in interview some of what Juke had alleged in his second witness statement.”

            Really? A radical solution to this problem would be for Court of Appeal judges and Law Lords to read passages of interview and witness statements before attempting to rely on them.

            In quashing the convictions Auld described that passage of interview as ‘containing a graphically phrased, inaccurate, damning and inadmissible account.’ Auld totally failed to refer to Otton’s description of that same passage: ‘Moreover, it was an accurate summary of the substance of Juke’s second statement.’

            The convictions were quashed on June 17th 2003. Despite that, to borrow Jessel’s phrase, “This is yet another shoddy judgment in a shoddy case.”

            Sadly this case has yet to receive the media scrutiny it deserves. It involved shocking police malpractice. There were serious flaws in the trial process. The first appeal judgment was either utterly dishonest or the judges did not read the material they relied on to dismiss the appeals. The House of Lords repeated the error of the appeal court. It then changed the law to prevent repetition of the non-disclosure of statements from witnesses the Crown deems unreliable, but ruled that Mills and Poole had suffered no miscarriage of justice. The CCRC failed to realise the merits of submissions put to it, requiring a judicial review to persuade it to look at this case again and refer it back for appeal. And the judges of the second appeal seemed more concerned with protecting their colleagues from criticism than the interests of justice.

            As the Lord Chief Justice said, “Almost every aspect of the prosecution is tarnished.” The failure to hold the criminal justice system accountable for the persistent failings that occurred in this case is a sad indictment both of that system and the media that allow such abuses to pass without comment.

            Despite the decision of the libel trial jury former Detective Inspector Trevor Gladding has yet to face any charges. Last year the newly created Independent Police Complaints Commission agreed to supervise an investigation by the Metropolitan Police into Gladding’s conduct. It is unclear if it will investigate other instances of dubious conduct such as that of Paine and Cheminais. And, despite the swingeing criticism of the witness, Paul White, he has yet to face any investigation into his conduct.

            As with other victims of miscarriages of justice, both Mills and Poole face problems re-adjusting to normal life. They will be compensated for their ordeal, but can any amount ever compensate someone for unjustly taking away more than fourteen years of their lives?

            And, what about the victim’s family? Hensley Wiltshire should not have died - a fact acknowledged by the judges at the first appeal. If he had been treated properly on either visit to hospital he would not have died. And there is evidence never heard by any court that suggests that contrary to Otton’s assertion that Wiltshire refused admission to hospital, he did want to be treated, but never received it. This was in all respects an extremely shoddy case.

            The opinions expressed in this article are those of the author.

            Note 1: This ignores the fact that no appeal judge would have been party to such a proceeding.  Return.

Copyright 4 July 2005, Satish Sekar