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Two Cases of Failure

By Bob Woffinden on 31/01/14

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Two Cases of Failure

From Inside Time February 2014 

It is axiomatic that if there had been a seventeen-year history of professional incompetence in, say, a National Health or social services matter, then there would have been a media hue and cry, and interventions by politicians, and official inquiries, and dire consequences for those deemed to have failed in their responsibilities. Heads would certainly roll.

In other professional spheres retailing, for example it is inconceivable that there could be such a history of incompetence, merely because the retailer would have failed and gone out of business.

Everything is very different in the criminal justice system where, it seems, sustained failure is unlikely to attract any sanction whatever. As yet, there have been no calls for inquiries into the case of Victor Nealon, whose 1997 conviction for sexual assault was quashed in December last year, despite the egregious shortcomings of almost all of those professionally involved: West Mercia police, the Crown Prosecution Service, the defence (at trial), the prison service and especially since it's supposed to be their job to clear up the mess left behind by everyone else the Criminal Cases Review Commission.

The case began on 9 August 1996 with an allegation of sexual assault by a woman who had just left Rackets night-club in Redditch, Worcestershire, with a friend. The woman resisted her attacker and, as her friend ran for assistance, he broke off and ran away.

However, a number of people had already observed him, either in the night-club or the immediate area. He was wearing a garish shirt, spoke with a Scottish accent and, in what should have been a gift to investigators, he had a prominent lump on his forehead.

On 15 September, police arrested Victor Nealon, a postman to whom none of those identifying features applied.

He immediately agreed to give samples for DNA elimination and to stand on an identification parade.

The victim's friend did not identify Nealon, and the victim herself did not bother to attend the parade. There was no scientific evidence of any kind. Nevertheless, the Crown Prosecution Service somehow imagined that it was in the public interest to send the case to trial.

Nealon was convicted. One of the factors that undoubtedly led to the conviction was the use of ambush evidence by the prosecution. This cast doubt on Nealon's alibi that, at the time of the attack, he was at home watching videos with his partner and her daughter. (The evidence concerned a dispute over which films they were watching; the prosecution had not disclosed a statement from the Blockbuster store manager and, by only tendering it at the last moment, gave the defence no opportunity to deal with the evidence).

Nealon's appeal was dismissed in January 1998, but by then the CCRC had been set up and he was one of the early applicants. It was hardly a taxing case; obviously, the twin pillars of concern were seriously questionable identification evidence and the complete absence of forensic science evidence.

The CCRC dismissed Nealon's applications in 1999-2001 and again in 2002. The Commission told his lawyers, somewhat patronisingly, that, 'As is usual in cases of physical assault, [the victim's] clothing was submitted for forensic examination', and then concluded its analysis by flatly stating that, 'Forensic tests were carried out on all the clothes seized, but no DNA evidence found'.

This was untrue. It was a grievous mistake that was to cost Nealon another fourteen years of his life.

Blame for all that he has suffered also lies, of course, with the intrinsically irrational policy administered by the prison service that those who continue to protest their innocence even in cases as clearly flawed as this one must constitute a danger to the public and should not be released.

In time, Nealon found a highly competent solicitor, Mark Newby. I wrote an article for Inside Time, explaining why the case was a miscarriage of justice. As a result, Inside Time was contacted and we were given the probable name of the attacker, someone who had both a Scottish accent and a prominent lump on his forehead and who was at the time in a Scottish prison. That was six years ago.

Newby quickly established from the police that clothing in the case was never sent for testing; and the Forensic Science Service confirmed to him that no clothes had been submitted for examination.

If only the CCRC had done its job eleven years earlier…

So Newby now got the clothes tested. The forensic science report, dated 28 May 2010, confirmed that there was no scientific evidence that Nealon was involved. It also revealed, on parts of the clothing where one would have expected the attacker's DNA to be found, the presence of DNA from an unknown male.

One would have thought that this was the time for real urgency. Unfortunately, carpe diem is not a hallowed phrase at CCRC towers. Newby's striking achievement in establishing the innocence of his client beyond reasonable doubt met only with further resistance.

In their continued procrastination, the CCRC set about trying to establish whose DNA the unknown male's could be, and consulted the victim. It should be pointed out at this stage that the victim had not previously been highly thought of. The Court of Appeal judges were certainly unimpressed with her, given that some of her testimony had been influenced by "dreams".

'We accept', Lord Justice Rose had said, 'that the complainant's account grew somewhat more graphic as time went on.'

So another year passed. The CCRC asserted that it was 'carrying out its statutory function of determining whether the statutory test is met'. Everyone involved with the defence, however, believed that the test already had been met.

In July 2011, Newby filed an official complaint about the CCRC's inaction, pointing out (among other things) that its apparent view that a lump on the forehead could miraculously appear and disappear was 'absurd'.

Finally, in 2012, the case was referred. In December 2013, after this astonishing seventeen year saga of gross professional failings, justice was achieved.

The CCRC might now like to take the lessons it has, we hope, learned from this case, and apply them to the Andrew Malkinson case, which is another conviction for sexual assault and has also been previously highlighted in Inside Time.

It is another in which the CCRC has so far failed to act. There are two astonishing parallels in these cases: first of all, the readiness of both Nealon and Malkinson to volunteer DNA samples was used against them at trial by the prosecution as "evidence" that the defendant, being the attacker, knew that he had left no incriminating scientific deposits. (In fact, it is contrary to any notion of a fair trial that prosecutors are allowed to get away with such rhetorical nonsense).

Secondly, in both cases a conviction that should have been based on scientific evidence was instead based on identification evidence. This evidence itself was, however, obtained in the most dubious circumstances. In Nealon's case, one of the witnesses was "beckoned over" by a police officer and subsequently changed his evidence; in the Malkinson case, similarly, one key witness spoke to an officer after the parade and changed her identification.

There are two final points about the Nealon case. Firstly, the CPS could have graciously conceded the appeal. It did not. Instead, it was contested. The CPS suggested that the DNA could have been deposited by a shop assistant. Presumably, it will not be advancing this argument in other cases of sexual assault that it is prosecuting.

Secondly, when Nealon's appeal was heard, he was 185 miles away in Wakefield prison. He was deprived of his moment in the spotlight on the steps of the Royal Courts of Justice. This may be a very minor scandal at the end of a litany of scandals, but it is a scandal nevertheless.

The appeal court judges, who made a point of saying that they had read the case papers very thoroughly beforehand, must have known that there was a good chance that he would be freed. Yet he was allowed to appear only by videolink. Everything that for years he had dreamed of saying on the steps of the Royal Courts would remain unsaid.

It seems to me that one's natural rights include not just having an appeal but also being able to attend it.

Publicly, the Ministry of Justice would no doubt maintain that they were saving costs. As we all know, there is an ulterior motive. The government's real objective is to inhibit embarrassing publicity an objective that, sad to report, was effectively achieved.