Quickening the pace of justice
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10 April 2014
Danny McNamee's Appeal Court hearing this week is the latest triumph for the Criminal Cases Review Commission. By The Lawyer reporters.
At 10am on Thursday morning, an Irish man named Gilbert "Danny" McNamee will walk into court six of London's Royal Courts of Justice.
His Court of Appeal hearing against a 1987 conviction for conspiracy to cause explosions - including the 1982 IRA bombing in Hyde Park - is expected to last two weeks. But, at the end of the appeal, his supporters believe the 38-year old former electrical engineer will join the ranks of the Birmingham Six, Guildford Four and a host of others in having his conviction and 25-year sentence quashed.
The appeal, the first time an alleged Irish miscarriage of justice case has come to court in England since the signing of the Good Friday Agreement, will be heard by Lord Justice Swinton Thomas, Mr Justice Longmore and Mr Justice Garland.
At its heart will be the claim that the prosecution failed to disclose evidence linking an IRA bomb-maker already serving a prison sentence in the Irish Republic at the time of McNamee's 1987 trial to the conspiracy of which McNamee was convicted of being part. There was fingerprint and other evidence to link Desmond Ellis, sentenced to 10 years in 1983 in the Irish Republic for possession of explosives, with the conspiracy. But the defence was not made aware of this at either the original trial or at the subsequent unsuccessful appeal attempt in 1991.
Although it is not the first to be heard, McNamee's case was the first to be referred by the Criminal Cases Review Commission (CCRC) in July 1997. Some observers believe the appeal may still have been sitting on the Home Secretary's desk but for the creation of the CCRC.
The Home Office received a copy of the appeal submission compiled by McNamee's solicitor, Gareth Peirce, in September 1994 and that is where it remained for almost three years. In contrast, it took the CCRC just three months to agree to a referral.
At the time of the referral the CCRC said: "Following enquiries into a number of issues, including scientific evidence, fingerprint evidence, and disclosure of evidence at the time of the original appeal, the commission believes Mr McNamee's conviction should be reconsidered by the Court of Appeal."
Peirce says: "The CCRC turned it [the appeal] around very quickly, it was very impressive. I know how strong the submission was in 1994 but, by the end of the Home Office era, it was drastically under-staffed and had been wound down to a skeleton staff - it was impossible to cope."
She adds: "The time that elapsed [between submission and referral] should never have been allowed. But one blames the Home Secretary [then Michael Howard] for allowing that to happen, rather than the Home Office staff who tried their best. As the CCRC develops and expectations grow, it could accumulate the same problems and be overcome by work and the complexities it is being asked to consider."
Since it began operating in April 1997, the CCRC has referred 30 cases to the Court of Appeal. Seven have been heard; of those, six have led to the quashing of convictions or reduced sentences.
But the McNamee case is, politically at least, the most significant and high-profile case so far referred by the CCRC.
McNamee was arrested at his home in Crossmaglen, south Armagh on August 16 1986 under the Prevention of Terrorism Act (PTA). Two days later he was flown to London's Paddington Green police station, where he was told that he was being held under suspicion of involvement with explosives.
He was told that his fingerprint had been found on pieces of circuit board retrieved from an IRA arms dump in England. He was subsequently charged, on August 18, with conspiring with three others - Thomas Quigley, Paul Kavanagh and Natalino Vella - and "persons unknown" to cause explosions in the UK between 1983 and 1984. The other three, all IRA members, were already serving sentences in England after being convicted of possession of explosives in 1985.
McNamee remained on remand for 14 months. Then, 10 days before his trial was due to open, the prosecution won the right to have the charge against him altered to include the 1982 Hyde Park bombing, which killed four soldiers and seven horses.
The evidence supplied was from the two fragments of circuit board found at the IRA arms dump in Northamptonshire which were wrapped in masking tape carrying one of McNamee's fingerprints.
His supporters claim this fundamentally changed the outcome of the trial because the defence had little time to prepare and also because of the media hysteria guaranteed by reference to the Hyde Park killings.
The forensic evidence against McNamee at his trial in 1987 consisted of three finger prints. One found on a Duracell battery said to have come from an unexploded bomb discovered in London in December 1983; a second print recovered from a piece of grey masking tape stuck on a detonating device found at the Northhamptonshire IRA arms dump, Salcey Forest, in January 1984; and a third found at another arms cache in Pangbourne, Berkshire in October 1983.
There was no confessional or eye witness evidence provided. McNamee has consistently denied being a member of the IRA, and the IRA has always denied he is a member.
At the trial, it was admitted that there were more than 100 fingerprints, including those from IRA members Quigley, Kavanagh and Vella, found at the two arms caches. But it was accepted that those other prints were from "innocent" sources. It was not disclosed that there were also prints from Ellis on the Pangbourne arms cache.
McNamee claimed at the time of his trial that, as an electrical engineer, he could have handled all these items innocently in his daily work at a company called Kimbles Manufacturing in Dundalk, which produced spare parts for gaming machines. McNamee worked for the company until December 1985.
The prosecution argued that because the grey masking tape with McNamee's print was wrapped around a similar circuit board when found at the arms dump in Salcey Forest, to the fragments recovered after the Hyde Park explosion, that therefore the two had been built by the same bomb maker. McNamee was convicted, and described in the media as an "IRA master bomber".
Peirce says: "Our argument is that the portrayal of Danny McNamee as the IRA bomb-maker and the disclosure that Desmond Ellis' fingerprints were found, make for another interpretation of what happened."
When arrested in 1981 Ellis was found in possession of circuit boards said to be similar in their manufacture to the ones found at Salcey Forest and therefore linked, by the prosecution at McNamee's 1987 trial, to the Hyde Park bombing. None of this evidence was known by the defence.
Peirce, who successfully represented Ellis in 1991 after he was extradited from Ireland to face explosives charges relating to UK bombings between 1982 and 1984, says McNamee's legal team has unearthed more detail to support his appeal. She refuses to reveal those details but they are likely to include doubts over the identification of at least one of the fingerprints - the one found on the Duracell battery.
McNamee was freed last Wednesday - six months early under the Good Friday Agreement - so he will not be in custody for his appeal. Ironically, his plan now is to become a lawyer and he passed his law degree in the summer. But he can do that only if his conviction is quashed at the Court of Appeal in three weeks' time.
The CCRC takes action
The Criminal Cases Review Commission was set up in April 1997. It has a brief to investigate possible miscarriage of justice and, so far, has received more than 2,000 applications to look at criminal cases in England, Wales and Northern Ireland. It has so far completed work on 587 cases and referred 30 to the Court of Appeal.
Danny McNamee's case will be the eighth heard. The previous seven are:
Mahmood Mattan was convicted of murder in 1952 and became the last man to be hanged in Wales in September 1952. His conviction was quashed on 24 February 1998.
Raymond Cook appealed against his four-and-a-half-year sentence for aggravated burglary. It was reduced to three years, 11 months on 27 February 1998.
Patrick Nicholls was convicted of murder and robbery in November 1975. His conviction was quashed on 12 June 1998.
John Henry Taylor was convicted of burglary in 1962. His conviction was quashed on 18 June 1998.
David Ryan James' conviction for the murder of his wife Sandra in 1995 was quashed by the Court of Appeal on 28 July 1998.
Derek Bentley was convicted of murdering police officer Sidney Miles in December 1952 and hanged in January 1953. his conviction was quashed on 30 July 1998.
Clovis Gerald was convicted of conspiracy to cause grievous bodily harm and committing GBH in 1987. His case was referred by the CCRC but was upheld by the Court of Appeal last week.