Case breakdown

The result of the Damilola Taylor murder trial has sparked outrage over the way politically sensitive cases are handled by both the police and the CPS. Jon Robins asks: did the fiasco that was the Stephen Lawrence investigation push the authorities into making crowd-pleasing arrests based on shaky evidence?
For both the Crown Prosecution Service (CPS) and the Metropolitan Police, when the two teenage boys accused of murdering Damilola Taylor walked free from the Old Bailey earlier in the month, bringing the three-month trial to a dismal end, another period of soul-searching (not to mention lengthy internal reviews) began.
Damilola’s parents were described as “confused” and struggling to accept the outcome. Their lawyer, Neil O’May, a solicitor at Bindman & Partners, said at the time that they felt “let down” by the courts. “They know their son was murdered,” O’May said. “They do not know who did it or why it happened, but they know he died at the hands of others.”
The defence team also voiced its frustration at the fiasco. It was a case that was driven by the “politics of race”, commented Courtenay Griffiths QC of Two Garden Court, the barrister who spectacularly demolished the prosecution’s chief witness, the 14-year-old schoolgirl known as ‘Bromley’.
“The political pressure on both the CPS and the police was such that they had to get the evidence,” Griffiths contends. “The imperative was to get the case to court.” Now that the prosecution’s case has been left in ruins, he believes that there are lessons to be learnt.
“What it shows is the need for a greater CPS involvement in the investigative process, in terms of supervision and the conduct of its officers,” the silk continues. “If there had been an independent element involved, it would have been of assistance to all parties.”
Such was the political heat generated by the doomed trial, that even Tony Blair, together with Jack Straw (Home Secretary at the time of the murder), jumped in to call for calm reflection. “Of course we must learn the lessons, but we shouldn’t rush to judge; we should consider carefully so we get it right,” urged the Prime Minister.
It has been reported that Operation Seale, as the investigation was known, cost the public more than £10m and involved up to 120 police officers, 5,600 leads and 1,800 statements. All four defendants have been acquitted of the murder of the schoolboy.
The Attorney-General Lord Goldsmith has asked the Director of Public Prosecutions David Calvert Smith to review the conduct of the CPS. Metropolitan Police Commissioner Sir John Stevens also announced that an independent oversight panel, chaired by the Bishop of Stepney John Sentamu, would look at what “lessons may be learnt”.
Even defence solicitors, who are not normally shy about pointing out the shortcomings of the CPS, appreciate the political balancing act that the prosecuting powers had to negotiate. “The CPS could have decided to make those judgements themselves and not allow any public hearing of the evidence,” says Rodney Warren, chair of the Criminal Law Solicitors Association. “I’d have thought from the public’s perspective that it was better – if the police had assured them that was the extent of the case – they allow the case to be aired so the public was aware of what was going on.”
“They’re damned if they do and damned if they don’t,” comments human rights lawyer Imran Khan, who was the lawyer to Stephen Lawrence’s family. “If you don’t bring the prosecution you’ll be accused of not putting evidence before a jury which you could have done; and if you do bring a case and the jury find for the defendant, then there’s an assumption that you have it wrong.”
A number of commentators have concluded that the Taylor case’s non-verdict has made the prospects of new charges being brought against the alleged murderers of Stephen Lawrence even less likely. Imran Khan will not comment on the specifics of the Taylor case, but he does say: “My concern is that such a hue and cry might mean that other cases that should go to court may not go to court, and that’s tragic.”
Certainly, the prosecution’s case in Taylor was found to be hopelessly lacking in key areas. For a start, there was the crucial evidence given by Bromley, who rang the police up at the end of 2000 to say she knew who had killed Taylor. She named three of the four boys who later stood trial. The jury was to hear that the girl had sung I’m in the Money while at the police station waiting for the interview. The presiding judge, Mr Justice Hooper, ruled that her evidence was unreliable.
Griffiths, who defended ‘Boy A’, claims that an objective look at the Bromley evidence would have quickly revealed that she should never have reached the courtroom. “I fail to see that anyone with half a brain could have watched the video of Bromley being interviewed and not realised that this girl was telling lies,” the silk says.
Another gaping hole in the prosecution’s case was its lack of an argument to counter evidence that, minutes after Damilola was fatally injured, the mobile phones of two of the four boys accused of his murder were located two miles away from the stairwell where he was discovered.
“Why have you not called any of the evidence of this? Where is the map and the distance? It’s such a simple task and it hasn’t been done,” noted an incredulous Judge Hooper. As he pointed out, the boys in question would have needed to run “a four-minute mile” to have got there.
“If this case was about some shoplifter in Lewisham you could understand it; but this was a huge murder investigation with all the press watching,” comments Sadiq Khan, a human rights lawyer and chairman of human rights pressure group Liberty. “It’s unfair that the police are getting all the blame. We need to take a look at the role of the CPS because, frankly, the job of the police is to simply gather the evidence and decide if there’s enough information to charge.”
Defence lawyers are also disturbed about the police’s reliance on cell confessions. While on remand for other alleged offences at Feltham Young Offenders’ Institution, three of the boys accused of the murder allegedly confessed. This was discovered only when detectives distributed a circular there, asking whether anyone knew the suspects and whether they had said anything about the murder. “Another lesson to be learnt is that there needs to be some kind of supervision or regulation of the way in which police use cell confessions from serving inmates,” says Griffiths.
The Taylor case will also provide the Lord Chancellor, Lord Irvine with further ammunition, if it is needed, to reform the Contempt of Court Act to ban press payments to witnesses. Bromley’s evidence was further tainted by talk of a £50,000 reward put up by the Daily Mail. Lord Irvine recently condemned press payments as “objectionable” and proposed his own reforms. At the time he was responding to the tabloid frenzy surrounding the case of the teacher Amy Gehring, who was alleged to have had sex with underage boys.
“The effect on a jury of them knowing that money has been offered to a witness for a story is bound to affect their judgement,” says Graham White, the chair of the Law Society’s criminal law committee, who also sits as a recorder. “And the opportunity can be exploited by a defendant and the interests of justice demand it be exploited, and the only way to deny them [the opportunity] is by prohibiting the taking of payments in the first place.”
But the issues that most disturb defence lawyers concern the relations between the police and CPS. According to White, there are many areas of the country, particularly in London, where “the quality of the liaison between the CPS and the police is poor”. He continues: “The evaluation of material by the CPS is poor and my own experience, as a recorder as well as acting as a practitioner, is that, between the police and the CPS, they far too frequently fail to prepare cases with sufficient care or regard to the evidence required.”
Imran Khan believes that the CPS has gone some way to reforming itself in the wake of Sir William Macpherson’s report into the death of Stephen Lawrence. Race murders are now more likely to be prosecuted and there is likely to be greater scrutiny and involvement by the CPS. “But the reverse is true if you get a high-profile case where they become more and more cautious about going into court, and the fear is now going to be how much more cautious they will be,” he argues.
Sadiq Khan calls Operation Seale a “botched investigation”, although the Met did “many decent things” and “learnt some of the lessons of Lawrence”. In particular, the lawyer notes the efforts made to win the confidence of the black community in Peckham.
“The problem with this case was that the first 48 hours of any murder are crucial, and they had nothing,” Sadiq Khan says. “There was this huge public outcry and everybody assumed that it was a murder, and whenever there’s such pressure on the police they’re prone to making mistakes.”
A number of defence lawyers express their concern as to how resources were concentrated rigidly on the four defendants at the expense of other lines of inquiry. Sadiq Khan notes that the defence theory – that the 10-year-old boy had not been murdered but had fallen on to broken glass – was given little credence.
According to the lawyer, nearly every alleged miscarriage of justice – from the Birmingham Six to, in his view, last year’s conviction of Barry George for the murder of Jill Dando – comes when there is such an intense public demand for a conviction.
Mark Haslam, former president of the London Criminal Court Solicitors Association, is also keen to point out what was narrowly avoided when the jury announced not guilty verdicts after deliberating for 13 hours and 50 minutes over four days. “The criminal justice system is actually vindicated in this situation – the jury came to the right conclusion and it’s a triumph for the system,” he says. “It would have been an absolute travesty and tragedy had those two boys been convicted on the back of that evidence.”

Interview with Courtenay Griffiths QC, Two Garden Court

Are there lessons to be learnt from the acquittal?
What it shows is the need for greater Crown Prosecution Service (CPS) involvement in the investigative process in terms of supervision and the conduct of officers and how they handle their evidence. Had there been an independent element involved, it would have been of assistance to all parties.
Should the witness ‘Bromley’ ever have been allowed into the courtroom?
Not at all. My view is that, had anyone looked objectively at the Bromley evidence, they would never have proceeded on that basis. I fail to see that anyone with half a brain could have watched the video of Bromley being interviewed and not realised that this girl was telling lies.
When did you realise her evidence was flawed?
From the very moment I watched the [police] video. She changed her account on so many occasions, on so many aspects of what she was saying.
You have said that the trial was driven by the ‘politics of race’. Explain?
I think [the prosecution] was responding to the concern following the Lawrence case that no attempt had been made to bring the prosecution, and so the family had to take the law into their own hands and bring a private prosecution. [The prosecution] was also under pressure to avoid the same conclusions being reached as in the Lawrence case. It was in everybody’s interests – the CPS and the police – to have a trial and at least to get this to a jury.
How do you respond to criticisms of your cross-examination as being too aggressive?
I’m paid to represent the interests of my clients, and those that criticise me fail to realise that a miscarriage of justice would have occurred had we not, through cross-examination, exposed the lies told by this girl. What are we supposed to do? Just because the CPS and the police set forward a witness, are we to treat that witness with kid gloves and accept their account merely because they come with the imprimatur of the crown? No, I don’t accept that at all. That’s why we have an independent Bar.

Failing to deliver

In the region of 11,000 cases every year are dropped by the Crown Prosecution Service (CPS), a new watchdog revealed last week.
According to the first report from HM Crown Prosecution Service Inspectorate, established under statute in October 2000, discontinuances account for approximately 13 per cent of the CPS caseload.
A spokesman for Victim Support said that such figures were “a serious cause for concern”. “Obviously, it knocks the confidence of victims of crime, and they have the right to expect that their cases are dealt with efficiently,” he said.
Launching the report, Stephen Wooler, the chief inspector to the CPS, welcomed improvements at the CPS but pointed out that there was more to achieve.
“It is essential for the service to develop robust performance management structures at the national, area and unit levels,” he said. “The additional resources now available make the service a better place than ever before to achieve the step-change in performance to which it aspires.”
The inspectorate report stated: “Inspectors, and in particular lay inspectors, are critical of cases which are dropped with little or no need of any analysis or reasons for the decision. Indeed, a very small number of files provide no reason at all for the decision.”
The inspectorate also noted “a continuing problem of cracked and ineffective trials”. It defined those cases as being listed for a contested hearing which are either resolved without contest or adjourned. “This causes waste of resource and unnecessary inconvenience to witnesses,” it concluded.
The report also revealed performance inconsistencies between the best and the worst CPS areas. It cited the example of the timeliness of pre-charge advice to police (against a nationally agreed guideline of 14 days) varied between 30 and 100 per cent. In relation to compliance with prosecution obligations on secondary disclosure, the range was 5-9 per cent.