Neil Wilby Media

Miscarriages of justice have been a topic close to the heart and mind of the author of this article, Neil Wilby, for nigh on fifteen years.

In three of the cases to which he is currently attached – the biggest failed fraud case in British policing history, a falsely alleged organised criminal with links to the Russian mafia and a gruesome joint enterprise murder – for twelve, ten and nine years respectively.

The police force that led the criminal investigations – West Yorkshire – is the same in all three cases and officers have been identified who are common to at least two of those.

A recurring feature, and one that has been prominent in a number of very high profile cases down the years, such as Stefan Kiszko, Judith Ward and Anthony Steel (read more here, here and here) is poor quality and highly partial detective work: A notion is formed that a suspect is guilty and, thereafter, only evidence that is germane to that proposition is considered. 

Serious stuff, indeed: The alleged organised crime case, although prosecuted at a much lower level, was raised in Parliament in 2014 by way of an adjournment debate (read more here); the principal in the murder convictions had his case referred back to the Court of Appeal by the Criminal Case Review Commission in October, 2023 (read more here) and an appeal in the fraud case, with 55 million euros on the indictment at the time of the trial, is currently being worked on by one of the top criminal appeal lawyers in England and Wales (read more here).

One of the iniquities of the criminal justice system in England and Wales is that once convicted, the burden of proving innocence is, effectively, reversed and the hurdles set by the Appeal court and their investigating arm, the aforementioned CCRC, very high indeed. 

Also known as the criminal justice watchdog, and frequently criticised over the time taken to consider applications for a referral back to the Court of Appeal the CCRC makes it clear on their website that new (or fresh) evidence is the key to success:

“For the CCRC to send your case back to the appeal court, we normally need to identify something new and significant, capable of making the court view your case differently.

“This could be fresh evidence or a new legal argument, such as a new witness or a new scientific development. It has to be something not covered at your trial or appeal.

“When making an application to the CCRC, it is important to think about what went wrong in your case, and what is new.

“We cannot revisit or investigate things already known by the jury, the judge, or the magistrates.

“Even if you believe that they made the wrong decision, repeating points made during earlier proceedings will not help your application.”

The downside to that is that fresh evidence – as defined by Section 23 of the Criminal Appeal Act 1968 (read here) – depends in almost every case on disclosure of materials held by investigating or prosecuting authorities. Compounded by the fact that, very arguably and, almost certainly, in the three extant miscarriage of justice cases highlighted in this article, too many convictions are a result of disclosure malpractice either before or during the trial (or both). Even more so, in three historic cases of Kiszko, Ward and Steel.

Examples of fresh evidence can be new witnesses that have come forward, or witnesses that have ‘changed sides’; advances in medicine or science, such as DNA, that weren’t available at trial that can be introduced via a new expert report, or even disclosure that was available at trial but wasn’t introduced or made available to the defendant’s legal team.

On the subject of fresh evidence, the question either the Registrar (or single judge as s/he is often referred to), or the Court of Appeal judges must ask themselves when deciding on giving permission to appeal is “if they think it necessary or expedient in the interests of justice”, as outlined in the1968 Act, to accept the fresh evidence as a ground of appeal.

The court must give due regard to whether the evidence is capable of belief, whether it affords grounds of appeal, whether it would have been admissible at trial. That is to say, would the Judge have allowed it to be introduced? Also, whether there was a reasonable explanation for this evidence not being introduced at trial.

However, fresh evidence can still be a ground of appeal even if there doesn’t appear to be a reasonable explanation as to why it wasn’t introduced at trial. The overarching issue the appellate bench must consider is ‘safety’: Has the fresh evidence now put forward become key to undermining the safety of the conviction in the lower court?

Even if the fresh evidence might have been helpful at trial, it won’t be considered grounds of appeal unless it relates to the central issue of the case.

On a wider front, the criminal justice landscape is changing dramatically. As is public perception of the harm done to victims of wrongful or unsafe convictions. Almost by the hour, day and week, rather than the glacier pace of the last fifty years as the most shocking revelations concerning investigative and prosecutorial misconduct around the Post Office/Horizon software scandal come to light. Aided immeasurably by the magnificent and heart-rending ITV Drama, Mr Bates versus The Post Office and campaigners releasing clips and notes from the equally superb Post Office Inquiry, a statutory process headed up by retired High Court judge, Sir Wyn Williams.

So strongly do campaigners feel around the miscarriages of justice that have happened in West Yorkshire that they are planning an orderly but, hopefully, highly effective campaign that involves letters to MPs, the Mayor, the Police and Commissioner, the Director of Public Prosecutions, Independent OffIce for Police Conduct and the WYP chief constable; leaflets, posters and an on-line presence via dedicated social media accounts and, similarly, a dedicated page on this website.

A peaceful protest is also at the planning stage which will take in the PCC, police and IPCC offices in Wakefield.

This is what four notable victims and/or campaigners have to say:

Kelly Calvert, who lives in Bradford, who has never wavered in the fight to clear her brother’s name over the Barry Selby (Bradford 4) murder says: “With the referral of the case of my brother, Lee Calvert, back to the Court of Appeal by the CCRC, my family and I are in a better place than most miscarriage of justice campaigners.

“But that is not to say we haven’t had to battle every last inch of the way over disclosure and new evidence.

“We would support any call for a Post Office-style public inquiry or Royal Commission to clear the way for others in the future”.

Involved in the same case and closely aligned to the Calvert family is Michelle Feather: “My son, Andrew Jnr, aged 23 at the time, was jailed in 2014 after the most appalling WYP investigation, followed by obstruction at every turn when myself and my husband, Andrew Snr, have sought disclosure from the same police force and the CPS.

“We are, obviously, all delighted that the so-called ‘principal’ in the murder of Barry Selby has now had his CCRC application referred back to the Court of Appeal. Our family and supporters are very hopeful that Andrew Feather Jnr‘s appeal will follow on from Lee Calvert’s hearing.”

“Like Kelly, we will campaign for an inquiry into all miscarriages of justice in West Yorkshire.”

There are no miles that John Elam, who now lives in North Leeds, won’t walk or doors he won’t try to push open in the bid to clear his name and he says: “Since Gerry Sutcliffe MP raised my case in Parliament in 2014, ten long years have passed as me and my legal team are obstructed at every turn on disclosure by the CPS and WYP.

“Without that disclosure it is very difficult to prepare a further ‘new evidence’ application to the CCRC. But the police and the prosecutors should be in no doubt that I will never give up the fight to clear my name.”

“We need a public inquiry like the victims of the Post Office scandal.”

Now based in Crete, but born and brought up in Leeds, Ralph Christie has similar views: “My convictions followed what has been described for years – unchallenged by WYP – as the biggest failed fraud investigation in British policing history.

“I was cleared of 14 of the 19 counts at Bradford Crown Court, including the most serious of them which were pervert justice, theft and money laundering.

Over 53 million euros on the indictment fell away, another million euros plus has fallen away since the Proceeds of Crime Act hearing in 2018.

The fight to clear my name is repeatedly hampered by disclosure issues which, in turn, prevent access to the vital ‘new evidence’ that we need for my appeal to the Court of Appeal.

“On a wider front, there needs to be some form of independent investigation, on the lines of the Post Office Inquiry, or a Royal Commission looking into the entire, flawed police service in the UK.

“A resident on Crete for many years, neither I nor my lawyers have the same problems over disclosure when dealing with the Greek courts. They could teach the English a thing or two.”

“I back absolutely the calls for an inquiry into West Yorkshire Police and the Crown Prosecution Service”.

Page last updated: Friday 15th March, 2024 at 1925 hours

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