Welsh miscarriage of justice victim Michael O’Brien has been granted permission to legally challenge a decision not to prosecute a retired detective whose evidence helped send him to jail for a murder he did not commit.
Today Mr O’Brien received confirmation that the High Court had allowed him to seek judicial review of the Crown Prosecution Service’s decision not to prosecute retired detective inspector Stuart Lewis for perjury.
Last year CPS lawyers decided there was insufficient evidence for a prosecution to proceed against Mr Lewis, who was involved in investigating the murder of Phillip Saunders in October 1987.
Mr Saunders was the owner of three city centre kiosks that sold newspapers, cigarettes and sweets. He was battered over the head five times as he arrived home at Anstee Court in the Canton district of Cardiff. Mr Saunders had just collected his takings and the motive was apparently robbery.
Three men – Michael O’Brien, Darren Hall and Ellis Sherwood – were convicted of Mr Saunders’ murder. They spent 11 years in jail before having their convictions quashed.
During their trial Mr Lewis claimed he had overheard a shouted conversation between Mr O’Brien and Mr Sherwood as they were held in adjacent cells at Canton police station.
The conversation, which effectively amounted to a confession, allegedly went as follows:
O’Brien: “They’re going to charge me and you.”
Sherwood: “No, they’re not. All they’ve got is Hall; he’s grassing us.”
O’Brien: “I can’t hold out for much longer, I may have to tell the truth.”
Sherwood: “Don’t do that, we’ll be f****d.”
O’Brien: “I can’t hold out for much longer, I might have to tell them what happened.”
Sherwood: “You’re talking about life, being on remand means nothing.”
O’Brien: “I can’t hold out for much longer. I’m scared I’ll have to tell them what happened.”
Sherwood: “Just keep your mouth shout.”
O’Brien: “Why don’t you tell them what happened?”
Sherwood: “I can’t, can I? If Hall hadn’t opened his mouth we wouldn’t be here. I think there’s someone listening. I’ll catch up with you later, OK?
O’Brien: “Yeah. OK.”
Mr Lewis claimed he had quickly scribbled down a note of the conversation on the back of a police expenses form.
By the time of the three men’s appeal, the document could no longer be located.
In quashing the three men’s convictions, the Court of Appeal judges referred to concerns about the reliability of Mr Lewis’ evidence in an earlier trial where defendants were acquitted.
They said: “We cannot and do not say that the evidence of DI Lewis of the conversation he says he heard between Sherwood and O’Brien must be false. We are satisfied that cross-examination of DI Lewis in the light of the information now available would be much more effective than the cross-examination he faced at the appellants’ trial and the chances of the jury being unsure as to whether he was speaking the truth or not would now be much greater.”
In 2006 two linguistic experts – one commissioned by Mr O’Brien’s legal team and the other commissioned by the police – produced reports which cast doubt on Mr Lewis’ alleged transcription of the conversation between Mr O’Brien and Mr Sherwood he claimed he had overheard.
Last November reviewing lawyer Alison Storey, specialist prosecutor in the CPS Special Crime Division, said: “After carefully reviewing all of the evidence, I have decided that no charges should be brought in relation to allegations that a South Wales police officer fabricated evidence during the investigation into the tragic murder of Phillip Saunders in 1987.
“Following an investigation by South Wales Police, supervised by the Independent Police Complaints Commission, I have considered all of the available evidence, including that which arose during previous proceedings and additional new evidence, including expert evidence.
“In order for the CPS to prosecute any offence there must be sufficient evidence to provide a realistic prospect of conviction. If there is not, the case does not pass the evidential stage of the full code test as set out in the Code for Crown Prosecutors.
“I consider that the evidence reviewed in this case was neither clear nor consistent and that no credible picture that might support a prosecution could be determined. Therefore I found that there was not sufficient evidence to provide a realistic prospect of conviction. Accordingly the evidential stage of the test was not passed.
“As a result, I have advised the police that this officer should not be charged with any offence.”
Today Mr O’Brien’s solicitor Nogal Ofer, of London human rights solicitors Bhatt Murphy, said: “We are pleased the High Court has given us permission for a full hearing.
“It is very rare for the High Court to grant a full judicial review hearing to challenge a decision of the CPS not to prosecute someone. The court normally takes the view that CPS lawyers have come to a reasonable conclusion after studying the evidence.
“We argued in written submissions to the court that there were strong grounds for a perjury charge in this case. Clearly the court agrees we have an arguable case.”
A CPS spokesman said: “We have been notified that Michael O’Brien has been granted permission to seek judicial review of a CPS charging decision. As legal proceedings are now underway, we cannot comment further at this time.”
Mr Lewis could not be contacted for comment.