Victor Nealon: the Court of Appeal miscarriage of justice case

The case of Victor Nealon, denied compensation despite being imprisoned for 17 years after a miscarriage of justice, has raised important issues about the compensation regime for such cases. Nealon, a former postman, was convicted of attempted rape in Redditch in Worcestershire in 1996. He served 10 years more than his recommended minimum tariff on a life sentence, in part because he continued to protest his innocence. The facts and legal arguments about the case are outlined below in some detail, based on his successful appeal in 2013 thanks to new DNA evidence. A post on the legal issues regarding compensation and why the new law (2014 Antisocial Behaviour, Crime and Policing Act at Section 175) that bars it to people in Nealon’s position unless they can prove their innocence (rather than prove a miscarriage of justice) is also available on Thinking Legally: The case against Grayling.

Nealon was convicted of attempted rape (of Ms E) in 1997 at Hereford Crown Court and sentenced by Jowitt J. His first appeal against conviction was dismissed in 1998. In July 2012, the Criminal Cases Review Commission (“CCRC”) referred the conviction to the Court of Appeal Criminal Division on the grounds of fresh DNA evidence (following his third application to the CCRC). He had continued to declare his innocence throughout his time in prison which debarred him from consideration for release after the 7-year minimum term was up. In effect his refusal to accept the verdict of the court meant he lost an extra 10 years of his life.

The following is extracted from Lord Justice Fulford’s judgment in the Court of Appeal in March 2014. 

The judgment
Fulford LJ  notes from the start that Nealon has a distinct pockmarked face. Neither Ms E nor witnesses at Rackets nightclub who say they saw the suspect  before the attack were able to confirm he had a pockmarked face. They did say the suspect had a distinctive bulge on his head — which Nealon’s defence lawyers said he did not have.

E was attacked after she left the nightclub in Redditch, but fought off her attacker. Miss M witnessed this attack and said she was sure it was the man with the bulge (described as stocky with a paisley shirt and older than other people at the nightclub) they had seen apparently eyeing women up. Both women, it was accepted, were very drunk after Miss E’s birthday party at Rackets. Miss M later picked out someone other than Nealon on the identification parade.

Various other witnesses said they had seen the man with a lump (one said half the size of an egg) at the nightclub. One (a doorman) said he had a Scottish accent (which might of course have been a mistake for Irish) and another agreed — but didn’t mention the lump and saw scars on his cheek instead. Several witnesses picked out men other than Nealon in the identity parades.

When arrested Nealon said he had spent the night at home with is girlfriend and offered DNA evidence including blood and hair. His partner gave confirmatory evidence. Nealon said he had been in a couple of scuffles some weeks earlier but the injuries (including a lump) did not match the lump on the forehead mentioned by witnesses. Also it had disappeared by the time of the attack. Furthermore, a probation officer saw the appellant on  several occasions after the attack and  did not notice a lump on his forehead.

A doctor had noted at the trial that Neaon had acne scars on both cheeks. The trial judge said what the doctor

“can’t exclude though, because it would occur without leaving any signs, is a swelling caused by a blow of some kind or other, a swelling from a heavy blow can come up very quickly and then will subside over just a few days. It will not leave any visible sign of its former presence, though in some, but not in all cases there can a thickening of the underlying tissue which can be felt, although there remains no visible sign of the former swelling. There wasn’t any thickening of that nature in this case but, as Dr Barnes said, that doesn’t exclude the possibility of there having been some sort of blow, a large lump and then quickly going down again.”

There was a lack of forensic evidence connecting the appellant with the offence. An appeal court in 1998 nevertheless found “that the appellant had been unable to advance a submission that the case should be withdrawn from the jury because a number of witnesses had picked him out on the identification parade [though others, as noted above, had picked out other people], and that the judge’s summing had been fair and balanced. In those circumstances it was considered there was ‘abundant evidence’ for the jury consider.” The appeal on that occasion was dismissed.

The new appeal
In 2010, following advances in DNA science, Nealon’s solicitors had Miss E’s clothing (still retained by police) tested. Saliva stains on a brassiere and blouse (worn for the first time that night) were deemed to belong to an “unknown” male, not Nealon. Of other samples on E’s skirt and tights (from two men and a woman) “the complexity of the results is such that a large proportion of the population would show concordance with these findings. This meant that the failure to eliminate the appellant from these mixtures has little significance.” This means any apparent link with Nealon would also link the stains with a high proportion of other people.

Tests on the saliva showed they did not belong to Miss E’s boyfriend at the time nor to police officers or investigators who handled the clothing. Dr Clayton at the  Forensic Science Service, who examined the clothing, acknowledged:

“In my opinion, at this juncture it remains quite plausible that the attacker transferred little or no DNA to the C’s clothing during the commission of the offence and that the DNA from the unknown male is not crime related.”

Also it was argued “that the DNA may have been deposited on the clothes as a result of handling in the shop at the time of purchase or as a result of re-distribution from other items. It is suggested that DNA from an unknown female on the clothes tends to indicate that the presence of DNA may have had nothing to do with this incident, particularly given Ms E said that ‘there would have been lots of men that I would of [sic] hugged and kissed and wished me happy birthday but I cannot remember anybody specific’.”

Nevertheless the lack of DNA evidence against Nealon should, according to his lawyers, be coupled with the inadequacy of identification evidence.

“Of seven witnesses who attended at the identification parade, four either picked out someone other than the appellant or they did not select any of the members of the line up. The three who identified the appellant – Ms Lismore, Mr Wyatt and Mr Morris – did so in circumstances that cast a significant shadow over the suggested accuracy of their selection of the appellant as the perpetrator.”

The attacker “mauled” Miss E, undoing her blouse and pulling at her bra where DNA material was found and pulling at her knickers and tights. He had taken out his penis. Yet none of  the DNA could be linked to Nealon. Nealon’s lawyers argued that it would be unlikely that the DNA of the “unknown” man on Miss E’s bra would be deposited during the drunken hugging and kissing of friends in the nightclub (implying it could well have been deposited by a mystery attacker).

The appeal judgment
The court took the view that: “it is self-evident from the rehearsal of the facts summarized above that the prosecution’s case was not overwhelming and that there were credible arguments to be made on whether it was sufficient to satisfy the jury (to the criminal standard) that he was guilty”. Nevertheless the original jury could not be criticisesd and the appeal court (the “Full Court”) was not wrong to uphold the conviction.

“Undoubtedly … the jury were entitled to convict the appellant on the material before them – he had been identified by more than one witness and it was for the jury to assess the reliability of that evidence – and there is no suggestion, nor could there be, that the Full Court was wrong to dismiss the first appeal. As it seems to us, on the available material at the time of the trial, the conviction and the decision by this court on 27 January 1998 cannot sustainably be criticized.”

However, the appeal could now be upheld on the basis of advances in DNA testing and the DNA evidence before the court. So:

“the fresh evidence has not ‘demolished’ the prosecution case. But its effect on the safety of this conviction is substantial. We are clear in our view that if the jury had heard that in addition to the weaknesses in the identification evidence, it was a real possibility that DNA from a single ‘unknown male’ had been found in some of the key places where the attacker had ‘mauled’ the victim (in particular, the probable saliva stain on the lower right front of Ms E’s blouse and probable saliva stains on the right and left cups of Ms E’s brassiere, as well as other DNA material on the inside and outside of the brassiere) this could well have led to the appellant’s acquittal.”

So, crucially, the judges in the Court of Appeal case did not feel that Nealon’s lawyers had made out a good case that the “unknown” man was the probable attacker. Fulford LJ said:

“We stress, therefore, that the effect of this material is to call into question the safety of the conviction because it might reasonably have led the jury to reach a different verdict ( R v Pendleton [2001] UKHL 66; [2001] 1 Cr App R 34, page 441 at paragraph 19). While Miss [Sarah] Whitehouse’s submissions [for the Crown] as to why the jury would have been entitled to reject the possibility that the ‘unknown male’ was responsible for the attack provide a dimension to the debate that requires serious consideration, we have no doubt that the effect of the new evidence is that the case may have resulted in an acquittal. Miss Whitehouse’s arguments do not go so far as to provide a basis for suggesting that the jury would undoubtedly have reached the same conclusion if they had heard this evidence.”

Comment
This conclusion seems to be saying that the prosecution did not originally have a very good case against Nealon – but that it was sufficient for a prosecution to succeed. This amounts almost to the rather bizarre suggestion that a finding of guilt “beyond reasonable doubt” covers a range of acceptable convictions that can include those “just beyond reasonable doubt” – and that is sufficient. There was sufficient evidence for a jury to look at, perhaps, but once you take out the inconsistent evidence, there was actually very little there in the case as originally presented. The conviction became unsafe because of the DNA evidence. If it had been available at the time, it is clear that a jury would not have been acting reasonably if they had convicted.

The somewhat equivocal position articulated by Fulford LJ has allowed Grayling to refuse compensation to Nealon. He can argue that there was nothing wrong with the original finding, that the Crown Prosecution Service was right to bring the case even on a “just beyond reasonable doubt” basis and so Nealon was not imprisoned unlawfully, nor really unjustly. Grayling need not engage with the strangely paradoxical concept of a conviction that is only just beyond reasonable doubt since it is up to the jury to decide guilt – after the concept of “beyond reasonable doubt” has been explained by the judge. There has therefore, as far as Grayling is concerned, been no failing by the state and hence there should be no duty for the state to pay compensation.

Yet he should not place too much faith in the appeal judge’s comment that “the jury were entitled to convict the appellant on the material before them”. Juries cannot and should not be blamed for the misguided material put before them and Fulford would wish to avoid those members of the jury feeling guilt about their finding. It would be wrong to use Fulford’s comments as if they were strong evidence to show innocence had not been proved beyond reasonable doubt. That was not the issue before the Court of Appeal – nor is it ever the issue since it is guilt that must be proved beyond reasonable doubt, not innocence.

There may also be an issue about sentencing. The Crown Prosecution Service notes here on the sentencing regime at the time of Nealon’s original case (according to guidelines in R v Billam (1986) 8 Cr.App.R.(S) 48): “The starting point for attempted rape should normally be less than the completed offence especially if it is desisted at a comparatively early stage.” Current guidelines suggest 5 years as a starting point. It was because the judge applied a life sentence rather than a specific number of years that a man found guilty on flimsy evidence who insisted on his innocence lost 17 years of his life.

Twitter: alrich0660

Note: A further Thinking Legally piece looks at the possible legal arguments against Grayling’s decission not to give compensation to Victor Nealon: The case against Grayling

This piece from The Justice Gap looks at the appeal: Victor Nealon – 17 wasted years

 

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