Who killed Patrick Quinn? The framing of Malcolm Kennedy

The case of Malcolm Kennedy and Patrick Quinn must rank among the most worrying of the many miscarriages of British justice. It involves not only the conviction of an innocent man but also the so far successful cover-up of a murder committed by police officers.

1. Introduction

After a three week trial in September 1990, a Court of Appeal hearing in February 1993, an aborted retrial in September 1993 and a second retrial which lasted 11 weeks, Malcolm Kennedy was convicted of the manslaughter of Patrick Quinn at the Old Bailey on Friday 6 May 1994. Kennedy had not been charged with manslaughter, it was not a suitable charge given that Quinn's injuries included 33 fractured ribs, crushed heart and larynx and he had lost a large amount of blood. Quinn's injuries could not be described as unintentional, so Kennedy had been charged with murder.

The jury returned their verdict after the trial judge, Mr Justice Swinton Thomas, advised them in his summing up that if they believed Kennedy caused Quinn's injuries, but did not intend to kill him, because of his drunken condition at the time, then they should return a manslaughter verdict. The jury went out on the Thursday afternoon, indicating that they would need some time to consider their verdict. After one night in a hotel, the jury returned a 10-2 majority not-guilty verdict on the murder charge, and unanimously convicted Kennedy of manslaughter.

In normal circumstances, Kennedy would have been acquitted of murdering Quinn, and the manslaughter alternative would never have been considered. It is impossible to believe that the jury were sure beyond reasonable doubt that Kennedy killed Quinn. The very fact that they returned a manslaughter verdict indicates they were not sure. But this was an exceptional case. Quinn died in Hammersmith police station. A police officer claimed to find Quinn covered in blood on a cell floor with Kennedy sitting on a bench beside him. The only possible conclusion, claim Hammersmith police, was that Kennedy murdered Quinn. Kennedy claimed he saw police officers assault Quinn in the cell, and they must have killed him. The Kennedy trial sidestepped fundamental principles of criminal law. It was not about whether Kennedy did, or did not, kill Quinn, the basis on which all criminal trials are supposed to proceed. The issue became - was Quinn killed by Kennedy or police officers?

Following the jury's verdict, Swinton Thomas made some damning comments about Kennedy before sentencing him to a nine year term in prison. His remarks belied his own, and the legal establishment's prejudices regarding allegations of criminal activities by police officers. He said:

"People over the past few weeks... have been accused of being murderers, perjurors and conspirators to pervert the course of justice. Those people, by the jury's verdict, have been entirely vindicated. I have no doubt at all you must have known from the outset that it was you and you only who was responsible,"

The Daily Telegraph put the point more succinctly in its headline the following morning:

"RETRIAL CLEARS POLICE OF KILLING IN POLICE CELL"

The death of Patrick Quinn and the manslaughter conviction of Malcolm Kennedy demonstrate fundamental weaknesses of the law in cases which involve allegations of police crime. The police's investigation of Quinn's death, the Crown Prosecution Service's preparation of the case and the conduct of the second retrial have collectively brought the criminal justice system into disrepute. For Malcolm Kennedy, this has meant he did not receive a fair trial and he is serving a nine year prison sentence for a crime he did not commit.

At the heart of the criminal justice system is the presumption of innocence. The prosecution has to prove beyond reasonable doubt that the defendant committed the alleged offence. In the Kennedy case that burden of proof shifted from the prosecution to the defence. It became necessary for the defence to prove that the police attacked Quinn.

2. Covering up police crime

There isn't a statutory body in Britain with responsibility for researching the police other than the police. Dotted around the country there are a small number of independent, community based, monitoring groups which provide limited information on police activities. They do not have the resources to thoroughly investigate police patterns of behaviour because they are otherwise engaged supporting members of their communities who have been attacked by the police. Consequently, there has been very little research into police crime. Because the subject has not been officially researched, the authorities do not even recognise police crime.

Information on police crime does exist. In the thousands of solicitors firms the length and breadth of the country, there must be tens of thousands of cases alleging police officers have committed criminal offences. It is not in the interests of the authorities to commission independent investigation of the police. There is a belief in this country that the traditional British Bobby, who polices the streets with the consent of the public, is above suspicion. However, during the past two decades the police's responsibilities and their social position has changed radically. The "policing by consent" ethos, which dates back to when Home Secretary Sir Robert Peel established the Metropolitan Police in 1829, has been replaced by increasingly coercive methods. It would be naive for anybody to assume that the dangers in which police officers so often find themselves, and their readiness to resort to violence (whether legally or illegally), has not deeply affected police attitudes and made them into more aggressive people.

In the absence of reliable research material on the police, stereotyped images dominate public perceptions of the police. At one extreme, unemployed black youth living in the inner cities are likely to see all police officers as racist and incapable of doing anything for their benefit. Prosperous middle class suburbia, on the other hand, sympathises with the police's difficult job and believes they can do no wrong. Between the two extremes, society has come to acknowledge that there is an acceptable level of police crime which, depending on your position, nothing can be done about or is necessary to maintain law and order.

Violent police crime

Hackney Community Defence Association is one of the few community based police monitoring groups in existence. It takes up the cases of people who have been assaulted and/or fitted up by police from Hackney's three stations - Hackney, Shoreditch (formerly City Road) and Stoke Newington - and residents of the Borough who have been attacked by the police elsewhere. In the five year period January 1989 - December 1993, HCDA dealt with 381 cases of alleged police wrongdoing arising out of Hackney's stations. Approximately one third of HCDA's caseload, 131 cases, involved incidents in which people claimed they had been assaulted by police officers. We are considering a very small sample of cases: i.e. the number of cases reported to a small community group covering just three Metropolitan police stations over a short period of time. It may be a small sample, but it is probably one of the best available.

In the majority of cases where people were assaulted by police officers, they were subsequently charged with criminal offences. 78.8% were charged with offences against police officers, ranging from obstruction in the execution of their duty to grievous bodily harm. HCDA has followed the progress of these cases through the criminal justice system and has been able to develop an understanding of violent police crime.

A police officer will charge their victim with a criminal offence so that they can cover up their own violent crime. If their victim is injured, the officer can explain away the injuries by claiming lawful violence was necessary to exercise the arrest or defend themselves. If their victim complains or wishes to sue for damages, the only two practical courses of action open to them to gain redress, their complaint or civil action cannot be pursued until after all criminal proceedings have finished. By this time it is highly unlikely that the officer will be charged, never mind convicted, of the original offence.

At the heart of the criminal justice system is the presumption of innocence. Because we are all presumed innocent until proved guilty, the burden of proof rests with the prosecution to secure a criminal conviction. The prosecution has to prove beyond reasonable doubt that a defendant committed an offence. This requires the police to investigate the alleged offence and collect together the evidence necessary to proceed with a trial. The magistrate or jury is then asked a simple question - did the defendant commit the offence or not? To convict, they have to be sure beyond reasonable doubt that the defendant committed the offence. A not guilty verdict does not mean that the defendant did not commit the offence, only that the prosecution failed to prove their case beyond reasonable doubt. It is the presumption of innocence principle which declares the defendant innocent.

In cases of violent police crime, where the defendant is the victim of their accuser, courts are faced with a more difficult question - who did it, the defendant or the police officer? Although the procedures for such cases are the same as any other criminal trial, there is a fundamental shift in the balance of power in the court. This is primarily because the burden of proof shifts significantly away from the prosecution onto the defence. No longer does the prosecution have to prove its case beyond reasonable doubt. No longer can the defence remain silent and call on the prosecution to prove their case. The mere fact that the defendant alleges that police officers acted illegally, requires the defence to attempt to prove to the court that their accuser is guilty. In such cases the presumption of innocence is eroded to such a degree that the defendant faces an uphill struggle to prove their innocence.

Police criminals have the best of both worlds in court: they do not have to prove their case, and if their victim is acquitted, the court's verdict only means that the prosecution failed to prove their case, not that they were guilty of any wrongdoing.

"I was charged with affray. I was found not guilty in the Crown Court. I "got off" but I didn't do anything, and the police "got away with it", even if they didn't convict me."
HCDA member, Chas Loft.

When magistrates acquit the victims of police crime charged with summary offences, they regularly make three accompanying comments - i) the prosecution were right to proceed with the case, ii) there is an element of doubt and iii) the verdict does not mean the police officers were in the wrong. These remarks are made to ensure the verdict cannot be construed to indicate what it invariably does mean - that police officers perjured themselves in order to cover up for their unlawful use of violence.
How it works

There are two principle moments in the criminal justice system - the arrest of a suspect, and their trial. Once a suspect has been arrested, a train of events is set in motion which concludes with the trial. Police officers know what to expect at trial and start preparing as soon as they have made their arrest. They are trained to operate this way. Violent police officers know as soon as they have committed an offence they can cover up their crimes by recourse to the courts safe in the knowledge that the whole weight of the criminal justice system will be brought to bear on their victim, and provide them with immeasurable support.

Police powers

The police possess four basic powers - the power to arrest people, the power to use force to make arrests, powers to invesigate crime and the power to charge. It is the combination of the twin powers of arrest and investigation which make the police's powers awesome. In minor cases, the arresting officer is likely to have sole responsibility for investigating the case, liaison with the CPS and appear as the chief prosecution witness in court. In serious cases, the police criminal can rest assured that the case will be investigated by colleagues who have an interest in securing their victim's conviction.

There is a belief among the police establishment that to recognise police crime as a problem would be to undermine public confidence to such a degree that it will result in a complete break down in law and order. Concerning violent police crime, it is commonly accepted that police officers are regularly confronted by violent criminals and they can rely on the full support of the police establishment in such situations. These two attitudes send a clear message to police officers - we are not on the lookout for unlawful police violence. Violent police officers can charge their victims with criminal offences knowing full well that once the finger of suspicion is pointed at their victim, it is not pointing at them.

Once a violent officer has arrested their victim they know what to do. They know that it is their word against the victim's and that a police officer is more likely to be believed in court. (Most cases of police violence take place in secluded or private places, or late at night, when there are no independent witnesses. If there are independent witnesses, they do not tend to come forward, and if they do, they are often discouraged or hidden from the defence.) The officer knows that s/he will be accused of violence under cross examination in court. Their contemporaneous notes of the incident, written up with any other officers present at the scene, will be crucial. They will be allowed to refer to their notes in court and, if they have fabricated a large part of their evidence, they have to make sure they get their story right.

Solidarity among police officers plays an important part in covering up police crime. This camaraderie between officers takes place in the canteen and is invariably expressed when writing up their notes together following an arrest. However, police solidarity does not amount to officers blindly supporting each other; several factors come into play which result in different levels of solidarity.

i. First principle is that each officer is responsible for covering their own back. The minimum that officers can expect from their colleagues is that they do not deliberately contradict each others evidence. At this basic level, officers are not expected to implicate themselves in order to protect an errant colleague.

ii. An officer may be willing to do more to cover a colleague for several reasons - a) they might owe them a favour, b) they might be keen to impress a more senior colleague or c) they might be bullied into changing their evidence.

iii. Police officers rarely support each other regardless of the consequences for themselves. But police "firms within the firm" and criminal gangs of police officers do exist, and they sometimes have cause to cover up their crimes. These are possibly the most difficult cover ups to uncover because of the tightness of the officers (possibly under the cloak of Freemasonry). Their mutual trust and closeness allows them to fabricate a version of events capable of withstanding the closest scrutiny.

Criminal investigations normally focus on the evidence of crimes which have been committed. The police have a duty to independently collect together the evidence to prove that the suspect committed the crime. If there is no evidence against the suspect, s/he is not charged. In violent police crime cases, the focus of the criminal investigation is not the evidence, it is the suspect. The police are not impartial in violent police crime cases. Victims can be charged solely on the word of police officers, and the subsequent investigation looks for evidence to support the accounts written in police officers notebooks or other police documents. All the material evidence may indicate that the suspect was in fact the victim of violent crime (injuries to the suspect and none to the officer, damaged clothing, etc), but this evidence is subordinated to the officer's allegation against the suspect. Right at the outset of the criminal justice system, after the victim of police crime has been charged, there has been a shift in the burden of proof onto the defence. The prosecution proceeds with its case on the word of police officers without a thorough invesigation, and against all the evidence if necessary. The defence, by comparison, has to conduct its own investigation to uncover as much evidence as possible to prove their innocence. This shift in the burden of proof allows the police to devote their investigation to disproving the defence case rather than prove their own, and look closely at the suspect's character.

Character evidence

The law demands that defendants are tried in court by the rule of law and the facts of the case. A defendant's criminal convictions cannot be disclosed in court because inferences cannot be drawn about their character. Except: when defendants challenge the character of the police. In violent police crime cases, defendants have to allege that criminal offences were committed by police officers. Having questioned the character of the police, the law then allows the prosecution to question their own character, including their criminal record if they have one. Alternatively, the defendant may not give evidence and hope that the court does not draw any inferences.

The right of the prosecution to question defendants' character undermines the principle that cases have to be tried on the facts. It allows the police to focus their investigation on the suspect instead of the evidence. Many victims of violent police crime have to defend their characters in much the same way as rape victims have to contend with allegations of sexual promiscuity. The victim might not have any criminal convictions, but the police will take the opportunity to question a defendant's character and devote some of their investigation to finding information which can be used to discredit them.

Police complaints procedure

Police crime is dealt with in Britain by the misnamed Police Complaints Authority (PCA), as established by the 1984 Police and Criminal Evidence Act. In the first instance it is the responsibility of the victim of violent police crime to complain. If an assault took place outside the police station, they can complain on their arrival to the custody officer who has to record the complaint in the custody record and inform the duty officer. If the assault takes place in the station, they still have to complain to the custody officer who is responsible for their welfare. The duty officer has to inform the area complaints unit which will investigate the complaint. Because of the difficulties involved in making complaints on arrest, many people complain in writing after they have been released from custody.

Serious complaints are referred to the PCA, which supervises the police investigation into the complaint. The police can also refer incidents to the PCA without complaints having been made. If a complaint is made following a death in police custody or a serious incident, the police have a mandatory duty to refer the complaint to the PCA supervision, and the PCA can appoint the investigating officer.

If a complaint arises directly out of a criminal charge being brought, that complaint cannot be investigated until after the criminal case has been completed. For the protection of all parties the complaint is said to be sub judicie. But, police officers are obviously aware that if the complainant is convicted, then there is no basis for their complaint. This is exactly the position faced by the victims of violent police crime who are charged with offences against the police. The police can ignore the complaint on the basis that it is the defendant's case and will be decided by the court. (Custody and duty officers have been known to summarily dismiss complaints in this manner and write their comments in the custody record.) Complaints which are properly proceeded with are shelved pending the conclusion of the criminal case. Although exact figures are not available, a high proportion of cases of violent police crime will conclude with the victim being convicted and their allegations will not have been investigated (this will be the reason for some of the complaints having been withrawn or not proceeded with in the table below).

With the police responsible for investigating crime and complaints there is an obvious conflict of interest in cases of violent police crime. The absence of a separate body to investigate the police means that the complaint investigation is subordinate to the criminal investigation, and that investigating officers are more concerned with their colleagues' interests than complainants'. The police bias in the police complaints procedure is reflected by the low number of complaints which are proved, about 2.5% out of some 30,000 made each year, and the increasing tendency for victims to sue chief police officers for damages.

Metropolitan Police Complaints (by formal resolution)

Source: Hansard 14 February 1994.

Victims of violent police crime who are not charged with criminal offences have their complaints investigated immediately. Therefore, it is in the interests of every police officer who commits a violent criminal offence to arrest and charge their victim.

The Crown Prosecution Service

The Crown Prosecution Service (CPS) was established by the 1985 Prosecution of Offences Act and started operating in 1986. The CPS has responsibility for conducting prosecutions. CPS solicitors prepare cases for court and instruct barristers to represent them in court (in magistrates courts, CPS solicitors often prosecute cases themselves). Before the Prosecution of Offences Act, the police had responsibility for conducting investigations through Police Solicitors Offices. As an independent prosecuting service, the CPS has a duty to check the quality of police evidence, and the power to discontinue cases where there is insufficient evidence or a conviction is unlikely.

The CPS is stuck in the middle. It has a responsibility to the police to conduct prosecutions and it has a responsibility to disclose evidence to the defendant. It is criticised by the police for failing to proceed with cases, and cynically referred to as the Criminal Protection Service. It is criticised by defendants for conspiring with the police to pervert the course of justice.

The problem for the CPS is that its solicitors and instructed counsel have to believe what police officers tell them. Although the CPS has a duty to question the quality of the police's evidence, to disbelieve police officers would be to undermine their power to prosecute; if they continually question what police officers tell them they would never get their cases to court. On the basis of information provided by the police, CPS lawyers decide how to proceed on points of law. Although some CPS lawyers might enter into conspiracies with police officers to pervert the course of justice (for example, by deliberately failing to disclose evidence to the defence), they do not really need to, all they have to do is receive information from the police without question. In the same way that CID officers with responsibility for investigating offences, officers with responsibility for investigating complaints, and the police establisment, fall into line to support criminal police officers who arrest their victims, so do CPS lawyers.

In court

Crime is a major problem in Britain. Crime is dealt with by the police in the first instance, and then by the courts. Regardless of all the bad publicity the police might receive, they are responsible for crime prevention and detection. The police have responsibility for protecting the public. Nobody wants to disbelieve the police, to do so would be to undermine their own security. Even the victims of police crime, who might vehemently denounce how they have been treated by the police and criminal justice system, appreciate that society needs law enforcement institutions. Professional criminals accept that the police have a necessary job to do. The ideological position of the police as the defenders of a democratic and free society is hammered home by a well oiled public relations machine.

Everybody who attends court - magistrates and judges, jurors and barristers - carry with them images of the police as law enforcement officers working in difficult circumstances. Violent police criminals are able to exploit the public's perceptions of the police. They know that magistrates and juries will have to struggle with their own prejudices before disbelieving a police officer. Many court cases centre on the question of who did it, the defendant or their accuser. A common defence against allegations of criminal violence is that the defendant acted in self-defence. Perceived as public servants doing difficult jobs, police officers are seen in court as independent witnesses - their credibility is taken for granted. In cases of violent police crime, the police are not independent, they are directly implicated, but the defence still has to overcome the assumption that police officers are impartial and truthful. It is the privileged position of the police in the criminal justice system, their ability to intervene in the process at every stage from arrest to trial, which allows criminal officers to tilt the scales of justice in their favour.

The criminal police officer turns up at court supported by the police establishment, CPS lawyers and the public's confidence. Their victim appears nervously in an alien environment, knowing they have to convince the court of their innocence. The manner in which the prosecution and the defence cases have been prepared causes trials to follow a set pattern.

Police officers appear as the chief witnesses for the prosecution. The law allows them to rely on their notebooks when giving their evidence. Their choreographed accounts were collectively written after the arrest in the police station canteen to cover up evidence of their own crimes first, and accuse the defendant second. The time it has taken for the case to get to court, and their busy work schedules, are reasonable explanations for their forgetting any details of the incident which they did not write down in their contemporaneous notes. Complications arise for police officers when they are forced to admit facts in the witness box which they did not record in their notes, which may contradict other officers evidence and even their own notes. Police cover ups are not commonly watertight cases, on the contrary, they are often full of holes. As each officer attempts to give a plausible account of their own actions, while not implicating a colleague, they leave themselves open for robust cross examination by the defence.

The balance in court changes as soon as the defence begins its cross examination. Forced into the position of accusing officers of lying and having committed criminal offences, counsel for the defence has to take the trial to the police. The character of the trial changes, instead of the defendant being on trial, it appears that the police are on trial. Counsel for the prosecution can exploit public sympathy for the police by asking the magistrate or jury to dismiss the absurd suggestion that a police officer might be lying

A properly prepared defence in cases of violent police crime, will have conducted a thorough investigation into the incident. Statements will have been taken from all possible witnesses, expert reports commissioned and photographs taken. Experienced defence lawyers know that to win a case against the police it is necessary to collect as much information as possible to prove their clients' innocence.

The prosecution, on the other hand, does not have to prepare a thorough case. The police officer who committed the original offence, knows a full investigation of the facts will reveal the truth. His/her contemporaneous notes, supported by colleagues' accounts, were carefully written to exclude evidence of their crime. Investigating police officers and CPS lawyers know from experience which direction trials of alleged police violence are going to take and they will be able to focus their attention on disproving the case of a defence forced onto the offensive. Here we note the shift in the burden of proof again. Technically, the prosecution still has to prove its case beyond reasonable doubt in violent police crime cases, but it can do so in a different way. Instead of fitting together a jigsaw of evidence to prove its case, the prosecution leaves the defence to put its charges to the officer and then sets about disproving their case. As soon as the defence makes an allegation against a police officer in court, the prosecution can question the character of the defendant and call on the defence to provide a motive for the police officer's alleged offence.

The motive for police crime is the most difficult problem for their victims to overcome. Why should police officers go round violently assaulting people for no apparent reason? Paradoxically, if the victim does not have a criminal record it can be even more difficult to convince a court that the officer, who does not know the defendant, had any reason to break the law.

Britain's adversarial criminal justice system seeks to administrate justice by the prosecution and the defence arguing to convince the court of their case. There is not an independent investigative element in the system, investigations are conducted either for the prosecution or the defence. Because of their close inter-relationship, the prosecution and defence determine each others' roles in court. In police crime cases, where it appears that the police are on trial, with the defence on the offensive and the prosecution on the defensive, a role reversal takes place. Whatever might be said in court about the need for the prosecution to prove their case beyond reasonable doubt (both the prosecution and the judge have to advise the jury that they have to be sure the defendant is guilty), the burden of proof is shifted onto the defence. Juries need to be sure that police officers have lied before they acquit. The more serious the allegations against the police, the more a jury will need to be convinced of the defendant's innocence and, the more excuses the prosecution can make for their weak and confusing case as they sit back and ask the defence to prove a motive.

Getting away with it

Uppermost in the mind of the violent police criminal is the need to escape prosecution. That is the reason for charging their victim. When courts convict their victims, officers have successfully covered up their crimes. The case is invariably closed. If their victim is acquitted, or their conviction overturned on appeal, the police officer is still likely to avoid prosecution. Four factors act in his or her favour.

· The failure of the prosecution to prove its case does not mean the officer committed a criminal offence. Unless police officers commit blatant perjury, or overwhelming evidence of a conspiracy to pervert the course of justice comes to light, the case will not be referred to the Director of Public Prosecutions to consider criminal charges against the officers.

· The purpose of the original police investigation was to prove the defendant committed an offence. Evidence that suggested police officers committed offences will have been pushed to one side - statements might have been ignored, documents lost or leads simply not followed and forgotten. By the time criminal proceedings have finished and a complaints investigation takes another look at the case, evidence of police crime is likely to have disappeared altogther. Although the complaints procedure will be followed, the complainant interviewed and a file sent to the CPS, the victim charged with a criminal offence will have even less chance of being successful than if they were not charged.

· The CPS has sole responsibility for conducting prosecutions, it prosecutes members of the public and police officers. It is laughable to the think that the same institution which prosecuted the victim on behalf of the police, is then able to prosecute the police on behalf of the victim. (To prove our point, the conduct of the CPS against officers who framed the Birmingham 6, Guildford 4, Tottenham 3, etc has been hilarious.) In the likely event of the PCA and police complaints investigators failing to discover evidence supporting the complainant, the widely accepted presumption is that if it is the victim's word against a police officer, the officer will not be convicted and therefore will not be charged.

· Because of the poor success rate of police complaints, many victims of police crime elect to sue the police for damages. Once they have been acquitted, they can commence civil proceedings for assault, false imprisonment and malicious prosecution. Civil actions are not for the purpose of holding police officers accountable for their actions, they are a legal means by which victims claim financial compensation for damages. Victims of police crime do not sue the individual officer responsible (it would be pointless to do so for complex legal reasons), they sue the person with ultimate responsibility for the conduct of all police officers - the chief officer. The police criminal avoids personal responsibility for their crimes in civil actions. Even if the victim wins their case, which will take several years to conclude, it remains unlikely that the police officer will be charged with a criminal offence. The official explanation for such decisions is that civil cases are decided on the balance of probabilities, a lesser burden of proof than required to secure a criminal conviction or prove a police complaint.

A question of motive

Whether a person intentionally or unintentionally commits a criminal offence, the question of motive plays a major part in police investigations. The police will not only seek to show what actually happened, they will support their allegations with an explanation for why the suspect behaved as they did. By looking at the facts of the crime and the motive for the crime, the police and prosecution present the court with a total picture.

When a victim of police crime has to prove their innocence to a court, they also have to explain the police officer's motive. Again, the defendant finds there has been a shift in the burden of proof. It may be extremely difficult to prove a motive for police crime because police officers work requires them to confront members of the public they suspect of criminal offences. The police and prosecution can rely on this weakness in the defence case. They can sit back and call on the defence to prove a motive for police crime knowing that failure to satisfactorily do so will help their case.

This is an unjust situation for the defendant to find themselves in. They might get the motive wrong. This need not disprove their case. It might simply mean they did not have access to the necessary information to thoroughly investigate their case.

The requirement to show a motive works very much in the police's favour. Above we described a pattern for violent police crime and the charging of victims to cover it up. Because there are no official statistics on violent police crime, does not mean the problem does not exist. Equally, the way in which the police treat drunk and incapable people raises serious concerns. There does not need to be a motive for police crime, it may just amount to standard police practice when dealing with particular categories of people.

Police treatment of drunks

Most people have been drunk at some time in their lives. Most of us have been drunk and incapable. Hopefully, in our own homes where we can manage to get to our beds. At such times we can be argumentative and do foolish things. We wake up the following day not remembering what happened, only to be embarassed when somebody tells us. We know what it is like to be vulnerable when drunk.

Out of the 131 cases of police violence taken up by HCDA, in 42 (32%) cases the police claimed their victims were drunk. In all of these cases the police accused defendants of being drunk, regardless if they were, to a) discredit them, b) justify the use of force to arrest them and c) challenge their ability to recall an accurate version of what happened in court. In many of these cases the police alleged drink caused defendants to behave violently and gave them immense strength, requiring several officers to use force to restrain them.

Drunk and incapable people who have been arrested are completely at the mercy of the police. Police officers can be lenient or brutal. They can use minimum force to restrain a drunken person who becomes violent, or they can use the opportunity to express their own frustrations and administer a violent beating.

Deaths of drunks in custody

A high proportion of deaths in police custody are related to drunkenness. Out of 183 deaths in the custody of the Metropolitan Police between January 1985 and 31 March 1993, 46.5% of cases were drink related.

Deaths in Metropolitan Police custody

Source: INQUEST (taken from Chief Commissioner's annual reports)

All deaths in custody are shrouded in secrecy. The inquest procedure allows coroners to decide which information is relevant, and legal aid is not available to provide the deceased's relatives with legal representation. The situation is even worse for people who die after being arrested for drunkenness. Many of the drunk people who die in police custody do not have traceable friends. Without relatives to ask questions of the police, many inquests serve as a rubber stamp for the police's version of what happened. Although alcohol may have been the medical cause of death, other contributing factors, like injuries sustained during an assault, will be swept under the carpet.

By law, the only special treatment for drunk people is that they are visited in their cell every half an hour and roused. The police have a duty to call a doctor for injured prisoners, but they do not have to call a doctor to check a drunk person. Unqualified in medicine, police officers can quite easily mistake an injury or a medical condition for drunkenness.

The British Medical Association and the association of Police Surgeons published a report in June 1994, entitled "Health Care of Detainees in Police Stations". This described much of the medical treatment available to prisoners as "appalling" or "non-existent". The report recommended that the care of detainees with alcohol problems should not be managed in police stations which are "potentially dangerous places".

The number of deaths of drunken people in police custody raises serious questions about police attitudes towards drunken people, their stereotyping of people as drunk and the treatment they receive in custody. The death of Richard O'Brien on 4 April 1994 serves as an example.

The case of Richard O'Brien

On the evening of Easter Sunday 1994, 37 year old Irishman, Richard O'Brien, went to a dance at the English Martyrs Catholic Social Club in Walworth. A fight broke out, and O'Brien was waiting with his wife and son for a taxi when police arrived on the scene.

O'Brien was ordered to move on. When he informed the police he was waiting for a taxi he was knocked to the ground and dragged to a police van by his hair. When his wife and son objected to the police's treatment of O'Brien they were arrested. Many people witnessed what happened.

On their arrival at Walworth police station at 12.25am on Easter Monday, O'Brien was unconscious. Mrs O'Brien pleaded with the police for her husband to receive medical attention. An ambulance was called at 1.08am and he was pronounced dead at Kings College Hospital, Camberwell at 1.35am.

The police have stated that O'Brien was arrested for being drunk and disorderly and was found to be "unwell and unconscious" on his arrival at the police station. Mrs O'Brien said that when she asked officers to do something about her husband one of them replied "He'll be alright - he's only a fucking Paddy."

The post mortem into O'Brien's death at the Greenwich Mortuary was inconclusive and the coroner's inquest was opened and adjourned. Chief Superintendent Gerry McBride informed the April meeting of the Southwark Police and Community Consultative Group that the post morten "did not show any significant injuries contributing to Mr O'Brien's death." He suggested that the 24 stone O'Brien's heart condition could have had a bearing on his death.

The Irish community reacted angrily to O'Brien's death. The Irish in Britain Representation Group has called for a "full independent inquiry" and there were demonstrations at Walworth police station in following weeks.

Richard O'Brien's death illustrates junior police officers attitudes to drunk people and their stereotyping of Irish people as drunks. It is left to senior officers to cover up junior officers actions by suggesting causes of death which will exonerate them. Coroner's inquests are responsible for determining the cause of death, but when deaths in police custody occur, the police invariably preempt verdicts by giving their own explanations.

Conclusion

The purpose of this section has been to go beneath the surface of the criminal justice system to look at how the police get away with violent crime. There are police officers who regularly attend court as the only witnesses to give evidence against defendants charged with assaulting them. They rely on the public's sympathy for the courts to take their side. We do not suggest that all police officers abuse the legal process, only that they are in a priviliged position to protect themselves from prosecution. Police work is difficult, and police officers often find themselves in violent situations. If they over-react to a situation and commit unlawful violence (a single punch in the mouth for example) fearing that they were in danger themselves, they can cover up their wrongdoing by charging their victim. This leaves their victim in a most vulnerable position. The same public servants responsible for their safety are responsible for their fear, and they have to prove they are the victim.

The same process which protects the errant officer also protects the criminally violent. Patrick Quinn was arrested for being drunk and incapable at 11.05pm on the night of 23 December 1990. At some time during the next two to three hours he received a vicious beating. He may well have been assaulted on two separate occasions. The nature of the police investigation into his death and the prosecution of Malcolm Kennedy, who had also been arrested for being drunk and incapable, indicate that police officers covered up an assault on Quinn by charging Kennedy, the last non-police officer to have apparently been with him alive. The progress of the Kennedy case suggests that a "classic" cover up for a standard case of police violence was immediately set in motion with embarassing consequences for the police. It was a shabbily prepared case which revealed a disorganised police station blatantly ignoring procedures, with the police and prosecution unable to explain many discrepancies. The police and prosecution relied on the prejudices of the jury when the final question was put - did Kennedy or police officers kill Quinn? There was no clear motive for the police killing Quinn. Unable to believe that police officers were capable of murder, and apparently unable to believe Kennedy was, he was acquitted and convicted of manslaughter.

Malcolm Kennedy's conviction will assume the same importance for the criminal justice system as the Guildford Four and Birmingham Six cases. In the celebrated miscarriage of justice cases, the police claimed they had got the right people for the crimes. There was no suggestion that the police might have committed the crimes themselves. They fitted up people that they believed to be guilty. The long campaigns for justice in support of the innocent eventually exposed how the police framed their victims.

In the Malcolm Kennedy case, police officers committed crimes and fitted up an innocent person to cover them up. By law, all Kennedy has to do to clear his name is show that there is a reasonable doubt about the safety of his conviction. But, this pamphlet, and the campaign to clear his name, will have to show that the police have got away with attacking of Patrick Quinn. We hope it will not take as long as the 17 years it took the Guildford Four and Birmingham Six to clear their names.

3. Malcolm Kennedy's story

In the early hours of 24 December 1990 I was taken into Hammersmith police station. I was drunk, extremely tired and unable to make it to my home. I was not particularly annoyed with the police for having arrested me, nor was I unduly upset with my situation. I trusted the police and was pleased to be taken to a safe place where I could "sleep it off".

On entering the station I was taken into the custody suite where all my possessions were taken from me. This consisted of a bunch of keys, packet of Benson & Hedges cigarettes, cigarette lighter, comb, six foot long woollen scarf, watch, aerosol mouth freshener, some loose change and £77 cash. The two policemen who had taken me in to the station then briefly searched all my pockets to make sure I hadn't kept anything back.

I was taken down a corridor leading from the custody suite and put in a large cell known as "The Tank". I don't remember much about the cell, other than it was dimly lit. I did not notice any other person in the cell as I sat down on a bench and fell asleep almost immediately.

In my drunken sleep I heard shouting and the banging of a metal door. I was awoken by a commotion in the cell and somebody knocking into my legs. Two men seemed to be fighting; one of them was quite clearly a policeman. I instinctively got up and tried to separate them. I was struck on the side of my forehead and told "Keep out of it." The blow knocked me out and I fell back onto the bench.

When I came round I saw a man lying on the floor in front of me. I called out to him - "are you okay?", "are you alright?", "come on, get up." I nudged his chest and shoulders with my foot, walked round him and tried to lift him up several times. He did not respond at all. I did not think he was dead, it never crossed my mind. I thought he had been beaten up. In my drunken condition I couldn't think clearly, I was unable to figure out what was going on. My thoughts did not go beyond trying to revive him and eventually I gave up.

I did not notice any blood on the man or the cell floor. I was very tired and hardly able to keep my eyes open. All I can remember is that the man was wearing greyish brown clothes. I wanted to call out for help. But I was frightened. I had seen a policeman attack the man, and I had been attacked myself.

I was upset by what I had witnessed. But most of all I was afraid and worried for my own safety. Nothing was making much sense. My drunkeness was my only explanation for being unable to understand what was happening. I sat down on the bench and passed out again.

After what seemed like a short time, I was woken up by three police officers in my cell. Two stood either side of me and the third one knelt down and took my trainers off. They got me up from the bench and stood me up, leaned me over the body on the floor and one officer said "You did this", and another said "You did it."

I was moved from the Tank cell and placed in another. After a short while I was moved to yet another cell and told to strip off all my clothes. I was made to stand naked on some brown paper bags while policemen and women paraded by to stare at me. I don't know if this was all designed to humiliate me, or police officer's curiosity simply got the better of them. Whatever the reason, I was vulnerable, and all the self composure I was struggling to attain was quickly disappearing. At some stage I recall a doctor coming into the cell. He told me to turn round, said "He's Okay" and then walked out again.

After about half an hour I was given a white paper boiler suit to wear and moved to another cell. The cell door was left open and an officer sat outside guarding me. I was moved twice more to clean cells, with different uniformed officers outside on guard. By this time I was traumatised, disoriented, confused, terrified, and in a complete state of shock. All I could think was "My God, this is a police station, how can this be happening?"

Throughout the night I had no opportunity to sleep. From the beginning I said that a policeman had been responsible for what happened. I kept asking to see a senior officer and a solicitor. I never saw a senior officer, and it was several hours before I saw a solicitor.

At about 8.30am I was taken with my solicitor to an interview. It was a small room, smaller than a cell, and crowded with a table and four chairs in it. I was interviewed by Superintendent Swinburn and Detective Sergeant McAleenan. The interview was recorded. From the beginning, and throughout, I made the firm allegation that I had witnessed a policeman fighting with a man in the cell and that I had been hit by the policeman when I tried to intervene.

On beginning the interview I hoped my nightmare would be sorted out by senior officers. However, nothing could have been further from the truth. It began to dawn on me that I was the one being accused and Swinburn and McAleenan were not in the least interested in what had really happened. In retrospect, it was clear to me that they wanted to find out how much I knew and what I would be saying.

Hammersmith Police Station

The police account

On the evening of Sunday 23 December 1990, PCs Anthony Trinkwon and Michael Millar were assigned to take PC James Northway to his home in Surrey after he had been injured in the afternoon. Millar drove Northway's car and Trinkwon followed in the Area Car. Just outside Hammersmith police station, Trinkwon was flagged down by a member of the public who drew his attention to a drunken man who had just fallen over.

Trinkwon got out of his car and called for assistance to deal with the man. Sergeant John O'Donnell drove a police transport carrier the 200 yards along Shepherds Bush Road to the scene and asked probationary officer, PC Paul Giles, to attend the incident with him.

Giles arrested the man for being drunk and incapable at 11.05pm and Trinkwon assisted him put the man in the carrier. O'Donnell remained in the carrier and took no part in the proceedings. Trinkwon followed the carrier back to the station in the area car and helped Giles take the man from the carrier to the Hammersmith custody suite. Trinkwon then immediately drove off to catch up Mellor and Northway. O'Donnell did not get out of the carrier at the station and immediately drove away after Giles and his prisoner got out.

Sergeant Peter Bleakley was the Hammersmith custody officer that night. Giles processed his prisoner and found a vaccination card in his possession containing his name, Patrick Quinn, and address. Giles checked the address and discovered that a man called Edward Marshall lived there. He then incorrectly checked the name in police records. He found the name of a Peter Edward Marshall and recorded that man's date of birth as belonging to Quinn, and identified Quinn as Marshall.

Giles placed Quinn in cell 5, known as "The Tank", on the floor on a mattress. At 11.50pm Giles took the force medical examiner, Dr Wilkes, to look at a head wound Quinn had to the back of his head. A half inch laceration to the back of the head was recorded and Quinn was declared fit to be detained.

In December 1990, Fulham police were also operating out of Hammersmith police station. Malcolm Kennedy was arrested at a relative's home by Fulham officer PC Anthony Mellor with PC Michael Carr in attendance at 00.45am, for being drunk and incapable. Kennedy's Aunt had called the police after a family argument.

Sergeant Edward Henery was the Fulham custody officer. He booked Kennedy into the station at 1.00am. Kennedy was searched by Mellor and Carr and then put in the Tank cell with Quinn.

At 1.30am Sergeant Bleakley made a routine check of all his prisoners. He entered the Tank and saw Kennedy sitting on the bench and Quinn asleep on the floor.

Henery set out to check his prisoners 15-20 minutes later. At 1.50am he looked into the Tank cell and saw Kennedy standing up without his shoes and coat on. Quinn was lying on his back in a pool of blood. Henery turned and shouted out to Bleakley "Did you know your prisoner is covered in blood?" before opening the cell.

Henery opened the cell door and asked Kennedy what had happened. Immediately behind him was Bleakley, with Sergeant O'Donnell and the duty inspector, Michael Dell. Kennedy did not answer Henery, and Henery arrested him for assaulting Quinn. Bleakley looked at Quinn and shouted out for Dr Wilkes before going to the communications room to call for an ambulance. O'Donnell and Dell removed a mattress from cell 3, so that Kennedy could be transferred to an empty cell. Dell then assisted Henery escort Kennedy to the cell, where they removed all of his clothes.

At about 1.50am, DC Sharon Wheatley, a Fulham detective, happened to call in at Hammersmith police station with PC Jeffrey Ives. O'Donnell immediately told Wheatley about the incident and she accompanied him to the Tank cell. Dr Wilkes pronounced Quinn dead at about 2.00am and then examined Kennedy.

Wheatley took charge of the situation, she ordered an officer to guard the Tank and keep a log of everybody entering the cell; she instructed Ives to seal Kennedy's clothes in a bag; she closed both the Hammersmith and Fulham custody suites; she took possession of Quinn and Kennedy's custody records and telephoned senior officers.

After examination by the doctor, Kennedy was transferred to cell 8.

At about 3.00am, DS Paul McAleenan, a Hammersmith detective, arrived at the station and as the senior CID officer present started preparing for a murder investigation.

At 3.30am, DI Philip Swinburne, a Hammersmith detective, arrived at the station and was appointed to investigate Quinn's death. At about 3.45am, Sergeant O'Donnell opened a custody record for Kennedy with regard to the Quinn murder charge and five minutes later, Quinn's body and the scene in the Tank cell were photographed. At 4.30am non intimate body samples were taken from Kennedy and intimate samples taken at 4.55am. At 6.15am forensic scientists started collecting evidence in the Tank.

Swinburne and McAleenan eventually interviewd Kennedy at 8.11am with a solicitor present. Kennedy denied assaulting Quinn in the interview and alleged a police officer assaulted Quinn and himself.

It was 9.30am, nearly eight hours after the alarm had been raised, before a pathologist entered the Tank cell.

A "sloppy" case...

The prosecution's case against Kennedy is that he was the only person in the cell with Quinn and he must have killed him. They have relied on forensic evidence - Kennedy's bloodied footprints on Quinn's clothing and blood spattered on Kennedy's trousers and shoes - to support their case. By way of motive, the only suggestion made by the prosecution was that Kennedy, mild mannered and inoffensive, was in debt and this caused his character to radically change.

Kennedy's case, on the other hand, is that Quinn was assaulted by police officers and he was was charged with murder as a scapegoat. The defence has relied on the discrepancies in the forensic evidence (blood inexplicably inside Kennedy's shoes, the absence of skin tissue and hair from his shoes and an injury which he could not have caused), irregularities in the police investigation and contradictions in the police's statements to support their case.

At Kennedy's appeal in February 1993, Counsel for the Crown Prosecution Service (CPS), Timothy Langdale QC, admitted to the Court of Appeal that police officers were "sloppy and made mistakes" and contradicted each other in court. But he insisted this did not amount to a cover up. The prosecution has maintained throughout that a cover up is inconceivable because it would have required a conspiracy involving every Hammersmith police officer on duty that night.

All the officers in Hammersmith police station on the night of 23 December 1990 say it was a quiet and uneventful night, despite the exceptional incident in cell 5. A remarkable feature of this case are the poor accounts given by individual officers of where they were at specific times and what they were doing.

Anthony Trinkwon and Michael Millar

PCs Trinkwon and Millar started work at 10.45pm and were assigned to take PC Northway home. They left Northway's home after a cup of tea at about midnight (which was highly irregular because they were in Hammersmith's only Emergency Response Vehicle and out of radio contact) and arrived back in the Hammersmith area for patrol duties at about 00.30am. Their first recorded incident was dealing with criminal damage to a car at 1.10am. They returned to Hammersmith police station at 2.00am when they were informed of Quinn's death and that the custody suite was closed.

John O'Donnell

Sergeant O'Donnell was the section sergeant responsible for parading the night relief in the station at 10.45pm on 23 December. He responded to PC Trinkwon's call for assistance and took PC Paul Giles with him in a transport carrier. He did not get out of the carrier to help Giles and Trinkwon and did not deal with Quinn at all. After Quinn was taken from the carrier, O'Donnell drove away. O'Donnell cannot remember what he was doing between 11.15pm and 1.15am. He recalls being with Inspector Dell some of the time. He returned to the police station at 1.15am and was in the custody suite with Sergeant Bleakley and Inspector Dell when Sergeant Henery discovered Quinn's body. O'Donnell became Kennedy's custody officer at 3.46am and spent the rest of his shift in the police station. At 7.40am he started writing his statement with Dell, and booked four hours overtime; 6.45-10.00am.

Paul Giles

There is much dispute over PC Giles' movements that night. His activities have attracted the most attention because of the discrepancies in his account, records which contradict his story and the sheer incompetence he displayed. Giles maintains that after he arrested Quinn he remained involved with the case until 11.57 when he was writing notes after having taken Dr Wilkes to examine him at 11.50pm. (Dr. Wilkes cannot remember who the officer was who escorted him to see Quinn.) He claims he was on patrol with PC Emlyn Welsh when he went to answer an emergency 999 call at 12.50am and arrested Billy McKenzie, also known as Sharpe, for assaulting his girlfriend, Samantha Wilson. They returned to Hammersmith station at 1.05am and booked McKenzie in with the custody officer, Sergeant Bleakley. Giles looked into the Tank cell shortly after the discovery of Quinn's body and then commenced writing up notes of McKenzie's arrest.

Emlyn Welsh

PC Emlyn Welsh was rostered to work with PC Giles. He was due to start work at 10.30pm and arrived late at 11.00pm. This could explain why Sergeant O'Donnell and PC Giles went to assist PC Trinkwon with Quinn. Welsh's first recorded work incident was attending Riverside Studios at 11.25pm. Welsh recorded different times for dealing with the McKenzie incident with PC Giles, but maintains it was between midnight and 1.00am. Following his return to the station with Giles, he interviewed Samantha Wilson and Sarah Dennis about the assault, finishing at about 1.40am. He cannot remember what he was doing after 2.30am; he told Thames Valley Police complaints investigating officers that he was out on patrol, but retracted that evidence during the second retrial. He finished work at 8.00am and booked one hour overtime.

Anthony Mellor and Michael Carr

PCs Mellor and Carr were Fulham officers. At 00.40am they went to arrest Malcolm Kennedy and returned to the police station at 1.00am. Mellor was the arresting officer and wrote up his notes at 1.10am. At 1.15am, PCs Albert Robinson, Paul Crowley and Stephen Bull called briefly at the station having spent one hour and fifteen minutes dealing with a relatively minor incident. They left again with Carr in answer to an emergency call at 1.20am and returned to the station at 2.10am, when they were told about Quinn's death.

Peter Bleakley and Edward Henery

As Hammersmith and Fulham custody officers, these two sergeants were in the police station throughout the night. Bleakley was responsible for Quinn and Henery for Kennedy. The two sergeants were in the custody suite with Sergeant O'Donnell and Inspector Dell for the half hour leading upto the discovery of Quinn's body. They both continue their custody officer duties until Henery is relieved at 3.45am. He then wrote a statement about his arrest of Kennedy and added to it at 6.30am. Bleakley wrote a statement before he finished duty at 8.00am.

Michael Dell

Inspector Dell cannot remember what he was doing between parade at 10.45pm and 1.15pm when he was in the custody suite with sergeants O'Donnell, Bleakley and Henery. He was with Bleakley and O'Donnell when Henery discovered Quinn's body at 1.50am.

As the most senior officer on duty when Quinn's body was discovered, he should have taken charge of the situation. Instead, he helped O'Donnell empty a cell for Kennedy and stood by and watched while Henery gave Ives Kennedy's clothes. Dell wrote his statement in the canteen with O'Donnell at 7.40am and also booked four hours overtime.

With the exceptions of custody sergeants Bleakley and Henery, all of the officers involved in the arrests of Patrick Quinn and Malcolm Kennedy give poor accounts for their absence from the station at various times. Welsh was late for work; Millar and Trinkwon drank tea; O'Donnell and Dell could't remember where they were; Giles and Welsh contradict themselves over the time of McKenzie's arrest; nothing is known of Mellor and Carr's movements before they go to arrest Kennedy, and Carr leaves the station immediately after he was placed in the Tank; and other officers seemed to spend a lot of time on trivial matters.

In 1990, Christmas Day fell on a Tuesday and many work places closed on the Friday, allowing Christmas festivities to start early. On Sunday 23 December, did officers turn up late for work, or skive off duty to join families and friends for a Christmas drink, and then cover up for each other? Alternatively, this was the last shift this particular relief worked together before their Christmas break. Was there an officers' Christmas Party in the police station, and did officers fabricate accounts of their movements to cover this up? Was there indeed a conspiracy involving all the officers on duty in Hammersmith police station that night, as Langdale claimed must have been the case if what the defence was saying was true? Not to cover up a police assault on Kennedy, but to hide the fact that virtually every police officer had grossly neglected their duties?

Could this explain why so many police officers lost their notebooks that night? Their notebooks would have recorded what they had been doing. PC Welsh claimed that his notebook was hidden in his notebook holder for two years, and he had to endure humiliation in the Court of Appeal when he couldn't show how. Was all this to hide the fact he arrived for work 30 minutes late?

...or a conspiracy to pervert the course of justice?

Conspiracies, by their very definition are secretive, they only involve those who need to know and people who don't need to know are excluded. Contrary to being a quiet and uneventful night, as all the officers claimed, 23 December 1990 was exceptional for two reasons, it was Christmas time and a man was found dead in cell 5. Many officers might have covered up their pre-Christmas excesses, but as far as Quinn's death was concerned, they will have had very little to do with it. They did not need to know about a conspiracy and are probably unaware of one to this day.

Of equal significance to officers poor accounts of their movements is the behaviour of the officers, Sergeants Henery, Bleakley and O'Donnell and Inspector Dell, who were first on the scene. Henery takes immediate control of the situation by arresting Kennedy; Bleakley leaves the scene and calls an ambulance; O'Donnell draws DC Sharon Wheatley's attention to the situation and she takes overall charge while Dell watches. Also present in the custody area at that time were PCs Giles (Quinn's arresting officer), Mellor (Kennedy's arresting officer) and Welsh (Giles' partner). And Dr Wilkes was present. An equally feasible explanation for the absence of officers from the station between 1.00 and 2.00am is that some of the officers present in the station at that time were engaged in a conspiracy to cover up an assault on Quinn, and were keen for everybody else to be out of the way. The fact that Christmas excesses threw the whole situation into confusion, with every officer having to cover their own backs for one reason or another, was a perfect smokescreen for a conspiracy. In the cases of O'Donnell and Dell, more weight is added to this possibility considering their inability to account for their earlier movements and their finding time later to write their statements together.

We are not saying here that each of these seven officers were involved in the assault on Patrick Quinn, nor that they were equal co-conspirators. Our point is that on the police's own accounts, without considering the defence's case, and bearing in mind that police officers engage in conspiracies to cover up their crimes for various reasons, an equally valid reason for the inconsistencies in the police case is that it amounted to a cover up.

The prosecution's description of the police case as sloppy suggests that its weaknesses are inexplicable rather than amounting to police officers using Kennedy as a scapegoat to cover up their own crimes. If Patrick Quinn had died at any other time of the year, there would not have been a relatively innocent explanation for their "sloppiness and mistakes". Everybody knows that work slackens off at Christmas, we hold works parties, acquaintances drop by with a bottle and management is a bit more lenient. But police officers can never admit that Christmas celebrations interfere with their duties, i) for fear of disciplinary or even criminal charges and ii) admitting to being under the influence of alcohol would have seriously damaged the prosecution case. Officers were asked in court if they had indulged in pre-Christmas festivities, and this was denied. This placed the defence in a difficult position, they could not emphasise the Christmas issue because to do so would retract from its case that the inconsistencies amounted to a cover up, not drunkenness. This strengthened the prosecution's hand, without having to admit to dereliction of duty, they knew the jury would have to draw its own conclusions about what had been going on in the police station.

Juries have a duty to be sure beyond reasonable doubt to convict. For the juries at both trials to convict Kennedy, they must have decided that Christmas slackness was more likely to have been the reason for discrepancies in the police case, and dismissed the defence's case that the inconsistencies amounted to a cover up. But this is not a case proved beyond reasonable doubt. The juries must have disbelieved officers' denials that they had indulged in Christmas festivities, and decided on the balance of probabilites that this was the sole reason for the discrepancies and not the equally viable possibility that there was a cover up.

Discrepancies in the police evidence

The Patrick Quinn case is extremely complex; Malcolm Kennedy's second retrial lasted 11 weeks. We cannot hope to go through all of the evidence, nor can we describe all of the many irregular police practices that took place that night. Kennedy does not know who killed Quinn, and we do not claim to know. But we don't need to know and, by law, he did not need to prove he was innocent. All we intend to show in this pamphlet is that by looking at particular discrepancies in the police evidence, the way in which the police investigated Quinn's death and the manner in which the CPS conducted this prosecution, there must be reasonable doubt about the safety of Kennedy's conviction.

We look at four areas of concern:

· The arrest of Patrick Quinn
· PC Paul Giles movements
· Placing two prisoners in the Tank
· The discovery of the body.

The arrest of Patrick Quinn

PC Northway said that he left Hammersmith police station after 11.00pm with PC Millar, and PC Trinkwon following in the area car.

However, the computer aided despatch (CAD) readout puts PC Trinkwon's call for assistance to deal with Patrick Quinn at 10.49pm. This would normally be when the night relief is paraded by the section officer. That night it was Sergeant O'Donnell.

O'Donnell has given three different accounts of what he was doing when Trinkwon called for assistance. At the first trial, O'Donnell said in evidence he did not parade the relief that evening, but assisted PC Giles. Alternatively, he did not say anything in his first statement, written six hours after Quinn's death, about attending Quinn's arrest. In another statement written a month later, he said he was driving a police van with PC Giles when at 11.04pm he received a call to attend an incident in Shepherd's Bush Road. Giles supported O'Donnell's version at the first trial saying they learned about Quinn while still inside the police station.

O'Donnell said that he decided to take Giles with him to deal with the Quinn arrest because he was a probationer and needed the experience. But at the scene, O'Donnell said he did not supervise Giles, he remained in the vehicle and left everything to Trinkwon and Giles. He said he did not participate in Quinn's arrest or detention in any respect other than drive the vehicle. He has been unable to say anything about Quinn's arrest.

At 11.35pm, Giles wrote his first account of Quinn's arrest in the station Incident Report Book. He made no mention of Trinkwon or O'Donnell being present at Quinn's arrest.

Neither Trinkwon nor Giles have stated at any time that Quinn was troublesome. But Trinkwon found it necessary to drive the 200 yards back to the station and help Giles take Quinn into the custody suite, while O'Donnell watched. Some ten minutes later, Giles said he was able to place Quinn on a mattress on the floor in the Tank cell, without assistance. Unless Quinn was being aggressive, why did Trinkwon return to the station? Especially as he had already been delayed.

The CPS chose to ascribe these discrepancies to the passsage of time, and officers forgetting minor details when giving evidence. Giles was unable to remember much about what happened in the first trial, gave a bit more information at the Court of Appeal hearing and spent three days in the witness box at the first re-trial in Sptember 1993, and was not called at all for the second re-trial.

Later on that morning there was to be another twist in the story. The Police and Criminal Evidence Act 1984 (PACE), requires that custody officers are not involved in any respect with the alleged offences of suspects, so that they can be relatively independent. Contrary to this rule, Superintendent Kelly appointed Sergeant O'Donnell as Kennedy's custody officer following his arrest by Henery for assaulting Patrick Quinn. Why didn't O'Donnell inform Kelly that his attendance at Quinn's arrest disqualified him? Moreover, why didn't O'Donnell refer to his attendance at Quinn's arrest in his notes, written with Inspector Dell at 7.40am.

If that wasn't enough, PC Millar took four days sickness leave after completing his shift, and when he returned to work he had made the effort to have his trousers dry cleaned over the Christmas period.

One of the questions to be asked about the arrest of Quinn is - was he arrested by Giles, or someone else? And, what were O'Donnell, Trinkwon and Millar up to, that caused them to disappear for so long after the event? Finally, by the end of the night relief, it is clear that officers did not manage to get the time to sit down and write their notes together. Were some officers still working out who to say was involved in Quinn's arrest? It would certainly appear so.

PC Paul Giles' movements

All of the Hammersmith and Fulham police officers accounts of what they were doing on the night of 23 December 1990 are significant. The evidence of PC Paul Giles is of crucial importance - i) records show he was the principal police officer dealing with Quinn between 11.05pm when he arrested him, and 11.57pm when he was writing up his notes after having taken Dr Wilkes to examine his head wound and ii) evidence contradicts his claim to have attended Samantha Wilson's home to arrest Billy McKenzie after midnight on the morning of 24 December 1990.

At the first trial in September 1991, Kennedy's defence knew of Billy McKenzie's arrest. But according to police records he had been arrested on 24 December and little attention was paid to the incident. The defence were also aware that Samantha Wilson and her friend, Sarah Dennis, were being interviewed in the station by PC Welsh between prior to 1.40am. Wilson and Dennis's statements were not disclosed by the CPS to the defence and they were unable to trace the two women to interview them before the trial.

Granada Television's World in Action documentary programme worked closely with Kennedy's legal representative, Tim Cooke of Powell Spencer and Partners, following his murder conviction. They managed to trace Wilson and Dennis who featured in a programme broadcast on 27 April 1992.

According to Wilson and Dennis, McKenzie returned to Wilson's Hammersmith home from the pub at about 11.30pm and a fight broke out almost immediately. The two women then walked to a public phone and dialled 999. Giles and Welsh arrived within 10 minutes and arrested McKenzie for assaulting Wilson after 5-10 minutes.

Welsh took these details from Wilson and Dennis in an interview within two hours. If their timings had been out by an hour he would have corrected their statements. Other evidence supports Wilson and Dennis's accounts. Most importantly the Crime Report Sheet on the incident, completed by Welsh, records Wilson's 999 call at 11.30pm and police attending at 11.50pm. The Domestic Violence Log records the incident as having happened at 11.20pm, which corresponds with the 11.30pm 999 call.

Police evidence which contradicts these timings was i) Giles maintains he took Dr Wilkes to see Quinn at 11.50pm, supported by Sergeant Bleakley's statement (although Wilkes did not record who it was, and cannot remember if it was Giles), and was writing his notes at 11.57pm, ii) Giles recorded the McKenzie incident at 00.50am in his notebook, countersigned as an accurate record by Welsh, iii) McKenzie's custody record was opened by Bleakley at 1.05am and confirmed the later times and iv) the CAD printout, which was lost for three years until it dramatically reappeared in the first retrial; to which we return later.

These contradictions in the police's evidence, and the additional evidence provided by Wilson and Dennis, were the main reasons for the Court of Appeal ordering a retrial in February 1993. The judgement, delivered by Lord Chief Justice Taylor stated "we consider the whole of the evidence, including the further material we have received, merits the consideration of a fresh jury."

Giles and Welsh were directly implicated by these inconsistencies in the police's evidence. Where was Giles? Was he dealing with Quinn or McKenzie? Why did Welsh record different times for the McKenzie incident? Was there an incident in the station which Giles and Welsh wanted to distance themselves from?

The defence's discovery of Giles' discrepancies had even greater significance than securing a retrial. Mindful of the need to show a motive for a police assault on Patrick Quinn, the defence took a closer look at PC Giles and discovered he had strong anti-Irish republican views and a history of violence.

Placing two prisoners in the Tank

In December 1990, Hammersmith and Fulham police officers were operating out of Hammersmith police station. With two separate custody suites there was bound to be some confusion.

There are nine cells in the station. Cell 5. the Tank, is the largest and furthest away from the two custody suites (see plan). Metropolitan Police guidelines state that prisoners should be placed in separate cells whenever practically possible.

Quinn's custody record, filled in by the Hammersmith custody officer, Sergeant Bleakley, states he was put in the cells at 11.15pm, it does not say who by. In a statement, written some time later, he said it was PC Giles. According to Giles, he placed Quinn in the Tank on a mattress on the floor. He has been unable to explain how he managed to do this on his own. Particularly as he required PC Trinkwon's assistance to take Quinn to the custody suite and he stated "he [Quinn] could not stand on his feet."

Giles says he chalked Quinn's name on the board beside the cell door and wrote the details again on the board at the end of the cell passage in the Hammersmith custody suite.

At 11.38pm, Nigel Mills, who had also been arrested for drunkenness, by Fulham officers, was placed in a cell on his own.

Kennedy was brought into the Fulham custody suite by PCs Anthony Mellor and Michael Carr at 1.05am and presented to Sergeant Henery. All three officers describe him as a difficult and unco-operative prisoner who threatened to sue the police. However, it only took three minutes for Henery to record his details and belongings in the custody record, for Mellor and Carr to search him and place him in a cell at 1.08am, and by 1.10am Mellor was writing up his notes.

Kennedy maintains that his six foot long woollen scarf and heavy stainless steel Seiko wristwatch were taken from him. A custody sergeant would certainly be expected to retain all possessions which could be used to cause injury, particularly if a prisoner was unco-operative. And Henery stated at trial that he did remove Kennedy's property for this reason, but he did not itemise them in the custody record, and he said on oath he allowed Kennedy to keep his scarf and watch, both of which were capable of causing injury.

Mellor and Carr made their notes about Kennedy's arrest separately. They both claim not to have seen Quinn, a big man, on a mattress on the floor in the Tank. Kennedy himself says he did not see Quinn and went straight to sleep on the bench. Mellor claimed to look in the cell and push Kennedy in; Carr wrote Kennedy's name on the blackboard outside, we assume beside Quinn's name. It was only when Mellor saw the board at the end of the cell passage, with another prisoner entered in the Tank, that he realised there was somebody in there but he did nothing about it.

Mellor and Carr do not say anything in their statements about Kennedy's scarf. But they have both said in evidence that his scarf was thrown in the cell after him.

Kennedy's scarf was later photographed draped over Quinn's body and his bloodied watch was on the floor beside him, resting in its "display" position. Both Mellor and Carr made statements identifying the watch as the same one that Kennedy was wearing when they searched him.

Why these discrepancies over a simple mistake like putting two men in the same cell? The imagination can run wild in search of explanations. Was Giles Quinn's arresting officer? Did Giles place Quinn in the tank on his own? Was Giles somewhere else when he claimed he was with Dr Wilkes examining Quinn in the Tank at 11.50pm? Did Wilkes examine Quinn? Was Quinn in the Tank when Kennedy was pushed in? Was Quinn placed in the Tank after Kennedy, and was this the sound of banging doors which Kennedy said disturbed his sleep? Had Kennedy been singled out as a scapegoat for injuries to Quinn before he had been put in the Tank? Were Kennedy's scarf and watch added to the scene as an afterthought by officers?

Discovery of the body

All of the police officers on duty that night maintain it was a quiet and unevenful night. Sergeant Bleakley checked the cells, including the Tank, at 1.30am and reported everything normal. Dr Wilkes examined Samantha Wilson in the surgeon's room, which is two doors from the Tank, at about 1.40am, and neither heard anything untoward. No incidents were reported before Sergeant Henery went on his rounds at about 1.50am.

The police maintain that Quinn's body was discovered at 1.50am by Sergeant Henery, with Sergeants Bleakley and O'Donnell and Inspector Dell in close pursuit.

At the time of the first trial, Kennedy's defence did not have the details of Samantha Wilson's interview by PC Welsh.

At the Court of Appeal hearing in February 1993, Welsh said in evidence that while he was interviewing Wilson, "There was a knock on the interview room door and Sergeant Bleakley told me there had been an incident in the custody suite." That must have been before 1.40am. Bleakley flatly contradicted Welsh by asserting "I deny ever entering the interview room. I did not know about the death until after the body was discovered at 1.50am."

On the basis of this conflicting evidence, Michael Mansfield QC, Kennedy's counsel, asked the Court to quash the murder conviction. They declined to do this and ordered a retrial.

Samantha Wilson also remembers an interruption when she and Sarah Dennis were being interviewed. She said that PC Giles came into the interview room, probably sometime between 00.30am and 1.00am. After a whispered discussion, Welsh told them there was a problem in the station and he left with Giles. When he returned he was no longer wearing his tunic and hurriedly completed the interview.

The time of the discovery of Quinn's body is extremely important to this case. The police claim it was at 1.50pm. The defence claim it must have been earlier and officers bought some time to put a cover up into operation. Contrary to police claims that there were no incidents in the station that night, all of the prisoners held in custody say there was. Responsibility for sifting through this conflicting evidence rested with DI Philip Swinburne in charge of the Quinn murder investigation. In Chapter 4 we look at how the police investigation progressed and the conduct of the CPS.

4. The burden of proof

The foundation of criminal law is the presumption of innocence. We are all innocent until proved guilty of a criminal offence in a court of law. It is for the prosecution to prove that a defendant committed a criminal offence and courts, whether magistrates or juries, have to be sure beyond reasonable doubt to convict. The burden of proof rests with the prosecution and it is the responsibility of police investigators to collect together the evidence. If the police investigation uncovers evidence that the suspect did not commit an offence, or no evidence to prove they did, then the suspect cannot be charged.

Police evidence against the defendant is passed to the prosecuting authority, the Crown Prosceution Service (CPS). The CPS has a duty to examine the quality of the police evidence and decide whether to proceed with the prosecution. The defendant has a right to know the evidence on which the prosecution relies and the CPS has a duty to disclose to the defence all evidence known to it on the alleged offence. In court, it is for magistrates or judges to decide if the prosecution case has been properly conducted and to adjudicate on disagreements between the prosecution and defence about disclosure of evidence and points of law.

If a complaint is made with regard to a death in police custody, the police have an obligation to refer the complaint to the Police Complaints Authority (PCA) for supervision. The police have a duty to preserve the scene of the crime for evidence, and the PCA appoints an officer to investigate the case.

In Chapter 1 we outlined how, in cases of violent police crime, officers cover up their crimes by charging their victims with criminal violence. We showed that in such cases there is a shift in the burden of proof from the prosecution to the defence, and while the police fail to properly investigate the alleged offence, the defence has to conduct its own thorough investigation to prove their innocence.

The prosecution of Malcolm Kennedy for the murder of Patrick Quinn follows a classic cover up modus operandi. But in this case, due to the victim's death, the last non-police officer claimed by the police to have been with him was charged with murder. With the victim dead, the defendant's innocence is even more difficult to prove. Kennedy is unable to say who it was who assaulted Quinn, and it does not necessarily follow it was the person who arrested him, or any of the officers on the scene. But, because of the shift in the burden of proof, Kennedy's defence was forced into a position of proving the police killed Quinn, and the prosecution did not have to prove beyond reasonable doubt Kennedy did.

The investigating officer

According to the police account, Quinn's body was discovered at 1.50am by Sergeant Henery, with Sergeants Bleakley and O'Donnell and Inspector Dell in close pursuit. Henery's arrest of Kennedy for assaulting Quinn, witnessed by the other three officers, determined the course of the police investigation.

Technically, these four officers (the most senior officers on duty) started the police's investigation the moment they say Henery discovered Quinn's body. They accused Kennedy and immediately set out to find the evidence to support their accusation, in a material sense by removing his clothing. More importantly, they assumed Kennedy did it. Or, if they knew Kennedy did not do it, they could take for granted every other police officers' assumption that he did.

These four officers were in the priviliged position of arresting the suspect and then being able to influence the investigation. They determined the time of death between 1.30am, when Bleakley checked Quinn, and 1.50am. Their legitimate presence in Hammersmith police station afforded them many opportunities to interfere with the investigation in the crucial stage after discovery of the body, by speaking to people or by altering evidence.

We cannot say if any one of these four officers was responsible for Quinn's injuries. We can say that in HCDA's experience, in individual incidents of police violence (as opposed to riot situations) it is most common for officers who committed criminal assaults to arrest their victims. This points the finger at Henery. However, police solidarity works in mysterious ways and officers may get involved in cover up conspiracies for various reasons. It is possible that these four officers were set up to discover Quinn's body, or were covering up for other officers (for example Giles, Mellor and/or Walsh, who were present in the custody area at that time). However, we consider it highly unlikely that constables would set up three sergeants and an inspector, or that senior officers would risk their careers to protect constables. Bleakley's claim to have checked Quinn at 1.50am indicates he was involved in a conspiracy, but his immediate disappearance from the scene to call an ambulance suggests he played a minor role. Giles, Mellor and Welsh's attendance in the custody area suggests they played a lesser part in the cover up, but this does not exclude them as Quinn's assaillant, or one of them. We do not know how Quinn died, and we refuse to speculate who was responsible. We do say there is strong evidence that there was a conspiracy to pervert the course of justice.

The word of Henery, Bleakley, O'Donnell and Dell was sufficient evidence to arrest and detain Kennedy and provided the starting point for the Quinn murder investigation. The working assumption in the police station was that Kennedy had murdered Quinn. This was the assumption at 1.50am and it was the assumption at 8.11am, when Kennedy was interviewed by DI Philip Swinburne and DS Paul McAleenan, with his solicitor present.

At this stage in the Quinn murder case, McAleenan and Swinburne, by fault or design, assisted the cover up. Kennedy did not admit to assaulting Quinn in his interview, nor say anything which could suggest he was liable, on the contrary, he firmly stated he saw an officer assault Quinn and he was assaulted himself. This allegation amounted to a serious complaint and Swinburne had a duty to refer the case to the Police Complaints Authority. This was not done, although the PCA was informed of the death in custody later that morning.

If the PCA had supervised the investigation, it would probably have appointed a detective from outside the Hammersmith division. Also in attendance at Hammersmith police station that morning were - DSupt Hackett from Area 6 Major Investigations Team, DSupt Lloyd from MS16, now called the Complaints Investigation Bureau (CIB2), and DSupt Matthews replaced Hackett at 10.00am. Were all the senior officers present so convinced of Kennedy's guilt that they were not interested in what he had to say? As senior detectives from outside the Hammersmith division, Hackett, Lloyd or Matthews were on hand to take charge of the Quinn investigation. As a complaints officer, DSupt Lloyd had the authority to intervene and take control of the investigation. Instead, Swinburne, of lower rank and a Hammersmith officer, remained in charge as officer in the case (did all the Super's have last minute Christmas shopping to do and left Swinburne to put in a 17 hour working day?).

If an outside officer under the supervision of the PCA had been appointed to investigate the Quinn case, the investigation may have proceeded in a different manner and followed alternative leads. Although much of the cover up was in place by 8.30am, Lloyd was in a position to secure the evidence, seize all the officers clothes who were still on duty and order every officer to complete duty statements before leaving the station.

It was a controversial decision for Swinburne to lead the investigation and it gave him a vested interest in the case. He must have been keen to prove himself right to ignore the complaint by getting the evidence to prove Kennedy guilty. The same outcome would be welcome to the superintendents; but on Christmas Eve they were probably thinking more about what they would be doing with their families the following morning.

It was not until after Kennedy was convicted of Quinn's murder before the PCA investigated his complaint, and by that time the cover up had been completley executed.

We do not know if Swinburne and McAleenan were involved in the conspiracy to scapegoat Kennedy. But they did not need to be. Within eight hours of the discovery of Patrick Quinn's body the Metropolitan police establishment, reliably informed by a trio of detective superintendents on the scene, had decided Malcolm Kennedy murdered him. Senior officers discussing the case could not really be expected to pay much attention to Kennedy's allegations about police assaults, they probably even anticipated such allegations as his only hope of running a defence. The police position has not changed since that moment and they have gone to exceptional lengths to defend it. And it all started with four officers saying they found the body. Once officers adopted the working assumption that Kennedy murdered Quinn, every police officer had their own reasons for wanting to secure a conviction.

The police investigation

If they didn't know it before, by the time Swinburne and McAleenan ended Kennedy's first interview, they knew what his defence would be. They knew that Kennedy would have a difficult task finding the evidence to support his allegation that police officers killed Quinn, and the case would be reduced to his word against police officers'. The police did not investigate Quinn's death, and the police and prosecution concentrated on proving their case against Kennedy.

Forensic evidence

Patrick Quinn's death was caused by laceration of the heart with multiple injuries to the body.

The prosecution's strongest evidence against Kennedy is forensic.

· Quinn was killed by a frenzied attack in which he was kicked in the head and face and his chest jumped on.
· Kennedy's shoes were covered with Quinn's blood, there were fibres from Quinn's clothes and hair in the splits in his shoes and there were traces of blood on his trousers.
· There was a bloodied imprint of Kennedy's shoe on Quinn's vest.
· The only footprints on the bloodied cell floor belonged to Kennedy and Dr Wilkes.
· Kennedy's scarf was draped over Quinn's body and his watch lying by his head.

The police claim that after Kennedy was removed from the Tank, PC Andrew O'Hagan stood outside and started a log recording the names and times of everybody who entered the cell. That log went missing immediately, and has not been found. Again, the evidence points to a conspiracy to pervert the course of justice. The officers at the scene, the likely conspirators, were all ideally placed to enter the cell and interfere with the evidence. That is the only possible explanation for some of the contradictions in the forensic evidence. If the log exists, it would make very interesting reading.

There are nine fundamental problems with the scientific evidence.

1. It was 9.30am before a pathologist entered the Tank. Injuries to Quinn were severe. He had multiple injuries, including a broken nose, to his head and face. He had serious neck injuries including a broken voice box. He had 33 broken ribs, a crushed heart and other internal injuries. Kennedy had one injury to his head (consistent with being struck, by a police officer when he tried to intervene in the assault on Quinn) and no futher injuries, not at all consistent with having been involved in a brawl. But, police pathologists went even further to say that Quinn had been kicked and jumped on in a frenzied attack.

2. There was a curved laceration to Quinn's forehead by his right eye which could not have been caused by Kennedy's shoes. Kennedy was wearing a pair of worn trainers. According to defence pathologist Professor Austin Gresham, the injury was more likely to have been caused by a hard edged shoe. Kennedy is not a big man. If heavier shoes were likely to have caused this one injury, it is also likely that a heavier person wearing heavier shoes would have caused the same injuries in a less frenzied attack. It is apparent that the working assumption that Kennedy murdered Quinn was all too easily adopted by forensic scientists. Instead of deducing facts from the evidence, the evidence was interpreted to prove the assumption that Kennedy was responsible for Quinn's injuries.

3. Although there was blood on Kennedy's shoes, fibres from Quinn's clothes and some hairs in the splits in his shoes, there were not any traces of Quinn's skin tissue. Kennedy's evidence is that he tried to rouse Quinn when he saw him lying on the floor. He nudged him with his foot and tried to pick Quinn up several times. The blood, fibres and hairs on his shoes are enirely consistent with this evidence. But, for Kennedy to have caused the injuries to Quinn's head and face, the only open wounds he suffered, by kicking him, then traces of skin tissue would be on his shoes.

4. As well as Kennedy's shoes being covered with blood, they also had blood inside. The shoe imprint on Quinn's vest was made through his outer clothes. Was a footprint planted on Quinn's clothing and did the inside of Kennedy's shoes become contaminated with blood in the prcess? By a bloodied hand, perhaps.

5. There were streaks of Quinn's blood and specks on Kennedy's trousers. The streaks of blood on Kennedy's trousers are consistent with his attempts to pick Quinn up. The most compelling piece of prosecution evidence is that the specks of blood found on the inside of Kennedy's trouser legs can only be explained by blood being squirted and spattered about in a frenzied kicking attack.

6. Kennedy's clothes were immediately taken from him for evidence by Henery. In comparison, police officers shoes and trousers were handed in over a period of several days. Dr Wilkes handed the wrong pair of shoes in and handed the correct pair in several weeks later. Officers collected Sergeant Henery's trousers from his wife. PC Giles' ex-wife said she washed blood off his shirt. PC Mellor had his trousers dry cleaned before he handed them in. Only five officers shoes were handed in at the end of the shift. Whereas Kennedy's clothes were thoroughly examined, police officers' were not. This does not amount to a murder investigation.

7. There were two sets of footprints recorded by forensic scientists on the bloody floor of the Tank after Henery removed Kennedy - Kennedy's and Wilkes'. But many officers record in their statements that they entered the cell before photographs were taken or forensic examination commenced, and two officers, O'Hagan and PC John Weedon, the exhibits officer, went in almost immediately. Timothy Langdale QC, in his summing up for the prosecution at the end of the first trial in September 1991, pointed to the footprints as evidence of Kennedy's guilt, "If there was someone else, how did the attacker leave no trace?" Quite easily, given we know officers entered the cell without trace. Furthermore, isn't it somewhat strange that a man discovered lying on the floor in a pool of blood is not approached by any of the people who claim to discover him - Henery, Bleakley, O'Donnell and Dell? Had the scene of the crime been carefully arranged before Henery called out to Bleakley? Did it become necessary for one of the conspirators to interfere with the scene and then remove their own footprints along with other marks in the blood?

8. It was two hours after discovery of the body before a photographer was allowed to take pictures in the cell at 3.50am. The photographs show Kennedy's scarf on Quinn's body and watch beside his head. As outlined in Chapter 3, Kennedy maintains Henery retained these possessions as his custody officer. The heavy stainless steel watch is shown in the photographs in its display position. This requires a person to carfeully balance the watch face on its bracelet, the watch could not fall into that position.

9. When Dr Wilkes first examined Quinn just after 1.50am, he considered three possible causes of death - i) head injuries, ii) chest injuries, iii) strangulation. His opinion that strangulation could be a cause was based on his observation of neck bruising. Strangulation has not figured at all in forensic reports since that time. It is all the more interesting that nobody refered to Kennedys scarf in their statements, but it appeared in the photographs and was to serve no purpose for the prosecution at all. But, if Wilkes had been right, and there had been three causes, evidence was in place to show Kennedy kicked him (blood on his shoes and trousers), Kennedy jumped on him (footprint on vest) and Kennedy strangled him (scarf draped on body).

The contradictions in the forensic evidence can only be explained by a conspiracy to pervert the course of justice. The officers involved in that conspiracy tampered with the evidence, and the officers and forensic scientists responsible for investigating the crime did not examine all of the evidence. That does not mean they were part of the conspiracy, they followed the working assumption that Kennedy murdered Quinn and did not go out of their way to discover contrary evidence, which was readily available.
Non-police statements

All the officers on duty in Hammersmith police station that night maintain it was a quiet and eventful evening until the discovery of Patrick Quinn's body. Several other people were in Hammersmith police station in the early hours of 24 December 1990. As independent witnesses their statements would be very important to the police investigation.

Samantha Wilson and Sarah Dennis left the station shortly before discovery of the body. Wilson was in the surgeon's room, two doors from the Tank, 10 minutes before Henery raised the alarm. But the police investigation did not make any attempt to interview her. She called into the station twice in the following weeks to enquire about the progress of the case against Billy McKenzie, but she was not interviewed. It was left to the defence, helped by Granada Television's World in Action documentary team, to trace the two women (see below). If the Quinn murder investigation had bothered to interview them, they would have learned that during the interview there was an interruption and PC Welsh was informed of an incident in the station. Coming from an independent witness, this information was enough to suggest that Quinn had been assaulted earlier than Henery, Bleakley, O'Donnell and Dell claimed.

The senior detectives present on the morning of 24 December concentrated their energies on collecting evidence against Kennedy - seizing his clothes, taking body samples and preparing for forensic examination. DC Suthers took statements from three prisoners - Vincent Leslie, David James and Nigel Mills. Contrary to what the police claim, all of the prisoners being held in the station that night recall incidents involving a noisy and troublesome prisoner. But the police investigation was not interested in what happened before 1.50am, the time of death established by Henery and Bleakley, and confirmed by Dr Wilkes. Again, the police left it to the defence to investigate Quinn's death and interview non police officers in the station.

Police witnesses

The turmoil and panic in Hammersmith police station in the early hours of 24 December 1990 should have alerted investigating officers, including the senior complaints detective, DSupt Lloyd from MS16, that this was not a simple case of one prisoner assaulting another. The confusion in the police statements, the absence of duty statements, officers leaving without handing in their clothes and the missing documents will have quickly confirmed this impression. There was ample evidence to encourage the murder investigation to take a closer look at the police officers on duty and scrutinise their accounts of their movements that night. But they did not.

The murder investigation did not consider the characters of the police officers on duty that night - particularly Henery's damaging disciplinary record, Welsh's aggressiveness and the change in Giles' behavior following Quinn's death (see below). If this evidence is given equal weight with the contradictions in the evidence, a thorough investigation would have had to include these officers as suspects and broaden its investigation to consider the probability of a conspiracy to pervert the course of justice. Not suprisingly, it was left to the defence investigation to follow this line of enquiry.

The police file passed to the CPS for the September 1991 Kennedy murder trial did not add up to a criminal investigation by any stretch of the imagination. But, the police case did not depend on a thorough investigation. Much of the evidence outlined above was not available to the defence at that time and CPS lawyers knew that the defence would have great difficulty proving its case. The only way that Quinn's death was going to be investigated was by Kennedy's defence, and they were dependent on the CPS for disclosure of information.

Crown Prosecution Service

Most criminal cases proceed through a sequence of events. They either start with the reporting of a crime and the police then investigate the case. If the police discover evidence against a suspect that person is arrested and charged, and the file on the investigation is passed to the CPS to conduct the prosecution at trial. We are not concerned here with such cases. Other cases commence with a police officer arresting a suspect who they allege committed a crime. These are the type of cases we are concerned with. Sergeant Henery arrested Malcolm Kennedy for an alleged assault on Patrick Quinn at about 1.50am on 24 December. The criminal justice process then progresses with the suspect being charged with an offence once the police have enough evidence to justify a charge. DI Swinburne formally charged Kennedy with Quinn's murder at 8.28pm after interviewing him for the second time that day. The police investigation, which commenced before charge, is then concluded and the file is passed to the CPS for preparation of the prosecution case. The CPS examines the police's evidence, and the investigating officers and CPS lawyers co-operate on the final stages of preparation. During this stage of the process the CPS has a duty to disclose details of the prosecution case to the defence.

It would be all too easy to condemn the CPS for failing in its duty to advise the police there was insufficient evidence to prosecute Kennedy before the first trial in September 1991. But, on the facts, there was quite clearly sufficent evidence to proceed with the prosecution. Equally, Timothy Langdale QC, can be criticised for not disclosing Samantha Wilson's evidence to the defence before the September 1991 trial (and, incidentally, the CPS did not disclose that Dr Wilkes was an alcoholic until after the first trial). Malcolm Kennedy told him what he thought of his behaviour in no uncertain terms from the witness box in his second retrial. But, did Langdale know of the possible significance of the evidence at that time, and that it would set in motion a train of events that would lead to PC Giles becoming mentally ill? Technically, the prosecution did not contravene the rules. The CPS lawyers' only crime at this stage was to fall into line with everybody else - investigating officers, pathologists, forensic scientists, et al. The reasons why the CPS did not disclose evidence is irrelevant. We can speculate whether it was malicious or due to ignorance, but we know that once the prosecution lawyers accepted the working assumption that Kennedy was guilty they would not be looking for contrary evidence. Kennedy's wrongful conviction for manslaughter has more to do with fundamental injustices in the criminal justice system than to CPS lawyers breaking the rules. And once the CPS had nailed its colours to the police mast, it had a vested interest in securing his conviction.

We will not comment further on the role of the CPS at this stage. The part it played in the wrongful conviction of Malcolm Kennedy will become clearer when we look at the defence's investigation and what happened in court.

Defence investigation

We have seen that the police investigation was not thorough. Malcolm Kennedy's defence knew they would have to conduct as detailed investigation as possible. Before the first trial, the defence knew about the existence of Samantha Wilson and her presence in the station, but they did not know what she said and the CPS did not disclose her statement.

Responsibility for the defence investigation rested with Tim Cooke of Powell Spencer and Partners in Kilburn, London, representing Malcolm Kennedy. The defence was not able to conduct much of an investigation before the first trial. Private investigators had been employed to find Wilson and Sarah Dennis, but they failed. At the relatively brief three week trial, the defence was unaware of Wilson's evidence that Giles' was attending her home with Welsh when he claimed to be with Quinn(see Chapter 3, PC Paul Giles movements). They could not challenge the police's sequence of events leading upto Henery's discovery of the body. The prosecution presented perfectly sequenced timings. Michael Mansfield QC relied on the inconsistencies in the forensic evidence and discrepancies in the police statements to support Kennedy's defence that a police officer killed Quinn. In the absence of evidence, Mansfield did not name a suspect officer, nor, logically, could he ascribe a motive. The jury were asked to decide if Kennedy or an unkown police officer had killed Quinn, and they convicted Kennedy.

Following Kennedy's conviction, his defence worked closely with Granada Television's World in Action documentary team and managed to trace Samantha Wilson, Sarah Dennis and Billy McKenzie. (Kennedy also wrote to the Police Complaints Authority after his conviction and Superintendent Tom Wright of Thames Valley Police was appointed to conduct an investigation during the same period (see below).)

Wilson revealed to the defence the contradictions in PCs Giles' and Welsh's timings. She also said that while she and Dennis were being interviewed by Welsh they were interrupted by Giles. Welsh told them there was a problem which he had to deal with and he left with Giles. When he returned he was not wearing his tunic and hurriedly concluded taking their statements.

World in Action broadcast this new evidence on 27 April 1992. The programme featured former Chairman of the Bar Council, Anthony Scrivener QC, explaining the significance of the new evidence. At trial, all the police records accounted for the officers movements. The defence was faced with the dilemma of suggesting who could have been Quinn's attacker. The new evidence showed that records were inaccurate, and an officer could have killed Quinn. On the basis of the new evidence, Scrivener called for a retrial.

It took the Court of Appeal 10 months to order a retrial on the basis of this new evidence (supported by additional evidence from the Thames Valley investigation), on 19 February 1993. The court ruled that a fresh jury should hear all the evidence, including the new evidence.

The defence's discovery that Giles was somewhere else when he said he was with Quinn, and that Giles had informed Welsh of an incident before Henery raised the alarm, was a breakthrough. It was the first clear evidence of a conspiracy; both officers must have known that Quinn was assaulted before 1.50am. This confirmed the defence's belief that police officers bought some time to put a cover up into place before "officially" discovering the body. A bonus was the evidence that Giles, Welsh and Sergeant Bleakley, who confirmed Giles and Welsh's times in McKenzie's custody record, lied, and were worthy of investigation as suspects. In addition, there was the revelation at the Court of Appeal hearing that Welsh was interrupted by Bleakley when interviewing Wilson and Dennis, evidence which Bleakley categorically denied. This meant even if Wilson was wrong, there was other evidence to indicate Bleakley and Welsh knew about Quinn's death before 1.50am, an important lead for the defence investigation to follow.

The defence was able to firm up evidence that there had been an incident before 1.50 am with a troublesome prisoner by interviewing several of the other prisoners who were in custody. In addition, prisoners said there had not been regular checks by the custody officers on the cells that night as they claimed.

PC Paul Giles

PC Giles did not give evidence very well at the first trial, it was his first big trial. At the Court of Appeal hearing his performance was worse, and he admitted his "health had deteriorated" after the World in Action programme. But, by then the defence was armed with Wilson's evidence and had discovered he had an history of violence. By the time the first retrial started in September 1993, the defence had thoroughly investigated Giles and he had become their prime suspect.

PC Giles was born into a Catholic family in a nationalist area of Northern Ireland. He holds anti-republican views and wanted to join the Special Branch and undertake anti-terrorist duties. He joined the police in 1989, and after six months training at Hendon he commenced his probation at Hammersmith police station about one year before Quinn's death.

The defence managed to trace Giles' ex-wife, Amanda Taylor; they separated after Quinn's death. She informed them that Giles' assaulted her on two occasions before December 1990.

On the morning of 24 December 1990 after Giles' finished work, Wilson said she washed the police shirt and trousers he had been wearing. She told the defence she saw specks of blood on the shirt. She said her husband told her there had been a death in the station, and he was disturbed by what happened. He wept after telling her, and in following weeks drank and slept a lot. She said he deteriorated rapidly and lost all interest in life.

The defence also discovered that Giles' slapped a previous fiancee around the head and following the World in Action programme, broke the window in a female neighbours door with a hammer, when attempting to get into her house.

In his opening speech to the jury at the first retrial in September 1993, Mansfield said the defence could not say who attacked Quinn and then went on to single out Giles as a police officer with a propensity for violence. Giles took the witness box on the fourth day of the trial, on Thursday 9 September. In his evidence he denied assaulting Patrick Quinn before Mansfield cross examined him for the defence.

Giles was in the witness box for three days. His performance was even worse than on previous occasions. He drank copious amounts of water, and did not appear as a believeable witness. Of the events in the police station that night, he said he could not remember much about what happened. On Friday 10 September, Mansfield cross examined Giles about his violence and his wife's discovery of blood on his shirt. Giles admitted to assaulting two women on two separate occasions, but denied he had a "propensity and capacity for violence". He denied asking his wife to wash his shirt and trousers, and claimed she was trying to ruin his career.

After the weekend, Mansfield continued his cross examination. He put it to Giles that he believed Quinn had the alias Marshall, and might have been involved in Irish politics. Giles denied this and claimed that Quinn was so drunk he was unable to speak.

On the afternoon of Monday 13 September, Mansfield was questioning Giles about his attendance at Wilson's. DS McAleenan entered the courtroom and handed a document to the prosecution lawyers. Langdale stood up and informed the judge that he had just received an important piece of evidence and asked for an adjournment. The document was the CAD printout into the Wilson incident, which had been missing since December 1990.

That was the end of the first retrial. The defence required time to examine the document, and the judge ordered a second retrial. Giles' escaped having to explain whether he was with Quinn in Hammersmith police station, or arresting McKenzie half a mile away.
Guilty feelings

According to Giles, Quinn's death affected him deeply. He saw Quinn's dead body with his "eye resting on his cheek" and he was shocked by it. As Quinn's arresting officer, he said he felt responsible for what happened to him in the police station. The World in Action programme focussed on Giles' role in the Quinn case and it psychologically affected him. Giles claimed his feelings of guilt for failing to protect his charge, and his anxiety about what people he knew might think, caused his mental health to deteriorate.

On 21 September 1993, the day after the first retrial was abandoned, PC Giles was referred to Grovelands Priory Hospital as an inpatient by police consultant psychaitrist Dr Thomas Farewell. He discharged himself on 6 October, and was readmitted on 24 October after being arrested for impersonating a police officer!

Dr Farewell's diagnosis was that Giles became mentally ill, suffering from episodic hypomania. His illness was due to his belief he had done nothing wrong, but he felt as if he was on trial for murdering Patrick Quinn, a person he felt he was responsible for. Following the World in Action programme, Giles became ill and spent most of the year on sick leave. He sought psychiatric help and was first seen by Dr Farewell in July 1992. He returned to work in December 1992 and started feeling anxious again approaching the Court of Appeal hearing in February 1992. Dr Fairwell determined Giles suffered from bouts of hypomania when he was confronted by the issue of Quinn's death and the exposure of his private life in connection with the case. At the first retrial, Giles behaviour in the witness box was bizarre. He could not remember what he had said a couple of sentences later, he absurdly associated words together (for example saying "Lords, Ladies and Gentlemen" when addressing the Court) and believed the water contained magical qualities.

Kennedy's defence knew of Giles recent history of mental illness at the first retrial. They noted his behaviour and concluded he was feeling guilty. But, the defence reached a different conclusion to the prosecution as to why he felt guilty. According to the defence, remorse for failing to protect somebody from a brutal attack was unlikley to cause bouts of hypomania. It was much more likely that Giles felt guilty about the part he played in Quinn's death. Amanda Taylor's statement that he seemed to lose all interest in life after Quinn's death suggested that it was not the allegation which caused him to feel guilty, but the incident itself.

It was inevitable that the prosecution and defence would arrive at these contrary conclusions. Not only were they representing opposite sides, they also arrived at their conclusions as a result of widely different investigations which started out from antithetical propositions. The police took the working assumption that Kennedy murdered Quinn to the extreme, and explained Giles illness as a result of unfair pressure. The defence, on the other hand, was understandably convinced that Giles had something to hide and considered him a suspect.

At this stage of his three year ordeal, on the eve of his second retrial, Malcolm Kennedy believed he would receive a fair trial. Whatever the prosecution might say, it would be for the jury to decide if police officers, including Giles, were telling the truth.
Fitness to give evidence

Kennedy's dreams were shattered on the morning of the second retrial. On Monday 21 February 1994, the CPS informed the defence that the prosecution was not calling PC Giles as a witness.

The decision not to call Giles, and the CPS's failure to warn the defence before the second retrial, was of similar significance to their failure to disclose information on Samantha Wilson before the first trial. Both CPS decisions denied juries access to evidence, and they had arguable legal grounds for reaching them. The decisions were within the law, but not in the spirit of justice.

Whereas the failure to disclose on Samantha Wilson can be attributed to over reliance on a working assumption, the CPS decision to exclude Giles was contrived. Ironically, it was the missing CAD printout which was to provide the basis for the decision to drop Giles.

Computer Aided Despatch (CAD) is the computerised system which organises police communications. CAD operators log telephone and police radio messages on computer as they are transmitted. When each message is logged, the time of the entry is fixed by the computer. CAD printouts provide accurate timings of incidents. The CAD printout dealing with Wilson's 999 call, which had been missing for three years, confirmed that Giles and Welsh had attended the incident at the later time of 00.40am.

According to the police, the CAD printout was conclusive evidence that Giles and Welsh had not lied about the time they attended Wilson's home. Welsh had recorded the earlier time on the Crime Report Sheet, and he could be cross examined about the discrepancies at trial and Wilson's evidence. Giles evidence on this subject would not be crucial as his timings were consistent and there was no other evidence. On this basis the police investigation concluded Giles was not an essential witness. But, this was not a strong enough argument on its own to drop Giles as a witness.

DI Swinburne discussed the case with Dr Farewell and told him Giles was no longer an essential witness. Before the Court of Appeal and first retrial hearings, Farewell had prepared Giles for giving evidence by coaching him in relaxation techniques. He would have to do the same before the second retrial. After speaking to Swinburne, Farewell advised the CPS in January that Giles was not medically fit to give evidence in the forthcoming retrial. Farewell did not bother to prepare Giles for the witness box.

At the opening of the second retrial, the defence objected to Giles exclusion and it was left to the trial judge, Judge Swinton Thomas, to rule whether he should give evidence. Langdale was adamant that the CPS were not going to call him - he was no longer an essential witness and it was within the CPS's power to decide how to prove its case and who to call. And besides, Giles was unfit to go evidence. Mansfield quoted the Court of Appeal hearing that all the evidence, old and new, was to be put to the jury and strongly disputed the notion that Giles was not central; Giles absence from the trial would amount to an abuse of process he submitted. He asked for an adjournment so that the defence consultant psychiatrist, Mr Nigel Eastman, could examine Giles.

Judge Swinton Thomas ruled in favour of the prosecution and the trial proceeded without Giles. However, he did order the CPS to allow Mr Eastman to examine Giles.

With the trial proceeding, Mr Eastman prepared a report on Giles. Mr Eastman discovered that the prosecution had considered excluding Giles as long ago as November 1993, but did not inform the defence until 21 February 1994. Worse than that, they had assured the defence he would be giving evidence. Mr Eastman also discovered that Dr Farewell had not prepared Giles for giving evidence.

On receiving Mr Eastman's report, one month into the trial, Mansfield made another submission that Kennedy was being denied a fair trial by abuse of process. Mr Eastman agreed with Dr Farewell's diagnosis that Giles suffered from epsisodic hypomania, but disagreed about his fitness to give evidence. Dr Farewell maintained that Giles' evidence under cross examination might be unreliable and he might suffer irreparable damage. According to Mr Eastman, Giles could give evidence provided he took medication. Again, Judge Swinton Thomas rejected the defence submission and allowed the trial to continue.

However, in Giles absence, all the evidence he gave at the previous court hearings would be read to the jury, and Dr Farewell and Mr Eastman would give evidence about Giles mental health.
The second retrial

The police's working assumption that Kennedy murdered Quinn influenced the trial before the jury heard a single piece of evidence. The idea to exclude Giles was initiated by DI Swinburne, perfected by Dr Farewell, executed by Timothy Langdale QC and accepted on legal grounds by Judge Swinton Thomas. We do not suggest here that any of these persons were necessarily involved in a conspiracy to pervert the course of justice. They carried out their duties with a professionalism which will have won praise from their superiors and contemporaries. They were all, only doing their job! The prosecution team were imaginative and inventive in their use of the law, which gave the judge very little room for manouevre.

Malcolm Kennedy's defence team, led by Michael Mansfield QC, and organised by Tim Cooke, also prepared an excellent case. In their investigation they followed every lead available to them and presented a strong case.

If everybody performed their respective roles so well, then how could Kennedy have failed to receive a fair trial? Because there are fundamental injustices in the criminal justice system which allow criminal police officers to avoid prosecution, irrespective of the qualities of the individuals involved. Britain's adverserial judicial system reduces the law to a contest between two sides - the prosecution and the defence. The administration of justice requires that the CPS prosecutes independently on behalf of the Crown and the police impartially investigate the evidence. The defence is not independent or impartial, it is obliged to follow the lawful instructions of the defendant. A legal contest is a game played by two highly paid lawyers with peoples lives. But, the game is played fairly, more or less, because the defendant is presumed innocent and the prosecution only has a professional interest in the case, not a personal one. In cases of violent police crime the police are not impartial and the prosecution is not independent. Instead of R v Defendant it is Police v Defendant. This causes the whole criminal justice system to collapse like a pack of cards. Malcolm Kennedy did not receive a fair trial because the CPS played dirty by hiding Giles, and in its place he got a political trial. This much was evident right from the beginning, when prospective jurors were asked if they were ex-police officers or had friends or relatives in the police. Judge Swinton Thomas agreed with the defence that persons with close ties with the police might not be able to objectively consider the evidence. But a juror who said he played golf with police officers in Brentwood, Essex, was allowed to sit on the jury and was eventually elected their foreman.

After Langdale made his opening speech for the CPS, there was a departure from normal procedure and Mansfield gave an opening speech for the defence. Before the jury heard any evidence, they were told in detail what the trial was going to be about. Langdale told the jury that the prosecution sought to prove beyond reasonable doubt that Kennedy murdered Quinn; he gave the history of the case through three previous court hearings; he admitted there were discrepancies in the police evidence but rejected the defence case that police officers killed Quinn; and he mentioned that PC Giles was unfit to attend. Mansfield questioned the prosecution's case that Kennedy could have attacked Quinn and asserted that there had been a cover up. He said that Giles role was central in the case and asked if he was unfit, or frightened of the consequences of appearing.

Langdale and Mansfield's opening speeches amounted to a bombardment of the jury with one question - "Did Malcolm Kennedy or a police officer kill Patrick Quinn?" That is what both counsel were asking by describing each other's case and countering it with their own. The prime police suspect, the only officer referred to at length, was PC Giles. By the time Mansfield sat down to allow the first prosecution witness to be called, the prosecution no longer had to prove its case beyond reasonable doubt. The shift in the burden of proof from "did he, or didn't he?" to "who did it?" allowed the CPS to concentrate on undermining the defence's case that a police officer killed Quinn. Although we do not know how jurors might have interepreted these opening speeches, it is posible that some might have concluded it came down to a question of did Kennedy or Giles killed Quinn, and they had to be sure beyond reasonable doubt to convict Giles. It must have been an extremely difficult trial to follow.

The evidence

All of the evidence outlined in Chapter 3 and above was put to the jury in the second retrial. Here we shall restrict ourselves to outlining the evidence of PC Emlyn Welsh, Sergeant Edward Henery and the medical evidence.

The defence investigation did not limit itself to PC Giles, it also turned up some interesting information on PC Emlyn Welsh. Welsh was to spend three days in the witness box on this occasion. Explaining the discrepancies in the time he and Giles attended Wilson's home, he said he must have recorded the incorrect time on the Crime Report Sheet. He denied seeing blood on Giles shirt. He said he could not remember what he did after the discovery of Quinn's body, despite telling the Thames Valley investigation that he was on patrol. Welsh admitted he had difficulty controlling his temper and had received counselling for aggressive behaviour. He also admitted that the police had to be called to his home address in November 1993 to deal with an altercation, and in December he assaulted his fiancee. He described the assault as "an isolated incident", and said he was pleased with his progress dealing with his temper. He denied Quinn was killed by police officers and that there had been a cover up "Let me be honest," he said "nobody in the station was happy."

Sergeant Edward Henery

Kennedy's defence team had become aware that Sergeant Henery had left the police. Before the second retrial an application for disclosure of his police service file was allowed by Judge Swinton Thomas. However, the CPS failed to comply with his ruling until forced to do so during the trial.

The defence discovered that after Kennedy was convicted of murder in September 1991, Henery did not return to work. He first went on sick leave, and when he could no longer obtain sickness certificates he resigned before 17 disciplinary charges against him, including allegations of bullying other officers, could be heard. Following the Court of Appeal's quashing of Kennedy's conviction, ex-sergeant Henery wrote to the police informing them he was unwilling to give evidence in the retrial. He nearly carried out his threat and left the Court shortly before he was due to give evidence at midday on Friday 11 March. There had to be an adjournment until the Monday morning.

Henery duly appeared in the witness box, but he refused point blank to answer many of Mansfield's questions. He denied he assaulted Quinn and responded "I'd like to see you supply some evidence instead of this rubbish." He admitted that he had a temper and that he left the force with 17 disciplinary charges outstanding against him. He refused to answer questions about his disciplinary record, sexual harassment and bullying. When Mansfield suggested he shammed illness to avoid disciplinary charges he denied and retorted "I'm getting a bit fed up. I'm not standing here on trial. I'm not happy to stand here and be pilloried. If the court doesn't like it, it can deal with me."

For the defence, much of this was new evidence. Over three years after the crime, they discovered Henery resigned with an extraordinary disciplinary record. But how did he build up so many? Had he lost control of his senses and quickly built up 17? Did he manage to avoid 17 hearings over a long period of time leading upto the first trial? If he did, he helped the prosecution, because the CPS would not have to disclose this information to the defence because the disciplinary process had not been completed. By leaving the force before Kennedy's Court of Appeal hearing and two retrials, Henery again helped the police as well as himself. The complaints were never heard and therefore not proved and the CPS did not have a duty to disclose them, until ordered to do so by Judge Swinton Thomas. There's certainly something strange going on here. At the very least it appears that Henery avoided disciplinary hearings until the first trial, with a nod and a wink from management and then had to face the music. The CPS and the police's actions were within the rules, but again, a la Wilson and Giles, not in the spirit of justice.

But there is much, much more. In the same way that the police adopted a working assumption so too did the defence. They had good evidence from the police's own accounts that Giles, Welsh and Bleakley were involved in a cover up. Further investigation showed Giles to be a likely suspect and he cracked under pressure in the witness box confirming he had something to hide. With the exception of Bleakley no suspicion fell on the four senior officers on duty, and there was nothing to suggest his role was major. There cannot be any doubt that Giles was involved in a conspiracy to cover up Quinn's death. We do not know if he was directly involved in an assault on Quinn, if he wanted to impress other officers or, as a probationary officer, he was particularly susceptible to being bullied into playing a part.

Giles was the defence's best evidence that Kennedy did not murder Quinn. It was their duty to put everything to him in court. To try and get him to admit, not necessarily to assulting Quinn, but to his involvement in a cover up or the existence of one. Even without Giles, Mansfield had to draw the jury's attention to him as a suspect and, to add weight to his case, suggest a motive as to why he might have assaulted Patrick Quinn.

The fact is Kennedy's defence relied on the CPS for disclosure. If the defence had known about Henery's disciplinary record at the same time as it discovered Samantha Wilson's evidence, they would have had four leads - two sergeants and two constables. The defence investigation would have led in a very different direction and looked closer at Sergeant John O'Donnell and Inspector Michael Dell as well as Henery, because they supported his evidence. The information on Henery would have allowed the defence to focus its investigation more on the existence of a conspiracy, and less on its need to show a motive for their suspect (as we have been able to do in this pamphlet).

A question of motive

Disclosure of Henery's disciplinary record came too late for the defence. Langdale was waiting for Malcolm Kennedy to say it could have been Henery, and accuse him of fitting his allegation to suit the evidence. The defence had to continue with its suggestion that Giles was their prime suspect. The medical evidence given by Dr Farewell and Mr Eastman was to focus on Giles state of mind.

In his evidence, Dr Farewell gave an outline of Giles recent medical history and reasons why, in his opnion, he was unable to give evidence. He said that in October 1993, following the abandoning of the first retrial, Giles discharged himself from Grovelands Priory Hospital and threatened people he believed to be IRA agents before he was arrested and readmitted. On 22 October, he assaulted the registrar and a patient and threatened others. Dr Farewell said he believed them to be IRA agents also. On 23 October the police were called to attend to Giles and it took six officers to restrain him. Dr Farewell said after he had been violent, Giles was remorseful and wept.

Mansfield used his cross-examination of Farewell to describe Giles as a suspect who was avoiding the Court. Farewell accepted that one of his major concerns as a police consultant psychiatrist was the public image of the Met. When Giles turned violent in hospital, Farewell was opposed to admitting him to a secure unit for fear it would categorise him as a psychopath, which would have been damaging to the Kennedy case.

Mansfield took Farewell through his examination of Giles, the consequences of the case on his mental health and his record of violence. He put it to Dr Farewell that Giles believed Quinn was a member of the IRA living in a safe house in Hammersmith with two identities. Mansfield mentioned the blood seen by Giles' ex-wife on his shirt. Dr Farewell said Giles had told him that Quinn had rested his head on his chest on the way to the station and the blood was from Quinn's headwound. Mansfield pointed out that his weeping following Quinn's death was the same as after his other bouts of violence. Dr Farewell admitted that Giles used avoidance technigues when being examined but did not believe he could feign hypomania to avoid giving evidence.

In his evidence to the Court, Mr Eastman said that in his opinion Giles was mentally normal, and able to give evidence. He said that Giles had been upset by Quinn's death and became ill after the World in Action programme. He hypothesised it was likely that a programme would cause a person less stress if they believed they had done nothing wrong. The crucial question was - what was it about Quinn's death which caused Giles' mental illness?

The verdict

Following the 11 week Old Bailey trial, on 6 May 1994, the jury acquitted Malcolm Kennedy of murder. However, they convicted him of the manslaughter of Patrick Quinn. In his summing up, Judge Swinton Thomas suggested the manslaughter option to the jury if they believed Kennedy killed Quinn, but did not mean to kill him because of his drunken state.

The people in the public gallery, reporters and some members of the court staff expressed surprise at the verdict. Everybody was agreed that it was a "compromise". Some felt the jury thought Kennedy did it, but felt sorry for him. Others believed the jury knew he didn't do it, but couldn't bring themselves to say the police did. This is all irrelevant, we do not know how the jury arrived at its verdict.

Judge Swinton Thomas ended the proceedings with some damning remarks to Malcolm Kennedy and sentenced him to nine years prison.

As a postscript to the trial, on 16 May 1994, Judge Swinton Thomas fined Edward Henery £500 for contempt of court for refusing to answer Mansfield's questions about his disciplinary record. The judge told him he could have caused a miscarriage of justice.
Police Complaints Authority

In this chapter we have looked at more than Patrick Quinn's death. We have taken a step back and looked at the progress of the police and defence investigations as they have wound their way through the criminal justice system. With the benefit of hindsight, and HCDA's understanding of violent police crime, we have described how the Quinn case is a classic cover up executed on a colossul scale with disastrous consequences for the police. We have not sought to include people in the conspiracy who need not have been, and we believe there is compelling evidence to support our case. We do not believe there was equally compelling evidence that Giles killed Quinn.

The Quinn case did not start with the discovery of a body and will not end with Kennedy's trial, or a Court of Appeal hearing for that matter. The investigation against Kennedy and his murder trial were incidental to Quinn's death. The case started with hitherto unkown police officers assaulting Patrick Quinn, and it will end when the police complaints investigation is concluded. Then the officers will know they got away with it.

Earlier in this chapter, we looked at how the Quinn murder investigation was kept "in house" by Hammersmith police officers, and the Police Complaints Authority played no part despite Kennedy's allegation. However, the PCA was to investigate Kennedy's complaint after he wrote to them following his murder conviction in September 1991.

The investigation into Kennedy's complaint has been as exceptional as the Quinn murder case. It was initated after the complainant was convicted, the point at which most complaints investigations are being completed; the investigation was founded entirely on the complainant's defence case at trial; and the PCA made a detailed interim report in September 1992 when it stated it was satisfied with the thoroughness of the complaints investigation and passed its file to the CPS. The Court of Appeal considered its findings when ordering a retrial in February 1993 and, somewhat unusually, the information gathered by the complaints investigation was available to Malcolm Kennedy's defence at the second retrial.

The complaints investigation confirmed much of what the defence investigation knew - police documents were missing, including most of the police officers' notebooks, and even the CPS' original file could not be found. However, we do not know how hard the complaints investigation looked for documents. They could not have looked very hard for the missing CAD printout which McAleenan dramatically produced to end the first retrial. In addition, most of the Hammersmith officers on duty that night maintained their right to silence when questioned by the complaints investigation.

What could anyone realistically have expected? Eighteen months down the road it was hardly likely that an independent investigation of the facts could be undertaken, and certainly not by police officers, whether they were from Thames Valley or the Metropolitan police.

We do not know yet what the final outcome of the complaints investigation will be, but to date it has been a rubber stamp for the criminal investigation, an expensive charade to encourage the public to believe the police are not a law unto themselves. On their own accounts, several officers should at least be charged with gross dereliction of duty and allowing the name of the Metropolitan Police to be brought into disrepute for their conduct in this case. But it is highly unlikely this will happen. And, for Edward Henery, there can be no disciplinary action because he is no longer a police officer. He, for one, knows he will not be prosecuted, and he managed to keep his pension.

5. Abuse of Process

There is no such thing as "The Truth". Truth is something relative, closely related to peoples beliefs. One persons truth, may be another persons lie. People believe things to be true if they do not know the facts, they believe (as opposed to know) people are not telling the truth if they do not agree with their own inadequate understanding of the facts.

Throughout human history, society has developed procedures for mediating disputes between people and groups of people. In the main, society has progressed and civilisation advanced; for example, genocidal wars have been largely replaced by international diplomacy as a way of dealing with problems between nationalities. During the history of civilisation, society has had to deal with modern problems - pollution, outbreaks of new diseases and peoples alienation in an increasingly impersonal, consumer driven world.

"The Law" is the foundation of modern society, the means by which it is ultimately controlled. The Law has not stood still while society has developed in leaps and bounds, it has had to accomodate change. But, because the Law is inherently conservative, it cannot keep chopping and changing and is responsible for bringing stability and security to society as a whole, it is often forced to change after everything around it has moved on, after much argument by politicians. Laws are passed not so much to introduce change, but more to catch up with the changing world. For example, after the discovery of DNA, new laws governing genetic engineering had to be introduced.

Criminal law is the area of law which deals with the wrongs committed by individual members of society. We are not concerned here with the rights and wrongs of criminal law, and who's interests it serves, but with its administration - the way it works.

Britain's adversarial system of justice attempts to understand the truth by bringing the two sides of a dispute together to argue about the facts in a court of law. It is then for the court to decide which side is supported by the facts, which side the court believes is telling the truth. In criminal law, the prosecution and defence exmamine their witnesses and cross examine the other side's, and present their evidence for the court, whether a magistrate or jury, to decide the facts.

In this pamphlet we have not uncritically presented the defence case in order to show that Malcolm Kennedy is the victim of a miscarriage of justice. We have attempted to go deeper. We have taken a look at the administration of justice in this case and concluded Malcolm Kennedy did not receive a fair trial and Patrick Quinn's attackers have avoided prosecution. We are not saying that the CPS broke the rules to withold evidence from the defence, they may well have, we have said the system denied Kennedy a fair trial. When dubious decisions were made, we have given police officers and the prosecution the benefit of the doubt. We have said they need not have been involved in a conspiracy to pervert the course of justice. We have been more than fair to the prosecution.

It may appear that we have been unfair to Malcolm Kennedy's defence. By excusing the prosecution, perhaps readers will think we are critical of the defence; that Mansfield placed too much emphasis on PC Giles as the prime suspect. Michael Mansfield QC has written a book "Presumed Guilty", in which he described the same fundamental injustices in the judicial system which denied Kennedy a fair trial. Michael Mansfield QC is as much a prisoner of the adversarial criminal justice system as any other lawyer, and Malcolm Kennedy received an unfair trial regardless of the outcome. In order to win their case the defence had to leave no stone unturned in suggesting to the jury that a police officer killed Patrick Quinn. Even if he had not been convicted of manslaughter, Kennedy received an unfair trial and in the last four years has had to endure one injustice after another which has left him rotting in prison and his life destroyed.

Society is presently in a constant state of change. Radical changes are taking place throughout the world and in Europe, independent nation states, many of them only recently formed, are having their sovereignty undermined as they prepare for the creation of a superstate. In Britain, the last 20 years have seen immense stresses and strains placed on its political infrastructure. Our institutions have been transformed and they are still unable to cope. For the criminal justice system there have been two Royal Commissions in the last 15 years, set up to examine its failings.

Twenty years ago, police officers fabricated evidence against a host of Irish people who were convicted of terrorist offences and sentenced to long prison terms. It took 17 years for the Guildford Four and Birmingham Six to clear their names, and during that time many more miscarriages of justice occurred. The history of these cases has had an impact on the national consciousness, they caused immense public concern with the efficiency of the criminal justice system. And, how the police, the courts and the government have responded to the crisis in the criminal justice system is also affecting what people think.

There have been three responses to the celebrated miscarriage of justice cases - by the police, the courts and the government.

In general terms, the police have tried to maintain that miscarriages of justice did not take place, that officers were placed under immense public pressure to catch those responsible for atrocious crimes and ignored procedures in their hurry to solve the cases. According to the police, they cannot be held responsible for the criminal justice systems inadequacies.

Very few of the police officers involved in the massive conspiracies to pervert the course of justice have been criminally charged, fewer have actually been tried, and none have been convicted. Criminal prosecutions of police officers are the other side of the coin to the prosecutions of their victims. The CPS prosecutors and police investigators are not independent and impartial, and trials against police officers have been reduced to courtroom farce.

The government response to the crisis in the criminal justice system was to set up the Royal Commission on Criminal Justice following the release of the Birmingham Six in March 1991. In separate developments, responsibilities for control of the police and the role of local police authorities were re-examined by a White Paper and the Sheehy Inquiry proposed radical changes to police management. The end product of these investigations were the Police and Magistrates Courts and the Criminal Justice and Public Order Acts which received the Royal Assent this year. The sum total of these two pieces of legislation has been to increase the powers of the police and erode civil rights, most particularly the right to remain silent on arrest (and more of the same legislation is planned for the near future).

The Malcolm Kennedy miscarriage of justice case is not the same type as the celebrated cases. Society has moved on 20 years and so have the police. As conscious human beings, police officers have noted what happened after Guildford and Birmingham - management stood by them, nobody was convicted and their powers have increased. Today, not only do police officers have the confidence to fabricate evidence against suspects they believe to be guilty (like when Colin Stagg was "planted" with a sexual fantasy in the Rachel Nickell murder enquiry), they are fitting people up to cover up their own crimes.

The Malcolm Kennedy case has more in common with 1990's style police crime than with the wrongful convictions of the more recent Tottenham and Cardiff Threes. The Hammersmith officers who attacked Patrick Quinn are on a par with the Stoke Newington police officers involved in organised crime, supplying drugs and running a protection racket. Not one of the Stoke Newington officers investigated by a three year long complaints investigation, codenamed "Operation Jackpot" has been charged with a drugs or extortion offence. They successfully used the criminal justice system to avoid prosecution for their crimes, and falsely accused many innocent people in the process.

Like Kennedy's case, many of the Stoke Newington drug squad victims trials were reduced to a question of credibility - who is telling the truth, the police or the defendant? The police's victims were let down in the same way by an adverserial criminal justice system dependent on the police playing a professional and impartial role.

These are the new kinds of scandals which are rocking the British police. Over the years many more cases will arise in the same way that more Guildford and Birmingham type cases came to light. If, 20 years ago police officers framed innocent people believing them to have committed crimes, and today they are fitting up innocent people to cover up their own crimes, in 20 years time will police officers be committing crimes without bothering to tidy up after themselves?

Free Malcolm Kennedy - Justice for Patrick Quinn

When Malcolm Kennedy learned at the start of his second retrial on 21 February 1994 that the Crown Prosecution Service was witholding PC Paul Giles from giving evidence, he was devastated. He knew then he would not receive a fair trial.

Malcolm discussed the situation with Hackney Community Defence Association, and it was decided to hold a picket of the Old Bailey on the morning of Monday 28 February. On Friday 25 February, a news release was issued giving background information on the judge's ruling to exclude Giles (see appendix). Also on the Friday, Michael Mansfield QC made his opening speech to the jury outlining the defence case. True to form, Mansfield made an excellent speech which Malcolm found reassuring. This placed Malcolm in an extremely difficult position. He was the defendant in what amounted to a political trial against the police. Should he force the issue with a public demonstration against his being denied a fair trial, and make the trial even more political and perhaps turn the jury against him? Or should he rest his hopes on his defence, and the jury seeing through the CPS's manoeuvrings? Understandably, Malcolm decided to be cautious and the picket was cancelled.

However, Malcolm was so concerned about what happened he sent copies of the news release out with letters to people who had supported him during his three year ordeal. One of those people sent a copy to the trial judge, who also learned of the news release form a court usher who had seen a journalist in the press gallery with a copy. Judge Swinton Thomas was not too pleased with the contents of the release and ordered that the person who sent him a copy, and its authors, should answer for themselves in court.

On-March two members of HCDA and their counsel attended Court 4 at the Old Bailey to hear what the judge had to say. We were tempted to go into the witness box and discuss the case with him, but on counsel's good advice we resisted the temptation and Judge Swinton Thomas huffed and puffed. But he did not blow the house down!

The news release stated HCDA's view clearly:

"The CPS's decision not to call Giles, which has been supported by the trial judge, undermines the administration of justice. It has caused a constitutional crisis in law and has denied Malcolm Kennedy the right to a fair trial."

As has been said in this pamphlet, we believed the CPS put the judge in an impossible position. It would appear that Judge Swinton Thomas agreed.

Malcolm's manslaughter conviction took HCDA by surprise. Before the end of the hearing, the jury had informed the judge they were divided and would need time to agree a verdict. Arrangements were made for the jury to stay in a hotel. Malcolm was denied bail during the jury's deliberations and was ordered to stay in a hotel with his lawyer, Tim Cooke. Apart from a few phone calls he was unable to discuss at any length what he wanted to do after the jury reached its verdict.

HCDA had three news releases ready for when the jury reached its verdict - not guilty, guilty or a hung jury. A fourth release had to be quickly compiled when the jury reached its manslaughter verdict in the late morning of 6 May. We had to respond quickly, and at 4.00pm that same afternoon HCDA picketed the head offices of the CPS on Ludgate Hill, just a stone's throw from the Old Bailey. The picket was briefly shown on BBC television's national news. We were pleased, Malcolm would go into prison knowing there was somebody fighting for him on the outside.

Before the start of Malcolm's 11 week trial, HCDA had written to several MPs who had supported him in the past to keep them informed of what was happening. Before the end of the trial, another letter was sent out asking them to express concern about the case irrespective of the outcome. On 10 May, seven MPs signed a House of Commons Early Day Motion expressing concern with the case - Chris Mullin (who had done so much in support of the Birmingham Six), Clive Soley (MP for Hammersmith), Diane Abbott (Malcolm's MP), Andrew F. Bennett, Jean Corsten, Stephen Byers and Brian Sedgemore. Eventually over 60 MPs signed the motion. On 23 May, Chris Mullin MP asked a parliamentary question of the Attorney General concerning the court's decision to allow the CPS to go against the Court of Appeal's ruling that a fresh jury should hear all of the evidence. The Attorney General, Sir Nicholas Lyell, declined to answer saying it was for the independent courts to decide on such matters.

Returning to prison has been hard for Malcolm Kennedy. It is the isolation which is the worst, wanting to do so much, but able to do so little. But he has organised an extremely important letter campaign from inside prison, and is determined to continue his campaign after his release from prison if need be. His grounds of appeal against the manslaughter conviction were lodged by his lawyers on 3 June 1994.

Shortly after Malcolm's conviction, HCDA was approached by members of Hammersmith and Fulham Irish Community Forum. Some of their members knew Paddy Quinn and were sick and tired of Irish people being arrested by Hamersmith police, being stereotyped as drunk and disorderly and getting beaten up and thrown back onto the streets. They wanted to campaign against police crimes against Irish people and justice for Patrick Quinn.

A well attended public meeting was held at Hammersmith Town Hall on 13 July 1994. Islington MP, Jeremy Corbyn, addressed the meeting as well as speakers from HCDA and the Hammersmith and Fulham Irish Community Forum. It was a significant event which demonstrated the unity of the two parties who have suffered so much - Patrick Quinn and Malcolm Kennedy.

At that public meeting, the Free Malcolm Kennedy, Justice for Patrick Quinn Campaign, decided to hold regular pickets of Hammersmith police station until Malcolm is released from prison. On the first Monday of every month, 6.00pm - 7.00pm, people have picketed the station and leafletted passers by and commuters at the nearby Hammersmith tube station. Slowly but surely we are building a campaign which will ensure this case will not go away.

Two people and their familes have suffered greatly as a result of what happened in Hammersmith police station in the early hours of December 1990. Patrick Quinn lost his life and Malcolm Kennedy ost his liberty. We also have no doubt that police officers were traumatised by what happened and their families have also suffered. The officers have received impressive support from the police, Patrick Quinn's family and Malcolm Kennedy have had to endure their suffering very much alone and in isolation. This story of injustice has affected their lives very deeply.

Visiting him in prison, Malcolm Kennedy is clear about who the central victim is - Patrick Quinn. He just happened to be in the wrong place at the wrong time:

"Patrick Quinn was taken into Hammersmith police station, tragically he was brutally killed. I was taken into that same police station and "fitted up" for his murder. Since that fateful night my life has come to an end. I'm very upset about the death of Mr Quinn, nothing has affected my life so deeply, if it was in y power to change things I would. As it is, those responsible have got away with it and I am rotting in prison. I try not to let bitterness and resentment creep into my thoughts, however, my anger at the way my life has been sacrificed to save a few rogue policemen remains."

6. Appendix 1 and 2

Appendix 1 Police Officers
Name Rank Station Role
Bleakley, Peter PS Hammersmith Patrick Quinn's custody officer. Present with Dell and O'Donnell at scene of crime after Henery discovered body.
Carr, Michael PC Fulham Attended Malcolm Kennedy arrest with Mellor.
Dell, Michael Ins Hammersmith Duty inspector. Present with Bleakley and O'Donnell at scene of crime after Henery discovered Quinn's body.
Giles, Paul PC Hammersmith Patrick Quinn's arresting officer. Suffered mental illness and did not give evidence in second retrial.
Hackett DSup Area 6 Major Investigations Team Present in station on morning of 24 December 1990.
Henery, Edward PS Fulham Malcolm Kennedy's custody officer. Discovered Quinn's body. Resigned from the Met. with 17 outstanding disciplinary charges. Fined £500 for contempt of court following second retrial.
Ives, Jeffery PC Fulham Assisted Wheatley to prepare for murder investigation.
Lloyd DSupt MS16 (CIB) Present in station on morning of 24 December 1990.
McAleenan, Paul DS Hammersmith Swinburne's assistant in murder investigation. Interrupted the first retrial with discovery of CAD printout.
Matthews, Roger DSupt Area 6 Major Investigations Team Present in station on morning of 24 December 1990.
Mellor, Anthony PC Hammersmith Malcolm Kennedy's arresting officer.
Millar, Michael PC Fulham Drove Northway home at start of late relief. Dry cleaned trousers before handing them in after the Christmas break.
Northway, James PC Hammersmith Injured on duty during afternoon shift and driven home by Millar and Trinkwon.
O'Donnell, John PS Hammersmith Section officer. Present with Bleakley and Dell at scene of crime after Henery discovered Quinn's body.
O'Hagan, Andrew PC Hammersmith CAD operator. Attended scene of crime and kept log of everybody entering Tank cell. Log missing.
Suthers, Julian DC Hammersmith Assisted prepare for murder investigation. Interviewed three prisoners about incident.
Swinburne, Philip DI Hammersmith Officer in case.
Trinkwon, Peter Anthony (?) PC Hammersmith First officer to deal with Quinn. Assisted Giles with arrest..
Weedon, John PC Hammersmith Exhibits officer for murder investigation.
Welsh, Emlyn PC Hammersmith PC Giles' partner.
Wheatley, Sharon DC Fulham Took immediate charge of the situation after Henery's discovery of Quinn's body.
Wright, Tom Supt Thames Valley Complaint investigation officer appointed by PCA.
Appendix 2 Chronology of events
1990
23 December Patrick Quinn arrested for being drunk and incapable.
24 December Malcolm Kennedy arrested for being drunk and incapable. Kennedy charged with Quinn's murder.
1991
2 September First trial starts at Old Bailey.
20 September Kennedy convicted of murder and sentenced to life imprisonment.
30 October Kennedy's letter of complaint following his murder conviction referred to the Police Complaints Authority.
1992
24 February Supt. Tom Wright of Thames Valley police commences PCA supervised investigation into Kennedy's complaint.
27 April World in Action programme, "Time to kill", broadcast.
20 May Kennedy's grounds of appeal against conviction lodged.
9 September PCA interim statement into Kennedy's complaint.
1993
8 February Kennedy's appeal against murder conviction commences at Court of Appeal.
19 February Court of appeal quashes Kennedy's conviction and orders a retrial. He is refused bail.
25 June Kennedy granted bail pending retrial.
6 September First retrial commences at Old Bailey.
20 September First retrial abandoned.
1994
21 February Second Old Bailey retrial commences. CPS informs defence PC Giles not giving evidence.
6 May Kennedy convicted of manslaughter and receives nine year prison sentence.
16 May Ex-sergeant Edward Henery fined £500 for contempt of court.
13 June Kennedy's grounds of appeal against conviction lodged.

7. Appendix 3 and 4

Appendix 3

HCDA 25 February 1994 news release

MALCOLM KENNEDY DENIED A FAIR TRIAL

Patrick Quinn, an Irishman, was murdered in Hammersmith police station in December 1990. That same evening Malcolm Kennedy had been arrested for being drunk and disorderly. Kennedy was charged with murdering Quinn, and later convicted and sentenced to life imprisonment at the Old Bailey.

Following Kennedy's conviction, disturbing new evidence came to light concerning the police officer who arrested Quinn. It was discovered that PC Paul Giles had a history of violence, and strong views on Irish politics. The Court of Appeal ordered a retrial so that a jury could hear all the evidence, including about Giles' character.

Kennedy's retrial commenced in September 1993. For two days, Mike Mansfield, Kennedy's counsel, cross examined Giles about his capacity for violence, his arrest of Quinn, his suspicion that Quinn was a terrorist and the fact that his wife washed blood off his clothes after the murder. Giles drank more than 10 carafes of water in that time, and it was patently obvious that he was not a credible witness.

After two days cross examination, the Crown Prosecution Service (CPS) dramatically introduced new evidence which they claimed supported the police version of events. At a critical moment, the re-trial was abandoned and a new date set for 21 February 1994.

On the first day of the re-trial, the CPS informed the defence that they would not be calling Giles to give evidence ever.

The CPS's decision not to call Giles, which has been supported by the trial judge, undermines the administration of justice. It has caused a constitutional crisis in law and has denied Malcolm Kennedy the right to a fair trial.

The CPS was set up in 1986 to conduct criminal prosecutions, which had previously been conducted by the police. One of the reasons for setting up the CPS as an independent service was so that it can check the quality of evidence collected by the police. If a police officer's evidence is suspect, and raises questions about that officer's role in a case and is of enough significance to raise doubts about a defendant's guilt, then the CPS has a duty to discontinue the case. In the Kennedy case, the CPS has not acted independently. HCDA believes CPS lawyers have colluded with police officers and instead of abandoning its case as a result of an uncredible witness, have abandoned the witness.

Regarding the death of Patrick Quinn, Malcolm Kennedy's defence has exposed a police cover-up. The police and legal establishment have conspired to clamp down on the public knowing the full details of that cover up by causing the first Kennedy re-trial to be abandoned and by refusing to call Giles in the second. Kennedy may be the victim in the dock, but the greatest casualty is British justice. The Court has decided that it is the right of the Crown to call the evidence which pleases it in a situation where they have had one trial, one Court of Appeal hearing and one re-trial to work out which evidence proves their case, and to discard any evidence which does not.

Appendix 4

10 May 1994 House of Commons Early Day Motion (taken from Hansard)

That this House notes with concern the conviction of Malcolm Kennedy for the manslaughter of Patrick Quinn in a cell at Hammersmith police station on 24 December 1990; notes that this result was achieved after only one trial, one successful appeal and two retrials; notes that when the Court of Appeal quashed Mr Kennedy's original conviction they called for all the new evidence to be put before a jury; further notes that, despite this, the Crown went to some lengths to resist the presentation of evidence to a jury which might have implicated officers of the Metropolitan Police in the death of Mr Quinn; also notes defence allegations that police records were re-written or withheld; believes that Mr Justice Swinton Thomas erred in allowing the trial to go ahead in the absence of PC Paul Giles, the officer who it was alleged returned home with blood on his shirt and who has a history of violence and instability; believes that the conviction of Mr Kennedy is unsafe and invites the Appeal Court to rule accordingly.

8. Appendix 5

Appendix 5

THE STOKE NEWINGTON DRUGS SCANDAL - FINAL ASSESSMENT
(a report by Hackney Community Defence Association)

Police officers acquitted

On Friday 8 December 1995 PC Ronald Palumbo was acquitted of perjury at the Old Bailey when the trail judge directed the jury to acquit the defendant after the Crown Prosecution Service offered no further evidence. The Crown's case fell apart after their first witness, Police Sergeant McHattie, failed to remembers events some four years previously in the trial of R v Noel, when it was alleged PC Palumbo committed perjury.

The previous Friday, 1 December, PC Palumbo and DC Barry John Lyons were acquitted by jury of conspiracy to pervert the course of justice and perjury in the case of R v Tulloch, heard in September 1991.

These two trials brought to an end the criminal proceedings arising from the Metropolitan Police Service's Complaints' Investigation Bureau's 'Operation Jackpot' investigation of drug dealing, theft and conspiracy to pervert the course of justice by officers at Stoke Newington police station.
Police complaints procedure inadequate

The overwhelming conclusion as regards the completion of the Stoke Newington Drug Scandal is that the current police complaints procedure proved woefully inadequate to deal with an investigation of this scale.

In terms of the number of people touched by the scandal, the length of time the investigation took and the financial costs both to the police and the courts, require close examination to demonstrate the failings of the police complaints procedure, and why the victims of police crime are turning to the civil courts for justice

Hackney Community Defence Association, which conducted its own investigation into the activities of Stoke Newington detectives and campaigned for a judicial inquiry into policing in Hackney and Stoke Newington, became aware of 90 cases in which allegations of wrongdoing were made.

In 77 of the cases taken up by HCDA, people were charged with criminal offences which led to the following results:

CPS offered no evidence 20
Acquitted 22
Convicted 35
Successful appeals against conviction 13
Civil Actions 25

Police

45 police officers were investigated by 'Operation Jackpot'. All based at Stoke Newington police station at some time during the period December 1988 to November 1992, many were transferred to other duties at other police stations. On two days, 28 and 29 January 1992, eight officers were transferred after the Met publicly acknowledged Jackpot's existence, other officers were transferred before and after that date and Stoke Newington Drug Squad was effectively disbanded.

One police officer, Seargeant Gerrard Carroll, under investigation by the Jackpot team, committed suicide on 28 January 1991.

Four police officers were suspended from duty:

DC Roy Lewandowski 17 November 1991
PC Ronald Palumbo 17 June 1992
PC James Bruce Galbraith 17 June 1992
Dc Barry John Lyons 11 September 1992

DC Lewandowski was convicted of theft and misfeasance in a public office and sentenced to 18 months imprisonment at Harrow Crown Court on 20 November 1992. After serving his sentence he emigrated to Australia.

PC Galbraith was not charged with any offences, and DC Lyons and PC Palumbo have been acquitted of all charges (although later convicted for other offences, see footnote below). Six police officers have been disowned by the Crown Prosecution Service as unreliable witnesses not worthy of belief - DCs Lyons and Peter McCulloch and PCs Palumbo, Mark Carroll, Terence Chitty and Caroline Mummery (nee Andrews). Neither the Police Complaints Authority or the Metropolitan Police Service have made public announcements on the results of any disciplinary proceedings against any of the police officers investigated to date.

Although a Drugs Scandal, not one police officer was charged with a drugs offence and no officer has been convicted in connection with drugs offences. This is despite the fact that it was accepted at Snaresbrook Crown Court in the trial of R v Cameron (10 July 1992) that Lewandowski had earned up to £2,000 a week supplying drugs, and despite official recognition by senior Met officers that Stoke Newington police officers had been engaged in supplying drugs.

Schedule of events

1988

Summer

Lewandowski stole items from home of murder victim, David Berman

1990

August

Rennie Kingsley and others planted with drugs in 'first wave' of miscarriages of justice

1991

January

Arrest of major drugs dealer, Pearl Cameron

April

Operation Jackpot formally commenced

November

DC Lewandowski arrested; scope of Jackpot broadened.

December

Judge sends papers to DPP following collapse of Noel trial.

1992

January

Eight officers transferred from Stoke Newington.
Metropolitan Police publicly announces 'Jackpot' existence
Sergeant Carroll commits suicide.

June

PCs Paulmbo and Galbraith suspended as a result of Noel case.

July

Pearl Cameron sentenced; acknowledged by court Lewandowski her supplier.

September

DC Lyons suspended as result of Dennis Tulloch case, arrested in September 1990 and convicted in September 1991.
Tulloch and Ida Oderinde released from prison on bail.

November

Lewandowski convicted of theft and misfeasance dating back to 1988.

1993

February

Frank Hart and James Blake have manslaughter convictions for Berman death quashed by Court of Appeal.

March

Kingsley, Tulloch, Oderinde and Everard Brown have convictions quashed by Court of Appeal.

1994

February

Final Jackpot report goes to DPP.

July

DPP announces Lyons and Palumbo to be charged with conspiracy to pervert the course of justice and perjury

November

Anson King awarded £70,000 damages for plant and assault by Stoke Newington officers in January 1991. Brings to total of £240,000 damages paid to eight plaintiffs.

December

Hugh Prince becomes the 13th person to have conviction quashed in connection with Jackpot enquiry.

1995

December

Lyons and Paulmbo acquitted by Old Bailey jury of conspiracy to pervert the course of justice and perjury in the Tulloch case
Palumbo acquitted of perjury in Noel case.
Rennie Kingsley makes statement in open court to accept £76,000 damages

Operation Jackpot

'Operation Jackpot' began life as an undercover operation. Following the arrest of Pearl Cameron in January 1991, Jackpot was formally established in April 1991 after she made a formal complaint about the activities of DC Lewandowski. The investigation was broadened to include other officers in November 1991 following the receipt of a complaint by Ida Oderinde.

The final Jackpot report went to the Director of Public Prosecutions on 3 February 1994, nearly three years after it commenced.

There are six areas where there were extreme and unnecessary time delays:

- Several victims made complaints at the time of their arrests; but these were not investigated for nearly two years, after the Met realised there was a serious problem at Stoke Newington.
- The length of time Operation Jackpot took to complete; three years.
- The time it took for police officers to be brought to trial; for Lewandowski it was over four years between the Berman murder enquiry and his prosecution; for Lyons and Palumbo it was five years between the arrests of Tulloch and Noel and their acquittals.
- The length of time it took for victims to have their convictions quashed; in many cases it took three years' in Hugh Prince's case it took over four years.
- The length of time it has taken for victims to gain compensation; for Rennie Kingsley it has taken more than five years and several others are still waiting.
- The length of time Lyons and Palumbo were suspended on full pay before their acquittals; over three years.

For all the persons involved in the Stoke Newington Drug Scandal, victims and police officers, injustice has been exacerbated by these time delays.

Costs

The financial costs of the Stoke Newington Drugs Scandal have been enormous. It is not possible to give a precise figure on the costs, although it will run into millions of pounds. The following is a breakdown of the expenses incurred:

- The running costs of the Stoke Newington Drug Squad, consisting of a Detective Inspector, a Detective Seargeant, two Detective Constables and eight Constables.
- The legal costs of the many unnecessary prosecutions which resulted in the CPS offering no evidence or court acquittals
- The legal costs of the 13 successful appeals and the other appeals which failed or are still continuing
- The costs of the three year Operation Jackpot investigation consisting of six senior officers including a Detective Superintendent, a Detective Inspector and two Detective Sergeants. We estimate that this alone will have cost approximately £1/2 million.
- The legal costs of three trials of four police officers
- The amount of money awarded by the Commissioner as compensation, it is known that over £400,000 has been paid to ten plaintiffs, and the additional legal costs paid by the Metropolitan Police.

Conclusion

There have been no winners in the Stoke Newington Drug Scandal. But the police complaints procedure, as established by the Police and Criminal Evidence Act 1984, has been clearly shown to be unable to cope with crime. The Stoke Newington scandal has further undermined the credibility of the Police Complaints Authority.

In these circumstances, in which the police officers escape personal responsibility for their actions, it is not surprising that the victims of police crime are looking to the civil courts to gain redress.


Footnote - PC PALUMBO sent to prison for importing drugs

In February 1997 D.C Ronald Palumbo from Stoke Newington Police Station, along with his father-in-law Kenneth Harris, David Ng and Reginald Illingworth were all found guilty of conspiring to smuggle cannabis worth millions of pounds into Britain. Palumbo received a ten year sentence, Harris twelve, Ng ten and Illingworth nine.

Harris was described as the ringleader. This is difficult to believe. For such an operation it would be necessary to have the following: a driver [Illingworth], a mechanic [Ng], someone who owns a lorry firm [Harris] and someone responsible for getting rid of the gear. We suggest that Palumbo played this role.

Palumbo had been arrested only days after being acquitted of perjury at the Old Bailey in December 1995 [see above] and had clearly been planning the operation during the trial.

A spokesperson from the Colin Roach Centre, at the time said "We are obviously delighted. The verdict goes a long way to vindicating our statements on Stoke Newington Police. Many local people suffered at the hands of PC Palumbo and therefore the streets of Hackney will be a lot safer tonight. We are extremely pleased at the verdict".

9. Postscript - Malcolm Kennedy (1947-2013) a fighter for justice

A victim of a grotesque miscarriage of justice has died aged 67. Malcolm Kennedy will go to his grave having been unable to overturn his conviction for the manslaughter of Patrick Quinn in Hammersmith Police Station on Christmas Eve 1990.

Quinn certainly was slaughtered. All but one of his ribs were broken, his heart and spleen were crushed and his face pulped in a vicious, brutal attack that left him dead in a police cell where both men had been placed after being separately arrested for being drunk.

Middle-aged and unfit, Kennedy had no previous history of violence but according to the police he had woken from his drunken stupor to kill a man he had never met. Kennedy claimed he had been woken up by a struggle in the cell between three officers and the dead man and had been punched unconscious.

The murder of Quinn was considered so serious by the police that officers on duty cleaned the uniforms they were supposed to hand over for forensic tests, the log book showing who visited the cell was "lost" (just one of several vital documents which disappeared) and procedures for calling in the Police Complaints Authority and pathologist were not followed. None of which mattered when a protesting Kennedy was convicted the following year for murder and sent down for life.

Kennedy was having none of that. He had no record of political activity but he was determined not to go to his grave with a murder conviction. His solicitors located new witnesses who were present in the police station on the night of Quinn’s death and a major World in Action programme was made on the case.

The case was referred back to the Court of Appeal and a retrial was ordered at which the sudden appearance of previously lost police ‘evidence’ halted a trial that was going badly for the prosecution. When the case returned to court Kennedy’s case was dealt a major blow when the key police witness was declared mentally unfit to give evidence and the judge in the case dismissed Kennedy’s argument that this prevented him having a fair trial.

At the end of the second re-trial the judge put to the jury that Kennedy may not have intended to kill Quinn and was so drunk that he could not remember what he had done. The jury acquitted Kennedy of murder and convicted him of the lesser charge of manslaughter, a perverse verdict as Quinn’s injuries clearly indicated he’d been brutally murdered.

Kennedy was sentenced to 9 years imprisonment. Thankfully for him there were now plenty of people convinced of his innocence. Hackney Community Defence Association [HCDA] together with members of the Irish community based at the Irish Centre in Hammersmith, formed the Justice for Patrick Quinn, Free Malcolm Kennedy campaign and were to regularly picket Hammersmith Police Station over many years.

In 1996 in the lead up to Kennedy’s appeal against his conviction an early day House of Commons motion attracted 65 signatures. This was made on the grounds that the trial judge wrongly exercised his discretion by deciding that the police officer was medically unfit to give evidence and then in his absence allowing transcripts of his evidence in previous hearings to be read out in open court. Further, that it was an abuse of process for the second re-trial to continue without the police officer giving evidence. The appeal however was lost.

Later, when he had been released from prison, Kennedy’s attempts to take his case to the European Court of Human Rights were also unsuccessful.

No sane person wants to go to their grave having been wrongly convicted of another man’s death, even if it is of the lesser charge of manslaughter rather than murder. Kennedy was determined to legally prove he did not kill Patrick Quinn.

During the protracted court cases officers from Hammersmith Police station had disputed ever previously knowing who Patrick Quinn was prior to his arrest. This meant there was no motive for police officers to attack Quinn.

Yet, thirteen years after Quinn’s death someone who knew him well came forward after he saw a campaign appeal for new witnesses in the Irish press. Joseph Fallon had also died in Hammersmith Police Station in contested circumstances, on 17 September 1987, and the new witness had subsequently helped organise Fallon’s funeral.

Interesting, but what had that to do with Quinn? “They were best friends.”

So much so that the new witness alleged that at 7.00am on 24 December 24 1990 he was rung by the police to be told that Patrick Quinn, who he had known since 1967, had died in Hammersmith Police Station.

According to the man Quinn, like Fallon, was a passionate Republican who often had arguments with the local police.

Asked why he thought the police had contacted him less than 6 hours after Quinn had been confirmed as being dead the Tyrone man felt “it could have been because they had my name in there because of Joe Fallon. My opinion would be that they [the police] knew Patrick Quinn knew Joe Fallon” and as such the man was contacted because of his concern three years earlier when Fallon died.

Despite the new evidence the Criminal Cases Review Commission refused to examine it.

Meantime, Kennedy, who prior to being incarcerated had owned a restaurant, had emerged from prison to start rebuilding his life by setting up a small removals business.

This became increasingly difficult due to what he alleged was “highly intrusive and unlawful surveillance” including interference with his phones, mail and emails. This had the effect of blocking him from going about his everyday affairs whilst preventing potential customers making contact with his removals firm and thus losing him a lot of business.

However, Kennedy’s strenuous attempts to pursue a legal case here in Britain and in the European Court of Human Rights were to prove unsuccessful

Three years ago, Kennedy admitted he was not hopeful of “having my manslaughter conviction overturned in my lifetime.

I feel the statement obtained in October 2003, disproving the police claims about not previously knowing Patrick Quinn, was new evidence. Yet the CCRC wouldn’t commit any resources into taking their own statement and re-opening the case. Consequently I am blocked from appealing against my conviction.

It may be twenty years on but I am still haunted by what happened in 1990. Especially as I am still being harassed due to an ongoing police interest in me. I hoped this would stop when I formally stopped campaigning a few years ago in order to enjoy some relative peace. Sadly that hasn’t proven to be the case, and I still find my phones, emails and letters being interfered with and I suspect that will continue until my death. [It did]

But, I repeat, and always will - I was not responsible for the death of Patrick Quinn in Hammersmith Police Station in December 1990.”

Graham Smith, a close friend of Malcolm Kennedy, said, “The juries in the three murder trials Malcolm faced were not simply deciding whether he had killed Patrick Quinn. If Malcolm didn’t murder Quinn a police officer must have done it. In 1990, despite the numerous campaigns against miscarriages of justice up and down the country, there was not the widespread disbelief in the police that followed the overturning of the murder convictions of the Birmingham Six in 1991.

“More recently, there have been the revelations that a Metropolitan police officer most probably killed Blair Peach at Southall in 1979, and South Yorkshire Police conspired to blame Liverpool fans for their deaths at Hillsborough in 1989 in order to deflect attention from their own failings.

“After his release from prison, Malcolm helped others who had been wrongly convicted. He developed an interest in filmmaking and would often be seen at meetings with cameras and recording equipment. A fighter to the end, he unsuccessfully challenged the lawfulness of UK law governing surveillance in the European Court of Human Rights in 2010 and at his death was attempting to discover what undercover cop, Mark Jenner, who had infiltrated the Colin Roach Centre where the Free Malcolm Kennedy Campaign Justice for Patrick Quinn, was based, had told his Met handlers about Malcolm’s case.”

The following piece comes from issue 2 of RPM, which at the time was the magazine of the Colin Roach Centre in Hackney. It will allow the reader to understand the background to Malcolm's story:
Issue 2 - Revolutions Per Minute - September 1996

FREE MALCOLM KENNEDY - JUSTICE FOR PATRICK QUINN CAMPAIGN

The case of Malcolm Kennedy and Patrick Quinn must rank among the most worrying of the many miscarriages of British justice. It involves not only the conviction of an innocent man but also the so far successful cover-up of a murder committed by police officers. Kennedy from Hackney, a middle aged slightly-built man with no history of violence, was arrested for drunkenness in the early hours of Christmas Eve 1990. He was taken to Hammersmith Police station and locked in a cell where he fell asleep. Patrick Quinn (from Donegal in Ireland) also arrested for being drunk, ended up in the same cell.

Kennedy was woken up by a struggle in the cell, between a police officer and Quinn. He tried to intervene but was punched unconscious. Later he was woken up by 3 policemen in the cell. Patrick's body was on the floor, all but one of his ribs smashed, his heart and spleen crushed, his face pulped. The 3 officers told Malcolm "you did this."

The police investigation into Quinn's death was either utterly incompetent or not an investigation at all, but an attempt to conceal the factors. Officers had (and took) the opportunity to clean the uniforms they were supposed to hand over for forensic tests, the log book showing who visited the cell was "lost" (just one of several vital documents which have disappeared). Procedures for calling in the Police Complaints Authority and pathologist were not followed.

It was only after Malcolm was convicted of murder and sentenced to life in mid 1991, that the police case started to unravel. A World in Action investigation found that the time of another arrest had been altered in order to get 2 officers - Emlyn Welch and Paul Giles - out of the station at the time Quinn died, and the more the paperwork (that is the paperwork that hadn't been mysteriously "lost") was examined the more it looked like the officers were lying about the whole course of events that night.

The case went back to the Court of Appeal on 11.2.93 which ordered a retrial so as the jury could hear all the evidence. At the Court of Appeal PC Welsh revealed that he had conveniently "found" his "lost" notebook; he'd had it in a wallet stuck behind his new pocketbook and had carried it around for months without knowing! Unfortunately for PC Welsh when he was asked to show where he'd had the notebook, he couldn't fit it back in the wallet.

When Malcolm's re-trial started (on 8.9.93) it looked as though he had a good chance of being acquitted. It looked even better when PC Giles started his evidence. It not only became obvious that he was tangled up in a hopeless web of lies, but it seemed possible that he would give up and name Quinn's real murderer(s). Then a policeman sitting in court as Exhibits Officer, suddenly found a vital piece of missing evidence as he flicked through a file.

Despite the fact that 3 separate investigations had searched that file for that piece of evidence, and not found it, the Judge refused to accept that this was a blatant forgery and the trial had to be abandoned.

Just before the new trial began (on 26.2.94) the Prosecution announced that PC Giles had gone mad and could not give evidence. It has since emerged that Giles' "madness" is only brought on by being asked questions about the death of Patrick Quinn! The trial ended on 6.5.94 with the jury, under pressure from the Judge, finding Malcolm guilty of the compromise charge of Manslaughter. The Judge sentenced him to 9 years imprisonment.

After over two years solid campaigning and an Early Day Motion signed by 65 MPs, Malcolm's Appeal was heard on 2nd July 1996. His appeal grounds were:

· that the trial judge wrongly exercised his discretion by deciding that PC Giles was medically unfit to give evidence and allowing transcripts of his evidence in previous hearings to be read out in open court.
· that it was an abuse of process for the second re-trial to continue without PC Giles giving evidence.

Prior to the Appeal there had been three dramatic developments :

· the reason given for PC Giles non-appearance at the second re-trial was that he would suffer irreparable mental damage. Kennedy's defence counsel, Michael Mansfield QC, argued that Giles was deceiving Crown psychiatrists. Events appear to have proved him right. Giles is now proceeding with a libel claim against Granada Television's World in Action documentary programme and he will be giving evidence in those proceedings.
· Kennedy's first re-trial was abandoned after the discovery of a 'missing' computer print out. The Crown maintained that the document could not be forged, and it was of major significance in the second re-trial. However, prior to the final appeal, the police conceded forgery is possible.
· A communications expert has examined the reliability of reading out Giles' evidence in the second re-trial. He concludes that the reading "posed superhuman mental demands upon the jury" and they were consequently unable to form an accurate judgement on his reliability and truthfulness as a witness.

On Tuesday 16th July 1996 Malcolm's appeal against Manslaughter was lost. The 3 High Court Judges would not accept any of the grounds put forward by Mike Mansfield QC, Malcolm's barrister, and would not accept that Malcolm had not had a fair trial even though PC Giles was absent.

Malcolm will now take his case to the European Court of Human Rights. In this case we have two victims of police crime. Patrick Quinn suffered a brutal death, his injuries included 33 fractured ribs, crushed heart and larynx - and Malcolm Kennedy has been falsely convicted of a crime he did not commit. The Quinn and Kennedy families have also suffered greatly. Patrick Quinn's family, who wish to see justice done, have attended the Old Bailey on 3 separate occasions and have had to sit and watch police officers squirm in the witness box. They are still none the wiser as to who was responsible for their brother's death. Kennedy's father and aunt have been interrogated by prison officers about what happened that night, causing them much stress.

Over the past 5 years it has become common knowledge that police officers commit crimes. In the past year 2 separate juries have reached unlawful killing verdicts following the deaths of Richard O'Brien and Shiji Lapite in police custody.

The Campaign goes on - MALCOLM KENNEDY IS DETERMINED TO CLEAR HIS NAME AND THERE MUST BE JUSTICE FOR PATRICK QUINN AND HIS FAMILY.

Footnote - Malcolm Kennedy was refused leave to take his case to the European Court of Human Rights. To this date he continues to protest his innocence.

From Lobster No 40, Summer 2000 www.lobster-magazine.co.uk
"A MOST EXTRAORDINARY CASE"

[NB the provisions referred to as being in the RIP Bill Section 56 (second to last para) are now contained in Section 65 of the RIP Act 2000]

Malcolm Kennedy says his telephones, post and email are being interfered with. His attempts to seek answers have left him in a bureaucratic maze.

by Jane Affleck

BACKGROUND

"A most extraordinary case" said Michael Mansfield QC, describing the events at Hammersmith Police Station on the night of December 23/24 1990. Two men - Patrick Quinn, and, later, Malcolm Kennedy - were arrested and put in the same police cell for drunkenness, and Quinn was later found dead with severe injuries.

Kennedy, who had no previous convictions or history of violence, maintained that Quinn had been killed by the police, and that he was framed for the killing.

In September 1991, Malcolm Kennedy was sentenced at the Old Bailey to life imprisonment for Quinn's murder, despite evidence that crucial police logs had gone missing, and conflicting accounts from police officers of events on the night.

A Police Complaints Authority investigation in 1992 "was hampered by missing prosecution papers, police notebooks, and officers declining to be interviewed..." (Independent September 10 1992) In April 1992 a World in Action programme on the case produced new documentary evidence and witnesses which apeared to contradict the police version of events on the night, and this new evidence was heard at an appeal, in February 1993, at which Kennedy's conviction was overturned and a retrial ordered. In June 1993, Kennedy was granted bail pending the retrial.

The first retrial in September 1993 was abandoned after further new documentary evidence was produced by the police. This was a computer-aided despatch print-out which logged timings of police messages on the night of Dec 23/24 1990, and seemed to confirm the police version of movements and timings; it had apparently been missing since Dec 1990. After a second retrial in May 1994 Kennedy was convicted of manslaughter and sentenced to nine years imprisonment. During this trial, Kennedy's barrister, Michael Mansfield QC, said there had been a police cover up: "every category of police document in the case had, since 1990, been suppressed, gone missing, or been forged" and police officers at Hammersmith had "closed ranks, closed doors, closed files" (Independent February 26 1994). A key police officer in the case, who was on duty at Hammersmith Police Station on the night in question, and was alleged in court to have had a history of violence was unable to testify at the retrial because he had been diagnosed as mentally ill and unable to give evidence.

Serious concerns were immediately expressed about the safety of Kennedy's conviction, and within a few days an Early Day Motion was tabled by Chris Mullin MP (May 10 1994, No. 1207) It began: "This House notes with concern the conviction of Malcolm Kennedy for the manslaughter of Patrick Quinn..." and ended "...believes that the conviction of Mr Kennedy is unsafe and invites the Appeal Court to rule accordingly." The EDM was signed by 65 MPs.

Later that month Chris Mullin in a Parliamentary Question to the Attorney General, Sir Nicholas Lyell, about the failure of the CPS to call the key police officer as a witness at Kennedy's trial, asked "Is the Attorney General aware that there is a widespread feeling.......that a serious miscarriage of justice has occurred in this case?"

And in December 1994 the Hackney Community Defence Association produced a booklet entitled "Who Killed Patrick Quinn? The Framing of Malcolm Kennedy."

Kennedy was released on parole in June 1996. A further appeal was dismissed. Previously a restaurant owner, he was left with nothing and initially found accommodation with a housing association for ex-prisoners. In August 1998, Granada TV paid out a reported £2 million in compensation and legal costs in a libel settlement, and apologised in the High Court to the three police officers which the April 1992 World in Action programme had claimed were involved in the cover up of Quinn's death.

WHAT KENNEDY SAYS IS HAPPENING

Today Malcolm Kennedy, now 53, has his own business in Hackney, North London, doing small moves. Except he says he is prevented from doing so because of constant interference with his communications. His main complaint is that incoming business calls from his local area - on which his business is totally reliant - are being blocked to a greater or lesser extent. The degree to which this happens varies, Kennedy says, and until last year he had enough work getting through to get by. But in 1999, he noticed a decrease in his incoming calls, and reckoned 75% were being cut; more recently things have deteriorated further, and, he says, only perhaps 5% are getting through, few of these being genuine enquiries, leading to around onejob a day, despite an increase in advertising and competitive prices. He also reports difficulties making outgoing calls, saying he is frequently told the number has not been recognised.

How does Kennedy know this? When he first set up a similar business in the same area in 1997 he was getting plenty of work from just one small advertisement, for a "man with a van". He later became aware that calls were not coming in, and now, with five advertisements in various local directories, two websites and three different phone numbers, (two landlines - BT and Cable London - and a mobile) and a bouyant economy Kennedy says he gets virtually no serious enquiries, (during the last month (April-May 2000) he reports only one or two genuine enquiries per day) the majority of calls being what he describes as "spoof" calls - mainly false enquiries.

For example, Kennedy reports getting veiled threats, particularly concerning healthcare and health insurance; and many calls messing him around in connection with van hire (eg cancelled at short notice), and the phone being hung up on him. On one occasion, two years ago, he says part of a previous conversation was played back to him when he answered the phone.

Kennedy's main complaint of call barring is difficult to prove. He says people trying to phone him report getting a variety of signals including a fax tone; engaged tone; an electronic tone; messages saying the number is no longer available, has not been recognised, check and redial, or there is a fault and try again later. He has himself tested his line recently by calling his number from various other places, and reports getting all the above signals. Customers have told him they have had difficulty getting through to his number. Last year Kennedy says he worked from a mobile phone registered under a different name, and put an advertisement in the Islington Gazette. He says that this new phone number and small ad brought him consistent work - one or two jobs a day - for a couple of weeks - then the calls dried up completely. He has also used Talking Pages, which gives out the details of local businesses to enquirers. Kennedy says he knows that between December 1999 and March 2000 his details were given out at least 130 times by Talking Pages but, despite having a dedicated phone line for TP, he only received four jobs and some spoof calls over a four month period.

Kennedy's flat and van have both, he says, been entered, with no sign of a break-in; his flat several times when he was out, when things have been disturbed but nothing of value taken. On one occasion he says three £20 notes were exchanged for £10 notes. His van was also entered, and a large ashtray removed from the dashboard, the van left locked up again. He says emails that he knows have been sent are not getting through, and both outgoing and incoming post are frequently delayed in such a way as to cause much inconvenience, arrives with two frankings for different days, or doesn't arrive at all.

Why?

Kennedy is convinced that there is a connection with his high-profile criminal case, during which his defence said Kennedy was framed by the police and that the police on duty that night in Hammersmith police station were involved with Quinn's death, or, at least, knew what happened and covered up.

Kennnedy speculates that Special Branch and/or MI5 may be involved, and suspects that an interception warrant, established during his case, is being constantly renewed. He believes the intention is to damage his business and keep him impoverished.

There is no hard evidence for Kennedy's claims. Why do calls from myself and others get through? Kennedy reckons that these are not barred because they are from outside the area, or from cleared numbers. Enquiries suggest that the type of interference said to be occurring is probably technically feasible - but pretty much impossible to prove.

ATTEMPTS TO GET AN EXPLANATION

In his attempts to seek a cessation of the interference and disruption to his communications, Kennedy has written to, in his words "everyone I can". He has approached all the relevant authorities including his telephone service provider, Cable London, the telecommunications regulatory body Oftel, his Member of Parliament Brian Sedgemore, the Home Secretary Jack Straw, the Metropolitan Police and the Interception of Communications Tribunal. His enquiries have taken him into a bureaucratic wilderness, and provided no satisfactory answers.

Cable London say they have carried out numerous investigations and found no technical fault with the service. A letter from Cable London to Kennedy in June 1999 says "Over the last two months Cable London has carried out 8 separate investigations into the reported problems with your telephone service. On each occasion we have been unable to find any fault within our network, or from any interconnected network, relating to the service problems reported". By August 1999, Cable London were suggesting Kennedy "subscribe to another operator such as British Telecom"!

After sending details of his complaints to Oftel, they replied in July 1999, saying "We have considered all the papers related to your case, and are unable to assist you further."

Kennedy wrote to the Home Secretary, Jack Straw, three times in June/July 1999. The replies, from the Intelligence and Security Liaison Unit of the Home Office Organised and International Crime Directorate (12 Aug 1999) and from the Home Secretary's Advisory Board, Metropolitan Police Committee(30 Sept 1999) referred him either to the Police Complaints Authority, which supervises complaints against the police, or to the Interception of Communications Tribunal, which can investigate questions relating to interception authorised by a Secretary of State.

Kennedy had previously taken his complaints to both the police and the ICT, receiving a letter from a Detective Inspector of the Organised Crime Group of the Metropolitan Police (9 July 1999) which stated that after making extensive enquiries into the matter: "it transpires that there is no evidence of any illegal activity to Mr Kennedy's detriment, neither is there any evidence of physical or technical malfunction of his telephone system", and from the Interception of Communications Tribunal (2 November 1998) stating that they were satisfied "that there has been no contravention of Sections 2 to 5 of the Interception of Communications Act 1985 in relation to a relevant warrant or relevant certificate".

[Sections 2 to 5 of the IOCA 1985 deal with the issuing, renewal and duration of interception warrants]

A further letter from the Tribunal (6 April 1999) states that "The Interception of Communications Act 1985 does not allow for the barring of calls as you describe Kennedy's main complaint] nor indeed the diverting or discontinuation of any call(s). Similarly it does not allow the prevention or re-directing of postal communications."

Kennedy expressed concern to his MP, Brian Sedgemore, about the inability of the ICT to deal with his complaint, and Sedgemore wrote to the Home Secretary on December 1 1998 expressing these concerns about the Tribunal and that, depending on the basis on which they formed their decision either "clearly changes in their procedures are needed" (if they have been unable to find out what has been going on) or "changes in the law may be needed for the sake of transparency and justice" (if there was a warrant, but they never say whether or not such a warrant exists).

Straw's reply to Sedgemore, (18 Dec 1998) states that "it is a clear principle of law and practice that people are never told whether or not their communications have been intercepted under warrant...the purpose is to safeguard operational practices and techniques from disclosures which might undermine their effectiveness. Of course, it is possible to intercept a telephone without the authority of a warrant. As I have explained this will generally be unlawful and anyone who suspects that his or her telephone calls are being unlawfully intercepted, as Mr Kennedy maintains is the case, should report the matter to the police".

INTERCEPTION OF COMMUNICATIONS - SCRUTINY INADEQUATE

The Interception of Communications Act 1985 establishes the grounds for lawful interception of communications and sets up the Interception of Communications Tribunal. Under the Act, the interception of a person's mail or telephone calls must be authorised by the issue of a warrant by a Secretary of State. Interception can only be authorised if considered necessary in the interests of national security, for the prevention or detection of serious crime, or to safeguard the economic well-being of the United Kingdom.

This process should be kept under review by the Interception of Communications Commissioner, currently Lord Justice Swinton Thomas, previously Lord Nolan. The problem of properly scrutinising so many warrants (1646 phone tapping warrants in 1998) has been raised by Francis Wheen (Wheen's World, Guardian, 3 May 2000):

"This is no mean feat for a part-timer, especially since each warrant may cover any number of phone-taps on "associates" of the subject."

The Tribunal can only investigate questions relating to interception authorised by a Secretary of State; specifically, whether there was a warrant and, if so, whether it was properly issued. If it finds a warrant to have been improperly issued, the Tribunal can quash it, order destruction of intercepted material, and direct the minister to pay compensation. These powers have not been used as the Tribunal has never found a breach of the Act.

If the Tribunal finds a warrant to have been properly authorised, or that no interception warrant exists, the complainant will be told only that there has been no breach of the Act; it is established policy neither to confirm nor deny whether the Secretary of State has granted an interception warrant in any particular case.

Unauthorised interception is excluded altogether from the Tribunal's remit; section 1 of IOCA makes it a criminal offence to intercept communications in the course of transmission without the authority of a warrant issued by a Secretary of State, and therefore a matter for the police. This is hardly satisfactory because, as Laurence Lustgarten and Ian Leigh state (In From the Cold: National Security and Parliamentary Democracy, Oxford, 1994, p 61), the police may, of course, be the perpetrators.

The inadequacy is reiterated by Laurence Lustgarten and Ian Leigh (In From the Cold: National Security and Parliamentary Democracy, Oxford, 1994, p 64): "Unauthorized interception is, by virtue of Section 1 of the 1985 Act, a criminal offence, but there are no special powers or procedures for dealing with it".

Kafka-esque

This point was taken up by solicitor Tony Murphy, of Bindman and Partners, who has been dealing with Kennedy's claims of telecommunication disruption and interception. Murphy says the ICT is ineffective and in particular is unable to deal with complaints such as Kennedy's. He says there should be some means by which people in Kennedy's position are able to seek an independent investigation/explanation: "The situation in which Malcolm Kennedy finds himself is nothing short of Kafka-esque. The current system appears not to allow for the possibility that the police or security services can act improperly in intercepting communications. This is unacceptable and represents a further indictment on the lack of independent investigation of police complaints."

In October 2000 the Regulation of Investigatory Powers Bill is expected to become law. The RIP Bill broadens the Interception of Communications Act 1985 to include, for example, the use of bugs and interception on private telecommunication systems, and includes controversial new provisions to allow the tapping of emails and access to encrypted data . It will repeal the Interception of Communications Act 1985 and establishes a tribunal which will take the place of both the Interception of Communications Tribunal and the Security Service Tribunal (set up under the Security Service Act 1989. This Act is not repealed). This new tribunal will consider complaints concerning the interception of communications; conduct by or on behalf of any of the intelligence services; entry on or interference with property or interference with wireless telegraphy; and the giving of a notice or any disclosure or use of a key to 'protected information' (data protected by the user eg by passwords or encryption) (RIP Bill Section 56). As before, complainants will only be told whether or not the Act has been breached.

The events of the night of December 23/24 1990 destroyed or damaged the lives of several people. I have met Malcolm Kennedy. He does not appear to be embittered, despite 10 years of, in his own words, "trauma and harassment", and says he does not seek to pursue his previous case anymore; he asks only to be allowed to rebuild his life and put the past behind him.


From Lobster No 41, Summer 2001 www.lobster-magazine.co.uk

THE MALCOLM KENNEDY CASE - UPDATE
by Jane Affleck

Malcolm Kennedy believes his telephones, email and post are being interfered with. His persistent attempts to obtain answers have met with brick walls, and his situation has been described as Kafka-esque. Soon his complaint will be one of the first to be heard by the recently established Investigatory Powers Tribunal.

BACKGROUND

Last Summer, Lobster drew attention to the case of Malcolm Kennedy (See Lobster 39, Summer 2000, pp 17-19 “A Most Extraordinary Case”).

Kennedy served four and a half years of a nine year prison sentence after being found guilty of the manslaughter of Patrick Quinn, an Irish labourer, in May1994. Quinn had been found dead, with severe injuries, in a police cell at Hammersmith Police Station on the night of December 23/24 1990, after first Quinn and later Kennedy had been separately arrested for drunkenness and put in the same cell. Kennedy’s conviction came after 3 trials and an appeal; during the trial, Kennedy’s barrister, Michael Mansfield QC, said that there had been a police cover up: “every category of police document in the case had, since 1990, been suppressed, gone missing, or been forged” and police officers at Hammersmith had “closed ranks, closed doors, closed files.” [Independent February 26 1994]

There was immediate concern about the safety of the conviction; questions were asked in Parliament; an Early Day Motion expressing concern about the safety of the conviction was signed by 65 MPs, and Hackney Community Defence Association published a booklet about the case entitled “Who Killed Patrick Quinn? The framing of Malcolm Kennedy”. Kennedy has always protested his innocence and claimed he was framed by the police for killing Quinn.

After his release from prison in June 1996, Kennedy set up his own business doing small moves and van hire in Hackney, North London, but says that his communications have been subjected to continual interference. In particular, Kennedy says that incoming calls from his local area, on which his business - and income - is dependent, are being blocked to a greater or lesser extent, and that he gets many “spoof” calls which waste his time, but never lead to work.

Kennedy believes the reasons for this disruption are to damage his business, keep him impoverished and to put him under psychological pressure. He speculates that Special Branch and/or MI5 may be involved and that an interception warrant, established during his earlier case, may be being continually renewed. Kennedy says he knows of other cases where people who have been involved with disputes with the police have been subjected to harassment.

To try and remedy this, Kennedy has approached his telecommunications provider, Cable London; Oftel, the telecommunications regulatory body; his MP, Brian Sedgemore; the Home Secretary, Jack Straw; the Metropolitan Police; and the Interception of Communications Tribunal. But without any success. Despite Kennedy’s persistent enquiries, particularly during the past two years, he has been unable to obtain an explanation for what is happening nor a cessation of the interference.

In the meantime, Kennedy says, the call barring and spoof calls continue. On some days, he says, he gets up to 30 nuisance calls, with none leading to work. Also, he says, data sometimes vanishes from his computer. More disturbingly, Kennedy reports that in July last year the steering system of his van was interfered with in a manner which could have caused the steering to fail and a serious accident; and that a mechanic said ‘someone’s trying to kill you mate.’

RECENT DEVELOPMENTS: ATTEMPTS TO OBTAIN PERSONAL DATA FROM GCHQ, MI5 AND THE METROPOLITAN POLICE USING THE DATA PROTECTION ACT 1998

Under the Data Protection Act 1998 [Section 7] an individual (or ‘data subject’) can apply to see what information, either on computer or in a filing system, an organisation (or ‘data controller’) is keeping on them.

[Right of subject access to information held in paper files is available from 24 October 2001 regardless of the date from which the information was held].

During the last year Kennedy has been using the Act, which came into force in March 2000, to make subject access requests to the Security Service, GCHQ and the Metropolitan Police, all of which Kennedy believes to hold information on him.

In response to his subject access request to GCHQ, made July 10 2000, Kennedy received a reply dated July 21 2000, which stated:

“Under the Data Protection Act 1998, GCHQ has notified the Data Protection Commissioner that it processes personal data under four purposes. These are: Staff Administration, Advertising, Marketing and Public Relations, Accounts and Records and Consultancy and Advisory Services. GCHQ holds no personal data on you in any of these categories; we have checked both computer and paper records.

Any other personal data held by GCHQ is exempt from the registration and subject access provisions of the Data Protection Act 1998 on the grounds that such exemption is required for the purposes of safeguarding national security, as provided for in Section 28(1) of the Act. Thus, if it were to be the case that we held any data regarding you, the Data Protection Act would not confer a right of access.

This policy is consistent with the policy of not disclosing information about data held on individuals by all the security and intelligence agencies for the purpose of their statutory functions.

I would point out that a right of appeal exists under section 28 of the Act. The section provides that the exemption described above can be confirmed by a certificate signed by a Minister of the Crown who is a member of the cabinet, or the Attorney General. Any person directly affected by the issuing of such a certificate may appeal against the certificate to the Data Protection Tribunal. It is also possible to appeal on the ground that the certificate does not apply to one’s own data.”

On the plus side, Kennedy’s £10 cheque was returned: “We do not make a charge for such requests”.

Under Section 28 of the DPA, personal data is exempted from any of the provisions of the data protection principles, parts II (subject access provisions) III (notification) and V (enforcement) of the DPA and section 55 - if the exemption ‘is required for the purpose of safeguarding national security’ [DPA s28(1)] as evidenced by a certificate of exemption signed by a ‘Minister of the Crown’ [DPA s28(2)]. In this case the applicant will be told that the Agency holds no information which the applicant is entitled to see (ISC Rpt 1999-2000 para79, www.official-documents.co.uk/document/cm48/4897/4897.htm).

Kennedy wrote on July 27 2000 to request a copy of the certificate which exempts GCHQ from the notification and subject access provisions of the DPA, and received a copy of the certificate, signed on July 30 2000 (quite rapidly, it seems, after Kennedy’s request) by Robin Cook, the Foreign Secretary.

This certificate states that:

‘by section 28(1) of the Data Protection Act 1998, personal data are exempt from any of the provisions of (a) the data protection principles; (b) Parts II, III and V; and (c) section 55 of the Act if the exemption is required for the purpose of safeguarding national security; by subsection 28(2) it is provided that a certificate signed by a Minister of the Crown certifying that the exemption from all or any of the provisions mentioned in subsection 28(1) is or at any time was required for the purpose there mentioned in respect of personal data shall be conclusive evidence of that fact;

by subsection 28(3) it is provided that a certificate under subsection 28(2) may identify the personal data to which it applies by means of a general description and may be expressed to have prospective effect.

Now, therefore, I, the Right Honorable Robin Cook MP, one of Her Majesty’s Principle Secretaries of State, in exercise of the powers conferred by the said section 28(2) do issue this certificate and certify as follows:-’

The certificate goes on to describe and comprehensively list the types of personal data processed by GCHQ that are exempted from the DPA’s provisions “all for the purpose of safeguarding national security”. These include “personal data processed in the performance of the functions described in section 3 of the Intelligence Services Act 1994 (“ISA”) or personal data processed in accordance with section 4 (2)(a) ISA including but not limited to:” There follows a list of 8 categories, including “personal data obtained from the monitoring or interfering with electromagnetic, acoustic and other emissions and any equipment producing such emissions etc (as specified in section 3(1) ISA)” and “personal data recorded, held, organised, adapted, altered, retrieved by or otherwise available to GCHQ.”

Kennedy’s subject access request to MI5 resulted in a similar response from the Security Service. In a letter dated August 3 2000 they responded:

‘Under the Data Protection Act 1998, the Security Service intends to notify the Data Protection Commissioner that it processes personal data for three purposes. These are: staff administration, building security CCTV and commercial agreements. The Security Service has checked its records and holds no personal data about you in any of these categories.’

[Footnote: The Security Service now lists on the Data Protection Register the categories under which it processes personal data as: Staff Administration; Concluding and Performing Commercial Agreements; Property management (CCTV coverage of Thames House) (www.dpr.gov.uk/search.html)]

The reply also points out that:

‘A certificate relating to the work of the Security Service was signed by the Home Secretary on 22 July.’

This exemption certificate, signed on July 22 2000 by Jack Straw, is similar to the GCHQ certificate described above, and details the personal data processed by the Security Service which is exempted from the DPA’s provisions. It includes “Data processing in performance of the functions described in Section 1 of the Security Service Act 1989 as amended by the Security Service Act 1996 including, but not limited to:” The eleven categories then listed include “obtaining personal data from human sources being agents or contacts of the Security Service” and “obtaining personal data from technical sources including from the interception of communications”

Kennedy’s attempts to obtain information from the Metropolitan Police have met with little success. Because of the criminal case he had been involved with, Kennedy had reason to believe the Met would hold personal data on him. A subject access request made on March 9 2000 did not receive a response within 40 days - the maximum time data controllers have to comply with a subject access request. Repeated requests resulted in the release of brief details relating to his previous case; and a letter from the Metropolitan Police Service Data Protection Officer (January 2001) stated that ‘the Commissioner has fulfilled his legal requirements and obligations under the provisions of the Act and supplied you with all the data to which you are entitled.’ Kennedy complained to the Data Protection Commissioner (now Information Commissioner) about the Met’s poor response. In reply, (Dec 19 2000) a Compliance Officer said that:

‘The Data Protection Commissioner is satisfied that the Metropolitan Police Service has made full and proper disclosure to you of all the information to which you are entitled under the Data Protection Act 1998 following your subject access request...’

In contrast, an appeal by Kennedy to the London Mayor, Ken Livingstone, detailing the continual interference with his telecommunications, met with a supportive response. Although the Mayor has no authority in relation to the Metropolitan Police Authority, (established in July 2000 under the Greater London Authority Act 1999 to oversee policing in London) a letter from Lee Jasper, on behalf of Ken Livingstone stated (Feb 13 2001):

‘I have now written to the Chair of the Metropolitan Police Authority, Lord Harris, to enquire from him whether an independent review of your complaint conducted by an independent member of the Metropolitan Police Authority might now be the way forward in seeking to respond to the issues that you raise.’

APPEALING AGAINST EXEMPTION CERTIFICATES

Exemption certificates authorising a blanket ban on access to personal files have been signed by Jack Straw, Home Secretary, and Robin Cook, Foreign Secretary, on behalf of the three intelligence agencies, MI5, MI6 and GCHQ, ‘for the purpose of safeguarding national security’. The validity of such a certificate can be challenged, and all three are being challenged; any person ‘directly affected’ by the issuing of an exemption certificate - not only the data subject - may appeal to the Data Protection Tribunal against the certificate [DPA 1998 s28 (4)]. (The Security Service has received 46 requests, GCHQ 15 and SIS 30 requests to see personal files under the DPA 1998 (Hansard, Commons written answers, January 18 2001).

To hear cases relating to national security, the Data Protection Tribunal is specially constituted, its members designated by the Lord Chancellor [DPA 1998 schedule 6]. This Tribunal hears appeals under DPA s28(4) and (6) either to overturn a decision to issue a certificate or for a determination that a certificate does not apply to the personal data in question, and can allow the appellant to give evidence before it and call witnesses. If the Tribunal finds, applying the principles of judicial review, that the Minister did not have reasonable grounds for issuing the certificate, the Tribunal may allow the appeal and quash the certificate [DPA s28(5)]. [For the rules applying to appeals under the DPA 1998 s28, see The Data Protection Tribunal (National Security Appeals) Rules 2000, SI 2000 No 206, www.legislation.hmso.gov.uk/si/si2000/20000206.htm

The first case to be taken before the Data Protection Tribunal National Security Appeals Panel will be that of Norman Baker MP who is challenging the blanket exemption on national security grounds, and appealing against the refusal of MI5 to grant him subject access to files he has reason to believe the security service hold on him because of his earlier involvement in environmental politics. Following a long-standing policy, MI5 will neither confirm nor deny whether they have a file on Baker. Baker is represented by Liberty, the London-based human rights organisation, and the appeal will be heard on June 26 2001.

Liberty will argue that a blanket ban is incompatible with the Human Rights Act. A successful challenge, with the certificate ruled unlawful, would overturn the blanket ban on access to personal files, and the agency would then have to justify its refusal to grant access, on national security grounds, to any particular file.

[MI5 holds about 440,000 files, of which 290,000 relate to individuals ‘who, at some time during the last 90 years, may have been the subject of Security Service inquiry or investigation.’ Of these, about 20,000 are active files relating to individuals ‘who may be under current investigation by the Service.’ (Hansard, Commons written answers, on July 29 1998 and July 7 1999) ]

KENNEDY’S COMPLAINTS MUST GO BEFORE INVESTIGATORY POWERS TRIBUNAL

In Kennedy’s case, Liberty sought legal advice as to whether he could challenge both MI5 and GCHQ exemption certificates.

Counsel’s opinion considered that Kennedy’s complaint would not be appropriate to be heard before the Data Protection Tribunal because his key complaint concerned interception of his telecommunications by the security services. Section 17 of the Regulation of Investigatory Powers Act 2000 effectively prevents the DPT from considering evidence concerning either the existence of an interception warrant or data obtained under a warrant; but under section 18 (1) (c) such restrictions do not apply to proceedings before the Investigatory Powers Tribunal. Therefore, Kennedy did have a valid claim before the IPT, which, unlike the more restricted remit of the Interception of Communications Tribunal, can hear complaints relating to any conduct ‘by or on behalf of’ the intelligence agencies.

Limitations of the Interception of Communications Tribunal

Kennedy had previously been thwarted from taking a case before the Interception of Communications Tribunal because of its limited remit. Under the Interception of Communications Act 1985 the ICT were limited only to examining whether there was a relevant warrant and, if so, whether there has been any contravention of sections 2 to 5 of IOCA (which deal with the issuing, renewal and duration of interception warrants).

In a letter to Kennedy (November 2 1998) the ICT stated that they were satisfied that in Kennedy’s case ‘there has been no contravention of sections 2 to 5 of the Interception of Communications Act 1985 in relation to a relevant warrant or relevant certificate.’

Unauthorised interception is excluded altogether from the ICT’s remit; section 1 of IOCA makes it a criminal offence to intercept communications without the authority of a warrant issued by a secretary of state, and therefore a matter for the police. This is hardly satisfactory in those situations where an individual considers the police may be the perpetrators.

Neither could the ICT deal with the nature of Kennedy’s complaint: ‘The Interception of Communications Act 1985 does not allow for the barring of calls as you describe nor indeed the diverting or discontinuation of any call(s)’ (letter from ICT to Kennedy April 6 1999) This letter, and a later letter from the ICT (August 6 1999) go on to suggest that Kennedy’s difficulties ‘would appear to be a technical or possibly criminal matter’ which Kennedy should raise with his service provider - something which Kennedy has done persistently - or, presumably, the police, and not a matter within the Tribunal’s remit.

[The Tribunals have faced criticism on other grounds. The Intelligence and Security Ctee Interim Report 2000-01 para 20 refers to a letter sent by the Ctee to the PM in Dec 2000 “to express our concern at the problem in the Tribunals over the processing of complaints” It says: “for a significant period in 2000 the Tribunal did not have sufficient secretariat to enable it to even open the mail, let alone process and investigate complaints.”]

INVESTIGATORY POWERS TRIBUNAL - an amalgamation with broad remit

The Investigatory Powers Tribunal, set up under s65 of RIPA, has a much broader remit than the Interception of Communications Tribunal, which it supercedes. The IPT replaces not only the ICT, but also the Security Service Tribunal, and the Intelligence Services Tribunal.

[Footnote: under transitional arrangements, the old single tribunals continue to exist for cases that were already being considered before October 2 2000. Sir Michael Burton was appointed in June 2000 as the new President of the Interception of Communications Tribunal for a period of 5 years. He has also been appointed Vice President of the IPT - Home Office communication]

The IPT considers all complaints against the intelligence agencies and complaints against public authorities - including police forces - in respect of the powers covered by the RIP Act.

It can examine any complaint relating to “conduct by or on behalf of any of the intelligence agencies” and “conduct for or in connection with the interception of communications in the course of their transmission...” It can consider complaints about both lawful and unlawful actions of the intelligence agencies, and complaints about both warranted and unwarranted interception. It is implied in the wording of the Act that both lawful and unlawful conduct can be considered by the IPT (see footnote, RIPA s65(4)(5)(7)). When asked about this point, a Home Office spokesperson said that while “interception can’t take place without obtaining a warrant personally authorised by the Secretary of State,” however “the Tribunal will hear all allegations and complaints that are put to it”)

The IPT is also the Tribunal to bring proceedings under Human Right Act s7 for actions incompatible with Convention (ECHR) rights concerning the intelligence services [Under HRA 1998 s7(1)(a) a person who claims a public authority has acted in a way which is incompatible with a Convention right may bring proceedings against the authority in the appropriate court or tribunal.]

Unlike the DPT, the IPT cannot quash the Secretary of State’s certificate of exemption from the DPA’s provisions. However, the IPT has the power to make an order 1) quashing any warrant; 2) requiring the destruction of any records of information obtained under a warrant or held by any public authority; 3) to make an award of compensation “or other order as they think fit” [s67(7) RIPA]

The president of the IPT is Lord Justice Mummery (formerly president of both the Security Service Tribunal and the Intelligence Services Tribunal). Seven other members have been appointed.

[Footnote: Vice President Sir Michael Burton; Sheriff Principal John Colin McInnes QC; Sir David Calcutt QC; Sir Richard Gaskell; Robert Seabrook QC; Peter Scott QC; William Carmichael] The Tribunal may hold oral hearings at which the complainant may make representations, give evidence and call witnesses. [IPT Rules 2000, SI 2000 No 2665, www.hmso.gov.uk/si/si2000/20002665.htm]

Represented by Liberty, Kennedy’s complaint will be one of the first to be heard before the IPT, probably in the next few months. John Wadham, Director of Liberty, said: “Liberty believes that the safeguards in the RIP Act are inadequate but that the Human Rights Act and the right to privacy may help us to establish a fairer procedure. If we are successful this will not only help Malcolm but all those who are forced to complain to the Tribunal.”

The Interception of Communications Tribunal has never upheld a complaint. It remains to be seen whether its successor the Investigatory Powers Tribunal with its broader remit, and, particularly, a human rights dimension, will strike a different balance.

Kennedy says his business continues to suffer and he is outraged that the disruption is still going on: “I am left with a deep sense of disappointment that the British State should behave in such an oppressive way. I had previously thought better of them.” But he sounds optimistic. “You get used to it. You either sink or swim, and I’m swimming quite strongly.”

[FOOTNOTE: [s65(4)(5)RIPA] The IPT is the appropriate forum for complaint by any person who is aggrieved by any conduct which he believes to have taken place in relation to him, his property, or any of his communications, and to have taken place in “challengeable circumstances or to have been carried out by or on behalf of any of the intelligence services” where it is conduct by or on behalf of any of the intelligence services; conduct for or in connection with the interception of communications; conduct to which Chapter II of Part I applies; conduct to which Part II applies; the giving of a notice under s49 or any disclosure or use of a key to protected information; any entry on or interference with property or any interference with wireless telegraphy. “Challengeable circumstances” are defined in RIPA s65(7) and include not only where conduct has taken place with authority, but also where ‘circumstances are such that (whether or not there is such authority) it would not have been appropriate for the conduct to take place without it...’]