1. Introduction

Malcolm Kennedy

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.