4. The burden of proof

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.