17
The Birmingham Six
How do we know what we know? How do we know that the sun will rise tomorrow? How do we know, as in the well-known verse by Ronald Knox – ‘That this tree I see / Should continue to be / When there’s no one around in the Quad’?
As philosophical conundrums, these questions doubtless seem excessively scholastic and airy-fairy, far removed from the issues of liberty and freedom – and too often of life and death – that concern the courtroom. But in reality they lie at the very heart of the legal process. These epistemological queries, raised for argument purposes by A. J. Ayer and Antony Flew back in Keele days, are important starting blocks.
Just because events have always followed a certain course in the past, that does not necessarily mean that this pattern is immutable or contains some golden law governing all eventualities – and the assumption that the pattern is unchangeable invites serious dangers in the field of forensic science, on which so many criminal cases hinge.
A jury in such a case has to be sure, driven to the conclusion – in fact, certain – of guilt before it convicts, in order to displace the presumption of innocence. This high standard is essential to prevent the deprivation of liberty on a whim or a fancy, but at the same time it may entice witnesses to harden their evidence in order to satisfy it. Science itself can rarely, if ever, achieve a mathematical certainty, but there’s always a risk that individual scientists may feel impelled to cross the Rubicon from uncertainty to certainty in order to meet the test set by the law. In practice what happens is the easy elision of workaday assumptions with a state of mind that entertains no reasonable doubt, and in the witness box that often translates into: not 100 per cent sure, but 99.9 per cent sure. Comforting, but dangerous.
A positive scientific finding expressed in this way can misleadingly set the tone for the whole case and therefore have far-reaching effects. It begins with interrogators being convinced they have the right person in custody, and this then affects the nature of the questioning, which is couched in unequivocal language. Your prints and DNA have been found at the scene, so how can you explain them, unless you are guilty? The innocent interviewee is lost for words; the duty solicitor may also feel the evidence is compelling and incontrovertible. End result? Sometimes a false confession, and then wrongful conviction.
A classic example of these propensities arose with the Birmingham Six, a renowned miscarriage of justice and one that set a new agenda for the criminal-justice system as to how such cases should be handled in future. A Royal Commission on Criminal Justice was appointed in 1991, which led to a new Criminal Appeal Act in 1995, and another Commission to identify and investigate miscarriages was established in 1997: the Criminal Cases Review Commission (CCRC).
What has to be remembered is the enormous struggle by the Birmingham Six to clear their names, a fight that was long and arduous, lasting from 1974 until 1991,1 and played out against a backdrop of mostly hostile (and sometimes venomous) opposition. Being a convicted Irish bomber in that period was almost synonymous with the stigma attached to leprosy, and as I represented more defendants facing these allegations than anyone else, I was often tarred with the same brush. Tabloid newspapers trade only in simple equations.
The tireless insistence of the Six on proving their innocence was reminiscent of the sterling pioneering work done by Ludovic Kennedy in relation to the conviction of Timothy Evans, for murders that had in fact been carried out by John Christie at 10 Rillington Place in the 1950s (see Chapter 12). Against the odds and against established legal opinion, Ludovic fought a solitary battle in his search for the truth. When the fallibility of confession evidence was established, Evans’s name was cleared – too late to save him from the gallows, but not too late to be granted a posthumous Royal Pardon in 1966.
Both Ludovic’s book2 and the 1971 film starring Richard Attenborough were inspirational for me, and it was both an honour and a thrill to be able to meet Ludovic when he turned his attention to the case of the Birmingham Six.
The Birmingham Six – Hugh Callaghan, Patrick Hill, Gerard Hunter, Richard McIlkenny, William Power and John Walker – were all Belfast-born, but had lived in Birmingham since the 1960s.
Walker, a crane driver, was a kind, sociable grafter who had six daughters and a son, while McIlkenny, a father of five, was a millwright at a local forging factory. They were both Republicans – Walker because his father had been tear-gassed by the British in Derry, and he believed that this had precipitated his father’s death in 1972. He was also deeply disturbed by the Bloody Sunday killings of thirteen innocent civilians in the same year (see Chapter 9), but he demonstrated his beliefs only by collecting money for the Prisoners’ Dependents’ Relief Fund, and was not a member of the IRA or Sinn Fein. Nor were Kate and Richard McIlkenny, who were from Ardoyne, although Kate’s cousin and Richard’s brothers were interned there, and money was raised for their families via raffles. Hunter and Hill also helped out with the fundraising.
Fatefully, on Thursday 21 November 1974, Billy Power and four of the others decided to attend the Belfast funeral of their acquaintance James McDade, who to their surprise had turned out to be a member of the IRA and had blown himself up in Coventry earlier that week while planting a bomb. It was a casual decision by the men to go to Belfast, and probably partly an excuse to visit home. Hill’s aged aunt had just had a stroke, so he thought this was the golden opportunity to visit her, while Hunter wanted to see his recently widowed mother.
Three of the men had been unemployed for a while and didn’t have the cash for the fare, but by dint of borrowing and betting they raised enough to go. Billy’s wife Nora lent him £4; his brother-inlaw agreed to loan him £10; and Billy won the rest on a horse, which he thought was great good fortune. It turned out to be the worst luck of his life.
The five eventually set off, armed with a pile of Mass cards for the deceased, a change of clothes and a sandwich or two. Their friend Hugh Callaghan, a timid man who suffered from ulcers and had been out of regular work for three years, had no intention of going to Belfast, but on the spur of the moment decided to see the others off at Birmingham’s New Street station. At 7.55 p.m. they boarded the train and he waved them goodbye.
The Birmingham bombs were detonated at 10.25 and 10.27 on the evening of 21 November – the first in the Mulberry Bush pub at the foot of the Rotunda and the second in the Tavern in the Town, a basement pub on New Street – and the resulting explosions were collectively at that time the most serious terrorist blasts in mainland Britain: twenty-one civilians, many of them Irish, were killed and 162 people injured. It was carnage. A third device, outside a bank on Hagley Road, failed to detonate. The explosions were immediately credited to the Provisional IRA, although the group was to deny this two days later.
Oblivious to the impending horrors in their adopted home city, the five men had changed trains at Crewe and by 9.15 p.m. were on the connecting service to Heysham Harbour. They were almost alone in the carriage and started to play cards to while away the journey, and when they got off the train at the ferry terminal, Hill walked ahead of the others and, having no luggage, got on the ferry to Belfast without any problems. Meanwhile the other four went through the Special Branch bag check, where they were approached by police and interviewed about the reason for their journey.
They did not tell the police the true purpose of their visit to Belfast, afraid they would be stopped from going – a fact that was later held against them – and while the questioning was in progress they were informed of the Birmingham pub bombings. The four men were horrified at the news, but being reassured that the questioning was just to eliminate them from police enquiries, they agreed to be taken to Morecambe police station for forensic tests. They were worried about Paddy Hill and asked where their mate was – with the result that, unfortunately for him, he was taken off the ferry to join them.
Meanwhile, back in Birmingham, Hugh Callaghan had not arrived home and his wife Eileen was in turn angry (it was her birthday) and worried (the scenes of the bombings were all over the news). When he did turn up he was very upset, having been near the Tavern soon after the explosion. He’d spent the rest of the evening with various friends in various pubs, talking about the outrages and feeling glad to be alive.
Later in Morecambe, at 3 a.m., forensic tests were conducted by Frank Skuse of the North West Forensic Science Laboratory of Chorley, who checked each man’s hands in turn over the next few hours, using the relatively simple Greiss test for detecting nitroglycerine. McIlkenny’s and Hunter’s results were negative, but Power’s and Hill’s right hands proved positive, and Walker showed minute traces of ammonium and nitrate. From then on the lives of the five men were never to be the same again.
Around the same time as Skuse was carrying out his experiments, Superintendent George Reade, a senior CID officer from Walsall who had been put in charge of the interrogation of the five, arrived in Morecambe with three CID crews and Detective Inspector John Moore of West Midlands Serious Crime Squad. At least five of the police contingent were carrying revolvers.
The Birmingham CID officers later said that they hadn’t seen the five until 9.30 a.m. the next morning, but they had been made aware of the forensic results and were convinced they had the Birmingham pub bombers. According to the men, from roughly 6 a.m. on the Friday morning onwards they were beaten up in turn by a number of officers – hit and punched around the head and face; kicked in all parts of the body; subjected to verbal and physical abuse; and threatened with death. None of these allegations were accepted by the police and were hotly contested at the original trial. The various narratives that follow are derived from the trial testimony of the men, set out in detail by Chris Mullin in his authoritative and seminal book Error of Judgement.3
Each of the men was told that their wives and children would be harmed unless they confessed. They could hear the others screaming in nearby rooms and knew they were in serious trouble unless they cooperated. By 10.30 a.m. Billy Power was so scared and hurt that, against his will, he agreed to say anything the police wanted, and was forced to sign a six-page statement confessing to planting the bombs.
Hill received the same treatment from the police, but stubbornly refused to confess – and despite terrible threats and later, on the journey to Birmingham, a gun being repeatedly put in his mouth and the trigger pulled (to great laughter), he never did confess.
Walker was booted in the spine and punched repeatedly on scars from an operation for ulcers; he had cigarettes stubbed out on a blister on his right foot and was kicked in the genitals. One officer produced a revolver and put a blanket over his head, then held the gun to his temple. Walker heard a loud clap and thought he’d been shot, and then the officers started laughing. In the end he became disorientated, lost consciousness and was in no state to confess.
Hunter was slapped and punched by Reade and Moore; McIlkenny got off ‘lightly’ with a ferocious kick to the right shoulder and Moore jumping on top of him and holding a blanket over his face until he couldn’t breathe. Neither Hunter nor McIlkenny confessed in Morecambe, but by the following day they were back in Birmingham and things got infinitely worse. At Queen’s Road police station there were more beatings, and the men were kept awake all night, often standing, so they became very confused.
In the early hours following the bombings, the houses of the five men had been raided and searched, but none of their wives were told they had been apprehended.
Seven weeks earlier a bomb in Guildford had exploded, and shortly afterwards another one in Woolwich, in both cases killing British soldiers from nearby barracks and a number of civilians. In the preceding month seven other explosive devices had been planted in Birmingham. There was already a nationwide wave of anti-Irish sentiment, but by the morning after the 21 November pub bombs things had turned very ugly. Irish people were afraid to go onto the streets; Irish pubs, clubs and homes were petrol-bombed; there were vociferous demonstrations at northern airports; and at the British Leyland car plant banners proclaimed, ‘Hang IRA Bombers’. The police knew they had to get results quickly to avoid an escalation of violence. The pressure was on to arrest someone – anyone.
Eileen Callaghan came back from work on the Friday at about four o’clock to find four armed police in her home: they said that if she didn’t act normally someone would get shot. She was terrified, as was her daughter Geraldine when she arrived home, and when Hugh rolled in after ten, he was grabbed by the arm and had a gun pointed at his head, before being taken into custody.
Callaghan was interviewed and was distraught to find not only that he himself had been arrested, but that the police had detained the others too, and in the police station in Solihull he was subjected to much the same treatment that the five had suffered in Morecambe, with the added bonus of an Alsatian for company outside his cell.
The Six maintained that the maltreatment continued over the weekend, with sustained beatings, mock executions and threats to their families finally making five of them cave in. All but Hill ‘confessed’, but the discrepancies in their statements were many, either because they’d had to make it all up or because the police had told them what to say. Thus Power ‘confessed’ that there had been six bombs, whereas Walker said three and Callaghan only one; while the actual bombs had been planted in holdalls, their confessions spoke only of plastic bags; they each placed the others at different pubs, so that some of them were in two places at once; and so on. And when Callaghan tried to withdraw his confession, he had a gun stuck in his stomach.
The Six’s families had first heard of their arrest by watching the news. They rushed around searching for their husbands and finally went to the court, but were too scared of the mob outside to go in. They eventually saw them in prison in Birmingham on Tuesday afternoon, where they found all six men in an appalling state.
It wasn’t long before the Walker and Hunter families left for Ireland, though the McIlkennys and Eileen Callaghan stuck it out in Birmingham, protected by their neighbours. Pat Hill also stayed put, while Nora Power went to live in London. But wherever they were, they always stuck by their men.
The Six first appeared in court on Monday 25 November, when they were remanded in custody and taken to HMP Winson Green, where they have described how they were subjected to terrible ill-treatment by both prison officers and inmates, running the gauntlet before being thrown into baths whose water became red with blood. When they reappeared in court on the 28th they all showed visible signs of bruising and violence. (In June 1975 fourteen prison officers were charged with varying degrees of assault, but were found not guilty, and in 1977 the six men pressed charges against the West Midlands Police. These charges were dismissed.)
On 12 May 1975 the Six were charged with murder and conspiracy to cause explosions. Three other men, James Kelly, Michael Murray and Michael Sheehan, were charged with conspiracy, and Kelly and Sheehan also faced charges of unlawful possession of explosives. It was most unfortunate that these three were in the dock with the six innocent men, because unlike the Six they did have links with the IRA.
The trial began on 9 June 1975 in Shire Hall, Lancaster Castle, and lasted forty-five days, with Mr Justice Bridge presiding. I got to know that court much later: it’s a huge panelled room, like a Gothic cathedral, with the judge sitting away in the distance from both jury and witnesses. It is a very intimidating place.
After legal arguments in a ‘trial within a trial’ lasting eight days, the statements that the men had made in November were deemed admissible as evidence. The accused were furious and repudiated their confessions at the trial, while the other evidence against them was largely circumstantial, through their association with IRA members.
As always, a persuasive factor for the jury was the scientific evidence, which – though supposedly objective, non-partisan and provable – always carries enormous weight.
Dr Skuse described the test he had used on the night of the bombings to detect the presence of nitroglycerine (Ng). It was called the Greiss test, after the scientist who discovered it. Dr Skuse told the jury that, on the basis of these tests alone, he was ‘quite happy’ to conclude that both Power and Hill had had contact with commercial explosives. Asked to define exactly what he meant, he went the extra mile and said he was 99.9 per cent certain. ‘Quite happy’ in the sense of ‘fairly happy’ might have been nearer the mark, but in the sense of ‘completely happy’ it was ultimately his undoing. In fact, although Hill and Power had tested positive by the Greiss test for handling explosives, no traces of any explosives were found at any of the Six’s homes.
During the trial Eileen Callaghan attended the summing-up and visited Hugh regularly, though Pat Hill and Theresa Walker weren’t present; Sandra Hunter, Kate McIlkenny and Nora Power stayed in Lancaster throughout – their children were by this time with relatives in Ireland – and they were so sure of their husbands’ innocence (none but Paddy Hill had any ‘previous’) that they mounted a campaign of their own, little dreaming that it was to last for sixteen years.
There isn’t the space here to rehearse all the evidence again, but when presented with the police’s word against that of the Six, and in the light of Mr Justice Bridge’s direction – ‘Many of the allegations made against the police are of the most bizarre and grotesque character . . . If the defendants were telling the truth I would have to suppose that a team of some fifteen officers . . . had conspired among themselves to use violence on the prisoners and to fabricate evidence’ – the jury had a stark choice.
The jury found all the men guilty of murder, and on 15 August 1975 they were sentenced to twenty-one life sentences.
The wives continued their campaign, but to no avail. Despite serious threats to himself and his family, John Walker wrote to the Home Secretary naming those he thought were involved in the bombings, from information that he’d gleaned from Michael Murray, his co-defendant. Murray was a self-acknowledged IRA member (already serving twelve years for the offence of conspiracy to cause explosions).
In March 1976, in front of Lord Chief Justice Widgery, the Six had their appeal dismissed; and in 1980, following long legal wrangles, Lord Denning, Master of the Rolls, gave judgment on the six men’s application for a civil action against the police and Home Office for their injuries in custody. He denied them the right to proceed to trial, stating:
If the six men win it will mean that the police were guilty of perjury, that they were guilty of violence and threats, that the confessions were involuntary and were improperly admitted in evidence and that the convictions were erroneous. This would mean the Home Secretary would either have to recommend they be pardoned or he would have to admit the case to the Court of Appeal. This is such an appalling vista that every sensible person in the land would say: it cannot be right that these actions go any further.4
In November 1981 the House of Lords upheld Denning’s judgment. This was the end of the legal road for the men to prove their innocence.
The next years were bleak, as the men adjusted to prison life. But the women never gave up, and despite harassment, poverty and the stress of long journeys to visit the men in prison, they continued to fight. Over the years their daughters joined in too, and when I first met Breda Power and Maggie McIlkenny I found them two of the most loyal, feisty young women I have ever known.
Fresh hope arrived when in 1985 journalist (and later MP) Chris Mullin and researcher Charles Tremayne began to investigate the case for Granada Television’s World in Action. They re-examined the false confessions, reassessed the forensic science and tried to track down those really responsible for the bombings. Mullins managed to do so, speaking to the perpetrators in Ireland, and senior IRA commander Joe Cahill admitted that those who were to blame were walking around free.
However, the most significant development triggered by Granada’s investigation was the research carried out by two reputable scientists: David Baldock and Dr Brian Caddy.
Brian Caddy was approachable, enthusiastic and a great communicator. His whole approach was one of efficiency, and because of this I was able to obtain a quicker grasp of the intricacies of the science than would otherwise have been the case, which was a great relief. He is now Emeritus Professor of Forensic Science at the University of Strathclyde, regularly called in as a troubleshooter when there are questions over the reliability of forensic science, and in 2008 he was commissioned by the government to perform a review of DNA procedures following the acquittal in the Omagh bombing case (see Chapter 11).
At the very point of compiling the materials for this chapter, I was passing through Gatwick airport en route to Montpellier when someone called out my name – and I was delighted to see that it was Brian, also on his way to Montpellier with his wife. This was the first time that I had met him in the twenty years since the Birmingham Six appeal, and by coincidence I was carrying in my briefcase a freshly obtained copy of his DNA review to read on the plane.
I always find these so-called coincidences a little bizarre and unnerving. I don’t know whether I experience them more or less than anyone else, but it’s almost as though they were meant to happen and contain some inner force. I’m not remotely religious and have no metaphysical beliefs in divine existence, but maybe – as Arthur Koestler has explored in The Roots of Coincidence5 – such happenings may not be coincidence after all. The odd experience I can cope with, but their alarming regularity and poignancy are disturbing. Perhaps they occur all the time, but you only see the ones you want to see.
The objective of Brian’s experiments for World in Action was to ascertain whether any substance other than nitroglycerine could give a positive reading – that is, a false positive for Ng, but obviously not for the other substance itself: astonishingly, no one had done this in order to validate the specificity of the Greiss test. Thirty-five samples of everyday objects were examined, especially ones that the defendants might have had contact with: cigarettes, meat pies, playing cards, the nitrocellulose lacquer used on railway-carriage woodwork, and so on.
The discoveries were startling. Some nitrocellulose-based products such as the lacquer proved positive, but so did a cigarette packet, a postcard and an old used pack of playing cards. Greiss could therefore only be regarded as a presumptive field test and not as a definitive conclusion. The substance might be Ng, but equally it might not. If the police and the jury in the Birmingham Six trial had been told this, a whole needless chain of events might have been curtailed.
On 20 January 1987 Douglas Hurd, then Home Secretary, referred the case back for appeal, and this time the Six really thought their side would be heard.
By now I had been briefed by Gareth Peirce, who was representing some of the Six. I have already paid tribute in these pages to Gareth’s quiet persistence, but nothing better illustrates her resolve than the occasion when she suddenly appeared, fully kitted out in surgical mask and doctor’s gown, in the labour ward at the birth of my youngest son Freddy in September 1987. For a moment I thought she was a doctor, but then she produced a sheaf of important papers for me to sign for the appeal. Fortunately Yvette was otherwise occupied at the time or she might have had something to say about the apparition – and, ever thoughtful, Gareth returned in a few days to visit Yvette in hospital, bringing Freddy a huge, fluffy, brown toy dog which Paddy Hill had made in prison for him. It sat proudly on Freddy’s bed for many years.
For month after month I was up to my ears in files. In our tiny flat in Battersea the pile of paperwork competed with Freddy’s nappies, and it seemed like a mountain to climb to unravel the police cover-up and dispel the prejudice that had built up over so many years. So I looked forward to my weekly game of tennis with my solicitor friend James Saunders, a small, wiry terrier of a man, dapper, highly intelligent and a robust risk-taker. Coming out of Queen’s Club in Barons Court one evening following an excellent game and a pint, we found ourselves buffeted by a howling wind and surrounded by swirling leaves and debris: it was the night of the big storm in October 1987.
I rushed to get home safely, and the next day I was in the middle of a lawyers’ conference preparing the appeal when I received a call from a west London police station. ‘Is that Mr Mansfield? We have something of yours. It looks like a drowned rat!’ Unbeknown to me, in my haste I had not noticed that my brown leather case with my robes, wig and some Birmingham Six papers had disappeared from my car the night before. Someone had forced the lock, taken the case and run across the outside grass courts at Queen’s, and on the baseline where many a Stella Artois champion has stood, whoever it was had opened the case to check the contents – and, clearly disappointed, had dumped the lot. The ensuing gale blew most of it into neighbouring gardens, including my ancient, century-old horsehair wig, which ended up a tree and was initially mistaken by a householder for a squirrel.
I retrieved the wig from the police the next day, and my sisterin-law Louise kindly made it over, using the bristles of a scrubbing brush as a substitute for horsehair at her and my brother-in-law Keir’s prop workshop, Keir Lusby at Shepperton Studios – the professional suppliers at Ede & Ravenscroft having declined to touch such a mangy old wig for health-and-safety reasons. Sadly the made-over wig was stolen some years later from the robing room at Manchester Crown Court. There was a spate of such thefts and the police thoughtfully informed me that wigs were the preferred adornment for strippers to cover the parts others can’t reach! I now have a nasty new, synthetic wig.
Before the appeal hearing itself, and in order to help me to get my head round what on earth was involved in the science, Gareth sensibly proposed that we all visit a laboratory to witness the tests being carried out. I’d never come across any of these tests before and had little idea what would be involved, but I was confident that, as with my handwriting and fingerprint experiences, once I saw things on the ground the veil would drop from my eyes. I may be a bear of very little brain, but observing I can manage, and in the end the whole issue of forensics boils down to a large dollop of human perception along with significant margins of appreciation of subjectivity.
There were in fact not one but three tests: Greiss, TLC (sadly not Tender Loving Care but thin-layer chromatography) and GC-MS (gas chromatography-mass spectrometry).
For Greiss you need to collect the samples from the surface, in this case the hand, by swabbing, which is not as grand as it sounds. You take something like a cotton-wool bud, moisten it with an uncontaminated pure liquid like ether, and then rub it over the fingers and under the nails. Once collected, the sample is then extracted, using more ether, into a crucible or small white bowl (hopefully clean and uncontaminated). This is then divided into two more white bowls so that you have three roughly equal quantities of the sample. To find out if Ng or any other organic compound is present, you first add some caustic soda, then a Greiss reagent (something that provokes a reaction) to the first bowl. If it turns pink within ten seconds you may be onto a winner. You then turn to the second bowl, leave out the caustic soda and just use the Greiss. If it stays clear, you’ve got Ng. The last bowl is simply an extra one for further tests back in the laboratory.
All sorts of variables come into play, which are not difficult to imagine. There was a formula. What was it? Was it followed? Was ether or ethanol used? What percentage of caustic soda: 0.1 per cent or 1.0 per cent? What shade of pink was the pink? Did the sample go pink after nine seconds? Or ten seconds? What was the ambient temperature of the room where the test was done? (If heated, nitrocellulose, which is found on lots of domestic surfaces, could be confused with nitroglycerine.)
The next test is TLC, basically another colour test. You have a piece of test paper similar to blotting paper, and you watch how far the sample travels up the paper in relation to a known control sample of Ng: a bit like the old litmus tests that we did at school.
Finally there’s GC-MS, where the sample is injected into a machine and its atomic mass is measured by a graph, like the results on a TV screen or oscilloscope. Once again, time is of the essence.
What is surprising about the original results, and should have given everyone food for thought, was that the two positive samples from Hill and Power taken at Morecambe police station were not confirmed by the subsequent laboratory tests – surprising particularly because GC-MS was reputedly a hundred times more sensitive and could therefore detect much smaller quantities. However, Dr Skuse had carried out a GC-MS test on Hill’s left hand, which had not been subjected to Greiss, and this did prove positive.
The appeal began on 2 November 1987 in Court Number 12 at the Old Bailey and lasted thirty-two days. It attracted huge media attention, with many notable names joining the cause as willing observers. This time it wasn’t just Nora, Sandra and Kate, but also Sister Sarah Clarke, a dedicated nun who had visited the Six in prison for years; the Irish ex-Foreign Minister and an Ambassador; the Bishop of Derry, Dr Edward Daly; the Irish Primate; former Labour leader Michael Foot; even an American Congressman: they were there to scrutinise British justice, and the pressure was on. Gareth represented her clients with humanity and tenacity, determined that they would get justice, while the six men looked older after thirteen years in jail and were probably wiser, but their spirits were high. The legal line-up was impressive: Lord Tony Gifford, QC, Richard Ferguson, QC, and myself as Leaders, with James Wood, Nick Blake and Paddy O’Connor as our juniors. We were all close friends as well as colleagues, making quite significantly different contributions to the appeal. The three juniors provided the brain powerhouse and could equally have led: Nick, for instance, is now a high-court judge. According to Chris Mullin in Error of Judgement,6 we all ‘had a reputation for fearlessness in the face of judicial intimidation’, but ‘Mansfield had one other advantage: he was that rare phenomenon, a lawyer who understood forensic science.’ I’m glad that he had faith, because we faced an awesome task.
I cross-examined Superintendent George Reade about his schedule, which was designed to detail the order and times of the interviews of the men. This, I suggested when pressed by the Lord Chief Justice, Lord Lane, amounted to a ‘blueprint’ for a conspiracy to pervert the course of justice. I was not pursuing this lightly, or without due consideration of the evidence supporting such an assertion, but it was pretty audacious, and it goes without saying that it didn’t find favour with his Lordship. A product of the old school, he said little, but his body language spoke volumes. Mostly it was his impatient, jack-in-the-box eyebrows and his rhythmic fingertapping that were supposed to remind me I was not addressing a jury: in other words, fewer histrionics, less flair, less passion – stay cool and calm, and collect your papers on the way out.
However, it was the expert evidence I was anticipating more eagerly, in the rotund form of Dr Skuse. As Chris Mullin describes: ‘thirteen years earlier he had been elevated virtually to the status of sainthood by the trial judge Lord Bridge, but by the time of the second appeal he had been retired on the grounds of limited effectiveness’.7
Once my cross-examination got under way, the shortcomings to which I had become accustomed over the years rose slowly to the surface: a lack of reliable working papers showing what he did and when he did it, in particular the formula for Greiss, all accompanied by an unrelenting obduracy about his own conclusions.
Question, MICHAEL MANSFIELD: When did you first commit to paper the details of the Greiss tests you had done in 1974?
Answer, DR SKUSE: October 1987.
Q. About two weeks before the hearing began?
A. Yes, it might have been a bit earlier.
Thirteen years too late. He didn’t write it down at the time because he didn’t think it was necessary. Even worse, he claimed it was government laboratory policy. This gargantuan lapse meant there was real doubt about the detail of what he said he’d done, especially how much caustic soda he had used and whether any ethanol had been incorporated. With regard to the non-confirmation of Greiss by the subsequent laboratory tests, he explained this by evaporation of the samples. But what he couldn’t explain was why the evaporation had occurred. You’re supposed to preserve the samples by refrigeration.
Question, MICHAEL MANSFIELD: You knew that in 1974?
Answer, DR SKUSE: I did.
Q. So if you knew that, why not put it in a fridge?
A. It was an omission.8
In any event, for the non-sensitive Greiss test to have produced at least one strong positive result there must have been a sizeable quantity of nitroglycerine in the first place, and this could not have evaporated in the time available.
As for the one positive GC-MS test done on a non-Greiss sample: surprise, surprise, there was no documentation; no trace print-out (like graph paper) from the oscilloscope; and therefore no record to verify Dr Skuse’s memory that there had been a minute blip, at precisely 4.2 seconds, lasting about 0.3 of a second, sufficient to constitute a discrete peak of mass 46 representing Ng.
I walked home past news vendors’ placards pronouncing Dr Skuse’s failings, and we all thought we had done enough to secure freedom for the Six. Gareth was so pleased with the job I’d done on Skuse that she procured a London Evening Standard billboard which read, BOMB TRIAL DOCTOR’S HUGE BLUNDERS, and framed it for me. I still have it.
The evening before the appeal decision, the families decided to hold a private gathering in a hotel in Shepherd’s Hill, Highgate. They wanted to thank their legal teams, and despite their apprehension and the knowledge that their men were still behind bars, they needed to be together. It was such a good idea to pre-empt the judgment with a spirit of solidarity before the fateful day. It was a typical Irish night, boozy and lively. Yvette was invited too and we took Freddy, then a little over three months old. As we came through the door, the baby was whisked away by Billy Power’s wife Nora, and the women handed him from one pair of welcoming arms to another: he got more cuddles that night, from complete strangers who were so keen to show him (and us) their gratitude and affection, than in the whole of his little life to date. It was wonderful.
The next day, 28 January 1988, speaking at the end of the appeal, Lord Lane summed up: ‘The longer this hearing has gone on, the more convinced this court has become that the verdict of the jury was correct.’
In my job you get inured to adverse judgments, but this was a particular monster of a travesty. The scientific evidence had been demolished. That alone should have rendered the convictions unsafe. I’ve learned to contain my anger – but only just. I had a habit of drawing words and images of the day in pencil on the skin of a snare drum that was part of my drum kit at home. I would then beat the living daylights out of it, drumming along to a recording of the Rolling Stones’ ‘I Can’t Get No Satisfaction’.
The work, the dedication, the emotional commitment by the whole team, the Six and their families had come to naught. They had suffered – but so had British justice, apparently irreparably.
Despite the feelings of devastation experienced by the men and their families, by now a kind of unstoppable momentum had begun, and the calls for justice from MPs, Amnesty International and many, many members of the public drove the impetus for further investigations. There were two not unconnected events in 1989 that were the straws that finally broke the camel’s back.
First, in August the Chief Constable of the West Midlands Police, Geoffrey Dear, announced the disbanding of the whole of his Serious Crime Squad. This was unprecedented: fifty detectives, many of senior rank, were transferred to non-operational duties, and several of these had been involved in the Birmingham pub bombings investigation. The Squad was accused by no fewer than ninety-one people of fabrication of confessions, falsifying statements, violence and intimidation. Nevertheless, three years after another police inquiry, the DPP decided to take no action.
The second straw was the release in October 1989 of the Guildford Four. Both cases relied on false confessions, allegations of violence by the police, and fraud and perjury to cover it up, all in a climate of anti-IRA hysteria.
By the time of the third appeal in 1991 we had matters sewn up and watertight, and it would have taken intellectual dishonesty on a monumental scale not to allow the appeal this time. The prosecution, or respondents as they’re called on appeal, notified everyone in advance that there was no contest, although it was still a matter for the court to decide.
Some pretty damning evidence had come to light. First, an instance of almighty non-disclosure. This in itself was to become a thematic blot on the landscape for years to come. Institutional reluctance and reticence to reveal all, epitomised the following year in the Judith Ward appeal that I worked on with Gareth (see Chapter 14), was the high point.
It transpired that all along the Home Office laboratory in Chorley, Lancashire, whence Dr Skuse hailed, had relevant and potentially exculpatory material relating to the specificity of the Greiss test. A colleague of Skuse’s in the lab, Dr Bamford, had on the night of the pub bombings swabbed ferry passengers in Liverpool and obtained positive results on two people. They were not prosecuted, let alone convicted, because it was discovered that they’d been handling adhesive tape, the constituents of which gave a positive Greiss reaction. So much for Skuse. There’s never been any official explanation by any of the responsible agencies as to how this could have been overlooked throughout the trial, the first appeal and the second appeal.
Besides this, Gareth had approached Dr John Lloyd to re-examine the science. John is pre-eminent in his field, being ex-Home Office with unrivalled experience and expertise in the analysis of explosives. He looked the part to boot – monocle, slight stoop, well-worn jacket and measured delivery – and had calculated that the quantity of Ng required for the Skuse results was an absurdity, not quite a stick of ‘gelly’, but an amount beyond belief. Then he discovered that if the bowls had been cleaned before use with the sort of liquid soap available in the labs, this too could produce a false positive or what is sometimes termed a spurious or adventitious result.
The single GC-MS test was the subject of further reservations and qualifications. The ion said to produce the blip on the graph can also occur on swabs from hands that have not handled explosives. Additionally, a background test done on the same day as Hill’s, but not taken from a suspect, had also indicated the presence of the same ion. There should have been at least three runs through the machine before anyone started talking about Ng being present on Hill’s hands.
The appliance of science was not limited to explosives analysis, although the results were explosive in quite another sense.
A different police authority (Devon and Cornwall) had been engaged to re-examine the actions of the original Reade squad. Their reinvestigation was thorough and unremitting, and they uncovered a disturbing picture.
Every surviving police document was subjected to intense scrutiny. An evolving technique named ESDA (electro-static deposition analysis) was being honed to detect whether police officers had originally written something different from the version they presented in their notebooks at court. Inks were examined for subtle changes, as was the paper itself.
The result was stark. Tests showed that some of the notes of interviews claimed to be contemporaneous cannot have been, and therefore their integrity was demolished. In particular those relating to Richard McIlkenny had been written at different times, some with different inks and with paper from four different notepads. The ESDA impressions also revealed earlier versions. The findings were not limited to McIlkenny, as there were others relating to Gerry Hunter and Hugh Callaghan. It was their case in the Court of Appeal that the primary responsibility for what had happened must rest with the officer in charge of the case – Superintendent Reade. He and two other officers faced charges of perjury and conspiracy to pervert the course of justice. This prosecution was halted in 1993 by Mr Justice Garland for ‘exceptional circumstances’. These were due to a combination of high-profile adverse publicity and delay.9
Sixteen years after the bombings, the Six walked free from the court into the street outside the Old Bailey, where a huge crowd of well-wishers was assembled, including builders from a nearby site. I rushed downstairs because it’s not often possible to witness the overflow of emotion after a success like this, and as I reached the bottom of the stairs, still in wig and gown, I thought to myself: this is their day, not mine. So I stood in the shadow of a doorway to watch their elation. For me it was as though there was no emotion left to express, because I had exhausted all of it over the previous six years. When the adrenalin that has kept you afloat for so long is no longer required, you experience a quiet and slow deflation. So I stood there like an empty shell.
Freedom they had, but not a lot more. Only the clothes they stood up in. It took ten years, until 2001, before the six men were finally awarded compensation – ranging from £840,000 to £1.2 million – but the experience had demolished their lives.10 They had no post-prison counselling; their wives had to readjust to having husbands again; their daughters and sons had to adjust to the strangers who were their fathers. It wasn’t easy for any of them, and I was only too pleased to play a small part by employing Breda Power as my first PA.
Gerry and Sandra Hunter’s marriage ended, as did Theresa and John Walker’s. Richard McIlkenny died of cancer in 2006. Billy Power and Paddy Hill campaigned tirelessly on behalf of others claiming miscarriages of justice – and still do.
This case demonstrates the tenacity and courage of the six men falsely incarcerated for sixteen years, their families, and their champions at Granada Television’s World in Action, who made hard-hitting, investigative documentaries that helped to publicise their situation. In 1989 The Birmingham Wives, produced by Yvette’s company Vanson Wardle Productions for the BBC’s Everyman, finally revealed the persistence of the men’s families and the anguish they had experienced. Other programmes in a similar vein were produced over many years by Rough Justice for the BBC and Trial and Error for Channel 4 (I was an advisor on the board of the company that made the latter) systematically unravelling cases of injustice.
Unfortunately Lord Taylor, when he was Lord Chief Justice, severely criticised this kind of film-making, which was unfair. While I agree that trial by television is to be strongly deprecated in normal circumstances, Lord Taylor failed to recognise that without investigative journalism the prison gates of those wrongly convicted may never be unlocked. In those days, once the initial appeal (which had to be launched within twenty-eight days) had been exhausted, there was no further legal aid, and very few solicitors or barristers were willing or able to undertake the mammoth and often thankless task of retrieving old trial papers and briefs, visiting prisons, finding witnesses and experts and obtaining court transcripts of evidence.
For many years I tried to do this myself, unaided and unfunded. A week would not go by – and still does not – without the familiar letter: the prison number on the envelope, the green ink, the writing giving the appearance of a ruler having been placed underneath each word: cries from the heart, desperate pleas. They cannot go unattended, because you can never tell whether that letter might be the beginning of another Birmingham Six appeal.