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Administration of Justice: Daniel Cresswell

Volume 641: debated on Tuesday 15 May 2018

I beg to move,

That this House has considered the administration of justice in respect of Daniel Cresswell.

I sought this debate to address a plainly wrongful conviction of my constituent, Daniel Cresswell. It is one of the most serious individual miscarriages of justice that has been brought to me about a constituent in more than two decades in Parliament. Every agency, from the investigating officer through to the Crown Prosecution Service and the legally aided defence barrister as well as the route to the Court of Appeal, the Criminal Cases Review Commission and, to some degree, the prison system, have all failed Daniel Cresswell alarmingly.

The assorted oversight systems could not produce any remedy, either. They included the then Independent Police Complaints Commission, West Yorkshire police professional standards department, West Yorkshire police’s operational and political oversight in the form of its chief constable and its police and crime commissioner, the legal ombudsman, the Bar Council and, to date, even the Government as represented by Ministers. The formal purpose of the debate is to invite the Minister, on behalf of the Government, to instruct a judge to review the whole handling of the case, as agencies and their oversight systems have collectively failed. However, I must say I have no expectation that he can or will put a review in hand. Indeed, any number of junior Ministers are responsible for some element of failure in the system that individually they oversee.

I have the highest respect for the Minister selected to reply on behalf of the Government, and I know that today he can only really listen before consulting his colleagues as to whether the Government will act further. My primary objective is for this speech to serve as a point of reference for my constituent as he embarks on his post-prison life. This speech is for him, and I know the Minister will not be too distressed if I take most of the time available.

As Daniel Cresswell seeks to provide for himself and his family, he will be able to evidence that his Member of Parliament is convinced that his conviction is wholly unsound. Any putative employer, friend or acquaintance of Daniel Cresswell should be able to use this speech to understand why any assessment of his character should not carry the burden of the state’s conviction of him for the serious offence of rape that led to a sentence of seven years in prison.

In summary, Daniel Cresswell was fitted up by the female partner of a major debtor of the company that employed him—a debt he was engaged in pursuing. He allowed himself to be manoeuvred into a position whereby the woman spent the night in his hotel room. She made an allegation of rape from what is alleged to have happened when they woke up the following morning. The investigating officer was entirely focused on obtaining a conviction, not the truth. The defending barrister chose to present a case that was fatally confused by her own view of how to achieve an acquittal, not the defendant’s own account. All avenues of appeal and accountability were either systemically closed off or wilfully obstructed by oversight systems protecting their own.

What was not established in the investigation and trial process, and should have been, was that the claimant had a motive and created the means and opportunity to make a charge against the investigating officer of a company seeking to recover a debt in excess of £80,000. Equally, having made a serious allegation against a previous employer, her character was not introduced in court.

I will not name the complainant as the law requires. However, I will name deliberately and purposefully under the protection of parliamentary privilege the investigating officer: Detective Constable Clare Barran. I am satisfied that there is a prima facie case not only that she failed in her duty in the pursuit of truth and justice but that she lied both in the signed documentation that supported her investigation and in her testimony at the trial at Leeds Crown court.

I can only headline the key issues in the time available, but they were the subject of a 29-page submission to the IPCC. All attempts to have West Yorkshire police properly review the investigation were obstructed by that force, including by its chief constable, Dee Collins, and the subsequently elected police and crime commissioner, Mark Burns-Williamson.

I had a meeting and correspondence with the then Police Minister, my right hon. Friend the Member for Great Yarmouth (Brandon Lewis), around December 2016. He encouraged the family and me to engage the police and crime commissioner as offering an improvement on the then current complaints model, which he described as in need of reform. Our experience has been that this PCC has woefully failed to hold his force to account.

The investigating officer was indolent in the extreme when it came to establishing Daniel Cresswell’s account and wholly one-eyed when investigating the complainant’s. Daniel Cresswell spent 415 days on police bail, and, after a year, the telephone records that would have supported his account, which he sought to hand over to the police—the request was declined—were deleted in the usual way by the telephone company, the police inexcusably having failed to request their protection. The only independent witness was not interviewed for 15 months and, while his recollection will plainly have degraded in that time, the police and CPS between them prevented his statement from being disclosed for a further 3.5 years. The video evidence that my constituent sought to protect as supporting his account of the evening became somehow accidentally and irreparably damaged in police protection.

There is then the issue of the central piece of forensic evidence that involves my constituent’s semen appearing on the complainant’s knickers. His account is that he awoke to find her artificially inducing it. The forensic examination made clear that,

“secondary transfer cannot be ruled out”,

but DC Barran altered that to,

“there is significantly more than mere transference”.

In the words of the forensic scientist “a trace” amount of DNA is termed by DC Barran as “a significant amount”. The complainant’s initial statement that her underwear had been “washed once” is changed by DC Barran to,

“washed a number of times”.

DC Barran signed a certification on 3 August 2013 saying that she,

“is not withholding any evidence that will support the defence”,

yet her own notes clearly show that she was aware on 28 May 2013 that the forensic science officer, having received new evidence, had concluded that either party could be telling the truth. Although that shows that DC Barran was aware the forensic science officer accepted that Mr Cresswell could be innocent, she withheld that information from the defence for 13 months, disclosing it only immediately before the trial. I happen to believe that that fatally misled the defence barrister on the strategy she should have employed for the trial. The original statement from the forensic science officer—which DC Barran knew was wrong—was submitted to the CPS and defence along with the above-mentioned certification in August 2013. It was only after 3.5 years that it emerged that she had conducted an interview with Dean Sygrove, the only first-hand witness, which was also not disclosed to the defence.

All the failures of the police investigation served to aid the prosecution and harm the defence. Had the actual evidence as to the course of events that led to my constituent and the complainant being together in the hotel room been disclosed, my constituent’s account would have been supported and the credibility of the claimant would have been undermined. What limited evidence there was from the hotel room received the same biased treatment.

We should at least understand the wider climate in which this police officer was operating: the climate in which DC Barran left my constituent on police bail for 415 days and took 15 months to interview the only first-hand witness, and where, contrastingly, she took one day to seek what she believed was confirmatory evidence for the claimant from the hotel. Ironically, I left office as the Minster for Criminal Justice in September 2012, two weeks after this alleged offence was reported to the police. I was well aware of the public policy anxiety to improve the number of convictions arising from complaints of rape to the police and indeed to support and encourage victims of rape to make those complaints to the police. This was not a climate created by Alison Saunders, the retiring Director of Public Prosecutions, but it was rocket charged under her term of office. Given today’s circumstances, with the discrediting of so many high-profile sexual offence investigations having revealed the one-sided and one-eyed way in which the police and prosecution have sought to deliver convictions and not give the defence the benefit of the information they hold, I personally think it is inconceivable that this case would now pass muster even to arrive at a decision to charge.

Alison Saunders’s recent claim that there are no people in prison today as a result of failures to disclose evidence on the part of the CPS must be nonsense. First, she cannot know, and secondly, the first-hand experience of my constituent plainly suggests otherwise. Daniel Cresswell is another victim of the enthusiasm to improve the conviction rate in rape trials. However, it is the interest of justice that has been sacrificed in the process, along with Daniel Cresswell’s liberty for three and a half years and his future reputation, which this speech is designed to at least alleviate.

Let me turn to Daniel’s representation by his legally aided defence barrister, Fiona Rowling. My review of the case is that her belief was that whatever happened in that hotel room would have been consensual. Therefore, rather than adequately challenging the complainant’s account, or advancing my constituent’s account that he had in fact been indecently assaulted, she attempted to present his account and her belief in parallel. Her performance in front of the jury was described as incoherent and disjointed, and it was muttered and mumbled so quietly and unintelligibly that the disdain and shocked disbelief on the faces of the jurors was conveyed as far as the public gallery. The transcript does not capture the shockingly poor manner of her delivery, which was seen as jaw-droppingly bad, as one member of the jury regarded her with his mouth wide open in astonishment.

Fiona Rowling’s defence strategy had shocked the family when she stated on the first day of the trial that she did not want to make the complainant out to be a liar. Advice was sought from a local Leeds solicitor about whether she could be removed from the case when she refused to follow her client’s instructions. One has sympathy for hard-pressed criminal defence barristers working on legal aid, but that quality of performance cannot be excused or form part of our justice system. Afterwards she asked her client to apologise to his family,

“who may have the impression that that didn’t go very well”.

Her performance was the subject of a complaint to her chambers— unsurprisingly that was rejected—followed by a formal complaint to the legal ombudsman, which bewilderingly found her performance “reasonable”. The legal ombudsman offered a final appeal to the Bar Council, but since the legal ombudsman was put in place because of concerns over the adequacy of the Bar Council as the regulator of professional standards, unsurprisingly that did not result in a satisfactory resolution either, and it was formally out of time. This investigation, and particularly the failure of the legal ombudsman to seek first-hand accounts of the woeful inadequacy of Fiona Rowling’s court performance, was another avenue of accountability that was closed to the family by rules and processes, and I hope that a judge reviewing the entire conduct of this case would seek to investigate that fairly.

In the wake of that one-sided investigation and incompetent defence, my constituent found himself sentenced to seven years in prison. That is when his family sought my help, given the administration of his sentence. Unsurprisingly, he maintained his innocence, and here he fell into a very difficult challenge for the prison service: what to do with myriad offenders—particularly those charged with sexual offences—who maintain their innocence? Among their numbers will be men like Daniel Cresswell, whom I believe to be innocent, yet they are now being doubly punished.

For two and a half years I had the pleasure of working with Michael Spurr, Chief Executive of the then National Offender Management Service, as his overseeing Minister. He said in a letter to me that,

“in prisons running the sex offender treatment programme, priority will be given to those who are willing to address their offending behaviour. Mr Cresswell is maintaining his innocence of the offences for which he is currently imprisoned and he is not ready to participate in a programme solely designed to address his sexual offending”.

As such, Mr Cresswell was detained in a prison much further from his home than would otherwise have been the case. His family visits were impacted as a consequence, and that also appears to have been used as a lever to try to get him to co-operate with his sentence plan—a position that to him was plainly impossible.

In my letter to Michael Spurr of 23 November 2014, I made a suggestion as to how the situation could be improved for non-compliant convicted sex offenders. Regrettably, however, given the litany of different parts of the justice system that need a reference in this time-limited speech, I cannot develop those thoughts further here. However, given the Minister’s responsibility, I am sure that he will give the matter the thought it deserves. I believe it is a growing systemic problem, given the number of sex offenders in custody, alongside our enthusiasm—understandable in many ways—to improve the conviction rate in rape trials. Given the way that such trials are now being conducted, the possibility of convictions such as that handed to Daniel Cresswell should give us pause for thought about the administration of justice.

After a wrongful conviction, the usual course would be to go to the Court of Appeal. An appeal must be made on the basis of facts and points of law, but given the circumstances of this case and the finding of facts by the jury, the family were advised—almost certainly correctly—that the chance of success at the Court of Appeal was frighteningly small. Therefore, two routes were pursued: an attempt to hold the investigation to account by seeking an investigation by the West Yorkshire police professional standards department, and what is known as a “non-appeal application” to the Criminal Cases Review Commission.

The formal complaint to West Yorkshire police was made in December 2014, and after five months of no progress, the family sought help from the Independent Police Complaints Commission and the police and crime commissioner. That eventually led to an investigating officer being appointed, and throughout 2015 and into 2016 the inquiry was prodded by Daniel Cresswell’s father-in-law, Richard Cordle, who is a retired police officer. It is entirely down to Richard Cordle, who had the expertise to understand the failures in the police investigation system and—happily for Daniel—the time and determination to bring West Yorkshire police to account, that the quality of evidence about the investigation and the rest is so convincing. Indeed, it has completely convinced me of the inadequacy of the entire investigation process.

There is an unhappily fat file on the to-ing and fro-ing between the police force, Mr Cordle and the IPCC, which was occasionally reinforced by letters from me to the chief constable, inviting her to give the matter her personal attention. Any review of the process will demonstrate that this was a police force protecting its own, given that the investigating officer could potentially be facing a trial for perverting the course of justice. That conclusion is supported by the fact that an investigation did not proceed on the basis of such seriousness; it is supported by the failure of the police to interview their officer under caution, and by the delay and obfuscation of the professional standards department and the chief constable. That was topped off by the inaction of the Independent Police Complaints Commission, which culminated in letters from me to Dame Anne Owers that even today remain unanswered.

In parallel to that was the route taken to the Criminal Cases Review Commission. Understandably, the work of the CCRC is of particular interest to those trying to reverse an injustice. Through the United Against Injustice conference, and the claims of the erudite CCRC spokesman, David James Smith, the family gained encouragement about the powers that the CCRC could employ on their behalf to gain access to undisclosed and securely held material post trial—material that they would not otherwise know about or have access to. However 16 months after embarking on the CCRC route, they were told that it would not utilise those powers on a “fishing expedition”. The family feel utterly let down by the CCRC and are left with the belief that its function is to provide closure and to protect the status quo within the justice system.

Meanwhile, the lack of progress consumed almost half of my constituent’s time in custody. Every day of delay by the CCRC, the IPCC and the PSD of West Yorkshire police made the practical benefits of a remedy —Daniel’s release from his custodial sentence—less meaningful. The family maintain that the CCRC’s failings are borne out in the statistics—in its own headline figures. I welcome the newly created all-party parliamentary group on miscarriages of justice, chaired by the hon. Member for Huddersfield (Mr Sheerman), which aims to campaign to improve the lot of the wrongly convicted, and reform the appeal system. Mr Cresswell’s family are now involved with that.

Stymied by a police force that will not investigate its own, by a police and crime commissioner who refuses to hold his own police force to account, by an Independent Police Complaints Commission that failed to get another force to investigate West Yorkshire police, by the actions of West Yorkshire police, and by the inability of the justice system as it is currently administered, my constituent has almost no effective remedy left. I understand that consideration is being given to finding out whether an out of time approach to the Court of Appeal might be possible. However, given the advice that has been received and the record of the Court of Appeal in cases such as this, personally I doubt the likelihood of success by that route.

Daniel is now out of prison and trying to rebuild his life. I am delighted that he has started so successfully. It is the purpose of this speech to be a published point of reference to my belief in my constituent’s innocence of the charge for which he was sentenced to seven years in prison. It is also my hope that those in a position to help him in future, in employment or in any other way, will pay due attention to this review of the multiple failures of our system of justice. Daniel Cresswell has been poorly served by the justice system, and I hope that this speech will help him to put the experience behind him. He has, however, been incredibly well served by the unstinting love and support of his family, who have enabled me to make this case and this speech for him today.

It is a privilege to serve under your chairmanship, Mr Howarth. I pay tribute to my hon. Friend the Member for Reigate (Crispin Blunt) for a powerful and heartfelt speech. I had the opportunity to meet Mr Cresswell and his family briefly beforehand, and I join my hon. Friend in paying particular tribute to Mrs Cresswell and her parents for the extraordinary compassion, faith and energy that they have put into the case over so many years. My hon. Friend raised a number of serious issues and it is difficult for me to go through every one in turn, but serious allegations were made against the police, the lawyer, the court process and the way evidence was used, West Yorkshire police, the police and crime commissioner, the Crown Prosecution Service and, ultimately, the Prison Service.

It is, as you will be aware, Mr Howarth, a very important principle of English law that Justice Ministers do not comment on individual cases. For better or for worse, for 1,000 years the principle of this building has been that judges and juries are independent of politicians, and therefore I am not able in this case to comment on what happened in that courtroom. The grounds for appeal, as my hon. Friend pointed out, cannot be that the jury came to the wrong decision; the appeal can be made only on the basis of new evidence or a legal error. That has been central to this case.

Perhaps I may touch on the broader issue of miscarriage of justice in general and on the all-party parliamentary group on miscarriages of justice that has been set up. There is no doubt that miscarriage of justice does occur, and as the Ministry of Justice, we need to be aware of that. We have seen it in high-profile cases, such as that of the Birmingham Six. Research in the United States suggests that between 2.3% and 5% of convicted people in American prisons are in fact innocent. We need to take that very seriously, in thinking about our entire legal system. Miscarriage of justice can happen for a range of different reasons. It can happen directly through perjury. I am not in a position to comment on the present case, but we must be aware that there are cases of perjury by victims or by police officers. There can be issues to do with insufficient evidence, or with expert testimony. There can be instances of confirmation bias—people’s prejudices affecting the outcome of a case. A good, functioning legal system—and the British legal system has for 1,000 years had reason to pride itself on being one of the best legal systems in the world—has to remain ever-vigilant for these dangers of miscarriage of justice. Although Mr Cresswell has now served his term it is very important, for the sake of others who in future might go through such a situation, that we are absolutely rigorous about making sure that miscarriages of justice do not occur.

I take my hon. Friend’s speech very seriously. I will circulate it to my colleagues in both the Home Office and the Ministry of Justice, to ensure that everybody dealing with the police, with the Crown Prosecution Service, with the operation of legal aid and ultimately with the prison system, is aware of the very serious allegations that have been made today. I want to conclude with a strong tribute to Mrs Cresswell for all the energy, faith and compassion that she has shown, and to my hon. Friend for the compassion and energy that he has shown in presenting his constituent’s case.

Question put and agreed to.

Sitting suspended.