Getting Away With It

The only reason Gary Mills and Tony Poole will still be imprison for murder in the year 2000 is because they continue to claim their innocence. And everyone but the Home Office agrees with them. Si Mitchell reviews another gargantuan miscarriage of justice, interviews famous victims of past miscarriages, and discovers that corrupt policemen are still escaping legal reproach?

November 1999

"Innocence is a condition that the Home Office has great difficulty with," Gary Mills told his parole hearing in August this year. "The irony is that, if I was a guilty man, I would have been released in January." Mills, and his friend Tony Poole, both white men, were convicted of the murder of their black associate, Hensley 'Willy' Wiltshire in Gloucester ten years ago. Sentencing them to life imprisonment at Bristol Crown Court in January 1990, with a recommendation they serve a minimum ten years, Mr Justice Swinton Thomas described the pair as "unlucky" ­ not an adjective regularly used by judges to describe men they have just convicted of murder.

Since arrest, Mills and Poole have maintained their innocence. In August both men refused to sign the 'life licences' that would secure their release. When asked why, Mills says: "That licence is for Willy's murderer to sign, not us." Poole concurs.

Mills and Poole say that their convictions were secured through an at best incompetent, and at worst corrupt, police investigation shored up by dishonest witnesses and unreliable testimonies. They maintain that intervening events at Gloucester Police station, and the mismanagement of Hensley Wiltshire's care at Gloucester Royal Hospital, make it impossible to be sure that they are responsible for his death. They also claim that their trial defence was mishandled, which in turn weakened their subsequent appeals. They are not alone in these beliefs.

Former Gloucester MP, Douglas French, triggered a Police Complaints Authority investigation into the handling of the case. The report remained secret and French described it as a "whitewash". In 1994 Channel Four screened a Trial And Error programme exposing the inconsistencies surrounding Wiltshire's death, the investigation and trial. The programme accused one senior investigating officer, DI Trevor Gladding, of perjury and perverting the course of justice, which led him to bring a libel action against the makers. He lost, despite his trade union, the Police Federation, backing him to the tune of £2 million. Gladding was proven to have warned a crucial witness, who was at the flat that night, not to come to court threatening him with arrest if he showed up. Something he had denied under oath.

After exhausting all other routes, Mills and Poole have landed with the Criminal Cases Review Commission (CCRC) ­ set up in 1997 to replace the Home Secretary's roll of case review. (By not using evidence available at the time, Mills and Poole's original defence team, made it very difficult to stage an appeal which took six years to come to court). The case was brought before the Home Affairs Select Committee examination of CCRC procedure as an example of their slow progress, they were assigned a case worker in April.

"It's probably one of the worst neglects of duty I've seen in the five years I've been looking at custody records"
- ex-police Sergeant Michael Kitson

On the night of January 5 1989, the friends were drinking and listening to music at Tony Poole's flat at 34 Conduit Street, Gloucester. Wiltshire, fired up on amphetamines and booze, was picking fights. Mills says he was attacked by Wiltshire and fought him off with a bar and later used a knife (that, he says, Wiltshire pulled originally) to cut him about the legs and thighs ­ "to make him calm down". Mills, confident the incident was over, arranged for an ambulance for Wiltshire. He says at no point did he think Wiltshire's life was in danger. He maintains he acted in self defence and deliberately avoided cutting Wiltshire near any vital organs.

However by 3.30pm the next day Wiltshire was dead and Mills and Poole were soon to be looking at murder charges. Wiltshire arrived at Gloucester Royal Hospital at midnight on January 6. We spoke to a senior doctor, involved in policy making for the GRH Accident Unit, who says there were several serious breaches of both hospital and Department of Health guidelines that were deliberately covered up. He believes Wiltshire died because of medical negligence and is convinced that, had procedure been correctly followed, he would still be alive.

By routine such cases with multiple open wounds, like Wiltshire's, are seen by a 'trauma team' including an experienced registrar and/or consultant. However the junior doctor who first saw him, took on the management of Wiltshire's care himself. Despite his wounds and obviously shocked state, no blood tests were done to ascertain blood loss and no attempt was made to replace lost blood. The junior doctor said he was unable to document, let alone treat, all of Wiltshire's wounds. There was no report of pain relief or anaesthetic being given, despite the police saying he constantly complained of pain. Wiltshire's girlfriend, Fay McLaughlin, who was present at the hospital that night said staff gave up his treatment because he was being uncooperative. Department of Health guidelines, state that patients with head injuries should be admitted to hospital if they are confused, or if there is difficulty assessing the patients' alcohol level. Despite meeting both criteria, Wiltshire was discharged into police custody at around 4am. (The Metropolitan Police wanted Wiltshire in connection with a serious sexual assault). Wiltshire was not keen to stay in hospital, but if a patient leaves hospital against medical advice he, or a relative, must sign a form to that effect. No such document was ever produced. Mills and Poole contest whether Wiltshire realised that the alternative to hospital was the cells.

In custody, Wiltshire was seen by a police surgeon who sent him back to hospital. As a 'return case' Wiltshire should have definitely be seen by a senior doctor. But the same doctor treated Wiltshire and, once again, sent him back to custody, "You're taking a chance," he was told by the police surgeon. In the morning, the Accident Unit consultant, responsible for the department, could have recalled Wiltshire to the Gloucester Royal Hospital from the cells, but chose not to.

Mills and Poole believe Wiltshire was assaulted in custody. The Police deny this, saying the injuries had been overlooked by the hospital on the earlier visit. Photographs of Wiltshire's cell, broadcast on Channel Four's 'Trial And Error', show it covered in blood

At trial the Crown's case relied on two witnesses, Kimberly Stadden and Paul White. Stadden, was a drug user, a police informant and had been committing cheque book fraud that day with Wiltshire. She gave several statements and testified at the trial. Each time her story differed as to what happened. At first Mills had stabbed Wiltshire, then both Mills and Poole, then Poole. She told the court that she had been offered leniency (over the drugs and fraud offences) if she testified against the pair. Despite this Stadden was regarded as a reliable witness by both trial and appeal courts.

Paul White was a career criminal who claimed to have witnessed the fight from the street through a window. Trial and Error commissioned forensic tests proving that White would have needed a step ladder to see what he claimed. Like Stadden, his statements and testimony were inconsistent, and he was offered leniency concerning his own offences. On appeal it was accepted that White's evidence was unreliable, but Lord Justice Otton, presiding, decided he "could have carried little or no weight with the [original] jury".

The only other witness was Neville Juke ­ also in the room that night. His statement more or less corroborated Mills' version of events. However when it was suggested by police that Juke could be implicated in Wiltshire's death, he made another statement that included Poole in the stabbing. A statement he later said was untrue. Juke was never called as a witness and his statements were never released to the original defence counsel who, in turn, advised Mills and Poole not to call him, as they were unsure what he would say in court (at appeal they said they would have called him, had they seen his statements). Twice at trial the jury asked why Juke was not called. Later the House of Lords, was to rule that Juke's handling was also a 'material irregularity', though again it was decided this would not have affected the jury's decision. It was Juke who Gladding had warned not to come to the magistrates court for the committal. But Juke had tape-recorded the conversation in which Gladding told Juke: "Its for them to go to jail or for you to go to jail."

Further doubt surrounds Wiltshire's time in Gloucester Police station. On his second admission to the hospital, extra injuries were discovered on Wiltshire's body, including damage to his nose and a leg fracture. Mills and Poole believe Wiltshire was assaulted in custody. The police deny this, saying the injuries had been overlooked by the hospital on the earlier visit. Photographs of Wiltshire's cell broadcast by Trial and Error show it covered with blood. At 11.30am on January 6, Met Police said they no longer wanted Wiltshire, so the Gloucester Police charged him with possession of an offensive weapon. (A knife had been discovered in his sock in the hospital). This transpired to be an unlawful arrest, in breach of custody procedures and the Police And Criminal Evidence Act. The knife was obviously a drug tool not a weapon. Section 31 of the Act also requires an arrest should be made as soon as a crime becomes apparent, not several hours later.

Wiltshire had been involved in the burglary of a Gloucester police sergeant's mother's home a week previously, though the police say they were not aware of this at the time. He was also in the process of suing the Metropolitan Police for a groin injury he says they inflicted on him.

Another man in custody that night, Gordon Armstrong, said he heard shouts of: "get off me" and "shut up you black bastard." later he heard: "he can't breath, get a doctor and ambulance quick."

Both the duty solicitor and police surgeon were told by officers, that Wiltshire's complaints of pain were a "sham". Police statements describe him as "pretending to be unconscious". Having studied Wiltshire's custody records, former Sergeant Michael Kitson, a specialist in the analysis of custody procedure, described Wiltshire's custody as "unlawful" and told Trial and Error: "Its probably one of the worst neglects of duty I've seen in the five years I've been looking at custody records and my police service before that." Another man in custody that night, Gordon Armstrong, said he heard shouts of: "Get off me" and "Shut up you black bastard." Later he heard: "He can't breath, get a doctor and ambulance quick." Armstrong gave a statement to Gloucester Police at the time. This was not disclosed at trial, and only reappeared during the Police Complaints Authority inquiry. Three other men, in custody that night, also claim they heard Wiltshire's groaning and buzzing for help. The Appeal Court accepted that there had been breaches of custody procedure (the non disclosure of Armstrong's statement amounted to another 'material irregularity') though rejected any potential assault by police officers on Wiltshire in the cells. They believed the cause of death was a process that had been put in motion during the fight at Conduit Street. "We are satisfied that there was no break in the chain of causation [of Wiltshire's death] either by an intervening act of negligence or by an unforeseen and intervening assault upon Wiltshire in the cells," said Lord Justice Otton in his summing up. It is on this "chain of causation" that the basis of the conviction rests, and expert medical opinion cannot agree.

The defence called a world renowned trauma specialist, Professor Don Trunkey of the Oregon Health Sciences University, who on studying the evidence said Wiltshire died as a result of blood loss. "Wiltshire could and would have survived his injuries if he had been properly treated either during his first or second visit to Royal Gloucester Hospital. He should not have been sent back to a prison cell," he told the court. He told Trial and Error: "[Mills and Poole] did not murder him. He died because a lack of medical care." In conclusion, the Appeal court did accept that, had Wiltshire been admitted sooner and treated correctly at Royal Gloucester Hospital, "death would not have been an inevitable consequence".

Michael Mansfield, who represented Mills at the House of Lords appeal, said: "If the hospital does not apply the right treatment at the right time, and that provides a substantial cause of death, a defendant should not be responsible for murder."

Despite finding the hospital to be at fault, the Appeal Court decided there was no "intervening negligence", and that Mills and Poole had "significantly contributed" to the cause of death. They said it was "inherently unlikely" that ­ had the original jury heard Trunkey's evidence ­ that they would have found Mills and Poole not guilty.

Mills and Poole argue that the handling of Stadden, White and Juke, along with Gladding's exposed malpractice, affected the integrity of the entire investigation. (Two junior officers were criticised for allowing White to enter a known to be untrue statement ­ another 'material irregularity'.)

"The Police are the only employees who have more rights than their employers, the public."
- Paddy Hill, one of the Birmingham Six.

Despite finding so many irregularities, the Appeal Court maintained that the trial jury would still have returned a guilty verdict. Though it did criticise the original defence team for not forwarding an adequate case. And even though Mansfield secured a point of law for the defendants at the House of Lords appeal, the higher court too, maintained that the jury would not have been swayed.

After constant knock backs, the Mills and Poole camp are taking a leaf out of the Bridgwater Four's book, and appealing to members of the original jury to come forward to look at the new evidence for themselves.

Both prison and probation officers have said they believe the convictions to be unsafe. Janetta Mills, Gary's mother, says: "We were brought up to trust the police, to believe what they said. It's unprintable what I think of the British Justice system now." She has campaigned tirelessly for the release of Poole and her son, not without discouragement from Gloucester Police: A community centre was questioned over booking a support meeting, while campaign marches have been refused permission on insurance grounds.

No such trouble for Gladding, who after losing his libel action slipped quietly into pensioned retirement. His actions were described as "reprehensible" by the appeal court, though not reprehensible enough to set aside the conviction or for the CPS to take action against him.

"The police are the only employees who have more rights than their employers, [the public]," says Paddy Hill, who himself spent sixteen years wrongly convicted of the IRA's 1974 Birmingham pub bombings. "They're the only people in the country who practice the right to silence. If a police officer is being investigated, the investigating team have to inform him beforehand. Can you imagine the police going round informing villains they're going to investigate them. If charges are brought against a police officer, they go on the sick, then retire on eighty per cent of their wage. They tell you: 'Sorry he's no longer a serving officer.' Does that mean if a bank robber says: 'I'm retiring from robbing banks,' they're not going to arrest and charge him for what he's done," says Hill.

Ironically it is legislation brought in after the release of the Birmingham Six that enables appeal court judges to decide whether specific material irregularities constitute a retrial or not. From his own prison cell disgraced Tory minister, Jonathan Aitken, may ponder Gladding's fate alongside his own. Both men were accused by a national media company of law breaking. Aitken by The Guardian, Gladding by Channel Four. Both brought libel actions and lost. Aitken, the anti-sleaze offering was jailed. Gladding, the policeman, was not.

It is argued that to release Mills and Poole would amount to admitting that the police killed Wiltshire by beating him in the cells, and this is too grim a prospect for the authorities

The Police Federation say they do not consider their officers to be above the law. Paddy Hill thinks that is not the perception of the public. Jimmy Robinson, wrongly convicted for the murder of newspaper boy Carl Bridgwater in 1978 says: "Name me one police officer who has been tried and convicted of malpractice in a police station. The CPS took no action against the eleven officers, [named at the successful appeal of the Bridgwater Four], despite the appeal court judges urging them to do so."

Similarly the officers who bungled the investigation into the death Stephen Lawrence slid quietly into retirement. In September the Association of Chief Police Officers announced an initiative to bring officers out of retirement to work on unsolved cases. The Western Daily Press quoted John Bennett, who led the Mills and Poole investigation, as being willing to help if called upon.

Channel Four decided not to publicise their libel action victory against Gladding and declined offers to screen an update of the Trial and Error programme. Satish Sekar, legal adviser to Mills and Poole, says this case "should be the highest profile miscarriage of justice case in the country", though there seems to be only air time for CCTV based and Crimewatch style programming. To see the criminal justice system working makes good TV. To see it in disarray does not.

It is argued that to release Mills and Poole would amount to admitting that the police killed Wiltshire, by beating him in the cells, and this is too grim a prospect for the authorities to bear. Even if the CCRC send the case for retrial, the legal system's restrictions on what constitutes 'new' evidence governs the scope of their defence. The pair believe if all the evidence could be heard in context, they would be successful. The jury at Gladding's libel trial, who did hear all the evidence ­ unrestricted ­ took less than two hours to unanimously find against him. Anne Whelan, mother of Michael Hickey who was convicted along with Robinson for the Bridgwater murder says the Home Office has admitted to hundreds of unsafe convictions in British jails and criticises the government for under resourcing the CCRC, (The Commission's annual report admits that it is stretched and is not expecting any further funding or staff.)

Neither men claim to be angels. They were petty crooks, known to the police and Gary Mills did admit stabbing Wiltshire and hitting him with the bar in self defence ­ Tony Poole has consistently maintained he was not involved in the fight. But the charge was murder. As current Gloucester MP, Tess Kingham, says: "There are too many huge gaps in the way the process was handled for this to be a safe conviction."

There is a term used by lawyers to describe a judicial decision that goes against the weight of evidence, known as 'intellectual dishonesty'. Tony Poole knows exactly what that means. "None of what their witnesses were saying matched up, so I thought we'd be Okay," he says from his current residence at HMP Erlestoke. "The misconception is you're innocent until found guilty. Tht's not the case, you're presumed guilty, and it's up to you to prove yourself innocent."

Former Master of the Rolls, Lord Denning said, in reference to the Birmingham six's bid for justice: "It is better to keep innocent men in prison, than to let them go free and bring the system into disrepute." As far as Mills and Poole are concerned, this still appears to be the order of the day.