Victor Nealon probable wrongful conviction

[Chris_Halkides]

I put some links into the Andrew Malkinson thread because some aspects of the two cases are similar. However, this case deserves its own thread IMO. Victor Nealon was convicted of a 1996 attempted rape in Reddich in 1997 and was given a discretionary life sentence. Among the problems in this case are that the perpetrator had a Scottish accent, and Mr. Nealon has an Irish accent. The perpetrator had a lump on his forehead, but Mr. Nealon did not, in so far as I am able to ascertain. The police challenged Mr. Nealon's alibi, but I am not convinced that they did so correctly.

The Empathy Gap wrote, "The ID parade failed to follow the required procedures. The police officer leading the case was present at the ID parade and spoke to at least one of the witnesses. This contravenes procedure because of the possibility of influencing the witness, deliberately or accidentally."

The Evidence Based Justice Lab at the University of Exeter wrote, "One of the seven witnesses picked him out, another picked him out but said he wasn’t sure, and another didn’t pick him out at the time but did so after he had seen Nealon with his solicitor. The other 4 witnesses either picked no one from the line up or picked someone other than Nealon. The complainant did not attend the ID parade...DNA testing done in 2009 showed that the DNA present in all key intimate areas of the victim was of an unknown male and not Nealon." He was released in 2013.

Open Democracy reported, "The former postman left HMP Wakefield and was driven to Leeds railway station by the prison's deputy governor. He had nowhere to sleep and just £46 to his name. “A random amount I will never know how they got to,” he said. “They also gave me a train ticket to where I wanted to go, which was Shrewsbury.”"

The Justice Gap wrote, "The damage done to the 54-year old Dubliner is profound. At the beginning of our interview I ask him how he is, Nealon replies: ‘I’m under the care of a psychiatrist. I am not working and I am on sick benefits."

In 2012 The Guardian wrote, "Nealon's lawyer, Mark Newby of Jordan's solicitors, said the DNA results from tests he independently commissioned were "shocking" – not just because the samples came from a man who could not have been Nealon, but because it emerged that the victim's clothing had never previously been examined. Yet the court was told at Nealon's trial that there was no DNA evidence."

The Justice Gap wrote, "All of this conduct – the failure to undertake the DNA assessments, the misleading of the court, the collection of late rebuttal evidence and presence of the officer at the ID Parade – are all indicative of a disturbing approach to building a case against Victor Nealon at all costs...Serious questions now arise as to how the Criminal Cases Review Commission handled the matter. Nothing should be taken away from its excellent third review which helped eliminate any possible innocent explanation for the DNA results. However its two earlier reviews were poor to say the least."

The Guardian wrote, "He would have been considered for parole seven years ago had he not consistently denied the offence...Friends of Nealon say he is in a catch-22 situation: as he has always protested his innocence, he has not been eligible for the rehabilitation courses that lead to parole." The same report stated, "James Kellerman, an independent consultant neurosurgeon, dismissed the supposition that any such lump [on one's forehead] could have disappeared by the next day, when Nealon met his probation officer."

The reading I have done inclines me to believe that he will never be compensated for his imprisonment.

 

[Chris_Halkides]

Nealon and Malkinson

The Independent reported, "James Burley, an investigator for legal charity Appeal who obtained the CCRC [Criminal Cases Review Commission] Nealon report under Freedom of Information legislation, said: “This report reveals the CCRC effectively learnt nothing from its failure to properly investigate Victor Nealon’s wrongful conviction – and Andy Malkinson paid the price in the form of extra years behind bars for a crime he did not commit."

 

[whoanellie]

It would be helpful if you mentioned what country this occurred in.

 

[Chris_Halkides]

Britain

It would be helpful if you mentioned what country this occurred in.

Good catch. Redditch is a medium-sized city that is a little south of Birmingham, England and not far from Coventry. The BBC reported, "Mr Newby also said police failed to obtain CCTV from the nightclub which could have shown Mr Nealon was not at the club that night." This is another problem that shows up in many actual or alleged wrongful convictions, namely the failure to collect potentially exculpatory evidence. For Justice (sp?) summarized the Nealon case.

 

[Chris_Halkides]

Police and Criminal Evidence Act

It is not clear to me whether the testing of the garments used autosomal or Y-chromosomal DNA profiling. If it were the latter, it would be another similarity with the Andrew Malkinson case. Apparently the prosecution did not disclose some information regarding the DNA at the time of the trial, but the details are also not clear to me. To the best of my understanding the Crown was told that there was no forensic evidence but not told that some items of clothing remained in sealed evidence bags. One other aspect of the forensic evidence is still a little obscure to me. A few of the articles to which I linked mentioned finding saliva. The appeal judgment stated, "A sample taken from the lower right front of the victim’s blouse produced a full male DNA profile from what was probably a saliva stain." Assuming that the saliva tests were performed and interpreted correctly, this DNA profile is at the source, not the sub-source, level, an important distinction. It would render arguments to the effect that the DNA came from innocent transfer very unlikely.

From the blog Thinking Legally: "Fulford LJ notes from the start that Nealon has a distinct pockmarked face. Neither Ms E nor witnesses at Rackets nightclub who say they saw the suspect before the attack were able to confirm he had a pockmarked face. They did say the suspect had a distinctive bulge on his head — which Nealon’s defence lawyers said he did not have." IIUC the presiding judge tried to reconcile this discrepancy by claimnig that the bulge went away the next day.

The Justice Gap wrote, "An ID parade was arranged and, in breach of the Police and Criminal Evidence Act, the same officer [who led the investigation] was present at the ID parade and spoke to at least one of the witnesses. The ID evidence that followed from other witnesses was equally poor and inadequate with one witness picking out but stressing the man involved had a strong Scottish accent. Other witnesses failed to pick out the applicant, including the victim’s friend who helped compile an e-fit. The complainant herself did not attend the ID parade."

I wanted to return to this last issue so that I could offer a hypothesis. It may be that the police knowingly violated the laws or rules that govern ID parades, because they knew that they will increase the odds of conviction. Further, they may have done so in the belief that they are helping to convict a guilty person. If these two conditions are met, I would describe their behavior as "noble cause corruption."

 

[Chris_Halkides]

the high bar against compensation

To the best of my understanding neither Mr. Nealon nor Sam Hallam (the two are often mentioned together) have received compensation. The Islington Tribune wrote, "But despite this [strong alibi evidence] he has not been able to meet the government’s bar for compensation that states convictions quashed on appeal must include a “new fact” that proves the individual’s innocence “beyond reasonable doubt”."

If I am reading this correctly, the information must be both new and sufficient to show that the individual is innocent BARD. At the very least, I don't see why this could not be amended to clear and convincing evidence, which to me means that the person is innocent at the 75% level of certainty. I would also say that the new information could be added to that already available and not have to stand on its own. Or if we really wanted to be granular, there could be tiers...