24 August 1997
white to you?
British justice has always
claimed to be colour-blind.
This time it really was.
The case of the
In 1992, I spent a year at Her Majesty's Prison Gartree, near Market Harborough in Leicestershire. I was sent there by the Arts Council, not as punishment for my prose but to develop and foster writing with the inmates, as a writer-in-residence. I was ill-prepared and prison shocked me; it is brutal and loveless - a place where bananas are, literally, forbidden fruit (apparently their dried skins are a stimulant). Most of the male population at Gartree were lifers, and most of my lifers were murderers: I quickly learnt that there are lots of ways to kill your wife or girlfriend.
But the shock of the prison environment itself was nothing compared to the jolt I took when I discovered that there were prisoners who were, apparently, not guilty of the crimes of which they'd been convicted. At the time, Gartree was home to a handful of inmates who were angrily pursuing miscarriages of justice through the Courts of Appeal. These men formed a kind of informal network.
Not long after I started there were great celebrations when the case against the Cardiff Three collapsed; one of them was released from Gartree. Gary Mills and Tony Poole, accused of murdering a man whom they claim died in police custody, were, and still are, doing battle there against the legal system. Jimmy Robinson, recently freed having been wrongly convicted of the Carl Bridgewater murder, climbed up on the roof not long after I arrived, and stayed there, in mid-winter, for nearly three months in an effort to bring publicity to his case. At the time, he was almost 60 years old and had been in prison for 15 years. None of the prisoners I knew doubted his innocence, and a good few of the staff were convinced of it as well. My office was directly below where he was camped and I could hear him pacing the roof. I admired him, I admired his endurance. His presence overhead was like that of a sentinel, and when the specialist security team came in the night and bundled him away, I missed him.
Because of all this, when I met Raphael Rowe, I already knew about him; his reputation, and a belief in his innocence, had preceded him on the prison grapevine. At the time, he was 24 and had been in prison for four years. Although he was, necessarily, obsessed with his case, he also drew and painted, and we began to meet on a regular basis to discuss his writing. He wrote angry, rough-hewn, lyrical protest poetry full of longing for the life he was missing. 'Fly by night/ I woke sweating to the clunk of metal/ opening today my first thought/ reaching out to touch away the nightmare/ hung for crimes I did not commit/ the scary part of the fly by night was the faces who dragged me to the altar/ were the clockfaces of time'. He was fit and unusually well-dressed, in an environment that encouraged you to be anything but that. He maintained close relationships with his sisters Joanne and Hazel and his mother Rosemary, all of whom are deeply involved in his campaign. Unlike many of the prisoners I got to know, he was easy to be with, easy to listen to. I liked him, and I believed his story.
Raphael Rowe, now 29, was arrested in December 1988, along with Michael Davis, 30, and Randolph Johnson, 32, and charged with a series of attacks and violent robberies that took place one night, in three separate locations, all close to the M25 motorway in south-east London. One man was murdered, two households robbed at gunpoint and five cars stolen. Rowe, Davis and Johnson were sentenced to life imprisonment for offences that included murder, robbery, grievous bodily harm and the misuse of firearms. They were convicted in the absence of any forensic evidence, and without being identified by any of the victims. Several of the victims gave evidence saying that two of the gang were white, one black. Rowe, Davis and Johnson are all black. In the style of nomenclature which has become all too familiar as miscarriages of justice worm their way through the courts and into our newspapers, these men are known as the M25 Three.
At the time of the crimes, Raphael Rowe and Michael Davis were living in a large house divided into bedsits on Lawrie Park Road in Sydenham, London. Together they made a business of having a good time. Rowe had left school without any qualifications and, as he is the first to admit, was a bad boy. Nineteen years old and popular with the girls, he had fathered a child and had never held down a proper job. Involved in theft and robbery, both he and Davis had a string of previous convictions and were thus well known to the local police. But despite being wicked, Rowe and Davis were not evil, not - as they have always maintained - capable of the kind of vicious attacks perpetrated on the night of 15 December, 1988.
The grim events were as follows: some time after 11 pm, an armed gang of three men drove into a field near Chelsham, Surrey. They were driving a stolen green Triumph Spitfire and wearing Balaclavas. They pulled up next to a car, in which Peter Hurburgh, 57, and his friend Alun Eley, 20, had been having sex. The men were dragged from their car, stripped, tied up, and brutally battered. Then they were doused in petrol. Peter Hurburgh died of a heart attack after one of the men stamped on his sternum. The attackers stole 10 pounds from Alun Eley. Taking Hurburgh's car, an Austin Princess, the gang drove around the M25 to Oxted, Surrey, where, at around 3.40am, they broke into Stonehall, the home of retired business man Richard Napier. They beat up Napier, 66, and his son Timothy, 40, who had tried to fend them off: he was stabbed repeatedly with a knife, losing four pints of blood after two arteries were severed. When he dialled 999, Timothy was so weak that all the operator could hear was heavy breathing. Police traced the call to the house.
Stealing Timothy Napier's Toyota Corolla, the gang sped round the motorway to Fetcham. At around 5 am, they broke into the house of Rosemary Spicer, 35, and her boyfriend Peter Almond, 36. The couple were tied up and gagged while the house was ransacked; jewellery, credit cards, and chequebooks were among the property stolen. The gang left in the couple's two cars, a Vauxhall Cavalier and a Renault. In the early hours of that morning, just as the sun was beginning to rise, two white men were seen dumping these cars in Foots Cray Meadow, Sidcup, Kent. The spree had come to an end.
Rowe and Davis have alibis for that evening, witnessed by seven people. They say they watched a video and shared a takeaway with friends at their house in Sydenham. Later, they took a bus to another friend's house, spent some time socialising and, around midnight, were given a lift home by a couple they hadn't met before. At 1 am, Rowe went to bed with a girlfriend, Kate Williamson, where, he maintains, he stayed until morning.
The following Monday, armed police from the Metropolitan and Surrey forces raided the Lawrie Park Road house. Twelve people were arrested. As well as Rowe and Davis, those arrested included Mark Jobbins and Shane Griffin - and, three days later, Jobbins' and Griffin's friend, Norman Duncan. Although these men were suspects initially, they were to become important prosecution witnesses, despite an armoury of knives and homemade weapons being found in their room when the house was searched. When police raided the home of a girlfriend of Mark Jobbins, they found goods stolen during the Spicer and Almond robbery, as well as an air gun, later identified by Timothy Napier as the gun used by the gang.
Griffin, Jobbins and Duncan - who are all white - admitted to the police that they stole the Triumph Spitfire, and Jobbins's and Duncan's fingerprints were found on the car at the scene of the murder. They also admitted dumping the Cavalier and Renault cars stolen by the gang, and had no alibis. All three had criminal records, and Duncan and Griffin were regular glue sniffers. And yet all charges against the three men were dropped. The prosecution relied heavily on their testimony and, although they admitted to being accomplices, their account of events formed the core of the case against Rowe, Davis and Johnson. They alleged that Rowe paid them to steal the green Triumph Spitfire. They said that the next day Rowe and Davis boasted of their crimes, and that Rowe and Davis had told them to burn the car and help hide the stolen property. It was these allegations that helped convince the jury that Rowe, Davis and Johnson were guilty.
Another important prosecution witness was Rowe's girlfriend, Kate Williamson. Sixteen at the time of the crimes, she made a statement claiming that Rowe got up and left her alone in bed sometime between 1:30 and 2:30 am that night. She also claimed she had been given two of Mrs Napier's rings by Rowe, although in court, she denied this had happened.
The victims all said in evidence that at least one of the attackers was white. Richard Napier said two of the gang were white, one with fair hair and blue eyes. None of the victims ever identified Rowe, Davis or Johnson. Despite all this, the jury saw fit to convict, based on the testimony of Mark Jobbins, Norman Duncan, Shane Griffin, Kate Williamson and the Surrey police.
In June 1993, the case went to the Court of Appeal. Michael Mansfield QC advanced the appeal on the grounds that there was a lurking doubt about the soundness of the convictions of Rowe and Davis based on the general unreliability of the Jobbins group of witnesses, as well as discrepancies of timings. They also produced a police notebook that the prosecution had failed to disclose at the trial; it contained notes on Mrs Napier, who stated in some detail that the gang was composed of two white men and one black man.
But, despite initial optimism, the appeal failed. The judges ruled that the non-disclosure of the police notebook was an 'irregularity' but not a 'material irregularity'. The Crown made great play of Rowe's mixed-race background, speculating that this meant he could be 'the rogue white man' the victims had seen. Although the court acknowledged that the Jobbins group were admitted accomplices, the judges continued to uphold their evidence. Leave to appeal to the House of Lords was later denied by the same three judges, Deputy Lord Chief Justice Watkins, Justice Leonard and Justice Scott Baker. (Justice Watkins and Justice Leonard retired soon afterwards.)
However, this is a case that will not go away. John Wadham of Liberty, (formerly the National Council for Civil Liberties), has made submissions on the non-disclosure of evidence to the European Commission on Human Rights. The commission has ruled that the Government does have a case to answer in this instance; this ruling is the first step toward getting the case before the European Court of Human Rights. Moreover, since the appeal, Rowe's solicitor has uncovered a second deposition made by Kate Williamson in an indirectly related case, in which she gave inconsistent evidence about the events of the night of 15/16 December; this deposition is a key piece of evidence in new submissions from Rowe to the Court of Appeal. So, too, are defence allegations that Surrey police conducted unrecorded interviews with both Mark Jobbins and Norman Duncan (claims they say are supported by the custody records), and that a 25,000 pounds reward offered by the Daily Mail and victim Richard Napier for information relevant to the case was used to corrupt prosecution witnesses. They are also calling into question - again backed by new evidence - the authorship of Jobbins's written statement.
In all of this, the role of the third convicted man, Randolph Johnson, is unclear. Johnson was arrested several weeks after Rowe and Davis when he fired a gun at a traffic policeman after a car chase. Unlike Rowe and Davis, he does not have an alibi for the night in question; however, all three of the Jobbins group failed to pick out Johnson at an identification parade. The evidence against Johnson included a confession of guilt he was said to have made to another prisoner, a confession he did not refute. Currently held in HMP York, he has not made submissions to the Court of Appeal this time round, and he does not have a solicitor. Rowe and Davis do not keep in contact with him, and he does not reply to correspondence on the case.
Under the previous government, the Home Office gave Raphael Rowe repeated assurances that the case of the M25 Three would be reconsidered before the transfer of all such cases to the Criminal Cases Review Commission (CCRC) on 1 April this year. This never happened. One week after opening, the commission already had 251 cases to consider, and new ones are expected at a rate of six per day.
Faced with effectively going back to square one, Raphael Rowe decided on Easter Monday this year, an unusually warm and sunny spring day, to go on hunger strike in Maidstone Prison. His fast lasted from 31 March to 15 April, when he was moved to the hospital wing of Swaleside prison in Kent. He sustained kidney damage and lost a great deal of weight that wasn't there to lose in the first place, but the results were dramatic. The CCRC has given him a verbal undertaking that the commissioner assigned to his case, Karamjit Singh, will take the unusual step of visiting him in prison. His case has also attracted the interest of a number of members of the new Government, including Jack Straw, Donald Dewar, Chris Mullin and Geoffrey Robinson. The solicitor Jim Nichol, who represented Jimmy Robinson and the Bridgewater Three until their acquittal, has recently taken on Rowe's case, and the BBC programme Rough Justice is making a documentary about the M25 Three.
Since I finished my year-long residency in HMP Gartree, Raphael Rowe and I have kept in touch. Since we met, I've got married, had a baby, published a couple of books, gone on holiday, had nights out with my friends. Raphael Rowe has remained in jail; he's become more and more knowledgeable about the justice system. He was 19 at the time of the crimes; now he is nearly 30.
When I spoke to him after the hunger strike, he sounded optimistic. He has found the CCRC more accessible and encouraging than the Home Office, and hopes the case will be back in the Court of Appeal by autumn. As we spoke, I could hear the clanks and echoes of the prison in the background, the prison officers calling time. "So far, so good," Raphael says, as, with remarkable resilience and stoicism, he fortifies himself for the next stretch in his long wait for justice.