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Pub Date      Fri 17-Jun-2005

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ON JANUARY 17, 1980 , Lord Denning, then Master of the Rolls, delivered his
infamous ruling regarding the possibility that evidence he had before him
might mean that the alleged Birmingham Six bombers were, in fact, innocent.
Denning stated:

"That was such an appalling vista that every sensible person would say 'It
cannot be right that these actions should go any further'. In other words:

"Stuff their innocence - let's protect our corrupt system instead."

Eventually, such wrong-headed legal hubris and blind defiance of the
realities that were staring the entire judicial system in the face meant
that the "appalling vista" of police lying in order to frame innocent men
for terrible crimes did indeed come into focus for all the world to see.

To this day however, as recounted by Ludovic Kennedy recently, many members
of what used to be termed the Establishment still labour under the illusion
that the Birmingham Six did indeed carry out those IRA acts of terrorism and
that they "got off" on a technicality of some vague variety.

Kennedy asked one mutterer of such nonsense if he could pass on his comments
to the Six's lawyer: "Why?" he was asked. "So they can issue you with a writ
. . ." he replied.

Most people sleep easy assuming that such fates only befall "other" people.
Examine the cases in detail and you realise that's not true - they can
happen to anyone. When they're publicised, heads are shaken and hands are
wrung. Whatever case surfaced last, it's assumed that'll be the end of the
matter. The system will ensure it doesn't occur again. If only that were
true. Instead, as Thomas Jefferson said, "Eternal vigilance is the price we
pay for liberty."

So, it's of concern to everyone that we find another worrying case on our
collective doorsteps. It involves Stuart Gair, the man convicted in August
1989 for the murder of Peter Smith from West Plean, Stirling . The death
arose following the discovery on April 11 of a bleeding Mr Smith slumped at
the bottom of the steps of the St Vincent Street gents' lavatories. A police
investigation followed and a court case took place which resulted in Stuart
Gair's conviction for the murder.

There, if justice had been done, the matter should have rested.

But over the years, several men and women of conscience - not members of the
press, we only trooped onstage later - heard Gair's pleas of innocence from
inside Scottish prisons and started investigating the case themselves. What
they found was, to put it politely, a dog's breakfast of evidence which put
him there. One of these individuals was a GP from Alloa named Dr Jim
McGregor. He met Gair in prison and after examining the case along with
other concerned individuals, including the family of Billy Harris, another
young man murdered in controversial circumstances in the same area of
Glasgow 's city centre, he started banging on doors and asking hard
questions.

Dr McGregor courageously put his career on the line because of the strength
of his belief, after scrutinising the case files, that an innocent man had
been jailed.

The guts of the reason why concerned citizens like him and his wife Maureen
- neither of whom could ever be pigeonholed as irritating selfserving
"do-gooders" - stepped forward to highlight this case hinged on the
manifestly porous nature of the Crown's evidence against Gair. Suffice to
say - speaking for myself - I interviewed four out of five of the main
prosecution witnesses and found myself hearing damning tales of police
coercion and homophobic threats from officers. I also read the transcript of
the original trial proceedings and it genuinely read like a bad TV script.

I then interviewed a solid witness who gave Gair an alibi for the whole
evening on which the murder was committed - a witness inexplicably never
called to testify on Gair's behalf at the original trial. And, last but not
least, I read damning forensic evidence which cast serious doubt about a
knife that Gair supposedly used in the murder. Interviews took place in
chilly Glasgow f lats and tacky Blackpool hotels.

No-one was forced to say anything to me. The four main witnesses could have
backed out whenever they wanted - one did and I ended up speaking to him by
phone. The rest chatted into a tape recorder for hours. Their transcribed
testimonies ran to scores of pages . They lied in court, they told me.

All sounded terrified but they wanted to help Gair. The Scottish Criminal
Cases Review Commission also got involved and, after its inquiries,
recommended the case back into the Appeal Court in Edinburgh . So far, so
good.

Then last week a rather peculiar interim finding in this case was reached by
three Appeal judges. To cut a long story short, the witnesses' new evidence
based on their collective change of heart was f latly rejected.

Mostly, the Crown didn't accept that police officers allegedly threatening
to "out" someone's sexuality - even in 1989 - was enough to terrify anyone
into committing per jury. This of course narrowly defines the issue.

Read through the threats made in the Guildford Four case, for example, and
you'll find that men broke down after police threats were made to them.

Glasgow man Robert Brown was emotionally dismantled inside a matter of hours
in Manchester in 1977 and ended up dictating and signing a bogus confession.
Why? Well, to understand that you need to read research by Dr James McKeith
and Dr Gisli Gudjonsson, who've both shown in studies that we all have, for
want of a better term, cracking points - especially inside police stations.
Bizarrely, the grounds for the fresh evidence supporting Gair's innocence
were rejected because the witnesses were found to be unreliable characters.
Why then is their original testimony still good enough?

Mention is also made in the judgment of some press inquiries into the case.
Nothing overt is said, but an undercurrent is present here and there, that
suggests journalists have pressured the witnesses into changing their
stories. I know at least three other colleagues who've investigated this
case and independently, for different newspapers, magazines and TV stations,
have all reached the same doubtful conclusions about Gair's guilt.

I also know them well enough to say that I seriously doubt whether any of
them would ever cross any ethical journalistic lines and coerce anyone into
saying anything they didn't want to. In fact, when I interviewed some of the
witnesses they told me they were telling me - a journalist - a fuller
version of their stories than to SCCRC investigators simply because they
distrusted anyone with a whiff of the law about them. This has happened in
many miscarriages of justice cases before and it will happen again.

The press in a free democracy has a vital role to play in cases like this
and comments suggesting anything to the contrary will not sway us from our
task.

Journalists like Ludovic Kennedy, Paul Foot, Chris Mullen, Don Hale, and in
Scotland, David Scott in the Paddy Meehan case, didn't back down when
someone questioned their motives.

In this, case, the odd nature of the interim judgment is now being
scrutinised. Paddy Hill, from the Birmingham Six, and founder of the
Miscarriage of Justice Organisation, says he has never seen anything like
it. So it will be interesting to see what happens when the next part of this
judgment is issued. The smart money is on Stuart Gair probably walking free
because of the seriously f lawed forensic evidence against him being
dismissed.

If it happens, it'll be a victory for noone. The police can say they were in
the clear, the forensic material will be impenetrable to almost everyone and
the muttering about Gair's conviction can continue.

What an appalling vista that will be.

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