Trial defence inadequacies

Written: 18th June 1999
Office of Supervision of Solicitors Report for CCRC

This report outlines the inadequacies of the trial Defence

Dear Caseworker
RE: Susan Hilda May
This letter is written further to our meeting at this office and your request that I provide you with a “report" setting out my views as to the manner in which the preparation work in respect of the proceedings before the Crown Court in which Susan May was convicted of murder in May 1993 was conducted by her then solicitor, Mr Cheetham of Mellor and Jackson. Solicitors of Oldham.

General Background
This matter was first referred to me by the Office for the Supervision of Solicitors as a member of the Law Society’s Negligence Panel following a receipt by the OSS from Susan May of a complaint against her former solicitors Mellor and Jackson (Mr Cheetham) in respect of the handling of her Defence to the Prosecution brought against her for alleged Murder for which she was convicted on the 5th May 1993

For the purpose of clarity perhaps I should explain that the panel mentioned above consists of solicitors who are nominated (usually by their local Law Society) and then approved by the Law Society for membership of the panel. Their role is to provide free initial advise to persons who have made a complaint against a solicitor but whose complaint is adjudged by the Officer for the Supervision of Solicitors to be primarily an allegation of negligence and as such a matter to be considered initially on the basis of civil liability rather than professional misconduct.

As I have been asked to express an opinion which I understand may be used in subsequent proceedings it is only right that I set out my personal background and qualifications to express the opinions which I do.

I have been a solicitor in private practice since being admitted in March 1972 and throughout that time have dealt with almost entirely contentious work in the categories of crime, family law and civil litigation.

I have been a member of the negligence panel for over 10 years. I have served as the Chairman of my local Law Society’s Contentious Business Committee (T… Solicitor’s Association) and I have been and still am a Member of the M… Duty Solicitor Scheme since 19--, prior to that being a member of T Duty Solicitor Scheme including 24 Hour Police Station attendence from 19--. I have had extensive experience of criminal advocacy in the Magistrates’ Court and have prepared many cases for the Crown court over the years including cases of what I would regard as the utmost seriousness i.e. murder, attempted murder, rape, importation of controlled drugs etc.

This firm, of which I am the senior partner, holds a Legal Aid Franchise in Criminal Law and approximately 50% by volume of the work which passes through this office is criminal.
History of the Case

As I understand it from the papers which I have seen Susan May was convicted after a trial on the 5th May 1993 of the murder of her Aunt and accordingly received the mandatory sentence of life imprisonment. She had protested her innocence throughout and continues to do so and is supported in her campaign by “The Friends of Susan May".

Miss May appealed against her conviction and was represented on that Appeal by a different firm of solicitors, namely Messrs Bindman and Partners of London and different Counsel, namely Michael Mansfield QC. The Appeal was unsuccessful and Miss May remains convicted of the offence in question although the case is being considered by the Criminal Cases Review Commission with a view to deciding whether or not there is sufficient reason for the case to be referred back to the Court of Appeal with a view to reconsidering the conviction.
I must at this point make it clear that I have not seen either a transcript of the Crown court or the Court of Appeal proceedings nor the documentation that was relevant to the original trial i.e. depositions, exhibits, etc nor have I seen the original file of papers of Miss May’s first firm of solicitors, Mellor and Jackson. There is a very good reason for this. Miss may is advised as regards the ongoing criminal process by Mr CJ Malone, Solicitor and there are, I believe, a number of documents with the Criminal Cases Review Commission. Some papers are still retained by Messrs Bindman and Partners. Nonetheless there are a number of facts which I do not think would be in dispute in relation to the handling of Miss May’s case by Mellor and Jackson and I believe I can form an opinion based on those facts as to the standard of service provided to Miss May in respect of her representation before the Crown Court.

Conclusions from the available documentation
1. On the 26th January 1994 a letter was written by Messrs Bindmans on miss May’s behalf to the Registrar to the Criminal Appeals office in support of their application for legal aid to be granted to them to cover Leading and Junior Counsel as well as the solicitors and the reasons were provided by Bindmans as to why legal aid should not be granted to the original solicitors to carry out the work which they (Bindmans) felt should be done on behalf of Miss May. Attached is a copy of that letter and the relevant points are set out page 2. As Messrs Bindman point out the first question the court of appeal would ask would be why the forensic evidence was not available at Miss May’s first trial. They point out that Charles Garside (Defence Counsel who advised Miss May in November 1992) (i.e. approximately 6 months before her trial and conviction) advised that her defence could only be conducted properly if her solicitors were able to evaluate properly the significance of the expert evidence on behalf of the Prosecution as to the fingerprints in blood on the bedroom wall which the Prosecution contended was the deceased’s blood. Nothing appears to have been done about this.

2. The letter from Bindman and Partners to the Criminal Appeals Office again criticises Mellor and Jackson for failing to obtain not only tests on the disputed exhibits but also the notes made in connection with the examination of the same by the Prosecution forensic experts. Even though the possibility of tests on behalf of the Defence was something which clearly went through the minds of Mellor and Jackson after conviction (as it was ascertained that “further tests are possible" in a letter dated the 11th October 1993), no such tests were ever carried out. Two laboratories were approached by Mellor and Jackson for the purpose of the tests but when it was indicated that they did not do those sort of tests, to use the words of Bindman and Partners, Mellor and Jackson “took the extraordinary step of (a) disclosing defence reports to Dr Basely and (b) seeking (unsuccessfully) to instruct Dr Basely the Prosecution forensic scientist to carry our the further tests himself".

3. Views may well differ as to the weight to be placed upon various aspects of the Defence case but the one factor that dwells greatly upon my mind is that there was a tremendous gap in Miss May’s Defence for these reasons. I understand she has no previous convictions. I understand that she is not only(and this seems to shine through the correspondence which I have reviewed from her) an intelligent and outward going person but one who, prior to conviction, was held in considerable esteem in her community and I have seen statements that have been obtained since her conviction from people who display that regard for Miss May. It seems to be beyond dispute that she had what Bindman and Partners in their letter describe as “love of and care of her family, friends and the infirm". I cannot imagine why character witnesses were not called to confirm and impress upon the Court that this was not just a lady of good character who had no previous convictions (which of course is something that would I am sure have been brought to the jury’s attention by the Learned Judge a the trial) but this was a lady who was of much more than “of good character", she was a person who, on the face of it, would have been extremely unlikely to have committed the offence alleged. This point is made very strongly by Bindman and partners and I wholeheartedly agree that it would be hard to think of a more appropriate case where the sort of evidence mentioned above should have been before the Court and should have been put forward at its strongest. It is quite remarkable to me that only Miss May herself and her daughter gave evidence. There is no indication of the solicitors having obtained proofs from people who could have assisted and from the fact that such proofs were obtained afterwards it seems that it could have been no difficult task to do so, especially given the support for Miss May which exists in the community then and exists now. I am quite prepared to say that on that omission alone the solicitors fell below the standard of care which Miss May was entitled to expect of them and that the absence of that evidence would, on the balance of probabilities, have been a causative factor in her conviction. In short for that reason alone the solicitors were negligent.

4. There was no expert evidence called at trial on behalf of Miss May and given her glowing character I would have thought that one enquiry that should have been made was whether or not there was anything in her mental make up that could have made her act so much out of character if she had indeed committed the offence. If there had been psychological or psychiatric evidence to say that there was nothing in her mental make up that would have caused her to do so in the particular circumstances of this case, then it would seem to me that that would have been a powerful addition to the armoury in Miss May’s Defence. Not to have obtained any such reports was, I believe, a failure and again one which caused the standard of work done on Miss May’s behalf to fall below the requirement of a reasonable standard of work.

5. I believe there was a number of burglaries in the area at around the time in question i.e. of the alleged offence, and there seem to have been found at the scene of the crime finger and footprints which were never identified. I understand that these were never investigated forensically or otherwise by the solicitors. There are a number of other aspects of the case which Miss May has drawn to my attention all of which I regard as causing considerable concern if, as appears, they were not investigated and where appropriate submitted for expert/forensic examination. E.g. Fibres found in the grip of the deceased. Suspects were arrested in connection with the murder who were known burglars, one of whom had told his sister about the discovery of the body one hour before the same was “officially" discovered. I am told that this information was not brought out at all at the trial as a result of being ‘filed in the wrong file’. I do not know the extent to which information of this nature was obtained by the Defence but certainly it could have been by sufficient effort to obtain from the prosecution unused material relevant to the case. AS I do not have all the papers I have to stop short of saying that that in itself is a negligent act but I certainly find it quite remarkable that no mention was made of the young man who told his sister about the discovery of the body. I believe it was after all Miss May’s case that this was a burglary which had gone wrong.

6. A number of other allegations have been made which I do not feel happy about commenting upon without seeing a full set of papers but I believe that the ones I have mentioned above do not depend upon perusal of all the documents and particularly the absence of supporting character evidence speak very much for themselves.

7. The offence of murder is still regarded very much by most practicing lawyers, I believe, as the most serious crime in the criminal calendar. The very nature of the offence separates it from other offences and for that reason alone I believe that most lawyers in dealing with murder cases is to leave no stone unturned. It seems therefore, from what I have seen and been told about the case, that Miss May was let down by her solicitors i.e. Mellor and Jackson, and that there were glaring deficiencies in the preparation of the case such that had those deficiencies not existed an entirely different and stronger case may have been available a the end of the trial to go to the jury.

8. I think I should add that since Miss May’s conviction occurred 6 years ago on the 5th May 1993 a Protective Claim Form was issued through Oldham County Court by way of an action for damages for Negligence against Mellor and Jackson on the 28th April of this year to protect Miss May’s position as regards the relevant 6 year Limitation Period. It has not yet been served.

I hope that the above will be of assistance.
Yours faithfully
OSS Solicitor.