Police probed over withheld evidence; top law-lord makes outspoken criticisms of Fife force and claims that officers were ‘usurping judge, jury and justice’.
A Scottish police force is facing a criminal inquiry into claims that it suppressed evidence which could have cleared a man currently serving life in prison for murder.
A Sunday Herald investigation has uncovered how Fife Constabulary failed to pass on witness statements to the Crown Office which pointed towards the innocence of Steven Johnston, who was convicted in 1996 of beating his friend Andrew Forsyth to death at his home in Dunfermline. Documents have also been uncovered which reveal the Crown’s outrage at being “misled” by the police.
There are now widespread calls from senior members of the legal profession and politicians for the officers involved to be suspended from duty pending a wide-ranging inquiry. The Scottish Executive has pledged to set up an independent police complaints authority in the wake of the barrage of criticism.
Lord Fraser of Carmyle, the former Scottish Lord Advocate, said Fife police had undermined the concept of “judge, jury and justice”. The Scottish National Party has compared the conduct of the police to “the administration of justice under the Gulag system in the old Soviet Union”, and the Scottish Conservative Party said the case should be immediately referred to the Court of Appeal. There are further demands for a root and branch overhaul of the regulations surrounding the passing of information from the police to the Crown.
Civil liberty groups say that every “major case” investigated by the officers involved must now be re-examined in case some officers in the Fife force were operating a policy similar to that of the West Midlands Constabulary – which became notorious for miscarriages of justice, including the Birmingham Six. That could lead to potential grounds for appeal in hundreds of cases in Fife.
The case centres on the police belief that Forsyth was killed on Friday, November 3 1995. During the trial, the jury was told that “to bring home a conviction against Steven Johnston, the deceased would require to have died on Friday, November 3”.
However, a number of witnesses claim they saw Forsyth alive after that date. But their statements were never passed to the regional procurator fiscal, who is meant to take the decision on whether to prosecute an individual after taking account of the “full facts” of a case.
A file on the case has been passed to the Scottish Criminal Cases Review Commission by Johnston’s solicitor, Stephen Morrison.
The SCCRC has the power to refer the case to the Court of Appeal and can recommend to the current Lord Advocate, Colin Boyd, that he seek to prosecute any police officers found to have perverted the course of justice. During its investigations, the SCCRC uncovered four statements from witnesses which suggested Forsyth was alive after November 3 but which Fife Constabulary had not passed to the Crown.
They include the claims of a local housing officer who went to the dead man’s house on Tuesday November 7. She and a colleague looked through Forsyth’s window, directly at the site where his body was supposed to be, but saw no corpse.
Another witness, a local shopkeeper, told police he last saw Forsyth alive on Saturday, November 4. The police told the shopkeeper that this was “impossible”. Johnston’s lawyer, Stephen Morrison, said: “They tried to convince him that he couldn’t have been right but he feels he is 99% right.”
A third witness claims in her statement that she saw Forsyth as she was making her way to work on Thursday November 9. A fourth statement also implies that yet another witness saw Forsyth alive on November 4.
There was no forensic evidence linking Johnston to the killing. The blood of two different people was found in the victim’s house – neither type matched Forsyth or Johnston, who had no history of violent crime.
An independent post mortem showed that Forsyth probably died sometime after Tuesday November 7 and certainly not before Sunday November 5. The Sunday Herald has also discovered that Fife Constabulary attempted to suppress other evidence from a further six witnesses prior to the murder trial. After a chance conversation, says Morrison, the defence did manage to locate these witnesses and they appeared in court.
In a letter dated February 3 1997 from the Crown Office, Deputy Crown Agent Norman McFadyen says he met with the Deputy Chief Constable of Fife Constabulary, Graham Bennet, adding with reference to the initial six witnesses: “The Lord Advocate and I are in no doubt that the information which was provided to the police by the witnesses in this case should indeed have been drawn to the attention of the procurator fiscal”.
McFadyen goes on to admit that the Crown was not aware that the police had suppressed material, adding: “The Lord Advocate has instructed that it be made clear to the Chief Constable that it is wholly unacceptable that misleading information was given to the procurator fiscal when these matters were raised.”
Morrison said: “This seems a clear cut case of deliberate suppression of evidence. If that is the case then it is a criminal offence and a conspiracy to pervert the course of justice. My client is very bitter and angry, but he believes he will soon be out of prison and his name cleared.”
Lord Fraser of Carmyle, the former Lord Advocate, said: “The alleged conduct by Fife Constabulary is totally fatal to the interests of justice and utterly wrong in practice.
“It is not difficult to conceive of circumstances where withholding information might be seen as an attempt to pervert the course of justice. There is a disturbing practice in Scottish police where they fail to understand that all information must be conveyed to the Crown.
“It is not the job of the police to decide what to send to the Lord Advocate and what to keep from him. The police must get this into their heads. We need an immediate investigation into this case to find out if this was a case of incompetence or something more sinister. If this was deliberate there should be a criminal inquiry. From now on it must be a disciplinary, if not criminal offence, for the police to fail to pass on evidence. By behaving like this the police are usurping the role of the judge, the jury and justice itself.”
The SNP’s justice spokesman, Michael Matheson, said: “The officers involved must be immediately suspended pending the outcome of an inquiry. This goes right to the heart of the administration of an open and fair justice system. It is the most cynical approach to justice I have ever heard of – it is reminiscent of what went on in the Gulag system of the former Soviet Union.”
Phil Gallie, Tory justice spokesman, said: “We need an investigation into the way the police weeded out these statements. There are obvious grounds for appeal now. If the appeal is upheld then we need to look at a criminal investigation.”
John Scott, chair of the Scottish Human Rights Centre, said: “Steven Johnston’s case should be referred to Court of Appeal as soon as possible.”
(By Neil Mackay, Home Affairs Editor; originally published in the Sunday Herald 6th May 2001)
Original statement on the case by Steven Johnston’s supporters
Steven Johnston and the victim – Andrew Forsyth – were known to associate with a number of alcoholics that congregated at a place called ‘The Glen’. Andrew Forsyth himself was an alcoholic, and was regularly seen in a battered and bruised condition due to people looking for repayment of money. Steven Johnston used to drink for days at a time and stay sober for weeks, finding work to save money for the next drinking binge.
Steven Johnston admitted going to the victim’s home on November 3rd 1995, but he had been invited there by Andrew Forsyth for a drink. Six days later Andrew Forsyth’s body was discovered lying on his living room floor.
Steven Johnston was arrested for the murder of Andrew Forsyth between 3rd and 9th of November 1995. This charge was later amended to read that the murder took place specifically on Friday 3rd November 1995. There was no evidence against Steven Johnston, only the words of alcoholics. He was, for instance, supposed to have blood on his jeans up to his knees, but nobody in the pub saw any blood on him. It was also alleged that one of the group of alcoholics had looked through the windows of the victim’s home on 4th November, and saw the victim either dead or drunk on the floor.
On 7th November 1995 a police officer responding to a 999 call called at the home of the victim. This police officer looked through the living room window and although he saw certain items lying around, there was no body. The officer accepted that if a body had been on the floor, he would have seen it. On 9th November 1995, the mother of the victim called to the house at approx. 10.00pm and found him dead on the floor of the living room.
There was no forensic evidence against Steven. Blood found at the scene of the crime comes from two different blood groups, neither of which match the victim or the accused. The pathology report stated that the victim had already been dead for somewhere between 24 and 48 hours when the body was found. This pathologist also said that “he was in no substantial doubt that the deceased was ALIVE 96 hours before the body was discovered”.
It has been established that between 3rd and 7th November 1995 Andrew Forsyth was seen and spoken to – on at least six occasions – by local people who all knew him. Although this evidence was given to the police, it was deemed “irrelevant”, and was never passed on to the Procurator Fiscal (Scotland).
How can a person who was supposed to have been murdered on the 3rd November still be walking around enjoying himself a few days after his alleged death? Furthermore, is it in the interest of British Justice for police officers to “withhold” or “ignore” evidence such as this and fail to inform either the Prosecution or Defence?
The Scottish Criminal Cases Review Commission (SCCRC) has been investigating Steven Johnston’s case since 1st April 1999. Three further witnesses claim to have seen the victim alive AFTER 3rd November 1995. A further witness claims to have looked through the victim’s living room window at 2.15pm on Tuesday 7th November 1995. He does not report seeing a body.
Steven Johnston is serving his sentence at Perth prison. His case is still under investigation by the SCCRC.
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