The New Statesman Special Report - Why justice isn't working

The legal system now favours the prosecution so strongly that we must expect more and more wrongful

Just over three years ago, David Gorman was the manufacturing manager of a large paper company, earning £50,000 a year. He had a wife, three young children and a smart house in Essex.

Then, one night, he went to the assistance of a young woman in apparent distress; now, he is serving 18 years in prison.

Gorman, now 40, was brought up in Cornwall and loved going back there. On 31 July 1997, he drove to Perranporth; he'd been inspecting a paper mill in the West Country, and his family were due to join him the following day for a holiday. He took advantage of the summer evening and walked along the cliffs. He sat down to watch the sunset, and fell asleep.

When he awoke, it was dark; afraid to walk back along the cliff path, he headed inland, towards the Perran Sands caravan site. When he reached it, a young woman almost ran into him. She said she thought there was a burglar in her caravan, and asked if he could check it for her. He agreed to help, and looked around, but found nobody there. The woman asked him to stay, but Gorman went on his way, crossing a golf course. When he reached the main road about an hour later, the police were waiting to arrest him.

The woman from the caravan, Andrea Melville, had told them that she had just gone to bed when she was disturbed by an intruder. He was wearing a balaclava. He produced a knife, tied her hands with washing-line and blindfolded her. He told her she was lucky that she was menstruating; he settled for oral sex.

Gorman was charged with indecent assault and burglary with intent to rape. On 6 August, after a second search of the area, the police found a balaclava and a pair of yellow safety gloves, made of Kevlar fibres, which are used in the manufacture of protective clothing.

By then, they had circulated Gorman's details, and he had been linked to an unsolved case in Shrewsbury eight months earlier. In that case, just before lunchtime, Stella Sheridan had heard a knock at the door of her home. A man wearing a crash helmet and black padded gloves asked for her husband. She said he wasn't at home, but allowed the man in to use the toilet. He then took out a knife and, in the upstairs bathroom, blindfolded her. He raped her both in the vagina and the anus, and also made her perform oral sex. He then got the vacuum cleaner and emptied the bag over the carpet, clearly attempting to destroy all scientific evidence.

The forensic evidence in the case was that fibres from Sheridan's bathroom carpet were on Gorman's jogging trousers. Those trousers also carried Kevlar fibres, which, in turn, were found on two items of clothing worn by Sheridan. In Perranporth, Kevlar was found on Melville's blue top and on her bra. There was also a single fibre at the back window.

Gorman stood trial for the offences at Truro Crown Court in June 1998. The judge, Mr Justice Butterfield, rejected defence requests to separate the Perranporth and Shrewsbury indictments. Gorman was found guilty on all counts.

Anyone receiving a sentence of such severity - indeed, anyone convicted at all - should have been found guilty beyond all reasonable doubt. Yet, although both incidents were sexual assaults, there was no human scientific evidence - body fluids, hair or fingerprints - to link Gorman to either attack. Fingerprints were found at the scene of the Shrewsbury rape; they did not match Gorman's. A semen swab was taken from the bath; this did not match Gorman's. Four pubic hairs were recovered from the bath; these did not match Gorman's, nor did they match Sheridan's or her husband's. Although Gorman suffered from severe psoriasis - the stress-related skin-flaking disease made memorable by Michael Gambon in The Singing Detective - none of Gorman's skin flakes was found at either scene.

What of the Kevlar fibres? Their discovery would have been more impressive had there been any evidence, in either case, that the attacker had worn Kevlar gloves. In Shrewsbury, the attacker wore black padded gloves and, in Perranporth, probably none at all. Kevlar gloves, which have a good grip, are often used as sportswear, and that could well explain why they were found at the edge of a golf course. Moreover, anyone working in an industrial environment (as Sheridan's husband did) could easily come into contact with Kevlar fibres. Again, the balaclava - a woollen type often worn by IRA members - hardly matched Melville's description of a balaclava "made of wetsuit-type material".

What of the blue polypropylene fibres, allegedly from the bathroom carpet in Shrewsbury, that were found on Gorman's trousers? Think about it for a moment. Are we really supposed to believe those fibres remained on the trousers for eight whole months, while the traces of all the other carpets with which the trousers might have come into contact had disappeared? Is it not at least equally likely that Gorman's story was true: that, in walking across the golf course in the dark, he had fallen over a blue polypropylene rope at the edge of one of the tees?

Gorman was put on an identity parade in Shrewsbury in October 1997, ten months after the offence. Sheridan didn't pick him out but, a day later, said she "had strong feelings" about him. She said "his hair was fair, which didn't fit the mental image I had, although I never saw [the attacker's] hair". In fact, Gorman's hair isn't fair.

Not only was there no genuine evidence to link Gorman to either attack, there weren't even grounds for believing that they had been carried out by the same person. Indeed, submissions to the Criminal Cases Review Commission suggested a number of factors that cast doubt on whether the Perranporth attack ever took place.

Gorman, moreover, had no history of violence. When he was 18, he had received a conviction for trespass after a minor fracas outside a Newquay nightclub. That, prior to the trial, was the extent of his criminal history.

The David Gorman case is a telling example of how, once a suspect has been targeted, the evidence can be shaped, piece by piece, to produce a spurious, but superficially plausible, case against him. Almost any factor can be construed in such a way that it places the suspect in an incriminating light. Gorman, a man who had once videoed himself making love to his wife and had had a succession of extramarital affairs, was particularly vulnerable to this process.

Once an investigation is under way, the checks that are supposedly built into the criminal justice system fail to function; the suspect's actual guilt or innocence becomes irrelevant. The judicial process is directed solely towards obtaining a conviction.

There is every reason to believe that cases of wrongful imprisonment have increased in recent years. There is no statistical proof of this, but the increasing tide of desperate letters to people like myself tells its own story. And the letters no longer concern only those who might be considered to be at the margins of society; increasingly, they involve articulate, well-informed, middle-class people. Cases currently causing concern include those of a barrister, a solicitor, a doctor and an RAF squadron leader. Yet media interest (with honourable exceptions) is minor.

In 1992, after the crisis caused by the wrongful convictions of the Birmingham Six, the Guildford Four and others, the barrister (and now Labour peer) Helena Kennedy wrote that it is "only by keeping the legal tests for conviction very high that the courts can guarantee the protection of the innocent and maintain respect for the law".

Those words were not heeded. On the contrary, successive legislative changes have lowered the tests for conviction and weakened the position of the defendant. In decades to come, anybody looking back at this period of criminal justice will be baffled: why did British governments, knowing that the legal system had proved so fallible, not only fail to introduce appropriate remedies, but instead make wrongful convictions more likely?

First, in 1989, the defence right to peremptory challenge of jurors was abolished. This was a procedure that enabled the defence to try to secure a jury that was properly balanced in age, sex, race, class and so on. This can be vital. Gorman, for example, was convicted on rape charges, which men and women may consider differently, by a jury of ten women and two men.

The Criminal Justice and Public Order Act 1994 abolished the requirement that judges should give a specific warning to juries when evidence was uncorroborated, and also abolished the right of silence, hitherto a core feature of the criminal justice system. It was confidently predicted that each of these changes would lead to more miscarriages of justice.

Then, most controversially, the rules of disclosure were changed. Nearly all the miscarriages rectified in the late 1980s and early 1990s had been caused by police failure to disclose exculpatory material to the defence. As a result, appeal court judges said that, in future, there should be complete disclosure. The police lobbied against this, and found themselves knocking at an open door. Michael Howard, the then home secretary, introduced the Criminal Procedure and Investigations Act 1996 and restored to the police the opportunity to withhold case material from the defence.

Nor was this all. Since 1967, the defendant has been required to give advance notice to the prosecution of the details of any alibi on which he intended to rely. The 1996 act expanded this so that it applied to the defendant's entire defence. It was a double whammy: the defence had to disclose to the Crown, but the Crown was under no corresponding obligation to disclose to the defence.

The original purpose of advance alibi disclosure was to avoid wasted prosecutions; if the alibi checked out, the prosecution would drop the case. In practice, the police have increasingly used the opportunity to revise their evidence and so nullify the alibi.

In the Gorman case, a married couple stated that, a few days before the Shrewsbury rape, a man (who, according to the prosecution case, was the rapist) called at their house "during the late afternoon". Gorman had a solid alibi for this time. More than nine months later, police revisited the couple, who then made new statements saying that this man had called at their house after 9.30am. It was hard to explain why they could have been so mistaken as to believe that something had occurred in the late afternoon, when it had actually taken place in the morning; and why they would have been able to recollect this fleeting incident with greater accuracy nine months later than they did at the time. Nevertheless, testimony that had assisted Gorman was transformed into evidence that supported the Crown.

With the 1996 act in place, police officers again feel they can pursue investigations as they choose - making some pieces of evidence fit, keeping quiet about those that don't - without fear of exposure. It is a reckless atmosphere; no one working for the prosecution seems to have the slightest regard for how many innocent people are committed to prison.

Danny McNamee, convicted of the 1982 Hyde Park bombing, spent 11 years in prison for a crime he didn't commit. At the time of his successful appeal in December 1998, the dangers of convictions on the basis of misleading fingerprint evidence were highlighted. So have the rules on fingerprint evidence been tightened up since then? Far from it: the Home Office has plans to scrap the standard of proof used since 1953.

Besides all the powers that a compliant and seemingly amnesiac legislature has ceded to them, the police have new aids to investigation: DNA technology and increased surveillance. You might expect such technological advances to benefit prosecution and defence equally. But recent cases suggest that this is not so.

For example, Merrick Rogers, a 25-year-old computer draughtsman, was convicted last June of the murder of his friend, Claire Streader. Because his DNA had been found on the body, he was charged with the murder. The defence explanation (that he had kissed his friend goodnight minutes earlier) was pooh-poohed; the even stronger point, that two types of unidentified DNA were also found on the body, was ignored. The court was also told by the prosecution that CCTV cameras provided no support for his alibi. The defence was given large stacks of video tapes only just before the trial started; three weeks later, near the end of the case, it discovered that, in fact, they provided very good support for Rogers. By then, it was too late to make this a central piece of the defence.

The provisions of the 1996 act are fatal to the ancient "equality of arms" principle. When the defence is disclosed in advance, the prosecution has the opportunity to neutralise it. If an additional line of defence emerges during the trial, as it did in the Rogers case, it is often too late for it to be properly assimilated; the evidence, however compelling, is devalued.

A Scottish sheriff recently commented: "The Crown in prosecuting offences has at its behest the entire machinery of the state; the accused has his solicitor." That observation about Scottish justice is equally applicable to England and Wales - with the possible caveat that it underestimates the seriousness of the position, because the prosecution often has the press on its side as well. The sub judice rules are being increasingly infringed; and if the police delay charging a suspect for 24 hours or so, then they do not apply. The media increasingly exploit this loophole.

This was noted recently in the case of Jane Andrews, the former aide to the Duchess of York; in the wake of much damning publicity, she was charged with murder. In another case, a man charged with the murder of his partner and her four children in Cornwall was described in the Daily Telegraph as "a Hell's Angel type with tattoos and a ponytail, who drove a car with darkened windows". Doubtless its readers (including any potential jurors) will have already reached their conclusions.

The majority of the British public still assumes that, even if justice doesn't always prevail, it is a broadly equal contest in the courtroom. Nothing could be further from the truth. The scales have never been more uneven than they are at present.

So do the authorities intend to rectify this situation? Hardly; they are to press forward with strengthening the prosecution's hand. Proposals currently in the pipeline include the abolition of jury trial for certain offences; making it easier to obtain convictions for rape (astonishingly, in view of the Gorman case); and amending the "double jeopardy" rule, which prevents those acquitted from being recharged with the same offence.

Even the introduction of the Criminal Cases Review Commission - undoubtedly a big improvement - is not an unmitigated blessing. The better your lawyer, the better your chances with the commission. In this respect, it merely mirrors and perpetuates the injustices of the system; those with top-notch legal representation succeed, whereas those with poor representation may not.

A second problem is that juries, mindful of the greater scope for rectifying mistaken verdicts, may be more ready to convict in the first place. And a third problem is that the commission has become an integral part of an expensive and irrational process. We have created a legal system in which millions of pounds are spent putting the wrong people in prison, millions of pounds are spent keeping them there and, ultimately, millions of pounds are spent proving they shouldn't have been there in the first place.

We can hope that the Human Rights Act will improve the system - we can expect many challenges under Article 6, the "fair trial" provision. But this will be a long drawn-out process. In the meantime, the country must bear an enormous cost, not only in financial terms, but also in the misery caused to the families of those wrongly imprisoned, and to the victims and their families. We should always remember that, in every case of wrongful conviction, the real criminal goes free. Someone in authority should finally acknowledge that the objective must be to get it right in the first place.

The names of the two women in the Gorman case have been changed