Key evidence in the 'burking' murder trial was 'hidden' from defence lawyers

Release time：2024-05-22 02:00:26 Source：Culture Capsule news portal

Key evidence which undermined the police case against a man convicted of the so-called 'burking' murder of a vagrant was not disclosed to defence lawyers before his trial, a Mail investigation reveals today.

Supporters of Clive Freeman, 80, who has spent 35 years in prison for a murder which may not even have happened, say the failure to provide his legal team with material documents put him at a significant disadvantage.

The undisclosed papers included original post-mortem notes and drawings, two mysterious notes written by a senior detective to the Crown's pathologist and details of the criminal record of a vital prosecution witness.

There was also a failure to disclose evidence of the police investigation into Freeman's alibi that he was at a hotel several miles away on the night of the alleged murder and a failure to disclose photographs of the post-mortem examinations before his Old Bailey trial.

Freeman, an ex-polo-playing landowner, was convicted in 1989 of murdering Alexander Hardie with a suffocation technique dubbed 'burking', which was used by 19th-century 'body-snatchers' Burke and Hare, who sold corpses to doctors for dissection.

Clive Freeman, 80, (pictured) has spent 35 years in prison for a murder which may not even have happened 

Freeman (pictured aged 20) has always denied murder, but 35 years after he was found guilty he is still in prison 

According to the prosecution pathologist Dr Richard Shepherd, Freeman used burking to kill Edinburgh-born Mr Hardie, 49, in south London as part of an alleged £300,000 insurance swindle.

But as revealed by the Mail in a series of major articles, eight pathologists and forensic experts have debunked the theory. Many of the experts say that the most likely cause of Mr Hardie's death was the mixture of alcohol and prescription drugs found in his body and suggest the most appropriate cause of death is 'unascertained'.

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In addition, a key Crown witness has retracted his statement placing Freeman at the murder scene in 1988, while two eminent former judges have raised serious concerns about the safety of Freeman's conviction.

Freeman has always denied murder, but 35 years after he was found guilty he is still in prison. Had he confessed to murder, he could have been released more than 20 years ago.

The Mail's latest investigation raises serious questions about the working methods of the Criminal Cases Review Commission (CCRC), the body which investigates alleged miscarriages of justice.

This newspaper has obtained evidence of the softly-softly tactics deployed by the CCRC when officials previously questioned Dr Shepherd about his 'burking' findings, which played a crucial role in securing Freeman's conviction.

Official notes of a 2016 meeting with the pathologist reveal he faced a series of gentle questions about his opinions on the cause of Hardie's death.

Asked about his 'burking' theory, Dr Shepherd appeared to backtrack on his evidence at Freeman's trial, saying he was 'not entirely comfortable with that route but the concept could explain the injuries to his head, back and side of chest'. He added 'pathology is just one part of the jigsaw' of a case and that he was 'happy' with his conclusions.

The notes of the telephone interview were written by a CCRC employee who sent them to Dr Shepherd for him to correct, which he did.

Supporters of Freeman say the CCRC should not have allowed the pathologist to 'mark his own homework' and should have sought a report from an independent pathologist.

Our revelations come a few days before the publication of a damning independent report into the CCRC's handling of the case of another man, who spent 17 years in jail for a rape he did not commit.

Freeman, an ex-polo-playing landowner, was convicted in 1989 of murdering Alexander Hardie. Pictured: An artist's impression of the victim, Alexander Hardie 

It is understood the report by top barrister Chris Henley KC will criticise the CCRC's failure to challenge the flawed forensic evidence which helped convict innocent Andrew Malkinson of the offence.

In the Malkinson case, as in the Freeman one, the CCRC refused to refer it to the Court of Appeal because, it said, it failed the 'real possibility' test. This is defined as the 'real possibility' judges will rule that a conviction should be quashed.

Multiple sources have revealed that Helen Pitcher, the head of the CCRC, is in 'grave danger' of losing her job over the Malkinson fiasco and wider criticisms of the body, which is currently reviewing cancer-stricken Freeman's case for a fifth time.

Former police superintendent Tony Thompson, who is representing Freeman, said: 'A fish rots from the head down. Helen Pitcher's job is untenable, and she must be removed from her position immediately.

'There needs to be wholescale reform of the CCRC, which is not fit for purpose. Since taking on the case of Clive Freeman, I have been staggered by its lack of rigour, professionalism and independence. I believe it to be institutionally incompetent and the Justice Secretary Alex Chalk must act.'

Of the latest revelations in the Freeman case, he added: 'Why did the prosecution/police not disclose material evidence to his defence prior to trial? Failure to disclose material evidence is a ground for a referral to the Court of Appeal in its own right.'

The Mail can reveal that in a report on July 6, 2017, Professor Nicholas Birch, a respected consulting pharmacologist, was very critical of Dr Shepherd's work.

He said: 'I understand that the contemporaneous notes of Dr Shepherd made at the post-mortem of Alexander Hardie were not disclosed to the defence team at the time of the trial.

'Subsequent consideration of them has disclosed that at the post-mortem of April 16, 1988 Dr Shepherd concluded: 'COD prob alc + acute pancreatitis' [cause of death probably alcohol plus acute pancreatitis]. Also, in the first two examinations on April 16 and 20, 1988 there were no reports of bruising on Mr Hardie's back despite a specific examination in that area.

'These notes were not disclosed and therefore the defence were unable to explore when or why he changed his mind about the cause of death or about the appearance of bruising. Subsequently he found a more melodramatic cause of death but one which is not based on the recorded facts of the Burke case. However, this may have influenced the jury.'

He added that he found it 'highly irregular and objectionable' that the CCRC had not commissioned an independent review of the pathology in the case.

In a 2017 report on the Freeman case, Professor Jack Crane, former state pathologist in Northern Ireland, was scathing of the CCRC.

According to the prosecution pathologist Dr Richard Shepherd, Freeman used burking to kill Edinburgh-born Mr Hardie, 49, in south London as part of an alleged £300,000 insurance swindle 

He said: 'The CCRC were in error in only commissioning a report from Dr Shepherd as it was going to be highly unlikely he would concede that his conclusions were wrong or that there were plausible, if not more likely, explanations both for the injuries and the possible cause of death.'

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Professor Crane added that it is 'clear' Dr Shepherd 'failed to disclose vitally important pieces of his investigation in his typewritten report and apparently in his evidence to the court during the course of the trial. The weight of the pathologist's evidence cannot have been fairly or properly assessed by the jury during the course of the trial.'

Dr Shepherd, an author, speaker and TV presenter, has not responded to requests for comment from the Mail.

Freeman's representative Mr Thompson has now written to him directly, urging him to examine his 'conscience' on the case.

He told the now retired pathologist: 'You will be aware that since Mr Freeman's conviction many forensic experts have consistently debunked your flawed approach to the post-mortems that you conducted and consider that, at best, the deceased's death was unascertained. It was certainly not murder.'

Mr Thompson added: 'You played a major role in his conviction and now you have the opportunity to pause and reflect on your actions in 1988 and determine whether, having considered what your peers have consistently said about your work and conclusions at the time, that you may have got it wrong.

'All the evidence in Mr Freeman's case overwhelmingly points to the fact that you came to a flawed conclusion. Forensic science, medicine and pathology has developed and changed over the decades, but Mr Freeman still remains incarcerated.

'Your conscience might just prompt you to contact the CCRC and at the very least recommend it appoints an independent pathologist to review your 1988 assessment. Time is running out for Mr Freeman, but you can act in the interests of fairness and justice.'

The CCRC declined to answer a series of questions from the Mail, including whether the official reviewing Freeman's case has any legal qualifications and why the commission has previously failed to ask for a report by an independent pathologist.

A CCRC spokesman said: 'A review of an application relating to Mr Freeman's case is under way, so it would not be appropriate to comment on details of the case.

'This review is being prioritised because of Mr Freeman's age and ill-health. Mr Freeman has applied to the CCRC on several occasions previously. Following thorough reviews, it was determined that those applications did not meet the 'real possibility' test.'

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