Devastated by the verdict against him, Satpal was determined to appeal. The first obstacle which he met was provided by his learned Counsel. Following normal procedure, the solicitors instructed Counsel to advise on appeal.
Counterpoint
All of these cases have been well documented elsewhere, including in the mainstream media. The result of these cases and others is that whereas before many people – especially judges – exhibited an almost blind faith in the criminal justice system, and in the police in particular, the tendency in recent years has been for people to assume that any time somebody cries foul that they have been framed by the police or stitched up in some other fashion. An extensive system of appeal increases the likelihood of freeing the innocent, but it is also open to abuse by both the just plain guilty and by the likes of Satpal Ram and his campaigners who have turned the system on its head proclaiming to all and sundry that the perpetrator is really the victim, and vice versa.
Point: Where a Defendant is represented by a QC and Junior Counsel, the instructions to advise are directed to the Junior Counsel. Stephen Linehan prepared the advice on behalf of Satpal. In two short pages, Linehan curtly dismisses any possibility of a successful appeal. The essence of the advice and of Linehan’s attitude is summed up in his second paragraph in which he writes: “It is important for the Defendant to understand that the fact that you disagreed with the verdict does not provide any ground of appeal. Otherwise every dissatisfied Defendant would appeal and continue to appeal until he obtained a verdict which he desired.”
Counterpoint: On conviction in the Magistrates Court there is an automatic right of appeal by way of retrial in the Crown Court before a judge and two magistrates. On appeal against conviction on indictment though proper grounds are needed to appeal, and leave to appeal must first be sought. The fact that Linehan’s prediction came true does not of course mean that Ram’s then proposed appeal had no merits at all on procedure. In every case of any complexity there is sure to be some material irregularity, however minor, but a conviction will not be quashed just because a witness lies or is mistaken, or because a police officer misspelt a name on a warrant. A conviction will not even be overturned if the judge misdirects the jury; a conviction will be overturned only if the Court of Appeal considers the material irregularity or irregularities to be significant enough to warrant the quashing of the conviction. A retrial may or may not be ordered depending on the individual circumstances. In the cases of John McGranaghan and Stefan Kiszko, the convictions were quashed and the appellants were declared innocent; in the case of Sara Thornton, her murder conviction was quashed and she was freed on bail pending a retrial. In the case of Michael Stone (who was convicted of two murders and an horrific attempted murder), his convictions were quashed and he was remanded in custody pending a retrial.
Point: Linehan goes on to state that the only defence raised to the charge of murder was that of provocation, that the witnesses gave evidence establishing the existence of provocation, but that the jury were entitled to come to the conclusion, as they did, that the Defendant had in fact not been provoked. With this patronising and puerile advice, the learned Stephen Linehan and Douglas Draycott QC washed their hands of the case of Satpal Ram.
Counterpoint
Point: In the absence of a favourable opinion on appeal from Counsel, legal aid ceases immediately. John Morgan & Company lost all interest in Satpal’s case when the money dried up. [In view of my subsequent telephone conversation with John Morgan, this is an unwarranted slur – see previous link].
Counterpoint
Point: Satpal prepared his own application for Leave to Appeal with the help of a fellow prisoner. He concentrated on the point that no interpreter was provided for the Bengali-speaking waiters and that their evidence, which would have established that Satpal only acted in response to a vicious racist attack, was incomprehensible to the jury.
Counterpoint: This may have been a valid point, but as the Court of Appeal pointed out in its 1989 judgment it still left the defence a mountain to climb. The restaurant staff were not the best witnesses because they were not in the thick of things. The jury heard compelling evidence from many other witnesses, including independent witnesses, both of the attack BY RAM ON CLARKE PEARCE never let it be forgotten and of Ram’s state of mind after the attack. They also heard how Clarke had been stabbed five times, and how the knife had been twisted in his back.
Point: [Ram was refused leave to appeal but...] Satpal’s family in the meantime contacted Handsworth Law Centre as a result of which Satpal was again provided with legal representation. The law centre consulted a different barrister, Patrick O’Connor and he considered the case and supplied a long advice on appeal on the 12th May 1988. This advice looked in detail at the question of failing to provide an interpreter for one of the Bengali’s waiters, Abdul, and pointed out the importance of Abdul’s evidence to the defence case. It went further however to deal with the whole conduct of the defence case. O’Connor wrote: “A decision seems to have been made by those then representing Mr Ram not even to advance the defences of self-defence or accident. I must say that I am concerned about this decision. In some ways, the statutory provocation defence is more technical and difficult than those defences that have not been advanced The end result of the failure to advance these defences was that the learned trial judge was obliged by the evidence to leave self defence and accident to the jury, but was able to say to the jury that in the light of the lawyers decision, self defence would be, fanciful to a degree”.
Counterpoint: We are not told on what basis this opinion was provided; the fact that Patrick O’Connor appears to seriously consider accident does tend to indicate that he was kept in the dark about most of the damning evidence against his prospective client.
Point: O’Connor went on to point out that to deprive a Defendant of an arguable defence (i.e. self-defence or accident) through an unjustifiable decision made by his legal representatives would be a material irregularity.
Counterpoint: O’Connor is right, but in Draycott and Linehan’s opinion, self-defence was not an arguable defence. And accident...
Point: He writes: “The Learned trial Judge and the first (premature) opinion of the Single Judge here refer to the experience and seniority of the Defence Counsel. I cannot for that reason dismiss the possibility that some serious mistake has been made in the conduct of this case on Mr Ram’s behalf”.
Counterpoint: True, even leading experts in their fields make mistakes, but there is no evidence that Draycott and Linehan did.
Point: The Court of Appeal accepted that because the original application for leave had been put forward by Satpal without legal advice, he was entitled to have his application put forward again to a Single Judge. Counterpoint
Point: O’Connor’s advice provided the basis for an appeal which elaborated the point about failure to provide an interpreter for the witnesses, but also introduced the argument that improper conduct of Satpal’s defence was a material irregularity. In response to O’Connor’s advice the Registrar of Criminal Appeals referred the matter back to Douglas Draycott QC, asking him to comment on the criticisms of his conduct to the Defence. Draycott responded with a written opinion dated 25th June 1988. Not surprisingly, this is a self-serving unctuous document in which Draycott seeks to absolve himself from any responsibility to his erstwhile client. Complete lack of understanding is indicated in his first paragraph in which he refers to Satpal as a member of the Pakistani community.
Counterpoint: Draycott was obviously not pleased to be blamed for his client’s (warranted) conviction. Exactly how his innocent mistake or slip of the pen over Ram’s ethnic origins enters into the equation is not clear.
Point: Draycott freely states that Satpal himself said that he acted in self-defence. Draycott writes,“My instruction were [sic] that Ram produced a knife to defend himself. A combination of accident and of self defence was plainly contemplated.”
Counterpoint: These were Ram’s original instructions, but they were clearly not true.
Point: He refers to a forty minute meeting with Satpal in Shrewsbury prison on 1st June 1987. The decision not to run self defence was based on the number and position of the injuries to the deceased, and on certain statements which the deceased’s family alleged that Satpal had made indicating some satisfaction that the deceased had been killed.
Counterpoint: Ram’s comments were heard by an independent witness (and were apparently accepted by the jury, as Ram’s campaigners concede). This was undoubtedly one of the factors which influenced Draycott in his decision to advise Ram that self-defence was no more arguable than accident, a fact that should be obvious to any intelligent person with little or no legal training.
Point: So far as the injuries are concerned, only two wounds were attributable to the knife and other wounds were caused by glasses being thrown by the deceased’s family and friends. One of the knife wounds was in the deceased’s back. But this in itself is not inconsistent with self-defence if the attacker was at one stage side ways on to the person defending himself.
Counterpoint: There were five knife wounds. Everything about this vicious attack was inconsistent with both self-defence and provocation.
Point: [Quoted verbatim from Lesley’s E-mail.] So far as the alleged statements such as, “I hope I’ve killed him” are concerned, these are part of the evidence of witnesses who were clearly fabricating evidence in order to make things look as bad as possible for Satpal.
Counterpoint: I have covered this nonsense in Satpal Ram: GUILTY OF MURDER IN THE FIRST DEGREE
which is available elsewhere on this site, but to save the reader clicking on the appropriate link (and possibly losing his thread) I will repeat here what I said there:Distortion Number 3: Incriminatory statements attributed to Ram were “obviously” fabricated by the prosecution witnesses.
In the mailing the current writer received from Lesley, the stark claim is made that: “So far as the alleged statements such as, ‘I hope I’ve killed him’ are concerned, these are part of the evidence of witnesses who were clearly fabricating evidence in order to make things look as bad as possible for Satpal.”
For Ram’s supporters to make such sweeping statements shows a complete lack of understanding of the legal process as much as their innate dishonesty. The rules of evidence are extremely complicated, so much so that even High Court judges frequently get them wrong, and it is not unknown for a decision of a lower court to be reversed by the Court of Appeal then reversed again by the House of Lords, but basically, if evidence is deemed probative and relevant and is not excluded by the judge for some other reason, it can be given under oath. It can then be tested by cross-examination. If under cross-examination, a particular witness admits that he or she is lying, or might be mistaken, then the judge can take appropriate action, which might be directing the jury to ignore that part of the evidence. In a rare case, the judge might stop the trial and order the jury to return a verdict of not guilty.
Imagine for argument’s sake a rape trial in which the only issue is consent, and the defence barrister says to the only prosecution witness, Miss X: “You had sex with my client willingly, didn’t you?” to which she replies: “Yes, he didn’t rape me”. Under those circumstances, there would be little else the judge could do but to halt the trial and invite the prosecution to discontinue its case, which it would surely do. Another, and probably more frequent occurrence, is that at the end of the prosecution case, the defence can make a submission of no case to answer.
Indeed, this, or something similar to it, actually happened during Ram’s trial: Ram’s co-defendant Narvinder Shinji was cleared of assisting his friend to avoid arrest before the end of the case.
If a witness stands up to cross-examination and is unshaken, or relatively so, then the evidence will go to the jury. It is simply not good enough for Ram’s supporters to claim that this prosecution witness (or all of them) were lying because of bias, emotional involvement, racism, or whatever. If that were the case nobody could ever be convicted of any crime. Another point the reader might like to ponder is that if the prosecution witnesses were fabricating their stories as Ram’s supporters claim, why didn’t they incriminate Narvinder Shinji as well? In his statement, one of the Indian waiters said that he saw Shinji holding Ram back. In fact, apart from his later act of crass stupidity, Narvinder Shinji doesn’t come out of this horrible incident too badly. He can hardly be held responsible for the actions of his psychopathic friend, and one should not condemn him too harshly for failing to turn Ram in to the police.
Counterpoint: Draycott was never on the hook; it is Ram who is serving a life sentence; the late Douglas Draycott has been exonerated twice by the Court of Appeal. Ram has not.
Point: O’Connor then came to the conclusion that the appeal could not proceed on the grounds of the improper conduct of Satpal’s defence representatives in failing to put forward self-defence. O’Connor wrote, "I have reluctantly concluded that we cannot pursue the self-defence question before the Court of Appeal. Surprisingly, he cited Draycott’s reason, namely the alleged statements attributed to Satpal and the number of stab wounds. His main reason was however...
Counterpoint: Let’s stop there. This is not so surprising; however many times the Ram campaign repeat these lies they are still lies. Reading between the lines, it is apparent that O’Connor had been misled by Ram initially, but having been put more fully in the picture by Draycott, he now reassessed his advice. I must stress again that barristers are bound by professional ethics (unlike the Free Satpal Campaign) and although they are obliged by those ethics to do everything in their power to assist their clients, they are also obliged not to attempt to mislead the court. O’Connor cannot be criticised any more than can Draycott, especially as he did this work with no guarantee of being paid.
It is to Patrick O’Connor’s further credit that even though he must have realised he had been wilfully misled (after receiving Draycott’s comments) he continued with the application on a pro bono basis and did the best he could for his undeserving client.
It may be that even then he was not fully in the picture about what had actually happened in the restaurant in the small hours of November 16, 1986.
After Ram’s appeal was dismissed, and before making his belated application for Legal Aid, O’Connor thanked the Court for
“set[ting] out clearly many of the circumstances of which perhaps some people were not aware.” [Including me, My Lord!]
Let has now return to where we were before:
Point: His main reason was however...
Counterpoint: O’Connor was far too diplomatic, the decision was far from finely balanced, but regardless of Draycott’s advice, the final decision rested with Ram. [For the record, the case of Regina v Irwin (not Urwin), is cited in the judgment of Ram’s first appeal.]
Point
Point: Again, this was the evidence of one witness who did not have a clear view of what was happening, and was just as clearly mistaken. The deceased did not advance towards the defendant; when Ram attacked Clarke, Clarke’s hand shot up, possibly in a reflex action, and a glass went flying; the glass didn’t hit Ram. Ram’s head did not bleed at the outset of the fight because there was no fight. The woman who shouted “fucking bastard, black bastard” (Sharon) did not join in this non-existent fight. When Clarke’s party realised he’d been stabbed and in particular when they realised his neck was hanging open, the women became hysterical.
The statement of one witness who did not have a clear view of what happened is not sufficient to cast a reasonable doubt (or any doubt at all) on the now proven prosecution case. The 1989 Court of Appeal judgment is clear about this. Not only did the waiter mistakenly believe there was a fight but he said that a) Clarke was holding a knife and b) he didn’t see anybody stabbed.
Point
Counterpoint: In view of what the Free Satpal Campaign said about Lord Lane shortly afterwards, this invective is more than a little amusing. (Click here for a scan of the Briefing article and the alleged condemnation by Lord Lane of the handling of this case).
As for the other judges, Kennedy was not then a Lord Justice, although he is now, and as someone who has had the dubious pleasure of appearing before Lord Justice Kennedy in the Divisional Court I can personally refute the implication
that he is the sort of judge who would appear alongside the Lord Chief Justice just to make up the numbers. For the record, it was Lord Justice Kennedy who presided over
the appeal of Michael Stone earlier this year.
Point
Counterpoint: The Court of Appeal did indeed make this pronouncement; click here for the full text of that judgment; click here for Mr O’Neill’s comments.
Point: ...O’Connor then advised that there was not basis [sic] for taking the matter further, even to the European Court of Human Rights. This was a demoralising experience for Satpal supporters and for a time the campaign became inactive because no one knew which way to turn. Satpal himself never gave up. The whole criminal justice system and in particular the role of the Court of Appeal began to be rocked by the increasing number of cases where miscarriages of justice, such as the Guildford Four, Birmingham Six and West Midlands Serious Crimes Squad cases, had to be acknowledged and soon. Through Satpal’s insistence and enthusiasm the campaign was revived.
Counterpoint: The Guildford Four and Birmingham Six cases are hardly comparable with Ram’s. Ram was at the scene of the crime, was seen by many witnesses, and by his own admission struck the fatal blow or blows. He was not verballed up; he did not have a confession beaten out of him; he was not the victim of a police/prosecution conspiracy.
The claim that the campaign was revived at Ram’s insistence is a candid admission that Ram openly endorses the torrent of vilification and slander that has been directed against both the victim and the victim’s family and friends over a period of more than a decade. No doubt this enthusiastic endorsement will be considered by the Parole Board at any future hearings to determine when – if ever – he is to be released. Point
The search for new evidence continued. Despite a widespread publicity campaign, it has still proved impossible to track down the three Asian diners who left the restaurant before the police came. But efforts to trace them are going on.
Counterpoint: Even if these men are eventually found it is now fourteen and more years after the murder. Any evidence they gave would have to be treated with extreme caution. And who is to say that any evidence they did give would be favourable to Ram? Point
Counterpoint: In other words, two of the Asian witnesses have stood by their evidence, in spite of obvious if thinly veiled attempts to pressurise or coerce them into changing their testimony.
Point: [Quoted verbatim from Lesley’s E-mail]. Shalim, who was also not called, has made a statement with more observations than in the statement taken down by the police. The police statement reads,“I saw about nine people bunched in between table seven and eleven when all the people were bunched up in the centre of the restaurant there was a lot of shouting and swearing by all the people concerned and a lot of glasses being thrown at each other
Shalim now says:
“I saw the woman from table ten come across to table seven. Then I saw Clarke pick up a glass and break it. Clarke hit Satpal in the face with the glass whilst Satpal was sitting down. The people at table ten started throwing glasses, plates and ashtrays across the room”.
Counterpoint: Shalim can make whatever statements he wants, of course, or whatever statements he is put up to by the Free Satpal Campaign. Before he makes such statements in legal proceedings however both he and Ram’s lapdogs should be advised that although prosecutions for perjury and perverting the course of justice are few and far between, these are both extremely serious offences, and would almost certainly be prosecuted to the full extent of the law in this case.
Point: Abdul was interviewed through a Bengali interpreter. His statement more clearly substantiates Satpal’s story than the statement written for him by the police. The translation of his statement reads:
“I then saw the man who later died lifting up his head from the table and standing up. He appeared to be angry. He also began to swear. He picked up a wine glass from his table and smashed it on his table as he stood up. He then walked up to the table where Satpal Ram was sitting, holding the broken glass. He leaned over and scraped the broken edge of the glass down Satpal’s face. Satpal was still sitting down. The woman who had been standing by the table had moved back when the man who later died (Clarke) came up. As he attacked Satpal she and the other people from table number ten started to throw glasses and plates towards the table where Satpal was sitting. I saw Satpal stand up. I cannot say whether he had anything in his hand but I saw something flash or glint in the light. I saw him making one downward blow toward Clarke. Clarke then backed away from the table. He bent over and then fell. As he fell everything went quiet in the restaurant. The people at table ten stopped throwing the plates and glasses. The other Asian man at Satpal’s table was holding Satpal back”.
Counterpoint: The judges who sit on the Court of Appeal are not mugs any more than the average jury; if they could be persuaded to admit this statement as fresh evidence, which is extremely doubtful, they would have serious reservations about a number of aspects of it, and even if it were honest, it does not go far enough to exonerate Ram.
Point: Satpal’s solicitor has consulted another barrister, Lalith de Kauwe and obtained a fresh opinion. He has considered the whole case in detail and has visited Satpal and has come to two main conclusions. Firstly that the erroneous decisions of Satpal’s lawyers fall within the new test propounded by the Court of Appeal in the case of R v Clinton (9th March 1993.) Under this test the court will intervene where a legal representative acted in defiance of, or without, proper instructions, or when all promptings of reason and good sense pointed the other way. Secondly that those witnesses who were not called at the trial or whose evidence was misunderstood due to the lack of an interpreter, could now be admitted as fresh evidence. In the light of these conclusions, counsel advises that the case should be referred by the Home Secretary to the Court of Appeal because the conviction is unsafe and unsatisfactory.
Counterpoint: If Ram’s new Counsel has indeed come to that decision then he has done so on the basis of spurious and at times doctored evidence. Ram’s legal team, in particular Draycott and Linehan, did not make erroneous decisions nor did they act in defiance of Ram or without proper instruction. Ram’s trial lasted three days, during which time he sat in the dock and heard his advocates cross-examine witnesses and advance a defence of provocation. At no time during that trial did he express dissatisfaction with this defence.
Reason and good sense did not point the other way; reason and good sense told Draycott and Linehan that a man who attacked a stranger with a flick knife, stabbed him in the groin, in the chest, in the neck, in the back twice, and twisted the knife for good measure, could not in all seriousness advance a defence of self-defence. Reason and good sense told them that Ram’s actions after the event were not consistent with those of a man who had struck back against an attacker reluctantly using reasonable force.
Point
: In summary, Satpal Ram was the victim of a racist attack who defended himself. Counterpoint: A proven lie.Point: If he had not done so he could probably have been killed. Counterpoint: A proven lie.Point: Experience shows that his killer, a white man killing an Asian, would probably have walked free or at least received a light sentence for manslaughter.
Counterpoint: Experience shows no such thing.
Point: Because the white man died, Satpal was subjected to the full rigours of a racist legal system, an all-white jury, a lynch mob in the gallery, a life sentence for murder.Counterpoint: Anyone, regardless of race or ethnic origin, who killed a man of any race in similar circumstances and in similar fashion to the way Ram murdered Clarke Pearce would have been dealt with in similar fashion by the British legal system.
Point: Worse still, the system provided him with lawyers who failed to put his case forward at all...Counterpoint: The system provided Ram with the best defence Legal Aid could buy. Many defendants irrespective of race have far less capable advocates than Draycott and Linehan.
Point:...the jury never in fact decided the real issue whether Satpal and the independent witnesses were right and he acted in self-defence, or whether Clarke’s family were right and Clarke was the innocent victim of a ruthless murderer.
Counterpoint: The jury did decide the real issue. As well as the five members of Clarke’s party the independent witnesses testified to the effect that Ram had murdered Pearce and did so in a most brutal fashion. The evidence of the Asian restaurant staff would have been of no help to Ram at all, as is evinced by the undoctored statement of Abdul Mozomil which was considered by the Lord Chief Justice of England at Ram’s 1989 appeal.
Point: Justice demands that the case be reviewed, but only intense public pressure, as in the case of the Birmingham Six, the Guildford Four, the East Ham Two, the Cardiff Three, the Tottenham Three, Tarlochan Gill and the Bridgewater Four, will force the legal establishment to admit their mistake and free Satpal from his prison cell.
Counterpoint: The case has been reviewed twice, and both times Ram’s appeals have been dismissed. To compare Ram with the Birmingham Six, Guildford Four and similar miscarriages of justice is misleading in the extreme; the issues are not the same.
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