Open Letter to Helen Pitcher Chair of the Criminal Cases Review Commission (CCRC) from Brendan McConville

Dear Ms Pitcher, 

It is with some disappointment that I write this Open Letter to the Chair of the Criminal Cases Review Commission (CCRC). A dismay that has resulted from the realisation that my naïve expectation of a rigorous but efficient review process has been replaced by the harsh reality of a body that appears to function as nothing more than an impediment to judicial redress. For readers who are unaware of the details surrounding my wrongful conviction, I will attempt to provide some background context along with a brief summary of the key strands of contended circumstantial evidence that were skilfully manipulated in order to secure my conviction in a non-jury court. And, yes, they still do exist in the north of Ireland, over a quarter of a century after signing the 1998 Good Friday Agreement. 

My life changed forever on 10th March 2009, when within a matter of moments the road adjacent to the front of my home, which I shared with my 14 year old son, became alive with the clamour and bustle of armoured police vehicles and their contingent of heavily armed personnel. This was quickly followed by a forceful pounding on my front door that left me in no doubt that something major was unfolding, and that I was right at the centre of it. The sudden descent on my home was just one of a series of house raids to occur that day in the local area, and I, just one of a number of individuals to be detained. The wave of coordinated searches and subsequent arrests followed a gun attack that occurred the previous night in the Craigavon area of County Armagh, which resulted in a police constable being shot and killed in an attack that was claimed by Irish republicans. This shooting happened just two days after another gun attack by Irish republicans outside Masserene barracks in County Antrim which left two British soldiers dead and a number of people injured. For many, it seemed like a spectre from the past had revisited and the tensions were at fever pitch level, with politicians demanding swift and decisive action. 

After 14 days of continuous questioning, I was eventually charged with the police constable's murder, based solely on the finding that my DNA profile had been discovered on a brown jacket that was retrieved from a car in which I had been a frequent passenger. The owner of that vehicle had likewise been charged with the constable's murder just one day prior to myself. The so called circumstantial evidence that was used to link the jacket to the shooting was a finding that the jacket had on it, in excess of 300 particles that were classified as 'indicative' of gunshot residue (GSR). However, the particles on the jacket could not be categorised as 'consistent' with GSR because they did not comprise all of its constituent components. It was later also revealed that my DNA profile was only one of at least 3, but possibly up to 10 other profiles obtained from the jacket. Furthermore, while it had rained heavily on the night of the shooting, the jacket was completely dry. Nevertheless, I was triumphantly paraded before a waiting media in what was portrayed as a 'fete accompli' for the police investigators.

While I was in prison awaiting trial, 11 months after the shooting, a local man, who would later be described by his own father as a Walter Mitty type character who would make up stories in order to be the centre of attention, contacted the police in the middle of the night, while drunk, and told them that he had been out walking along with his partner and young children on the night of the shooting and that he had seen me with a group of men in the vicinity of where the shooting occurred. The witness claimed that I had acknowledged him as he walked past, using his Christian name and saying hello. This individual would become known as 'Witness M', with his true identity protected from ever being published by a court imposed anonymity order. 

Crucially, Witness M lied repeatedly during the trial, most notably in relation to his poor eyesight, only grudgingly conceding that he had been prescribed glasses when actually confronted with the prescription from his optician during cross-examination. In fact, a consultant ophthalmologist, called by the prosecution, gave evidence that an individual diagnosed with the eyesight defects recorded in Witness M's prescription, which included Myopia and Astigmatism, would have difficulty identifying facial features beyond a distance of 8 yards. Measurements showed that the closest that Witness M could ever have come to the point where he claimed to have passed me was 16 yards. In addition, other than giving vague explanations such as 'I know him since he was a nipper', and 'I used to see him running about, up the street, Witness M was never able to explain how he would have known me. At one point, he even conceded that he never had a conversation with me before. Furthermore, to date, Witness M's partner has never made a statement to the police about her recollections of that night. She did, however, have a telephone conversation with a detective who submitted a statement saying that Witness M's partner confirmed to him that she had no memory of any exchange occurring between her partner and another individual that night. Nevertheless, based on circumstantial evidence, which comprised both the brown jacket and Witness M's testimony, I was found guilty of murder by joint enterprise, by a single judge, and handed down a life sentence with a minimum tariff of 25 years. 

As a matter of law, all individuals convicted in non-jury trials are granted automatic leave to appeal their convictions and this, undoubtedly, results in an increase in the rate of challenges in these cases. This, in turn, seems to have engendered a degree of judicial apathy  towards such appeals, with judges appearing to view them as nothing more than an expected second roll of the dice by a convicted prisoner with nothing to lose. Accordingly, the Court of Appeal seems to function as nothing more than a stamp of approval for these disputed convictions, that after all were determined by fellow learned judges, not inexperienced jurors. Nevertheless, my appeal began in 2013 and despite the difficulties that Witness M's anonymity order had on suppressing the reporting of information that might have assisted the defence, my legal team managed to make contact with Witness M's father. As a result of this meeting, Witness M's father agreed to provide an affidavit to the Court which, as mentioned earlier, described his son as a compulsive liar. Astonishingly, however, just prior to the commencement of the appeal, Witness M's father was arrested by the police on suspicion of withholding information about threats, which the police maintained had been made to him and his family in order to persuade him to make a false affidavit. It also transpired that the police had secretly recorded conversations between Witness M's father and other family members ta their home in an attempt to gain information. Witness M's father vehemently denied that he had been threatened in any way into making his affidavit, and, in fact, the secret recordings did reveal that when referring to his son, during conversations within the family, which unbeknownst to him were being recorded, he would refer to his son as Walter Mitty, and this nickname appeared to be the accepted nickname within the family, with none of the siblings indicating any surprise or doubt about who was being talked about. In spite of this new evidence, the Court of Appeal, nonetheless, upheld the conviction. 

Following the Court of Appeal's dismissal of my appeal, an application was made to the Criminal Cases Review Commission (CCRC) in March 2017. Amongst the many points that the CCRC were asked to review was the suspected involvement of covert State agents, and the circumstances surrounding the arrest of Witness M's father. Nevertheless, after more than 3 years, and what appears from the CCRC Statement of Reasons to have been a minimalist investigation, the CCRC communicated its preliminary decision not to refer my case back to the Court of Appeal. In June 2020, however, while my legal team were in the process of responding to the errors in the CCRC's legal analysis and identifying important factual inaccuracies, a series of arrests connected to an unrelated incident unveiled the identity of a covert State agent. It then became clear that this Covert Human Intelligence Source (CHIS) had also infiltrated the Justice for the Craigavon Two committee and had deliberately positioned himself to intercept legal professional privileged material that was conveyed to my elderly parents and campaign organisers during monthly committee meetings that took place in my parents' home. This intrusion represented a clear breach of my Article 6 right to a fair trail under the European Convention for the protection of Human Rights and Fundamental Freedoms (ECHR), and this issue would then become the singular focus of my response to the CCRC's June 2020 Statement of Reasons not to refer my conviction. 

The cat and mouse game continued to play out as the CCRC again rejected the revised submissions, which led my legal team to challenge their decision by way of Judicial Review. The CCRC then responded to the judicial review action in January 2022 stating:

'Having considered the arguments made on Mr McConville's behalf and to assure absolute fairness, the CCRC has, in line with its published policy on judicial review, offered to take another look at his case.'

In effect, the CCRC quashed it's earlier decision not to refer my case to the Court of Appeal. 

I now appeal to the CCRC to take action to progress my case. The question about a defendant's right to legal professional privilege is one that has been well rehearsed in law. If, as I suspect, the delay emanates from the State's reluctance to confirm the existence or activities of its operative, then I demand that the CCRC exercise it's powers under Section 17 of the Criminal Appeal Act 1995 to compel such disclosure in a timely manner. It has now been over 7 year since my application was received by the CCRC and I am still in limbo. Justice delayed is justice denied. 

I look forward to hearing back from you at your earliest convenience. 

Yours sincerely, 

Brendan McConville

HMP Maghaberry
Roe House (Roe 4)
Old Road
Ballinderry Upper
Lisburn
BT28 2PT

Brendan McConville and John Paul Wooton - A British Miscarriage of Justice

http://www.mojuk.org.uk/MOJUK2012/Brendan&Paul.html