Have
you been Convicted of a Murder that did not happen?
Are you maintaining your innocence of a charge and conviction
for a murder that did not take place?
Was the cause of the deceased's death
in your case more probably the result either of an accident, natural
causes or perhaps suicide?
Was your case pursued, investigated and
brought to trial without a coroner's inquest to establish the cause
and mechanism of death or to consider the possibility of innocent causation?
Do you know someone who has been convicted without proof of the
manner of death of the person they stood trial for!
If so, read on
Justice for Nick Tucker
Regina - V - Nicholas Guy Tucker:
We have together analysed the evidence in detail as a coherent whole.
We immediately recognise that there was and is no direct evidence that
the appellant murdered his wife. That is a feature requiring particular
caution, although, increasingly, direct evidence must also be approached
with care. Confessions are said to be, and sometimes are, unreliable.
Positive identifications are said to be, and sometimes are, mistaken.
We have therefore paid particular attention to the "innocent"
possibilities advanced by the defence to explain potentially damaging
features of the evidence. In our judgment the cumulative effect of the
combination of circumstances established by the evidence produced a
formidable case against the appellant. The jury rejected his explanation
of what had happened at the scene: if they had thought that this explanation
was or may have represented the truth he would have been acquitted.
Having rejected his evidence, the jury were entitled to infer from the
circumstances viewed as a whole, that the appellant had indeed killed
his wife. We do not agree that this conclusion was flawed, or that the
resulting conviction is unsafe. Lord Justice Judge, Mr Justice
Sedley, Mr Justice Hughes, Wednesday 9th December 1998
In 1995 I was returning home after an
evening meal with my wife at a country pub in Suffolk. In avoiding two
deer, the car left the road and dropped over 10 feet into a relatively
shallow river. I was discovered, initially unconscious, in the water
beside the driver's door. My wife was found floating in the water, and
after recovery was pronounced dead at the scene: she had drowned.
The police initially treated the situation
as a routine, single vehicle road traffic accident, resulting in a tragic
drowning. There were clearly conflicting opinions between the police
officers involved at the scene on the night and those who carried out
the subsequent investigations. The latter's accusation was that they
believed the impact speed was insufficient to have rendered me unconscious,
and that both of us should have survived the crash. They claimed there
was no explanation for her death in the circumstances: they did not
believe my account, and it was alleged that the crash had not been an
accident. Therefore it was claimed she had been murdered, with which
I was charged. This was despite all the medical examinations and opinion
failing to produce any evidence of murder or foul play. It was a case
pursued on an alleged motive, circumstantial speculation and innuendo.
No coroner's inquest was carried out:
it was opened and adjourned for the police to conduct an investigation
- a fishing expedition and witch-hunt. I question whether it is right
or lawful for what should have been the first essential test in such
circumstances, ie. satisfying the cause of death at a coroner's inquest,
to be subsumed by a criminal trial. It is clear that the functions of
a coroner's court and a criminal trial were combined in a single process
at my trial. The trial judge's direction to the jury was: "What
you have to decide is whether this defendant killed his wife; whether
it was murder, or may it have been a case either that she died as a
result of an accident, or of natural causes - by which I mean a choking
fit."; and; "However, do please remember he (the defendant)
does not have to prove how Carol Tucker died. (Rubbish: proving how
she died would have proved that she had not been murdered.) It is for
the prosecution to prove that he killed her, and that her death was
not an accident or did not arise through natural causes ...". I
do not believe the jury were briefed or directed sufficiently on this
matter - to decide on the mechanism and cause of death as the first
issue.
The primary purpose of a criminal trial
is to judge whether the defendant is guilty of the alleged crime committed.
The natural presumption, therefore, is to accept that a crime has been
committed: the matter to decide is if the defendant is guilty of it.
But cases such as these are not "who done it murders" - they
are cases to decide if any murder or foul play took place at all, therefore,
presuming a possibility of innocent explanation. That should be the
sole job of the coroner to decide - not left to the single-minded interpretation
of cynical, over-zealous police officers or the CPS working on what
the police tell them, followed by an adversarial trial process, selectively
weighted in the prosecutions favour.
The law: Necessary Elements
of an offence to satisfy a 'Charge of Murder' in English Law
1. There are two necessary elements of the
offence, actus reus and mens rea. Both elements need to be present and
established to prove a charge of murder.
2. Actus Reus: This is the physical element
of a crime - the wrongful or prohibited act or failure to act (omission),
(ie. that the deed has been committed) . This has two elements, 'causation
in fact' (medical cause), and 'causation In law' (who was responsible).
2. 1 Where the charge is murder the jury
clearly have to be directed that before they can convict of murder they
must be sure that the act which caused death was unlawful.
2.2 In my case causation in fact was
open to debate. Whilst Dr Harrison (Home Office pathologist who did
the first autopsy) gave the medical cause of death as ventricular fibrillation
(heart stoppage) secondary to immersion in water (in layman's terms
"drowning"), Dr West (pathologist for the defence who carried
out a second autopsy) preferred choking on food (vomit), but really
could not say; Prof Knight (unused second pathologist for the prosecution)
preferred "unascertained"; and Dr Carey (second pathologist
for the defence) thought the most probable cause was drowning. In summary,
causation in fact was never agreed upon by all the medical experts.
2.3 Causation in Law
was neither established nor proved. Harrison, maintaining the cause
of death as drowning, said there was no evidence of my wife being deliberately
drowned; West said there was no medical evidence to indicate she had
died as a result of a direct physical act; Knight stated: "there
is insufficient evidence on medical grounds for any successful hypothesis
to be maintained that the death was due to the actions of another person",
and "... the medical evidence cannot take forward^any intention
to bring criminal charges ..."; and Carey said "... there
was nothing to show death as a result of a third party and nothing to
show that it was homicide."
2.4 The Court of Appeal acknowledged
this in their Judgement: "We immediately recognise that there was
no, and is no, direct evidence that the appellant murdered his wife",
ie. that she was murdered at all.
2.5 This has been reiterated by a fifth
pathologist, Dr Shepherd, as part of the Just Television investigation:
"There's no marks at all on this lady that would indicate that
she was held under the water and drowned ..."; "... not only
do I believe that but as I read the reports of the four pathologists
who reviewed the case early on none of them say that they think she
was murdered"; and "... there is no pathological evidence
that I have seen that indicates that Mrs Tucker was murdered."
(Shepherd's cumulative summary of all four pathologists has never been
heard by a court: neither has it carried any weight with the CCRC.)
2.6 In conclusion, the essential element
of actus reus, especially causation in law, has never been established
or proved, either at trial or appeal, to support and return a verdict
of guilty to murder, as required in English law.
3. Mens rea: (guilty mind - the intention,
knowledge or recklessness, with regard to all elements of the offence).
3.1 For an offence to be proved the onus is
on the Prosecution to prove the defendant had a guilty mind. However,
at common law, an honest and reasonable belief in the existence of circumstances,
which, if true, would make an act an innocent one, has always been held
to be a good defence, (ie. if there is an innocent or accidental explanation
for what took place it should be accepted as such). Furthermore, in
the absence of actus reus, especially causation in law, an alleged motive
or behaviour of an individual has no basis for interpretation or deduction
of mens rea, and does not provide the necessary proof of guilt, or proof
that the/an alleged offence took place.
3.2 Clearly this was the reason for my
Trial Judge directing: "If you are not sure that he has lied about
anything, then that is the end of the prosecution case because the prosecution
say that he has lied about the whole thing and particularly lied about
what happened that evening"; and, "If he may be telling the
truth about the accident and what happened, then plainly your verdict
would be one of not guilty."; and, "If he is correct or may
be that play acting can be ruled out (ie. meaning that if I may have
been knocked out), then that really is an end of the prosecution case,
if he is right or may be right about that."
Does any of the above ring bells with
issues in yours or other cases? Two of the most notable successful appeals
in recent years in cases such as this have been those of Sheila Bowler
and Patrick Nichols. Both were acquitted of convictions for murders
that did not take place. More recently Sally Clark was acquitted of
having murdered her two little boys. The success of her case has quite
rightly opened up pressure for a long-overdue review of other parents
who have been falsely or wrongly accused of murdering or harming their
children. This has now become a cause celebre in its own right.
I believe that it is time to highlight, as a
combined single group, all those victims of miscarriages of justice
who have been convicted of murders which did not take place, because
the correct process via a coroner's court, or adhering to the necessary
elements of the offence to satisfy a charge of murder in English law,
did not take place, or that the medical evidence simply does not support
murder.
I believe these cases should be presented
as a whole for the House of Lords and the European Court of Justice
to consider.
If you feel your case fits the bill or
you know someone who has been convicted without proof of the manner
of death, then please write to me, copy to MOJUK and MOJO.
In Struggle,
Nick
Tucker,
HMP Cardiff, Tuesday 19th August 2003
Nick Tucker
FA1306
HMP Cardiff
Knox Road
Cardiff
CF24 OUG
Friends Of Nick
Tucker - FONT have put together a PDF file with
a petition and all relevant information.
Download
the PDF file of Nick Tucker
mojuk@mojuk.org.uk
Mojonational@aol.com