CCRC rejects David Morris application for the Clydach murders: Yet further evidence that the CCRC is not fit for the purpose of assisting innocent victims of wrongful convictions?
This article is in response to the Criminal Cases Review Commission’s (CCRC) rejection of the application that was submitted by John Morris (no relation to David Morris) and Paul Dalling on behalf of David Morris's daughter whose father is widely believed to be an innocent victim of wrongful conviction and imprisonment for the Clydach murders.
It is argued that the CCRC’s summary rejection of the application without first undertaking any investigation at all signals, perhaps, the most powerful argument yet that the CCRC is not fit to fulfil the purpose that Parliament envisaged when it was created: To investigate and rectify miscarriages of justice, thereby restoring public confidence in the criminal justice system.
In six parts, it, firstly, provides some brief background to the case of the Clydach murders and the long-running campaign to overturn David Morris’ alleged wrongful convictions and bring the real murderer or murderers to justice if it was not Mr Morris. It, then, says something about the novelty of the application that was rejected by the CCRC and why the approach taken could be a template for others seeking justice for both victims of crime and those who claim that they are innocent victims of wrongful convictions, too. Following this, the three main reasons given by the CCRC for rejecting the application will be critically evaluated using the following direct quotations from the rejection letter as headings:
‘The CCRC does not consider there to be a real possibility that the individuals who have applied to the CCRC in regard to the conviction of Mr. David Morris would be ‘approved’ by the Court of Appeal, in terms of section 44A of the Criminal Appeal Act 1968. Consequently, there is no real possibility that the Court of Appeal would agree to hear Mr Morris’ appeal’;
‘The Court of Appeal continues to have a very high workload, and appeal hearings take place at considerable expense to the public purse’; and,
‘The CCRC recognises that there continues to be public interest in the case. However, just because a case continues to attract the interest (and even the support) of some members of the public, this does not necessarily mean that new appeal proceedings would be in the general public interest.’
The article concludes with a critique of the CCRC's decision that the case is now closed, and that the decision is final, which fails to recognise that victims of miscarriages of justice, their families and other interested parties do not, and will not, give up their struggle for justice just because the CCRC tells them to.
Background
The Clydach murders case refers to the murder of three generations of a family, all of whom were female: Mandy Power, her Mother Doris Dawson, and Mandy’s two daughters, Katie (aged 10) and Emily (aged 8). They were all murdered at their home, 9 Kelvin Road, Clydach. South Wales, on the night of Saturday the 26th (Doris) and the morning of Sunday the 27th June 1999 (Mandy. Katie and Emily).
Following the murders, there was an attempt to set the house on fire, presumably to destroy any evidence that might link the murders to the perpetrator or perpetrators. Much evidenced survived, however, which could assist the CCRC to get to the truth of a case that, rightly, continues to trouble the public consciousness of the population of Swansea and South Wales, generally. It should concern us all.
The initial suspects were Stephen Lewis, a Sergeant with South Wales Police, and his wife, Alison Lewis, a former South Wales Police officer, who was having an affair with Mandy Power. Stephen Lewis’s identical twin brother, Stuart Lewis, a Detective Inspector with South Wales Police, was also arrested along with Stephen and Alison in July 2000 on suspicion of perverting the course of justice.
The shift to David Morris as a suspect for the murders occurred in Early 2001 when the initial suspects were released without charge. Mr Morris was first convicted in June 2002 for the murders, which were overturned in May 2005 due to a conflict of interest with his defence solicitor who had also represented Stephen and Alison Lewis when they were suspected of committing the murders. He was, then, convicted for the murders for a second time at a retrial in August 2006, and given a minimum sentence of 32 years in prison.
Both the 2002 and 2006 convictions were obtained entirely on circumstantial evidence, which has fuelled concerns that David Morris was wrongly convicted as the case against him was so weak. The prosecution argument wasn’t all that convincing either: That David Morris, who was also having an affair with Mandy Power, murdered the family in a drunken rage when she had rejected his sexual advances. This was always denied by David Morris who died in prison August 2021, 22 years into his sentence, steadfastly maintaining his innocence to the end.
The importance of the CCRC application by John Morris and Paul Dalling of behalf of Mr Morris's daughter, then, was to try to settle David Morris’s claim of innocence one way or the other for a crime that will go down as one of the darkest days in Welsh criminal history. Until such time that the truth of the Clydach murders in known, there remains a pressing public interest to lay to rest a case that continues to divide the Swansea and wider South Wales areas to the present day.
The application
The application that was submitted for David Morris's daughter by John Morris and Paul Dalling (see caveat at the end of the article) is unusual, differing from any other application to the CCRC that I have seen.
Conventionally, applications to the CCRC work within the remit of the CCRC and seek to provide so called ‘fresh evidence’ under the terms of s.13 of the Criminal Appeal Act (the so called ‘real possibility' test), i.e. evidence that was not, or could not have been, presented at trial that has a real possibility of rendering the conviction unsafe in law, which is the basis on which the Court of Appeal (Criminal Division) (CACD) overturns convictions.
John Morris and Paul Dalling’s application differed, however, by seeking to show, instead, that David Morris could not have committed the Clydach murders, hence he is an innocent victim of a miscarriage of justice, because the murders were most likely committed by Stephen and Alison Lewis, and possibly others who are also named in the book and application to the CCRC.
The value of this method, which I believe is unique for applications to the CCRC, and something that others challenging alleged miscarriages of justice might adopt, is that it starts from the premise that David Morris is a red herring, and that to focus on trying to prove a negative, that an innocent person did not commit the alleged crime, only distracts from efforts to investigate the crime anew to identify the genuine or actual perpetrator or perpetrators of the murders.
In essence, this holistic approach prioritises the victims of the crimes and may exonerate an innocent victim of wrongful conviction if it is found in the investigation that someone other or others than the alleged victim of the miscarriage of justice, in fact, committed the offence.
I see at least two interrelated benefits of such an approach:
Such an approach refuses to work within the restrictive agenda of a criminal justice system that has shown on many occasions that rather than being proactive in overturning wrongful convictions it functions to prevent them from being overturned and coming to public attention for the damage to trust and confidence in the system that miscarriages of justice can cause. This highlights how the system seeks to protect itself in the face of alleged miscarriages of justice, which is, arguably, why the Court of Appeal and the Criminal Cases Review Commission (CCRC) have been structured in the way that they have and to require new evidence that was not or could not have been presented at trial, which allows innocent victims to be rejected by the Court of Appeal and the CCRC and for the real perpetrators to escape justice if the alleged victim of a miscarriage of justice is innocent.
A conclusive way to prove that a person wrongly convicted for crime that they say that they did not commit is to prove who did commit the offence if it was not them.
Rejection reason 1: ‘The CCRC does not consider there to be a real possibility that the individuals who have applied to the CCRC in regard to the conviction of Mr. David Morris would be ‘approved’ by the Court of Appeal, in terms of section 44A of the Criminal Appeal Act 1968. Consequently, there is no real possibility that the Court of Appeal would agree to hear Mr Morris’ appeal.’
The first reason given by the CCRC for rejecting the David Morris application was that those submitting it do not have the authority to make such an application, when, in fact, they do.
There are, indeed, special rules for making applications on behalf of deceased applicants under s.44A of the Criminal Appeal Act 1968 (as inserted by s.7 of the Criminal Appeal Act 1995), which the CCRC noted in its rejection letter:
The widow or widower;
The “personal representative” (within the meaning of the Administration of Estates Act 1925, s. 55(1)(ix)); or,
Any other person appearing to the Court to have, by reason of a family or similar relationship with the dead person, a substantial financial or other interest in the determination of the appeal.
But, rather than ask the simple and straightforward question ‘do you have the appropriate authority to make the application’, however, the CCRC wrongly assumed a lack of authority and rejected the application in the following terms:
‘The CCRC does not consider there to be a real possibility that the individuals who have
applied to the CCRC in regard to the conviction of Mr. David Morris would be ‘approved’ by
the Court of Appeal, in terms of section 44A of the Criminal Appeal Act 1968. Consequently,
there is no real possibility that the Court of Appeal would agree to hear Mr Morris’ appeal.’
Before the application was submitted, however, I discussed with John Morris and Paul Dalling that because Mr Morris is deceased authority for the application would be required from a surviving family member.
This was obtained before the application was submitted, but the CCRC’s application form does not cover applications made for cases where the alleged victim of a miscarriage of justice is deceased.
The application was submitted anyway with mention that authority had been obtained from Mr Morris's daughter. The thinking was, now shown to be mistaken, that the evidence of authority to make the application for Mr Morris's daughter would, in due course, be requested by the CCRC and be provided to it when it was asked for.
If the CCRC had bothered to press pause on its rejection conveyer belt and ask whether those making the application had the necessary authority it would have discovered that there is a failure with its application form to provide for such applications.
I think this highlights the CCRC's default position to reject applications at the earliest opportunity (remember that it routinely rejects 98% of all applications and in some years has rejected 99% of applications) and its general lack of willingness to make the most basic of enquiries.
It is on this basis, and on previous research, that I propose that from here on the CCRC is referred to as the Criminal Convictions Retention Commission rather than the Criminal Cases Review Commission, which is a more accurate description of how the CCRC actually functions in empirical reality.
Rejection reason 2: ‘The Court of Appeal continues to have a very high workload, and appeal hearings take place at considerable expense to the public purse.’
The phrase ‘The lady doth protest too much, methinks’ originates from Shakespeare’s tragedy Hamlet; Act 3, Scene 2, to be precise. In modern usage, it can be used when someone, in this case the commissioner acting on behalf of the CCRC who wrote the rejection letter, denies or rejects something so forcefully or defensively it makes them look guilty of trying too hard to convince others, or themselves, of the justness of their actions or decision.
Indeed, that the CCRC provided further reasons for rejecting the application is very odd. Is it not the case that if an application is rejected because it does not have the required authority for it to be submitted then, logically speaking, there should be no need to provide further reasons for why it is rejected?
Despite this, the CCRC went on to give a second reason for rejecting the application for Mr Morris on the basis that it has the discretion not to refer a conviction to the Court of Appeal even if it has a real possibility of being overturned:
‘Even if the CCRC found there to be a real possibility that the Court of Appeal would hear Mr Morris’ appeal, and a real possibility that the Court would then decide not to uphold the conviction, the CCRC would also have to consider whether it should exercise its discretion not to refer the case to the Court of Appeal.’
But, why would the CCRC have or want to use such a discretion not to refer a conviction that it believes there is a real possibility that the Court of Appeal would overturn?
Is this not contrary to the will of Parliament when it established the CCRC and the CCRC's public mandate – to, precisely, refer cases back to the Court of Appeal that it believes have a real possibility of being overturned?
In an attempt to defend the indefensible, the CCRC outlined how it interprets its statutory duty as contained in the Criminal Appeal Act 1995 to justify rejecting applications that may fulfil the real possibility test as follows:
‘According to the wording of section 9 of the Criminal Appeal Act 1995, where the statutory criteria for a reference1 appear to be met the CCRC “may (original emphasis) at any time refer the conviction to the Court of Appeal” (emphasis added). This section has been interpreted as conferring on the CCRC the discretion whether or not to refer a case to the Court of Appeal where the statutory criteria appear to be met.’
Is such an interpretation even valid? If the CCRC's interpretation is consistent with Parliament’s intention would s.9 not have been explicit on this point? That is, if Parliament intended s.9 to be read in such a way would it not have been more specific in saying that the CCRC did not have to refer a conviction even if it believed that it met the real possibility test that the Court of Appeal would quash the conviction?
And, why is the CCRC even saying this in relation to the application that was rejected without any evidence that a review or investigation actually took place?
Is the CCRC trying to refuse or avoid an investigation that may turn up something that it doesn’t want to discover? But, how could any investigation turn up something that the so called and self-professed independent CCRC wouldn't want?
And, who is making the decision not to refer a conviction that meets the statutory test and the CCRC believe that there is a real possibility that the Court of Appeal will quash the conviction; on what basis would such a decision be made; and, who has such authority? Is it the commissioner who wrote the rejection letter or is it someone above them? If it is someone above the commissioner who wrote the rejection letter is it someone within the CCRC or someone outside the CCRC? And, whether it is someone inside or outside the CCRC what is the criteria?
One wonders whether other applicants have also not had their convictions referred back to the Court of Appeal for the same reasoning.
For these reasons, a Freedom of Information (FoI) request with these questions will be made to the CCRC following the publication of this article, which will also ask the following additional questions:
Has the CCRC ever before used such a justification to not refer otherwise meritorious applications that met the statutory test, i.e. that is where there is a real possibility if the conviction were referred that the Court of Appeal would overturn the conviction; and, if so,
How many other occasions has such a justification been made in the last five years?
Lack of independence
Much has been written about the CCRC’s lack of the independence and its subordination to the Court of Appeal.
The rejection of the application for David Morris and the Clydach murders extends this literature and further demonstrates the extent to which the CCRC is a creature of law and entirely subservient to it in a way that makes a mockery of any claims it makes to being independent and able to make decisions for itself.
Indeed, readers can see for themselves in the rejection letter on the David Morris CCRC Application website how the CCRC cherry-picked Court of Appeal caselaw in an attempt to justify the rejection of the application for David Morris, even though it wasn’t allowed to get over the first hurdle of authority from a surviving family member.
The three cases selected were all cases where the CCRC was scolded by its Master, the Court of Appeal, for making referrals that failed. But, how and why were these cases selected from all of the possible cases that could have been cited?
Further supporting the case against the CCRC’s claim of independence, the CCRC drew from the cases to argue that it is not in the public interest to refer the conviction of Mr Morris back to the Court of Appeal even before a review or investigation has begun due to the high workload of the Court of Appeal and the considerable cost to the public purse of an appeal.
‘Considering the very high workload of the Court of Appeal, and the considerable expense to the public purse of an appeal, it cannot be in the general public interest to refer this conviction to the Court.’
This is yet another aspect of the rejection of the application for David Morris that is profoundly problematic.
For these reasons, the FoI that will be submitted to the CCRC following the publication of this article will also include the questions contained in this section and will ask the following additional questions, too:
Have any other applications been rejected on the ground that the Court of Appeal’s workload is too great?; and, if so, how many such applications have been rejected in the last five years?
Have any other cases been rejected on the ground that the costs of appeals are too prohibitive for the CCRC to undertake a review of an alleged miscarriage of justice that might meet the real possibility test; and, if so, how many such applications have been rejected in the last 5 years?
Rejection reason 3: ‘The CCRC recognises that there continues to be public interest in the case. However, just because a case continues to attract the interest (and even the support) of some members of the public, this does not necessarily mean that new appeal proceedings would be in the general public interest.'
How can the CCRC say that it ‘cannot be in the general public interest to refer this conviction to the Court’ when it has not conducted a review of the application that was submitted for Mr Morris?
How can the CCRC say that it recognises that there continues to be public interest in the case but that new appeal proceedings would not be in the public interest?
What appeal proceedings are being referred to here when no review of the application for David Morris and the Clydach murders was conducted?
This is non-sensical and it fails to understand why the CCRC was set up in the first place. The CCRC was established, precisely, to deal with cases that fail within the normal criminal appeals system because there is a continuing public interest in wanting to know whether an individual or individuals convicted of criminal offences who claim that they are innocent were correctly convicted or are victims of miscarriages of justice.
To acknowledge that a case like that of Mr Morris continues to attract the interest of the public and even support from the public and then to say that that doesn’t necessarily mean that new appeal proceedings would be in the general public interest needs to be further explained by the CCRC: How does it interpret ‘public interest’ here?
This question will also be put to the CCRC in the FoI that will be made when this article has been published.
Continuing public interest
The CCRC is correct, though, that there is a continuing public interest in getting to the truth of David Morris’s claim of innocence for the Clydach murders and also identifying and bringing to justice the actual perpetrators of the murders if it wasn’t Mr Morris.
This includes three documentaries, two on the BBC and one on Sky, at the end of each the documentary makers stated that there remain many unanswered questions and concerns that justice has not been done. It also includes dozens of podcasts over the years, a petition that was started by Mike O’ Brien (one of The Cardiff Newsagent Three) and Paddy Joe Hill (one of Birmingham Six), which obtained over 19,000 supporters and a Facebook group with thousands of members. In addition to this, Paul Dalling’s Facebook, alone, has experienced many tens of thousands of views and many hundreds of comments over the last couple of months since the application was submitted. And, at the time of writing, the application that is available on the David Morris CCRC Application website as been viewed almost 3,000 times and all of the comments by members of the public under the application state their belief that David Morris was an innocent victims of wrongful conviction and imprisonment.
Against this background, the following sentence in the same section of the rejection letter also needs to be further explained:
‘The CCRC has decided that it would not be in the public interest to refer this case to the Court of Appeal, and so it has decided to exercise its discretion not to refer the case.’
Were the CCRC thinking of referring Mr Morris conviction back to the Court of Appeal? If so, could we see the reasoning, because as far as we know no review of the application was undertaken?
Case closed – but is it?
At the end of the letter rejecting the application for David Morris was written the following in bold and with the word final underlined:
‘Our decision is final. The case is now closed.’
But, it’s not closed, and won’t be closed unless and until those who want to know who was responsible for the Clydach murders give up caring – this includes the family and loved ones of Mandy, Katie and Emily Power and Doris Dawson as much as it includes the family and loved ones of David Morris. It also includes all of those members of the public who continue to have concerns about whether David Morris committed the murders or do the real perpetrators remain at wrongful liberty, not only escaping punishment for their crimes but, also, at liberty with the potential to commit further crimes.
Anyone who knows anything about alleged miscarriages of justice knows that they do not just go away because the existing system or prevailing forms of power say that they should.
The Guildford Four and the Birmingham Six did not go away because the Court of Appeal rejected their appeals. Peter Sullivan, who spent 38 years of wrongful conviction and imprisonment for the murder of Diane Sindall, did not go away when the CCRC rejected his first application. Andrew Malkinson, who spent 17 years in prison for a rape he did not commit, did not go away when the CCRC rejected his first two applications. The Post Office masters and mistresses did not go away when they were wrongly accused and convicted of theft and fraud by the Post Office. In the same way, those wanting justice for David Morris and the innocent victims of the Clydach murders will not go away because a CCRC that is already under fire because of its failings in other cases wants them to give up, shut up and just disappear.
It is in this context that the CCRC's rejection of the application by John Morris and Paul Dalling on behalf of David Morris's daughter is best seen: As Innocence Network UK (INUK) showed almost 15 years ago, the CCRC has yet again shown itself to be unfit for the purpose that Parliament created it for, i.e. to assist alleged innocent victims of wrongful convictions to overturn their convictions and obtain justice in the interests of promoting trust and confidence in the rule of law.
This highlights the continuing urgent need for widespread public support in challenging the failings of the CCRC in rejecting applications such as that submitted for David Morris. Unless we have a CCRC or another body that can genuinely get to the truth of claims of innocence by alleged victim of wrongful convictions we may never know the truth of who murdered the victims of the Clydach murders and whether or not David Morris died in prison an innocent victim of wrongful conviction for the most heinous of crimes committed by others who escaped justice and their just deserts.
Obviously, the more of us that get behind this challenge, the better the chance of it coming to fruition.
As such, I will end with an invitation that those concerned with the conviction of David Morris for the Clydach murders and the rejection of the application to try to get to the truth of the murders to make your thoughts and feelings known by posting comments under this article. Please also send your comments to the CCRC at the following email address with "Rejection of David Morris Application" in the subject line:
By Michael Naughton
Dr Michael Naughton is the Founder and Director of Empowering the Innocent (ETI).
Caveat: My name was added to the application in error. I have been in dialogue with Paul for the last few years about the Clydach murders with a view to a possible article for CCRC Watch or an interview for ETI TV. More recently, I have also consulted with both Paul and John on making an application to the CCRC and its system for processing and reviewing applications. My name was added as a curtesy for the assistance that Paul and John felt I had provided. I must stress, however, that the application is based on the work that Paul and John conducted and which is detailed in their book: Force of Evil: Crossing the Thin Blue Line to Murder. As such, both myself and Empowering the Innocent (ETI) are separate from John and Paul and their application for David Morris's daughter so that I can write more objectively about the case and the failings of the CCRC in dealing with the application. The dedicated website to follow the progress of the application is an ETI initiative to further highlight the limits and failures of the CCRC in dealing with applications from, or in this case, on behalf of, alleged innocent victims of wrongful convictions.
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