On the 2 May 1989, at the Central Criminal Court, Clive Freeman was convicted of the murder of Alexander Calder Hardie. Mr Freeman was convicted of a murder that, over the many years since his conviction, nine eminent pathologists have said never occurred. The conclusion of these pathologists is that the victim died of natural causes. The inexperienced prosecution pathologist, Dr Richard Shepherd, came up with the highly controversial proposition that the victim was killed by a method known as 'burking'. The following article argues that Dr Shepherd's theories are incorrect, and an innocent man languishes in prison because Dr Richard Shepherd will neither acknowledge nor admit to having made a mistake.
Introduction
This article, which was submitted to the Criminal Cases Review Commission (CCRC) in 2020, uses an evidence-based approach to examine how the bruise to the right of Mr Hardie’s chest wall, beneath the armpit, was probably caused. Our evidence further discredits the use of the knee as the weapon in “fixing” the chest of Mr Hardie. Instead, our approach has provided a highly credible and demonstrable alternative which validates Mr Freeman’s Proof of Evidence and can be reconstructed to provide exactly the results reported by Dr Shepherd in post-mortem and at trial. We conclude that the likely cause of the bruise has been hiding in plain sight for thirty years and supports a case of accidental injury. We have previously demonstrated that Dr Shepherd’s poorly researched linkage to burking and asphyxiation by kneeling is unsustainable. Taken with this credible new evidence, we conclude death by asphyxiation as proposed by the prosecution was not possible and that fact alone argues for an urgent appeal against the findings in 1989.
1. A note on bruising
Our research suggests impact bruising of the human body is caused by damage to the capillaries by blunt trauma, in this case the force of an object against the skin and ribs of Mr Hardie. Bleeding into the interstitial tissues (beneath the skin) follows.
Depending on the softness of the tissue and many other factors, the bruise can spread or leak from the original impact site. In general:
the harder and more defined the blunt object, the more distinct the edges of the bruise and
the less fleshy the area impacted/directly adjacent, the less the bruise will spread.
The extent of any bruise is a function of the surface area of contact, the force behind it and the speed of impact coupled with the susceptibility of the patient to bruising in that location.
Of course, only an independent pathologist can advise the CCRC on these issues and we therefore recommend that all findings and conclusions in this and previous papers are reviewed collectively by an independent forensic pathologist.
2. The evidence at court
The key evidence relating to the bruise on Mr Hardie’s chest wall was that:
The bruise measured 6cm by 6cm: it appears to have been a distinct and limited bruise rather than widespread bruising
No darker or varied areas within the bruise were reported, suggesting a largely uniform bruise [1] most probably caused by a single, rounded entity (rather than an entity with defined protuberances or edges, such as bare knuckles or a hammer)
The bruise was high on the right chest wall, near and beneath the arm pit
Dr Shepherd described this as a “protected area” and the bruise as “consistent with pressure at that site" (Shepherd, page 40). He used the “protected area” to argue against accidental bruising
There was a further bruise (8x4cm) om the outside of the right arm
Professor Shepherd later stated to the CCRC (2005) that “I accepted, in my conclusions and in my evidence, that [accidental bruising] was a possibility but, in my opinion, other interpretations were either possible or more likely” [Shepherd statement to CCRC, page 2].
In practice it was this bruise to the chest wall which was critical to the prosecution case of murder through asphyxiation.
The suggestion from both Dr Shepherd and Mr Paget was that kneeling was the cause of the bruise, this had caused asphyxiation and they both erroneously linked “kneeling” to what they believed to be the modus operandi of the original Burke and Hare case. In fact, kneeling was never involved in the 1828 case and citing that as evidence was incorrect, misleading and prejudicial, deceiving both judge and jury.[2]
3. The knee as a candidate
We previously explained in other submissions to the CCRC why kneeling would not enable asphyxia and demonstrated the difficulty of exerting any pressure by kneeling over the patient and squeezing the knees together.
In this section we look more closely at the knee as the potential “blunt instrument” in this case. If Dr Shepherd is to be believed, the knee would need to have been bent to an acute angle (significantly less than 90 degrees) if kneeling had been involved in the application of pressure.
The kneecap is a bony protuberance when the knee is straight or partially flexed. However, when the knee is bent to less than about 80 degrees, the kneecap ceases to protrude and the surface of the knee becomes larger and smoother. This results in the knee losing its sharp appearance. This means that normal activities – such as supporting children and other objects between the legs – are undertaken without hurting the knee or the object itself. There is a bony protuberance (the top of the lower leg bone) which is used to rest weight on. However, this protuberance is in the wrong place to be applied laterally (by squeezing the legs together) and is also the wrong shape to have caused a bruise of uniform size (to protuberance would create a lozenge shaped bruise). [3].
The internal aspect of the knee and leg also change when flexed below 80 degrees. We have noted previously the appearance of a fleshy pad in bent legs (see Fig 1) which stops the inner knee coming into direct contact with objects. In addition, with the knee bent to this degree, several distinct ridges appear inside the knee beneath the skin.
Fig 1 – the fleshy pad on the inside of the flexed leg of a man with legs apart.ction of body Fleshy Pa
d created b
y flexing
A smooth rounded profile for the front and base of the knee, with a total “contact” area of around 10cm square (Fig 2)
A bumpy internal aspect of the knee with the three ridges noted, again with a total “contact” area of around 10cm square (Fig 3)
Fig 2. Horizontal size of flexed knee around 10cm.
Fig 3 Vertical internal size of flexed knee around 10cm.
We suggest that it would be extremely unusual for a knee with a diameter of 10cm square and, according to Dr Shepherd, exerting considerable force at the time to create a bruise 6cm square, in other words less than its own diameter. The internal aspect of the knee (which Dr Shepherd seemed to prefer as the “blunt object”) has distinct bumps beneath the skin. Even if the inner knee had been able to be brought to bear on Mr Hardie (see our previous submissions for rebuttal) it would seem likely that these ridges would create specific marks or deeper bruising within the overall bruised area, particularly if, according to Dr Shepherd, the bruising had been inflicted at or near the point of death [4] and with considerable force, two or more distinct marks within the bruise would probably have been visible. Again, the internal size of the knee is too large to create a bruise 6cm x 6cm.
Finally, although Dr Shepherd was again imprecise on time, he suggested that asphyxiation could take place fairly quickly. In practice, we would expect that:
Any asphyxial act leading to death would take a minimum of two minutes and probably significantly longer (Hare in 1828 estimated between ten and fifteen minutes).
Even if the victim had been at or in an unconscious state at the start of the act, we maintain that – through conscious or involuntary action – the victim would offer some resistance/movement against the lethal force being applied.
If, as alleged, the attack was meant to fix the chest and prevent breathing, [5] we believe the victim would continue to try to breathe and that there would also be movements of the ribs against the knee.
Together these three factors would lead to significant movement of the skin and ribs beneath the knee. This we believe would serve to both increase the size of the bruised area well beyond 10cm and also tend to “smear” the bruising, with a strong central mark and lesser marks radiating from the core. This is not what was observed/reported in court.
We believe these conclusions on likely size and formation of bruises inflicted by knee pressure could be tested and validated in medically supervised reconstruction, if required.
Overall, therefore, the knee is a very poor candidate for inflicting the bruise reported because it would tend to create a larger bruise than that found, might show colour variation if the internal ribbed aspect was used, and would tend to create a bruise with smeared rather than uniform edges.
This further challenges Dr Shepherd’s case on kneeling as the cause of the bruising.
4. The search for an alternative cause of bruising.
When previously discussing the age of bruising, we cited the work of Payne-James, Crane and Judith A. Hinchliffe in 2002 [6] who found that that even microscopy did not provide reliable information on the age of bruising.
They concluded that:
Coloration of bruises and the progress and change of colour patterns cannot, with the exception of a yellow bruise, which may be considered to be more than 18 hours old, be used to time the injury. This has recently been confirmed in another study that identified great interobserver variability in colour matching both in vivo and in photographic reproductions. Other specific information (e.g., a witnessed blow) is the only way of reliably timing a bruise. Other specific information (e.g., a witnessed blow) is the only way of reliably timing a bruise. (Our emphasis).
In searching for “other specific information” and “a witnessed blow” we considered Mr Freeman’s account.
5. Falling - narrative and analysis
Clive Freeman was remanded in custody between April 1988 and his trial in March 1989. In September 1988 he wrote a document, which he refers to as his Proof of Evidence (PoE), explaining the background to the case and the events leading up to Hardie's death. This was produced long before he or his defence had any knowledge of the Crown medical evidence or the significance which Dr Shepherd would attach to bruising as a "proof" of burking. Mr Freeman's account is the only "eyewitness" evidence of how Mr Hardie's injuries might have been sustained. It was never submitted to the court.
Some 30 hours before Mr Hardie died, Mr Freeman met Mr Hardie in a bar in Victoria station and, along with other men, spent the evening drinking heavily. Hardie consumed at least eight pints in Freeman’s sight and also took pills which led to him rapidly becoming intoxicated and falling over a number of times in the bar. When the other men left, Freeman attempted to play the Good Samaritan. A series of falls followed: [7]
In the station as they looked for a cab: "to get him from the bar to the taxi rank was difficult and he fell down a couple of times, once pulling me with him.”
In the grounds of Deanshanger House: “It is about 300 yards from the corner to the flat and the pavement was very uneven, and Sandy fell a couple more times, even though I was propping him up”
On the steps which were apparently concrete as Freeman cut his leg in this fall: “We then had to climb three flights of stairs and he fell here again with me landing on top of him”
Drunks usually try to prop each other up by either:
Placing the “propped” man’s arm around the “supporter’s” shoulder; or,
With their arms linked.
Position one is very difficult if the propped man is smaller than his supporter.
Position two, with the supporter literally clamping the arm and using it to both support and direct the smaller man, would seem more probable in such a case.
In this “arms linked” position with a tall man (Freeman) on the right side of a small man (Hardie) the taller man’s elbow is located under the arm, near the right armpit, of the small one. If the small man, then suddenly falls to his left, the taller man can easily be toppled over and brought down with him with his crooked elbow driven into the side chest wall of the man he was trying to prop up. The impact could be severe if neither is able to otherwise break their fall.
6. The elbow as a candidate
The flexed elbow has a much sharper profile when flexed than the knee. The width of the potential diameter area of the elbow is only 5cm, approximately half that of the knee. We tested this by measurement across the “point” of the elbow (see Fig 4).
Fig 4 Flexed elbow creates a point of approximately 5cm square.
We also tested it to confirm the area of contact between one man falling with his elbow on another. On the April night in question, Hardie at least was wearing a coat and Freeman almost certainly wearing a jacket. We therefore placed a sheet of paper on a carpet, using the carpet to replicate some of the cushioning which these clothes might afford. We then pushed the flexed elbow against the paper and drew round the perimeter and measured the diameter (see Fig 5). This confirms the 5cm contact area which also generates a largely uniform circular perimeter. [8]
Fig 5: Outline of elbow and method of capture.
A falling man generates considerable force, much of which would be focused on the elbow. Indeed, we would expect doctors in accident and emergency units to confirm that an elbow can cause distinctive localized bruising and – if the force is sufficient – break the rib(s) it contacts. It is also worth noting that the pressure would be strong but very brief (probably less than 0.25 second) which would tend to limit the amount of bruising beyond the edge of the main impact, unlike a flexed knee applied to a moving rib cage for several minutes.
The elbow is a strong candidate in terms of size (5cm square), compared with the bruise itself (6cm square), unlike the knee.
We also suggest that, with the arms interlocked during a fall, there is a strong possibility that the man underneath (Hardie) would probably also receive a bruise to the outer aspect of the arms from the rib cage of the man falling onto him. This would explain the 8x4cm bruise on the outside of Mr Hardie’s right arm.
We are confident that any tests carried out by the CCRC’s independent forensic pathologist would confirm these findings and the comparative credibility of the elbow and the knee. Mr Freeman’s account may also provide evidence in respect of the bruising which Dr Shepherd claimed to have found on Hardie’s back. Although the ability to detect and attribute bruises on the back in this case has been repeatedly and rightly challenged, we note that any true marks found on Hardie’s back could most easily have been caused by falls on the stairs or the ground, with Mr Freeman’s weight on top. Indeed, bruising to the low back is almost symptomatic in falls on stairs.
We therefore request that the independent pathologist undertakes appropriate tests and reconstructions if needed to confirm:
Our findings on the relative merits and credibility of the knee and the elbow as the source of the bruise under Mr Hardie’s arm and in particular, using Shepherd’s words to the CCRC, which is “more likely”
Our findings, previously reported, on the fact that it is for all practical purposes: (a) impossible to fix the chest through kneeling – particularly while trying to apply a squeeze; and, (b) impossible to simultaneously create a distinct localised bruise 6cm x 6cm on the side of the chest wall.
7. Conclusion
The crux in this case is the credibility of medical evidence.
The CCRC has in the past suggested that the Judge pointed out that there was always a difference of opinion between the defence and prosecution medical experts, and both had given credible explanations. He therefore asked the jury to consider the whole case. Essentially, he was saying that, if Mr Freeman’s behaviour seemed sufficiently suspicious and pointed to a possible murder plan, they could choose to believe Dr Shepherd over Professor Mant.
We believe that argument no longer holds. Dr Shepherd’s evidence is now shown to be completely incredible.
We have used new and specific evidence, which can be tested and replicated, to demonstrate this.
All the “evidence” which tied Mr Hardie’s death to burking in 1828 was fatally flawed, both historically and medically. If the 1828 case has any bearing, the pathological evidence would support the defence case rather than that of the prosecution. The judge and jury were misled into believing it was a precedent of death by kneeling when it was not.
Modern medical opinion, which post-dates the trial, challenges the assertion by Dr Shepherd that the bruises he found were inflicted at or shortly before death. In truth, we now know he had absolutely no way of knowing their age. They could have easily been incurred 24 hours before death with exactly the same appearance.
We have provided historical and scientific evidence which shows that men can easily bear twice Mr Freeman’s weight with no signs of asphyxia.
Special forces soldiers are not taught how to kill using burking or a knee squeeze.
And we have provided reconstruction evidence, with explanations, that show that it is not possible to exert more than the slightest squeeze to the side of the chest by an attacker using his knees. The “victim” in our reconstruction described the force as a tickle.
Finally, in this latest submission to the CCRC, we have shown that the knee is not a credible candidate for inflicting the critical bruise to Mr Hardie’s chest wall. The knee is the wrong size and shape to inflict the reported bruise and the bruise itself does not appear to have the properties which a prolonged, lethal squeeze – even if it were possible – would cause. And we have provided evidence that an accidental injury by the elbow is a much stronger candidate and directly supports Mr Freeman’s proof of evidence. Indeed, we challenge the pathologist to produce the bruising reported at court by the use of the knee.
Dr Shepherd claimed to the CCRC “in my opinion, other interpretations [to accidental bruising] were either possible or more likely”. We have shown that there his claims are neither possible nor likely. Many of them are demonstrably false.
All Doctor – now Professor - Shepherd is left with is the barest of facts. Mr Hardie was a known heavy drinker. Hardie was found dead in Freeman’s flat. He bore some more recent but non-fatal bruises and had recently drunk a large amount of alcohol with drugs. There is no linkage to assert that any of these bruises was somehow tied to asphyxiation.
Indeed, there was no sign of asphyxiation or suffocation at all. In a previous submission, Professor Birch, a renowned toxicologist, produced evidence which suggested that an alcoholic coma was a strong contender for the cause of death which might leave no signs at autopsy. Indeed, death through unascertained causes is more common than might be thought. Recent studies suggest that death through unascertained causes accounts for between one in twenty and one in twenty-five deaths [9].
If the Judge had known that so much of the prosecution evidence was wrong and misleading, we submit he would never have asked the jury to finally make up their minds on the basis of circumstantial evidence. Indeed, there is a strong chance he would have dismissed the case before it ever reached court or instructed the jury to return a verdict of not guilty.
All this evidence is in addition to the statements of eminent pathologists and other experts who together have challenged Dr Shepherd’s methods, findings and conclusions in this case.
In the face of our evidence, the idea that a man can squeeze another to death in the way described would be laughable were it not for one fact. Clive Freeman has spent almost 35 years behind bars for a crime which we believe never took place.
It is incumbent on the CCRC to immediately refer this case to the Court of Appeal with the strongest recommendation that a miscarriage of justice seems to have taken place and an acknowledgement that – despite repeated requests by Mr Freeman’s defence over the years – the CCRC itself has failed to assign an expert who might have realized and advised them to this end many years ago.
We submit that the CCRC should immediately submit this case to the Court of Appeal and release to the defence in full the commentary of an independent forensic pathologist on our submissions. We further submit that Mr Freeman’s Proof of Evidence be accepted in the Appeal as it corroborates and supports our findings and provides a viable set of events and a timeline to support a case for Mr Hardie’s death by natural, if unascertained, causes.
References
[1] Photographs of that bruise were provided but we have not been able to review them. We suggest that the independent pathologist do so. [2] See previous Submission, “The Kneeling that Never Was”. [3] We assume that this is an evolutionary development. It is only in the recent past that most people have stopped using kneeling as a common position for working, eating and childcare. A smooth knee is much easier to kneel on than a knee with a bony protuberance. [4] Because there would have been less time for blood, pumped by the heart, to “leak” under the skin before death. [5] And our previous reconstruction shows that this is not possible. [6] Clinical Forensic Medicine: A Physician’s Guide, 2nd Edition, editor M.M.Stark [7] We do not know whether or not he had been drinking previously. [8] With underlay. [9] In more than 4% of cases, the coroner couldn’t establish the cause of death. The researchers also think this is an underestimate. This finding was consistent with comparable population‐based surveys such as the Wandsworth survey (4.7%)1 as well as a study of sudden and unexpected young adult deaths in Olmstead County (7%). See: https://www.c-r-y.org.uk/sudden-death-unexpected-and-unexplained/ and https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1955564/
By Bruce McNicol, Freedom for Clive Freeman Campaign Team. Please let us know if you think that there is a mistake in this article, explaining what you think is wrong and why. We will correct any errors as soon as possible.