Dr Richard Shepherd
"Why must I always be right when it is the human condition to be wrong sometimes? Answer, because the adversarial nature of our criminal justice system has no room for 'perhaps' or 'maybe' or 'possibly'" (Dr Richard Shepherd, Unnatural Causes, p126).
This article explores the claim of innocence by Clive Freeman, a 79-year-old man serving his 35th year in prison for a murder that he maintains that he did not commit, and that evidence suggests did not occur at all.
On 2nd May 1989, Clive Freeman was convicted at the Central Criminal Court for the murder of Alexander Hardie and sentenced to life imprisonment with a minimum sentence of 13 years. However, such a tariff is currently futile since Freeman’s refusal to admit guilt renders him a perpetual prisoner of his own claim of innocence due to his lack of cooperation with the necessary offender programmes that are required upon release from custody.
The Facts of the Case
Freeman is an ex-Rhodesian soldier who had been involved in efforts to fight political insurgents, and later in a plot to undermine the new political regime. His actions ultimately led to his arrest, after which he was held on death row in a maximum-security prison for 90 days before being moved to another prison and eventually released.
The difficult circumstances of these past experiences meant that upon his arrival in London after leaving what is now Zimbabwe, his emotional state was troubled. Freeman had been planning to leave the UK and change his name in order to improve his state of mind and eventually illegally return to his home country. After an initial plan to go to Australia, he had contact with a friend who invited him to visit the USA first. He had been waiting for 5 months for a passport to be issued for a visit to the USA due to strikes at the passport office. He received his passport on the 12th of April and applied for a visa on the 13th, which was received on the 15th. He eventually left on the 16th of April 1988, the day that Hardie’s body was discovered in his flat.
Alexander Hardie’s body was discovered in Freeman’s flat in Chilton Grove, which had been set on fire with the body inside it. Freeman had stayed in a hotel in Earl’s Court on the other side of London on the night of the incident before leaving for the USA.
Hardie’s body was initially believed to be that of Freeman, and Freeman’s emotional state at the time, combined with heavy drinking and familial problems, meant that upon hearing this, he suggested to a family member in a drunken telephone conversation that they could claim from his life-insurance policy if the authorities continued to believe that it was Freeman that had died. His policy had been taken out far before having met Hardie, based on his own ill-health and lack of alternative funds with which to support his family. Freeman asserts that his ‘plan’ was purely hypothetical and a drunken attempt to capitalise on the situation in hand.
Freeman was arrested on the 2nd of June 1988 by the Australian Federal Police on behalf of the British Police, having flown to Australia to seek business ventures for his future. Upon voluntarily returning to the UK immediately after a court case and two interviews with the British Police in Australia on the 3rd of June, he was formally arrested on arrival at Heathrow Airport.
The Prosecution’s Case
The prosecution alleged that Freeman had lured Hardie into his flat, murdered him and subsequently burnt the flat and the body to destroy any evidence and feign the body as his own so that his family would receive a life insurance payment of £300,000 whilst Freeman went into hiding. They interpreted Freeman’s drunken idea to claim the life-insurance if Hardie was believed to be Freeman as the motive for the murder, rather than a reaction to the death.
The prosecution pathologist Dr Richard Shepherd carried out 3 autopsies on the body on the 16th, 20th, and 25th April 1988. On the first, conducted on the day of Hardie’s death, he concluded that Hardie had died from acute pancreatitis caused by drugs and alcoholism: natural causes as opposed to murder. However, he claimed after the third autopsy that Hardie had died from suffocation, through a technique called Burking, which involves covering of the nose and mouth and putting pressure on the chest of the victim to murder them with no visible impact on the body.
Concerningly, only the findings from the third autopsy was revealed to the court, and there was no mention of the possibility of death by natural causes. Shepherd’s evidence was the core of the prosecution’s case, with no forensic evidence having been obtained. Supporting evidence that was used was mainly circumstantial, focusing greatly on Freeman’s so-called plan to commit life-insurance fraud, and his leaving the country on the day of Hardie’s death.
Evidence given at trial by David Taylor, a resident of Freeman’s flats, who claimed to have seen Freeman leaving the building on the night of Hardie’s death has since been withdrawn by the witness himself. This was the only evidence that placed Freeman near the scene of the death on the relevant night.
The Defence Case
The defence claimed that Hardie, who was a convicted burglar and had previously broken into Freeman’s flat, had done so again. They stated that he was likely in pursuit of valuables, food, or alcohol, and had died from “misadventure or natural causes”, supported by the defence pathologist, Professor Keith Mant. Two and a half of the three whisky bottles in the flat had been consumed, and were marked with Hardie’s fingerprints, and Hardie had 270 mg/100ml of alcohol in his blood upon his death, having consumed an “injudicious combination of drugs and alcohol”.
They claimed that the fire was accidental, potentially from a cigarette or a similar drunken accident. The Chief Metropolitan Fire Officer at the time testified in court that there was no evidence of arson within the flat.
In addition, they attempted to rebut the suggestion that Freeman was attempting to represent the body as his own by noting the physical differences between him and Hardie. The deceased was 5 foot 6, with multiple missing teeth and 2 fingers missing on his left hand, whilst Freeman was 6 feet tall with all his fingers and all but one of his teeth: an incomparable pair.
Freeman had been staying in a hotel in Earl’s Court on the night of the death, and was reportedly extremely intoxicated, to the extent that he was told to check into the hotel and “sleep it off” by Rory Kilpatrick, a club doorman, who provided this information in an affidavit in 2007. Monica Barber, the receptionist of the hotel acted as his alibi, stating that it would have been impossible for him to have left and re-entered the hotel in the night without her noticing.
As such, the defence submitted that there was no case to answer since Hardie had not been murdered.
Outcome
The jury found Freeman guilty, largely based on the circumstantial evidence put forward by the prosecution. Freeman’s application to the Court of Appeal to appeal his conviction was dismissed by a single judge.
Freeman has since made 4 applications to the Criminal Cases Review Commission (CCRC) with fresh evidence that supports his claim of innocence. These have all been rejected and thus Freeman’s case has not been able to be referred back to the Court of Appeal.
Evidence to suggest a miscarriage of justice
There is a plethora of evidence that has been collected to rebut Freeman’s conviction and the prosecution’s alleged version of events. This has been provided by 9 eminent pathologists, many of which will be referenced in the below discussion.
1. Problematising Shepherd’s autopsy report and theory of death
Aside from the initial issue of his non-disclosure of the first and second autopsies citing alcoholism and pancreatitis as the cause of Hardie’s death, the evidence that Shepherd did submit to trial poses several problems.
Shepherd’s opinion, formed over the third autopsies that he carried out on Hardie’s body, was that Hardie had been murdered by mechanic asphyxiation known as Burking. He defined this as “compression of the chest by a heavy object whilst lying on the ground” and named the cause of death as “suffocation”.
As an aside, it should be noted that it has been confirmed by pathologist Professor Bernard Knight that Shepherd’s use of the word “suffocation” was incorrectly used in the context, since it describes death due to obstruction of the nose and mouth, a comment that is shared with Professor Mant, the defence pathologist. Conversely, the correct cause of death should have been named as “traumatic asphyxia”: death due to pressure on the chest. It has been argued that this mistake is indicative of Shepherd’s inexperience at the time, having only been qualified for 2 years.
The only evidence cited by Shepherd to support his finding are the bruises that he marked: above the right elbow, below the right armpit, on his scalp, at the upper cleft of the backside and another just below the nape of the neck.
These bruises were claimed to have been found by Shepherd’s during the third and final autopsy of the body. Professor J Crane has since condemned him for his failure to photograph the bruising and take samples for microscopy in order to confirm if it was indeed bruising or if it was merely post-mortem change. Additionally, he failed to undertake a histology examination of the bruises, which was a failure in accepted professional practice at the time.
The use of the bruises as evidence has been hugely disputed by Professor Knight, who stated in his 2003 report that bruising due to Burking would appear on the front of the chest, shoulder-blade region, or back of the elbows due to pressure on the chest causing the lowest points of the back to be under pressure. It was confirmed by him that Hardie had no spinal abnormalities and thus the regions of his bruises were not at the lowest points of his spine. Professor Knight described the bruises as likely to have been caused by focal impact, most likely falling whilst inebriated. It is notable that Freeman had had recent interactions with Hardie in which he had fallen several times whilst extremely intoxicated.
In addition, Knight confirmed that the typical symptoms of traumatic asphyxiation are intense blueness in the face, neck, and upper chest, with petechial haemorrhages (blood spots) in the eyes, eyelids, face, lips and skin. These symptoms are possible but less likely to be present after suffocation, which typically causes bruising on the lips, facial skin, mouth, or gums due to pressure over the nose and mouth. None of these signs were recorded by Shepherd in any of his autopsies, and consequentially, Knight concluded that that “there is no evidence whatsoever for claiming that death was due to either “suffocation” or “compression of the chest””.
Further, Professor Mant testified at trial that Shepherd’s record of Hardie’s bladder being full of urine at the time of his death is inconsistent with the expelling of urine that typically occurs when a body is deprived of oxygen.
Newer research from Steven Karch and Mark Kroll has also found that the idea that kneeling on or applying pressure on the chest causes asphyxia is a myth. According to their findings, death by asphyxia requires either pressure on the neck, or extreme force of greater than 280 kg on the chest. This material has been taken as scientific fact and can be used to rebut Shepherd’s narrative that Freeman murdered Hardie due to pressure on the chest, since Freeman weighed around 90kg, far from the weight required to cause death by asphyxiation.
Finally, it is of note that in his evidence given in court, Shepherd focused largely on his theory of Burking, asserting that it was a technique taught in the military in which Freeman has fought. Such assertion was out of his area of expertise to the extent of being inappropriate, and several witnesses who trained in the Rhodesian army alongside Freeman have since stated that the technique was never used as part of their military training.
2. Evidence to support the claim of death from alcohol and drug consumption
At trial, Shepherd excluded the presence of alcohol and drugs in Hardie’s bloodstream as a direct cause of his death. However, new evidence has been produced by Professor Nicholas Birch regarding the effects of alcohol and drugs. He described Shepherd’s calculation of Hardie’s blood alcohol concentration as 270mg/100ml blood as a “snapshot” figure. Whilst this reflects the alcohol concentration of Hardie’s blood at the time of his death, Birch’s examination of the alcohol concentration in Hardie’s urine led him to conclude that he had likely reached levels of 360-380mg/100ml of blood before losing consciousness and ultimately dying.
In addition, the presence of 0.23ug/l of Diazepam and 0.006ug/l of Dothiepin was recorded in Hardie’s bloodstream upon his death. These drugs were stated by Birch to depress respiration, having effects additive to those of alcohol and thus lowering the blood concentration of alcohol required to cause death. Dr Mant supported this point, noting that the combination of these drugs with alcohol is “potentially lethal”, especially for someone with a history of cardiovascular or respiratory disease (discussed further in section 3 below).
Another expert report by Heatley and Crane found that death from, or associated with, alcohol can kill from a blood alcohol concentration of 150mg/100ml, far less than Hardie’s levels. This is supported by Dr Hugh Johnson’s paper which draws attention to deaths that occur where there are blood alcohol concentrations of less than 300mg/100ml. The alcohol level in Hardie’s urine was recorded as 392mg/100ml, higher than his blood alcohol levels. This indicates that he was in the elimination phase following alcohol intake, the phase during which death can occur.
3. Evidence to suggest death from a heart attack
Shepherd’s first naked-eye examination of Hardie led to an estimation of his coronary artery having narrowed by 70%, compared to 40% when examined under a microscope. However, there is a common consensus amongst pathologists that naked-eye examination is more reliable due to microscopic distortion and sampling errors. Such a narrowing of the artery provides great potential for occlusive disease leading to heart attacks, which can be fatal. Professor Knight notes that this should not be discounted as a potential cause of death.
Whilst there was no sign of the heart muscle showing damage due to reduced-blood supply, Knight stated that death within 6-12 hours of an acute coronary episode may not provide sufficient time for any physical signs to appear. Additionally, he noted that the death may have occurred from rhythm defects. Doctor Mant noted that newer understandings label the Dothiepin found in Hardie’s bloodstream at his death as having potential for causing cardiac and cardiovascular events which can be fatal, and thus the combination of his narrowed artery with such drugs cannot be discounted.
Is Freeman’s claim of innocence plausible?
Considering the above information, I would argue that there is strong plausibility to Freeman’s claim of innocence. There are several clear layers of doubt as to the prosecution’s narrative as to Freeman’s supposed crime on the night of the 15th April 1988.
Firstly, evidence places Freeman in an entirely separate part of London on the night of the death. The distance between Freeman’s flat and the hotel in which he stayed is around a 2.5-hour walk, or just under an hour’s car or tube journey. Monica Barber’s position as an alibi seemed to be wrongly overlooked by the jury in Freeman’s case, particularly since it was corroborated by the narrative of Rory Kilpatrick, an individual and impartial witness. No reliable evidence was put forward that placed Freeman in or around his flat during this time. The circumstantial evidence that was valued by the jury in convicting Freeman is a story-telling type attempt to turn the coincidental nature of Freeman’s leaving the country into a fraudulent conspiracy. Freeman’s contemplation of a fraudulent life-insurance claim is certainly unscrupulous, but seems to be an empty attempt to capitalise on the situation in hand, and indeed, his family never actually pursued such a claim. It is extremely dangerous to become fixated on the so called circumstantial aspects of the case without considering the more substantial scientific evidence.
On that note, more concrete scientific evidence exists which seriously places into doubt the very accusation of Hardie being murdered. As discussed above, several plausible alternatives exist as potential causes of Hardie’s death, and the alleged suffocation theory has been problematised in multiple significant scientific findings. Such material scientific fact that negates the accuracy of the prosecution’s version of events is certainly of note, particularly when paired with the concerning lack of forensic proof of Hardie’s been murdered by Freeman.
As an aside, it is not to be dismissed that Freeman’s continued imprisonment is a direct result of his refusal to admit guilt. Had he done so and agreed to cooperate with the required offender rehabilitation programmes, Freeman could have been released from prison 13 years after his sentencing: at the break of the 21st century. Common sense suggests that such a detrimental refusal to admit guilt could be indicative of his innocence. Freeman has spent his entire sentence desperately trying to prove his innocence. He has instructed multiple lawyers, made 4 applications to the CCRC for review of his case, and relentlessly worked on disproving his conviction. Countless individuals including solicitors, pathologists, university professors, and a prison chaplain remain dedicated to his claim.
Considering that the standard of proof in the UK criminal court is “beyond reasonable doubt”, it is shocking and indeed extremely concerning that Freeman was convicted on such problematic evidence. With such a strong plausible claim of innocence, justice demands that Freeman’s case be reviewed.
By Hannah Pickup
Empowering the Innocent (ETI) volunteer
Final year Law Student, University of Bristol
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