The failings of the Criminal Cases Review Commission in the case of Mark Osborne
My name is Julie Major, I am an NHS worker and an online law degree student with the Open University. I am advocating for my friend Mark Osborne who is 39 years old and was convicted under Joint Enterprise in 2009 for murder, even though he was in jail for fighting at the time of the offence.
The murder took place in Benskins Lane in Romford Essex. Mark was convicted along with two co-defendants, one of which, was his brother, Tony, the other a friend; I am not fighting their convictions as I believe they are both guilty.
The prosecution constantly refused to charge Mark with this crime over a period of 6 months, but, eventually did, even though no new evidence has been offered to justify that decision.
There is also evidence that the jury struggled to find Mark guilty, taking an extra week to find Mark guilty compared to his co-defendants and asking the Judge to go over the meaning of Joint Enterprise in more depth and for a re-cap on the summing up of evidence for and against Mark; this happened on two separate occasions.
Mark was also let down by his barrister, who was not in court that day, and rather than adjourn and wait for Mark’s counsel to be there, the Judge himself did the re-cap without giving the more in depth meaning on Joint Enterprise that had been requested; he answered the jurors’ additional questions, too.
Although Mark is claiming factual innocence, i.e., that he had no knowledge of the murder and took no part in it, the Judge also erred in not giving the jury an alternative route to a manslaughter verdict.
Mark was convicted on 13 January 2009, approximately one week after his co-defendants, at the Old Bailey, The Central Criminal Court in London. He was given a mandatory life sentence with a minimum tariff of 30 years to serve. He was just 26 years old when convicted; he is still in prison and has so far served 13 years of his sentence.
The prosecution alleged that Mark Osborne knew or arranged for the murder to take place. Their only evidence was a statement from Mark’s cellmate, who was serving a Public Protection sentence, though not an IPP (Imprisonment for Public Protection) sentence.
The cellmate was also facing deportation back to Somalia, which was halted when police intervened due to him being a witness for the prosecution in the case against Mark. The cellmate had 13 aliases and 9 different dates of birth. Every time he was arrested he gave a different name and date of birth, so was a proven liar. He also had a string of violent convictions including one for robbery with a handgun. We also believe he used one of his aliases and dates of birth when giving evidence in the witness box and this was not for safety reasons.
When he first asked to speak to a prison officer he said ‘his cellmate (Mark) knew someone that had committed a murder.’ When he later spoke to police officers he changed his story, stating that Mark Osborne had called his brother Tony Osborne and they had arranged a murder for £10,000. When phone records disproved this and it was obvious it was a lie the whole matter was never mentioned again, either by the police or the cellmate.
The cellmate altered his story for a third time and said at first that he, himself, (K.A.) had spoken to the alleged shooter (W.C.) on the phone on the day of murder and, then, again, for a fourth time alleging that he had heard the alleged shooter on the phone to Mark saying ‘I stuck 10 in him’.
This claim was relied on heavily in court, as the prosecution said that is how many bullets were fired; and stated, ‘how could the cellmate have known this unless the information came from the gunman?
This is disproved as in the autopsy report it says that 6 shells were found at the murder site with one stray bullet, so 10 would in effect have been wrong. It would have only been 7 shots.
The CCRC Statement of Reasons (SoR) not to refer Mark’s conviction back to the Court of Appeal also disproves the notion that 10 rounds were fired, citing a statement from DC Dave Whelams who says: ‘K.A. [the cellmate) told us he heard W.C. [alleged shooter) say “I stuck 6 in him” to Mark Osborne.’ This undermines the claim in court that 10 shots were fired as DC Whelams was aware it was only 6. We have a copy of that statement.
The other evidence presented by the prosecution to support its case against Mark was a statement from the victim’s girlfriend stating that she heard the gunman say what she thought was: ‘That’s from Mark, you are not so clever now.’
There are several issues with the evidence from the victim’s girlfriend. Most crucially is the issue of reliability. The victim’s girlfriend would more than likely have been in extreme shock and she was in sitting inside a car, so she could have misheard what was said, especially as the victim’s name was also Mark.
Indeed, it is equally possible that the gunman could have said: ‘That’s for you Mark, you are not so clever now.’
Another issue regarding reliability is that there is a further person named Mark who could have been possibly have been involved, who incidentally was Tony’s brother-in-law and is alleged to have worked with Tony selling drugs, though he was never mentioned in court.
The prosecution also alleged that Mark and his brother Tony worked together selling drugs. However, we have paperwork that refutes that and says police intelligence could find no evidence of Mark being involved in drugs at all. Furthermore, there was another man that was named and accepted in the trial as Tony’s partner in selling drugs.
The victim’s girlfriend also said in her statement that as far as she was aware the victim only worked for Tony. Evidence supporting this is that when the brothers were charged and their finances were checked: Tony owned a house, cars and a business; Mark only had £30 in the bank and was staying at his dad’s house.
The only other piece of alleged evidence they used against Mark was the fact that he made a call to the alleged shooter, W.C. that lasted roughly 9 minutes at 10 pm the night before the murder. This is not evidence that he conspired to have someone shot. This telephone call was the single item of evidence used to indicate that Mark arranged the murder; other than this call there were no other calls, not even to his brother.
There is so much wrong with this case. Too much to go into in one article. But there is no doubt that the evidence presented by the prosecution against Mark was seriously flawed.
We cannot comprehend how someone as unreliable as the cellmate K.A. was allowed to be used in court as a witness. Had Mark tried to use him in his defence he would, correctly, be viewed as an unreliable witness. Yet, he was allowed to be used by the prosecution to convict an innocent man for a minimum term of 30 years of imprisonment.
The cellmate was thrown off the CJPU (Criminal Justice Protection Unit) because he trashed a hotel room and committed an offence. He was also recalled back to prison for a violent assault. He lied to the Home Office regarding his identity. He was also proven to have told a lie in court when he said Mark had threatened him in the court cells and said: ‘You are a dead man walking.’ This was disproved by the cell officer who was called to court and stated that Mark and K.A. were brought in different doors and put in cells on opposite sides of the building so they could not have had any contact at all.
Despite all of these factors which disprove K.A.’s allegations against Mark, as well as the fact that he stood to gain from his allegations, he was still classed as a credible and reliable prosecution witness against Mark. This is wholly unacceptable and undermines any notion of the presumption of innocence and the right to a fair trial, which are supposed to be fundamental values of the criminal justice system that should never be circumscribed.
We also believe Mark was poorly defended in court and may not have been given a fair trial. In particular, he was advised by his defence team not to testify in court because Tony and W.C. were giving so-called ‘cut-throat’ defences, meaning that they were each blaming the other.
Mark was also granted leave to appeal on a point where his defence had failed to properly cross-examine a witness. We believe as the other two were using cut-throat defences that Mark’s defence team should at the very least have asked for severance so Mark could have testified and received a fair hearing. Severance is when the defence ask for the defendant to be tried in a separate trial from other co-defendants so they get a fair hearing and are not prejudiced by others, which is especially important in a cut-throat defence trial.
Additionally, we have paperwork that shows the probation officer was not happy with the way the police were handling K.A.’s parole application. It transpires that K.A. had refused to co-operate until he got parole and mentioned inducements and hinted at inclusion of texts, letters or e-mails in any parole application. He said it could prove a problem. The police officer involved, D.C. Whellams, said: ‘I do not see it as a problem, I will be open and that as it stands, I do not have a witness for a murder trial. I would rather have to explain my actions than not have him as a witness in the trial.’
There were issues, too, with either refusal of disclosure of a lot of vital evidence that could have helped Mark’s defence team, such as whether K.A. had been a previous informant, and very late disclosure of evidence, which made it impossible for it to be used appropriately.
Whilst looking into this case, I also came across a handwritten statement by Marks’ brother, Tony, which states that he had contacted the alleged shooter W.C. to ask him to ‘have a word’ with the victim as he had heard the victim had robbed his home. It seems that he wanted W.C. to do no more than frighten the victim off. According to Tony’s statement, this went wrong on day of murder. He also states in the statement that they tried to lure the victim to the scene at around 5pm the day before the murder, but the victim was out with his family, and he said he could not come so they arranged to meet the next day. That is when victim was shot and killed. He also said Mark did not know about any of this.
I found phone logs that corroborate this. The calls show Tony in Benskins Lane at approx. 4pm the evening before the murder took place. He calls W.C. several times. W.C. was in a different location. The cell mast data then shows W.C. moved to Benskins Lane where Tony was located. They, then, called the victim and tried to get him to meet them that night.
The call logs prove all this. They also show that had the victim gone to meet them that evening and the murder had taken place then rather than the next day, Mark had no contact with either his brother or the alleged shooter W.C. at all.
To put it even more plainly, had the murder taken place on the evening that it was planned to happen then Mark could not have arranged it and would not have been implicated in the murder at all.
Looked at in this light, it, then becomes ridiculous to say he would not have arranged it for the day before (and phone records would have proved he was not involved) but did, like the prosecution alleged, arrange it for the next day. We believe this information, if given to a jury would have made it impossible for them to find Mark guilty of this crime. It would, certainly, have raised reasonable doubt, at the very least, or, as we believe, proven his innocence.
We raised this matter in our second CCRC application that we did ourselves. Unfortunately, the CCRC messed up completely. They sent us a SoR (Statement of Reason) not to refer Mark’s conviction, but there were several things wrong with their refusal. We have a complaint on process at the moment regarding the following points:
Firstly, they said the information in Tony’s statement was the same defence that Tony had used in court. This was wrong, Tony said in court he was working in Benskins Lane and denied all knowledge of W.C. and the murder, and as I said previously Tony and W.C. used cut-throat defences against each other.
Secondly, the CCRC said that the call evidence had been used in the trial. This is also wrong. Had it been used it would have been mentioned in the summing up by the Judge. Yet, there is no mention of this in any summing up. I asked CCRC to provide documentation where it shows it was used in court as part of my complaint.
The CCRC also stated in their response: ‘There was no direct evidence of your involvement from the telephone calls prior to your offence.’ So, my question is, how did Mark arrange this, which is the basis upon which he was found guilty of murder, if there was no proof of involvement via phone calls? How could he have arranged it? He had no visits to be able to arrange it, so if, according to the CCRC there is no direct evidence of Mark’s involvement, he must be innocent.
The CCRC also attributed several points and questions to me, answered those points and based their decision on them, when the points were not raised by me. I did not ask them. They had muddled a previous application by Mark’s Mum (that application was not even investigated as they said it raised nothing new), who is also called Julie, with mine. They confused the two different applications and treated them as one. I have raised a complaint with them asking for a re-review as the review of the application that we submitted was done totally incorrectly. We have been informed that we would receive a response on this by 11 March 2022 but failed to meet this date and then said that they would reply to us by the 18 March 2022.
We also have a complaint with the CPS as they have lost Mark’s evidential file and have said it is a security breach. We are now at Stage 2 with that complaint and at this moment in time we are awaiting a response from the Deputy Chief Prosecutor of the North London Homicide Team. We have been told that she has ordered a thorough search of the offices and contacted the Metropolitan Police to see if they have copies of any missing information.
We received a reply from the Deputy Chief Prosecutor of the North London Homicide Team on 28 February 2022. We were provided with a draft indictment, which I complained about as we have been trying to get a signed indictment since middle of 2021. They then provided us with a signed one, but I have, again, had to query an issue as it was signed and dated for the day the Judge granted leave to re-arrange the order of the names on the indictment.
Moreover, at the bottom of the indictment it mentions leave was granted by a different Judge for Mark to be joined on indictment, there is no date or signature for this, so I have asked why there is no signature and could they provide a date and the relevant paperwork to show Mark was legally added.
The North London Homicide Team is also now saying they have only lost part of the file and the part they thought was missing had been stored electronically. How they didn’t find it when we asked previously baffles me. They are saying the missing part has been misfiled so they cannot find it, they are saying it contains internal correspondence and reviews. They also stated that Mohammed Cheema, District Crown Prosecutor, mistakenly told me they had reported the loss to the ICO (Information Commissioner’s Office), when it has not been reported to them at all. I have concerns that all is not open and honest and how do we know if they have, in fact, found the parts of the file they reported to us they had lost? How can we find out?
The scent of corruption and deceit still seems to be as prevalent as it was when they charged Mark with this murder.
To say we also feel let down by the CCRC and the poor review they did, is an understatement. To them it is just another case. To Mark it is his life. He has already lost 13 years that he can never ever get back due to this miscarriage of justice. He suffers from anxiety and depression, for which he is on medication.
The CPS have apologised for the loss of the file and the distress it has caused Mark, but this is not good enough. The CCRC did an appalling job. Although, they are the only avenue of hope that alleged innocent victims of wrongful convictions like Mark have, they don’t seem to be able to get it right and keep messing up.
The CCRC did not have the decency to even review Mark’s application correctly and fairly and that is sad, disheartening and very concerning. Someone needs to review the CCRC and the terrible job they are doing. This is people’s lives that they are dealing with, and they should not be allowed to get away with such sub- standard work.
If the CCRC refuse to re-review Mark’s application, which I imagine they will, we plan to take it to the Parliamentary In-House Ombudsmen as I found out that they oversee the CCRC. I also plan to e-mail David Lammy, Shadow Minister of Justice, as he gave us a case number and is following our case. To keep Mark behind bars when we have proof of his innocence is a crime in itself. The evidence we provided to the CCRC proves, or at the very least raises a reasonable doubt, on Mark’s conviction.
Just to reiterate, the call logs are in black and white. They prove the handwritten statement Tony made about trying to get the victim there the night before. They show him at the murder site calling W.C. They show W.C. is in a different area. They, then, show him move to the murder site where Tony is. Then, they together call the victim to meet them. The victim cannot make it, which his girlfriend corroborated in her statement. The call logs also show no contact at all between Mark and Tony or Mark and W.C. if the murder had taken place that night instead of the following night when it actually took place, nor any contact in the weeks leading up to this.
This must be considered as fresh evidence as none of this is mentioned in the Judges summing up, so it cannot have been mentioned in court. If it had been mentioned during the trial, the Judge would have been lacking in his duty to mention all important points when summing up Mark’s defence if he didn’t mention it.
Surely, this proves that Mark is innocent. You cannot say he would not/could not have arranged it one day, but then say he did the next day. This is ridiculous and wrong.
Mark has spent 13 years in prison for a crime he did not commit. There is only one avenue that is, supposedly, there to help him, and that is the CCRC. Yet, they cannot, or will not, give Mark a fair review. Mark should, with the fresh evidence we have, be allowed to appeal his conviction.
I will not give up in my fight for justice for Mark until someone listens and does something to correct this blatant injustice. They are keeping an innocent man in jail and they say Mark is the criminal!
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