Last month, Sion Jenkins and I went to visit Victor Nealon. Sion, having had his own conviction for the murder of Billie-Jo quashed, still keeps in touch with some of those he knew while in Wakefield; and Nealon is one of them. His case is certainly intriguing.
Events began in the early hours of 9 August 1996 when Kim Lovett, who was out celebrating her 22nd birthday, was assaulted in the centre of Redditch, Worcestershire. The attacker jumped on her and pushed her to the ground but she resisted and, fortunately, he ran off.
She and a friend had just left a club, Racquets, and there were a number of people in the vicinity. Witnesses realised that the attacker, who was wearing a distinctive patterned shirt, was the same man who had been in the club earlier in the evening. The doorman remembered admitting him; he recalled that the man had a Scottish accent.
More importantly, all the witnesses were unanimous on one key point. The man had a prominent physical feature: a lump on his forehead. One witness described this as “natural”; no one suggested that it was a temporary bump that could have been the result of accident or injury.
Six weeks later, Nealon, a 36-year-old Irishman, was arrested for the attack. He did not have a lump on his forehead.
He agreed to give forensic samples and also to stand on an identification parade. The victim’s friend did not pick him out. The club doorman did not pick him out. Two women who served the attacker at a burger bar (one of whom provided a particularly good description) did not pick Nealon out. And the victim herself? The police didn’t even ask her to attend the parade.
However, a barmaid picked Nealon out and so did a club-goer, sort of (he was, he said, “unsure, though it was possibly No.3 [Nealon]”).
That was all – although afterwards one witness was beckoned over by the investigating police officer. The witness then said he’d thought all along it was No.3 but, being naturally indecisive, he hadn’t said so at the time.
So then Nealon was charged.
In his defence, he said that he didn’t go to nightclubs, and didn’t even know where Racquets was. He couldn’t remember precisely what he’d been doing at the time, but would probably have been at home with his partner, Maria, and her daughter, Lisa.
In the bizarre logic of the legal system, to have stayed at home on a Thursday evening and watched television with your family is a deeply unimpressive alibi – despite the fact that that is exactly what the majority of the adult population would have been doing.
However, Maria realised that Lisa kept a diary. According to this, on that day, Nealon had gone to the video rental shop and taken out videos of Lock Up and The Shawshank Redemption, which they watched that evening.
At the end of the trial, after the defence case had closed, the judge allowed the prosecution to introduce rebuttal evidence. According to this, the films Nealon had taken out that evening were actually three comedies, rather than the dramas that Lisa had noted down.
So the trial ended with the prosecution having produced a coup de grâce to knock out the defence case. Nealon was given a life sentence with a seven-year tariff.
However, there was something very fishy about that rebuttal evidence. Firstly, although the specifics may have been awry, the core of the evidence fully supported Nealon’s alibi: he had been at home watching videos.
But why, secondly, was it produced at such a very late stage? Statements regarding that aspect of the alibi had been taken two months earlier, but nothing had been disclosed to the defence. Although the case went to trial just before the Criminal Procedure and Investigations Act 1996 came into effect, there was nevertheless a general duty of disclosure, set out in the Judith Ward appeal judgment, on the Crown. By ignoring this and holding back the evidence, the prosecution had been able to ambush the defence.
In a case of this kind, it would naturally have been assumed that the attacker would leave behind some forensic science evidence. However, when all the analyses of scientific samples had been completed, it turned out that there was no evidence at all against Nealon.
The prosecution therefore put forward the argument that Nealon had only volunteered samples in the first place because he knew, as the attacker, that he had left no traces of evidence. In other words, it was the usual disingenuous nonsense from the Crown: the defendant was damned if he didn’t volunteer samples; and equally damned if he did.
All that just left the identification evidence. Nealon didn’t have a patterned shirt or a Scottish accent. Nor had he ever had a bump on his forehead. A host of witnesses saw him in the days immediately before, and immediately after, the attack. All were certain that he did not have a lump on his forehead. The opinion of the medical expert was that there was “no medical reason for Mr Nealon having had such a lump and no evidence of him having had one”.
So case dismissed? Sadly, not. Ultimately, the prosecution at trial took refuge in a double negative: the medical evidence didn’t prove absolutely that Nealon couldn’t have had a temporary lump on his forehead. So this turned the rigorous evidential basis of the criminal justice system on its head; the Crown argued that its case should succeed because, however remote, it could not be shown to be completely beyond the bounds of possibility.
In retreating to this position, the Crown had also ignored the first-hand witness evidence – according to which the lump was not a temporary mark, but a permanent one.
Nealon has long exceeded his tariff but, like others, remains in prison because he continues to plead his innocence. Some day, he is sure, he’ll find the man with the lump on his forehead.
The name of the complainant has been changed.
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