By P Koupparis
28 June 1997

I had met DeSilva in 1990 at HMP Wayland. He was serving the first year of a seven-year sentence. He was trying to appeal against his convictions and I agreed to help with the legal procedures because he spoke virtually no English at the time. I did not hold out much hope of success because he had not indicated any substantial grounds for appeal.

My view of the case changed when I read through his case papers. I soon realised that DeSilva's two convictions had been secured with a fabricated exhibit. What was unusual was that the act of fabrication was clearly described in the prosecution forensic report of Peter John Cain, GRSC, who was a Scientific Officer at the Laboratory of the Government Chemist based at Teddington. In his single-page report, he stated that he had received four packages;

"Each package comprised brown powder wrapped in clear plastic and brown adhesive tape, I removed the brown powder from the four packages, combined it to form one lot and labelled this CAIN 7342/89".
(Emphasis added.)

DeSilva was blissfully unaware of the fatal flaw in the evidence against him. Without subterfuge or sleight of hand, Cain had destroyed the integrity of the original four exhibits by combining them together to form one lot.

I wondered why Cain had produced a report clearly documenting such a serious error in scientific procedure? At first I though it might have been a mistake, but a sinister and cunning plot soon emerged. Cain's report was sent to Phillip John O'Neil, BSc, MSc, CChem, MRSC, and Principal Scientific Officer at another Laboratory of the Government Chemist, this time in London. He used Cain's report as the basis for his own. He confirmed, "This is not the first occasion that a 'heroin' sample analysed by LGC has been found to contain no diamorphine." His report concluded;

"One explanation for this would be that those trafficking in heroin had no further heroin available for the intending purchaser and that a "rip-off" has occurred."

The Government chemists had been unable to confirm a positive field-test for heroin that had been carried out by a Customs Officer at the time of DeSilva's arrest. In fact, O'Neil's analysis of Cain's combined lot revealed a mixture of coffee, laxative and some obscure compounds used mainly in herbal remedies. A prosecution witness had described the mixture as, "useless and valueless". O'Neil's report managed to turn this useless and valueless powder back into a legally acceptable form of virtual heroin that was used to secure DeSilva's convictions.

The main evidence against DeSilva was O'Neil's speculation on Cain's fabricated exhibit! I could not understand how the case had ever gone to trial. Significantly, DeSilva's first trial had collapsed after a juror had asked to see the exhibits and Customs could not produce them. The full horror of the case became apparent when I spoke to Matthew Farmer, DeSilva's defence Counsel.

Recorder Colin Woodford had directed the second jury to, "look at the exhibits," to help them decide the case. I asked Farmer to describe those exhibits. "They were four packages containing brown powder," he recalled. I realised that Customs must have decanted Cain's one lot back into the original four packets for the second trial. I drew Farmer's attention to the relevant part of Cain's report. His immediate reaction was "The bastards!"

However, he soon got over it and became the key figure in what was to become the most transparent and shoddy cover-up I have ever witnessed at the Court of Appeal. No doubt Farmer soon realised that much of the blame would fall in his direction. He had missed the most crucial defence point and had failed to advise a defence expert to challenge the prosecution's experts.

I spoke to Dr Candy of Forensic Access, who agreed to prepare a preliminary report for the appeal hearing free of charge. His report was extremely positive;

"I am also concerned as to the validity of the procedure used by Mr CAIN when he 'combined' the contents of FARRANT A 'to form one lot', which he then tested, possibly without regard to the homogeneity or the possible inherent chemical interactions of the components in the resultant mixture."

He went on to say:

"In all the circumstances, it would appear that a detailed scientific examination of the exhibit, coupled with an in-depth scrutiny of what the prosecution scientists are saying, in the light of their tests and examinations, is absolutely essential in this case to ensure that the court is not totally misled as to the meaning of the scientific evidence."
(Emphasis added.)

I sent copies to DeSilva, his solicitor (Mrs M Wrench), Farmer, the prosecution and the Court of Appeal. The Appeal was heard on 28th October 1991 before Lord Justice McCowan, Mr Justice Tucker and Mr Justice Ian Kennedy. Mr J Akast appeared for the Crown.

Imagine my bewilderment when Farmer failed to call Dr Candy OR mention Cain's fabricated exhibit. He also failed to challenge the second, minor conviction secured on the same exhibit!

The appeal hearing was conducted on the basis that the trial judge, who later died in somewhat curious circumstances, had been wrong to allow the main count to go to the jury on a submission of no case to answer. Ironically, Farmer had strongly advised DeSilva to appeal against BOTH convictions immediately after the trial, but the instructing solicitor, Ralph Haeems & Co, had neglected to forward the advice to his client.

There is a plausible explanation for this irregularity. Farmer's reasoning in that advice revealed that he was either incompetent or already part of a conspiracy to wrongfully convict DeSilva.

In order to succeed, count one of the indictment required DeSilva to have thought or believed that the four packages contained heroin. In other words, he was the victim in O'Neil's "rip-off" hypothesis. The prosecution must have known that there was no tangible evidence to support the charge, so they added a second count as an alternative, in case count one failed. Count two required DeSilva to have known that the packages contained exactly what O'Neil's analysis claimed they had contained, basically, a useless and valueless powder with a trace of two barbiturates. For this count to have succeeded, DeSilva had to have been the perpetrator in O'Neil's "rip-off" speculation.

Clearly, DeSilva could have been either the victim or the perpetrator, but he could not have been both. (Of course, he could have believed that the packages contained something quite innocent.) In legal terms, the two counts were mutually exclusive. A finding of guilt in respect of one automatically negated the other. The judge should have directed the jury along those lines, but he had not done so. This serious omission resulted in DeSilva being convicted on BOTH counts. This was a meaningless verdict. The jury could not have understood the case, therefore, both convictions were unsafe and unsatisfactory. Farmer's grounds for appeal made no mention of this point.

In my view, this was the most disturbing aspect of the case. How could so many senior appeal judges, leading barristers and solicitors miss such a glaringly obvious, fundamental error in law? All the legal professionals involved in the case, including Peter Ashman, the Legal Officer of Justice, have ignored my observations on this issue.

The full Court of Appeal quashed DeSilva's conviction on count one unreservedly. But our victory was short-lived. He was whisked off to the cells below the court to await immediate deportation arising from the unchallenged minor conviction relating to count two. He had already spent 18 months in jail, but the sentence for count two had only required six months' imprisonment. The legal system had decided to deport DeSilva in the hope of avoiding any embarrassing repercussions. I was determined not to let them get away with it!

DeSilva was to spend several months behind bars, until, with the help of Chris Smith, MP, he was released on bail subject to the result of a new appeal hearing and a Home Office review of his immigration status.

We had caught Customs and Excise, two Government scientists, seven appeal judges and a motley crew of barristers, solicitors and court officials in a fully documented conspiracy to pervert the course of justice! But nobody wanted to know. Not one newspaper covered the appeal or would touch the story afterwards. The BBC's Rough Justice program immediately lost interest.

Since his release, DeSilva has retained several solicitors. Each in turn has obtained an advice from a senior barrister, such as Christopher Sallon, a former president of the Bar Council and the first to tackle the problem. All of them, acting pro bono, have managed to produce opinions that defy all logic and common sense. Every solicitor has then sat on the file in the hope that we would go away.

In 1994, six Customs and Excise officers, led by Miss Janice Wanstall, raided DeSilva's home while he was out and seized his legally privileged correspondence and fresh appeal evidence. I was arrested in the same incident and remanded for five weeks before being released without charge.

I can only speculate on the real reason for the raid, but it happened very shortly after we had discovered that DeSilva's arresting officer had also detained his uncle, a Sri Lankan diplomat, on the previous night. The uncle had visited DeSilva on his ship, which was berthed at Felixstowe, with other members of the family. He had left carrying a number of similar parcels. These proved to be a collection of curry powders and spices and he was allowed to go on his way. But the incident was not disclosed by Customs during the criminal proceedings and the uncle had kept quiet after his nephew's arrest.

If Customs' prosecutors had disclosed the incident, they would have had an enormous difficulty proving their case against DeSilva. He could have demonstrated a good reason for believing the packets contained innocent cooking ingredients. We had obtained an affidavit from his uncle, who was then stationed in Dubai, for use in the new appeal. The raid took place a few days later and that affidavit was one of the items seized.

We are now in 1997, almost six years after the original appeal; the cover-up is still in place and DeSilva is still on bail. Meanwhile, he has married, a baby is due in July and his English has improved enough to support a management position with a well-known supermarket chain. But he has not seen his family or friends for nearly eight years. His younger brother, a Major in the Sri Lankan Army, was killed in action in mid-May. The Home Office, despite the intervention of Mike Gapes, MP, refused to allow DeSilva to attend the funeral and return to continue his quest for justice.

The case had remained in limbo until just over a year ago when it was published on the Internet. DeSilva's website features the reports of Cain, O'Neil and Candy along with Sallon's advice, the appeal transcript and various other documents. The site, at URL http://www.scandals.org/, is very popular, drawing several hundred visitors a week. Scallywag's earlier article is also on the web, attracting thousands of readers every week.

Suddenly, solicitors were queuing to take on the case. Graham Simpson of J Keith Park & Co, St. Helens, was retained. He approached several barristers, but most were less than forthcoming. Eventually, Thomas Fitzpatrick accepted the brief and produced an advice recommending a new forensic report with a view to referring the case back to the Court of Appeal via the Secretary of State. Conveniently, the new report will serve as fresh evidence thereby avoiding the embarrassment of re-opening the original appeal.

However, Fitzpatrick also agreed with all the previous "sham" opinions, upheld the use of fabricated exhibits and praised the fairness of everything that had gone before. Last month, Simpson wrote to advise that legal aid had been granted. The ever-so-slow wheels of British Justice were about to be oiled. For justice or another cover-up, we do not know.

Yet another strange facet of this case emerged while Simpson was taking DeSilva's proof of evidence. DeSilva's original solicitor had not bothered to take an interpreter with him on prison visits. DeSilva had to rely on the services of another inmate. This soon-to-be-convicted drug-smuggler proceeded to concoct a defence for DeSilva without his knowledge. By the time he found out what was going on, DeSilva feared that he would be branded a liar if he changed the story, so he stuck to it. The jury did not believe a word of it!

This case exposes the myth of British Justice so well, I would really miss it if we ever won.

© Copyright P Koupparis 1997. All Rights Reserved.