A man who has been in prison for 14 years for attempted rape may have the conviction overturned after it emerged that crucial forensic evidence had never been tested.
Further doubt has been cast on the conviction of postman Victor Nealon by a neurosurgeon, who says that the prisoner could not have had the distinctive facial features identified by witnesses.
Nealon, from Redditch, Worcestershire, was convicted in January 1997 for an attack on a young woman leaving a nightclub in 1996. He is serving a discretionary life sentence in Wakefield prison. He would have been considered for parole seven years ago had he not consistently denied the offence.
The victim was walking home with a friend when she was grabbed from behind. The assailant forced her to the floor and tried to remove her clothing. Her friend tried to get help before the woman escaped. Both women said the attacker was an older man they had seen watching the victim at the club earlier that evening. A series of witnesses remembered seeing the man, who was distinguished by an egg-sized lump on his forehead.
Nealon, an Irish national with a record of sexual offences, was invited by police to join an identification parade, where only two of the seven witnesses – and not the victim or her friend – picked him out as the man at the bar. The absence of any lump on Nealon's forehead was put down to the simple passage of time when the case came to trial. The prosecution said no forensic evidence was available.
On both these counts, lawyers now believe Nealon's conviction is unsafe. Mark Newby, of Jordans Solicitors, Doncaster, specialists in appeals, describes it as an unusually concerning case: "While he may have had a history, no one's ever looked at the forensics properly until now. It's a pretty poor miscarriage – all the evidence points to the fact that he wasn't the likely person."
Items of the woman's clothing were retained by police and the trial judge said forensic tests had revealed no traces. However, there are no records of the clothing ever having been tested – an oversight compounded when two substantive case reviews, in 1998 and 2002, by the Criminal Cases Review Commission (CCRC), dismissed Nealon's appeal for DNA tests on the grounds that no material was available.
Independent tests this year found matching traces of saliva and other DNA samples on the victim's blouse and bra from an unknown male – a DNA profile that would exclude Nealon.
"No-one had done the independent forensic tests," says Newby. "Clearly if a jury were aware that someone else's DNA was on the clothing, it could potentially change the verdict. At the very least, the court would have to say this would seriously undermine the conviction."
Forensic scientists recommended that the DNA database should be searched to identify the samples on the clothing. Newby is strongly critical of the police's refusal to do so, and of the CCRC for repeating the assertion that no such evidence was available in its reviews of Nealon's case. "He'd have been out years ago if the CCRC had done a better review in the first place. ."
Expert medical opinion now suggests Nealon could not have been the suspect with the lump on his forehead. James Kellerman, an independent consultant neurosurgeon, dismissed the supposition that any such lump could have disappeared by the next day, when Nealon met his probation officer.
Nealon claimed he was at home watching videos with his family at the time of the offence – an alibi undermined late in his trial after the prosecution showed that his wife had not rented the film she said she had that night.
Friends of Nealon say he is in a catch-22 situation: as he has always protested his innocence, he has not been eligible for the rehabilitation courses that lead to parole. By this autumn, he will have served double the sentence for a crime he claims he did not commit.
Newby believes the CCRC must act urgently to review this case and press for an appeal. "He had a number of previous convictions and he was an obvious target for the police."
The CCRC said it is unable to comment on any individual case, but would look very carefully at any case presenting substantial new forensic evidence.