The Facts of the Case

   Kevin Sweeney has been in prison in the Netherlands since February 2001, but his fight for justice goes back to 1995 when he was accused of killing his wife in a house fire. The circumstances of the fire, which was limited to his wife’s bed, strongly suggest death occurred from smoke inhalation after a fire caused by a cigarette. Indeed nothing suggests that a third party, let alone Mr. Sweeney, could have started the fire.

   After spending 10 months in prison Kevin Sweeney was released and a month later, in October 1996, he was tried and acquitted. However the prosecution appealed and Sweeney was re-tried in 1997. At the court hearing, the prosecution said they did not want to proceed at that stage, so Sweeney returned home. The prosecution then conducted a series of tests, which independent experts have declared scientifically flawed and invalid. The magistrate in charge of the tests was removed from the case when it was discovered that she had instructed the technicians to do whatever it took to make the results of the tests look the same as the photographs of the actual fire. But these fraudulent tests were still used in evidence.

  The re-trial continued in February 2001 in front of three judges. Before the trial the President of the Court telephoned Sweeney’s lawyers and assured them that there was no need for defence witnesses to be called or prosecution witnesses to be cross-examined. The judge said that pleadings should be kept to a minimum, leading them to believe that the original acquittal would stand.

  The trial on the 6 February 2001 provided three hours of chaos and drama. The chief prosecution witness, the head of the police forensic team, was unable to give evidence due to mental illness.  The judges requested that Sweeney’s lawyers present the defence before the prosecution stated their case against him. They had barely started the defence pleadings when the President of the court stopped them, suspended the trial and cleared the court. This extraordinary turn of events happened just at the point that Sweeney’s lawyers were proving to the court that the police had fabricated the only item of evidence that might have suggested arson.  The disputed evidence centres around samples of carpet which the police stated, had been cut from the scene of the fire and bore traces of a ‘crude oil distillate’. 

  However, the samples could not have been taken from the carpet in question, as official police photographs showed the carpet was intact.  After a short break, where the judges and the prosecutor might have deliberated together, the court was re-convened. Sweeney’s lawyers were not allowed to resume their pleadings. Instead the prosecutor put forward her case, which Sweeney’s defence team was not allowed to contest. Sweeney was arrested, despite the fact that he had not yet been found guilty. Two weeks later, on 20 February 2001, he was convicted and sentenced to 13 years imprisonment.

  The Appeal Court refused to produce a written verdict, without which Sweeney could not appeal against his conviction to the Dutch Supreme Court. After seven months Sweeney was driven to go on a hunger strike to try and obtain the written verdict. When he finally received it another astonishing revelation unfolded. The written verdict stated that the indictment produced by the prosecutor was confusing and the judges did not understand it. Therefore they had illegally changed the indictment themselves, after the end of the trial, in order to secure a conviction.

  Sweeney appealed to the Dutch Supreme Court with 12 points of law. When the Supreme Court finally ruled, they could not adequately answer 6 of the 12 points that the appeal raised and they did not even attempt to address the other 6 points.

  Adding to the maladministration of the legal process, the Dutch judicial authorities have pre-empted the proceedings by declaring Sweeney’s guilt before the various hearing that took place. The Ministry of Justice published a proclamation to say the Sweeney was found guilty before the Supreme Court made their final decision. Then the Supreme Court Prosecutor unilaterally issued a statement that Sweeney’s appeal had been declared inadmissible before the Supreme Court judges made their decision.     

   The case was then taken to the European Court which at once ruled that domestic remedies had not been exhausted and thus the matter returns to the Dutch Courts.

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   “Over the last months Kevin Sweeney has been given huge support by Members of the British and Dutch Parliaments and Members of the European Parliament. He is looking forward to producing irrefutable grounds demonstrating that the alleged sequence of events, which led to his conviction, is impossible.”

Fair Trials Abroad, Feb. 2005

   When a person is tried twice for the same allegation, one would do well to look at a case of a British businessman serving 12½ years for murder in the Netherlands to see what happens when the prosecution is routinely allowed a second bite at the cherry.

   In the summer of 1995, life seemed to be going well for Kevin Sweeney. Seven months earlier, he married Suzanne Davies, a sales director with a British publishing company. Sweeney had been living near Brussels but was opening a factory making CD-roms in Eindhoven in the Netherlands, so the couple bought a house in the village of Steensel near the Dutch-Belgian border. On July 16 they spent the day decorating.

   In the early hours of the following morning, a fierce fire broke out in the bedroom in which Davies was sleeping and she died from smoke inhalation. At some point before the fire – the exact time was a matter of dispute between the prosecution and defence – Sweeney had left the house to drive back to Brussels because his young daughter was sick. It was not disputed that when Davies’ body was found, the house was securely locked from the inside.

   Sweeney voluntarily returned to the Netherlands for the investigation and was subsequently arrested. The police regarded as highly suspicious the fact that bottles of turpentine and other potential accelerants were found in the house, pointing to the fire having been started deliberately and away from the theory that Davies had been smoking in bed and the fire was an accident. However, he received no financial benefit from her death.

   Sweeney was charged with murder, but the strength of the case against him can be gauged by the decision to release him from custody shortly before the trial. In October 1996, a three-judge court in Den Bosch – there are no juries in Dutch trials – unanimously acquitted him.

   Under Dutch law, the prosecution has a right to appeal against acquittal, and in November 1997 Sweeney was summonsed to appear before a higher court to answer the same charge of murder. However, once in court, prosecuting lawyers said they were not ready to proceed and he was allowed to return home. “At that point”, he says from his prison cell, “I knew that the tests done by a battery of fire experts were inconclusive and I naturally assumed that the prosecution had failed to find enough credible evidence that the fire was arson rather than an accident. Suzanne was a smoker and the post-mortem examination found alcohol in her blood. The scenario that she had been smoking in bed and could not react quickly enough when the bedclothes caught fire was far more plausible than anything sinister. The turpentine had been in the house because of the painting and decorating.”

   But the examining magistrate in charge of the case was not deterred by the initial setback. New fire tests were commissioned and more that three years later, in February 2001, Sweeney was again summonsed to appear before the appellate court for what, effectively, became a retrial. The hearing lasted one day and Sweeney’s Dutch lawyer, Nicholas Meijering, describes it as the most bizarre of his 16 years in criminal practice.

   “I get more and more angry each time I think about it. The presiding judge rang me the day before and suggested I cut down the number of witnesses I planned to call, indicating very strongly that we had an excellent case and were going to win it without a lengthy hearing. In fact, in court, several journalists came up to congratulate me because the prosecution put forward absolutely no evidence that the fire was set deliberately, offered no motive for murder, and gave no explanation of how a man could escape, like Houdini, from a house which was locked and bolted from the inside when the body was discovered. Despite all that, the judges deliberated for five minutes – yes, five minutes – before deciding he was guilty.” Two weeks later, his client learned his sentence: 13 years.

   The last throw of the domestic dice for the defence was to appeal to the Dutch Supreme Court. In November 2002, that ended in failure, though the sentence was reduced by six months. Now, an application has been lodged with the European Court of Human Rights in Strasbourg claiming that Sweeney’s right to a fair trial was breached.

   The brief has been taken by an English barrister, Henrietta Hill, “There were so many European Convention on Human Rights violations in this case, it’s hard to know where to start,” she says. “There’s the speed with which the acquittal was overturned in 2001. The fact that there was no fresh evidence. The fire tests which were badly flawed according to technical experts for the defence. I was always against the abolition of double jeopardy in the UK because defendants deserve a finality of due process and this case shows the risks involved.”

   Hill believes it also demonstrates the dangers of dispensing with juries. “My experience is that, in murder cases where evidence is contradictory and the Crown failed to put forward any kind of motive at all, juries are reluctant to convict. In Mr. Sweeney’s case, the prosecutor said in the closing speech: ‘Only the defendant knows why he did it.’ Well, frankly, that may be good enough for judges to convict but I think a jury would have been more sceptical.”

   The prosecutor’s office in Den Bosch admits that there were ‘little flaws’ in some of the technical tests to establish how the fire started. But not sufficient, according the appeal court, to undermine Sweeney’s right to a fair trial. Explaining the delay between the two trials, the prosecutors says this was to allow fresh tests to be done and blames the defence for wanting to call new witnesses. And it seems it is not at all unusual in Dutch murder trials for the prosecution to offer no motive. Meijering assertion that the presiding judge in the appeal dissuaded him from calling all the witnesses he wished to is denied.

   A recurring feature of miscarriage of justice is the sheer determination of defendants to clear their names whatever the cost.  Sweeney took the prison authorities to court to get access to a computer to marshal his case and went on hunger strike to force the court to supply him with a written judgment.

   Meijering says he has never represented a client who has shown such tenacity and Hill describes him as “A highly intelligent man who has been through an appalling experience. After all, he lost his wife in this fire. He’s a victim, too.”

   From his cell, Kevin Sweeney says he will fight on and on. “If I win at the European Court, there will probably be a retrial. So, I’ll have to go through it all again. But I’m quite prepared because I know I didn’t do it.” 

©  Guardian Newspapers, 2004, Abridged