IOPC investigation was provided for appeal to free man from life sentence

Evidence from an investigation managed by the Independent Office for Police Conduct (IOPC) assisted preparations for an appeal which has seen a man freed after 11 years in jail in connection with the murder of a British tourist in Kenya.

Ali Kololo was granted bail at a hearing at the Kenyan High Court on Monday 20 February after an appeal on his behalf supported by the human rights charity Reprieve. To help with preparations for the appeal IOPC findings were provided, relating to the omission of key forensic evidence at his trial.

Mr Kololo was freed on Friday (24 February) after a ruling which focused on hearsay evidence at his trial, and his conviction is expected to be formally overturned in April.

He was put on trial in 2013, accused of being part of a Somalian gang of pirates who had in 2011 murdered David Tebbutt at a beachside safari resort and kidnapped his wife Judith. Mr Kololo was convicted of kidnap and robbery with violence, which carries a death sentence although that was commuted to life imprisonment.

The IOPC’s investigation, conducted by the National Crime Agency (NCA) under our direction and control, began in June 2018 following a complaint by Reprieve on behalf of Mr Kololo about the conduct of a retired MPS officer deployed to Kenya as part of a team investigating Mr Tebbutt’s murder. The officer gave evidence at Mr Kololo’s original trial.

The IOPC investigation considered whether, during the officer’s work on the case in England between 2011 and 2013, he acted inappropriately by omitting evidence to the Kenyan court, resulting in Mr Kololo’s conviction, and participated in a structurally unfair trial in breach of international obligations and the defendant’s human rights.

Following completion of the investigation we determined in November 2021 that had the officer still been serving he would have had a case to answer for gross misconduct. This was in relation to his statement to the court, which omitted what we considered to be significant forensic evidence in relation to footwear; and for including in his statement details from an account given by Mr Kololo in breach of instructions given to the officer in terms of reference agreed by the Home Office.

In our view these amounted to potential breaches of the police standards of professional behaviour for honesty and integrity, and duties and responsibilities. As the officer retired prior to December 2017, under the relevant legislation no proceedings could be brought against him. Only a disciplinary panel could have decided whether the matter was proven or not. We found no case to answer in respect of the legitimacy of the officer’s deployment and the evidence which was included in his statement.

IOPC Director of Major Investigations, Steve Noonan, said: “We provided our investigation report to facilitate preparations for the appeal following requests from Mr Kololo’s defence and the Kenyan authorities. A Kenyan court has now decided that Mr Kololo should be freed pending a judgment which is expected to formally quash his conviction.

“A key part of the evidence against Mr Kololo during his trial in 2013 was distinctive footwear he was allegedly wearing, which was used to link him to the scene. Conceding the appeal, the court decided that the conviction had been based on hearsay evidence about him wearing the shoes, which had been presented to the court without disclosure of where the information came from.

“However, our investigation looked at forensic evidence in relation to the footwear which was not included in the statement the officer gave to the court.

“The former officer chose not to answer questions about this omission, or provide an explanation, when interviewed under criminal caution during our investigation. It was our view that he would have had a case to answer for gross misconduct had he still been serving but only a disciplinary panel could have decided whether the matter was proven or not.”

We decided there was insufficient basis upon which to make a referral to the Crown Prosecution Service to consider criminal charges.

The investigation, completed in February 2021, also examined whether the officer had exceeded his remit while working in Kenya, and if he had provided misleading evidence to the court. The evidence from that part of the investigation was provided to the MPS to consider, as we have no jurisdiction over the actions of police officers operating outside England and Wales.