Prisoner in British jail for 38 years could be victim of UK's worst miscarriage of justice

Once a month for the past year, I have been meeting a man who may not be alive the next time I visit. Before I leave, I always ask the same question: Can I come again next month? His answer never changes. “Sure,” he says, “if I'm still alive.”

Clive Freeman is 83 years old. He has terminal cancer and is now too frail even for further treatment. He has spent over 38 years in prison for the murder of a man he says he did not kill. He may be Britain's longest-serving prisoner, maintaining his innocence, currently incarcerated at HMP Leyhill.

His minimum tariff, set by the judge who sentenced him in 1989, was 15 years. He has served more than two and a half times that. Not because he has been violent. Not because he has caused any trouble – he has no adjudications against his name in nearly four decades inside. The sole reason Clive Freeman remains in prison is that he will not say he is guilty of something he insists he did not do. The parole system has no mechanism for a man like that. Every hearing since his tariff expired has effectively punished him again for the same refusal.

“I made a promise to my late wife that I would only leave prison only as an exonerated man,” he has told me. “She was a wonderful woman.’ He is still keeping that promise.”

Over the past year, I have visited Clive on his monthly day of release. He has spent years recording tapes from prison, which I have been able to listen to. I have also been going through the case files and trial transcripts. Along with Dani Carpanen, we have made a podcast about his case.

Each time I see him, I watch him get a little frailer. He is polite, precise and – given everything – remarkably composed. What strikes me most, sitting across from him in a café or in the seat next to him in the car, is how little of his real story was ever put before the people who decided his fate at his trial in 1989.

All the jury heard was that in April 1988, Freeman – then 44, a former Zimbabwean soldier newly arrived in London – brought a drunk stranger named Alexander Hardie back to his flat in Rotherhithe after a night's drinking near Victoria Station.

The two men had met randomly in a pub. Freeman left the country for America the following day. He told me that when he left his flat to catch his flight, Hardie was “in a drunken stupor” having apparently stayed up most of the night drinking whisky while Freeman slept. But when neighbours alerted emergency services to a fire in the flat, they found Hardie's dead body partially burned. Suspicion turned to Freeman when the police discovered garbled messages from him to his family members about a new life insurance scheme and how he intended to commit suicide so they could claim it.

Investigators believed that Freeman had lured Hardie back to his flat, killed him and then set it on fire, so it would be assumed that Hardie’s body was in fact Freeman, allowing his family to get the insurance. And Freeman had left the country on a false passport.

Freeman was eventually arrested in Australia and returned to the UK where he was convicted of murder in under an hour of jury deliberation.

What persuaded the jury that he was guilty was not primarily the forensic evidence or the police’s life-insurance-scam hypothesis – it was Freeman's behaviour. Not only had he left suddenly on a false passport just as Hardie had died, but he also had a bag already packed for a quick getaway. He refused to answer any of the detectives' questions. He wouldn't give details about his family. To twelve people in an Old Bailey jury box in 1989, this looked like a guilty man who had planned his escape in advance.

To understand why it wasn't – or at least why it may not have been – you have to go back a decade, and several thousand miles, to a war many British people have forgotten.

Clive Freeman was born in Salisbury, Rhodesia, in 1943. As a brilliant horseman, he joined the Grey's Scouts – a mounted cavalry reconnaissance unit fighting the insurgency led by Robert Mugabe, on the British-backed white-minority side. He was good at it. Good enough that when the Bush War ended in 1979, and Mugabe swept to power in the elections that followed, Freeman wasn't simply a soldier on the losing side. He was the second person ever declared an enemy of the new Zimbabwean state.

That designation was not ceremonial. Friends in similar positions were detained and tortured. Freeman managed to escape the country, settling in the UK. In London, Freeman obtained a passport under a false name not to evade justice, but because returning to Zimbabwe as himself meant death. The silence under police questioning, the packed bag, the false papers – what the prosecution presented to the jury as the behaviour of a guilty man was simply how a declared enemy of the Zimbabwean state had learned to survive. It was likely that Clive was suffering from PTSD. On the advice of his legal team, Freeman did not take the stand. The jury convicted him on the basis of half a story, and the half they didn't hear was the half that made sense of everything they saw.

Underneath all of this, the forensic case itself has been quietly unravelling for over a decade. The conviction rests on a theory of murder called “burking” – a Victorian asphyxiation technique that leaves no reliable forensic trace, making it almost as difficult to disprove as to prove. The pathologist who identified it had originally written in his own notes that he believed Hardie had most likely died of natural causes, specifically from serious underlying health conditions, including acute pancreatitis and the effects of chronic alcoholism. Nine days later, on his third postmortem, he changed his finding. The jury heard only the burking theory.

That first set of notes did not come to light until 2012, when two fellow prisoners found them while going through Freeman's case files by hand. Since then, eight independent pathologists have reviewed the evidence. Their conclusion, in summary, is that the burking finding should never have survived cross-examination, and that Hardie's underlying health conditions provide a far more plausible explanation for his death. The fire in the flat was likely caused by one of the cigarettes Hardie had drunkenly been smoking.

Last August, after six attempts spanning 25 years, the Criminal Cases Review Commission (CCRC) finally referred Freeman's case to the Court of Appeal. The CCRC's statutory test for making a referral is deliberately demanding: it will only act when it considers there is “a real possibility that the conviction would not be upheld”. They therefore have enough concern that this conviction, after 38 years, may not survive.

Clive Freeman is still in prison.

The Court of Appeal hearing is unlikely to take place before the end of this year. Freeman himself does not believe he will live to see it. Each time I visit him – a little thinner, a little slower – I find myself thinking about the arithmetic of it. Fifteen years was what the judge decided justice required. Thirty-eight years is what he has served. The difference between those two numbers is not explained by anything he did inside. It is explained entirely by his refusal to say something he believes to be untrue.

There is a version of this story in which Clive Freeman is guilty of everything he was convicted of, and in which the system has simply done what systems do. But there is another version – supported now by the CCRC, by eight pathologists, by a suppressed postmortem note, and by four decades of consistent, unbending insistence from a dying man – in which the wrong half of his story was told to the jury that convicted him, and nobody with the power to fix it has moved fast enough to matter.

I will go and see him again next month. I will ask if I can come the month after. And he will give me the same answer he always gives.

• The Whole Truth? The Case of Clive Freeman by Dani Carpanen and Edward Abel Smith is available on Spotify