May 25 2022

‘We deserve a justice system that is open and transparent’

‘We deserve a justice system that is open and transparent’

Campaigners, university criminal appeals units and innocence projects, and lawyers are calling on the government to stop systematically destroying court transcripts after five years preventing victims of miscarriages of justice appealing their convictions.

The issue has come to the fore as a result of the success of the Netflix docuseries Making a Murderer which tells the story of a Wisconsin man, Steven Avery accused of murder who claims to have been fitted up by the police. Avery’s defence lawyers draw heavily on a wealth of case paperwork that is all too often permanently lost in the UK shortly after conviction as a result of government data retention policy and professional guidelines – namely, the audio recordings of court proceedings, court transcripts and lawyers’ files.

  • See Marika Henneberg on ‘Making a Murderer’ here.
‘People in the UK deserve a justice process that is both open and transparent. It is inexcusable to maintain a secretive process where records of important criminal proceedings are destroyed within relatively short periods of time. In this new digital age, it is reckless and irresponsible.’
Marika Henneberg

Every hearing in the crown court must be recorded in full. Audio tape recordings of those hearings are destroyed after five years, and digital recordings are deleted after seven years under MoJ guidelines (known as the Crown Court Record Retention and Disposition Schedule). This policy applies to the judge’s summing up which is widely considered essential for any chance of an appeal. Parties can apply to the court where the hearing was held to listen to recordings but copies are not available. The guidelines were drafted in 1972 and last reviewed in 2011 when proceedings began to be recorded digitally.

The retention regime is seemingly at odds with the 30-year evidence retention policy of the National Police Chiefs’ Council (formerly ACPO) in relation to murder cases. An MoJ spokesman explained that the ‘practices, retention policies and records management procedures’ of other organisations were ‘not a factor taken into consideration’ when deciding upon retention periods nor are they considered when deciding whether records merit permanent preservation. ‘And neither the Public Records Act 1958 nor the Data Protection Act 1998 nor any other piece of legislation requires that we do so,’ he said.

He also told the Justice Gap that there were ‘no plans to change the guidelines’.

Professor Julie Price, head of pro bono at Cardiff Law School reckons there is now ‘a compelling case’ for ‘a permanent digital archive maintained by the courts or MoJ.  Everyone convicted of a serious crime should have free access to a digital record of their trial. Clearly there would be resource implications but I would be very interested in the CCRC’s views on this issue, as preservation of this evidence must surely be a priority for them too.’

Separately, lawyers’ client files are frequently not available after six years have elapsed. It used to be that the Solicitors Regulation Authority recommended a six-year minimum retention period under the 2007 code of conduct; but the watchdog says  that this is not the case now and it was ‘up to individual firms to decide how long a file should be retained’. ‘This is an issue that we have been asked about time and again by solicitors,’ a spokesman said. ‘There’s no set regulatory requirements for file retention. We expect solicitors to have appropriate arrangements for each client.

Making of a murderer

Steven Avery, Making of a Murderer (Netflix)

‘The system goes unaudited’
Emily Bolton of the Centre for Criminal Appeals, who set up the Innocence Project New Orleans, makes the point that US appeal lawyers have access to the full transcript of the trial and, in many states, the police and prosecution files once a conviction becomes final. ‘In this country we have none of this. As representatives of wrongfully convicted prisoners we feel like we are fighting their cases with two hands tied behinds out backs, hopping on one leg,’ she says.

‘The transcript is critical,’ Bolton argues. ‘In the courtrooms of cash-strapped states like Mississippi, a prisoner gets a record of everything that was said in his or her trial. In this country, the system was privatized, and now profit-driven transcription firms hold justice to ransom, demanding thousands of pounds to provide sections of transcript of a trial. Neither the Legal Aid system nor individual prisoners or their families can afford this, and so the recordings languish un-reviewed, and the system goes unaudited.’

Bolton points out that the Criminal Cases Review Commission can use its powers under section 17 of the Criminal Appeal Act 1995 but, she argues, is so under-resourced that it cannot deploy this power where it should – and even when it does – it is forbidden from sharing these files with the prisoner’s lawyers.

‘We quite often find that the tapes or transcripts of proceedings in which we are interested have been destroyed in line with the five year retention period currently operated by court reporters,’ commented spokesman Justin Hawkins. He said that there was ‘considerable force’ in the argument that recordings from some criminal proceedings should be kept for longer than five years. ‘It would be more appropriate to follow some guidelines similar to those in use by the police, the Forensic Archive or the Crown Prosecution Service where the length of time that material about a case is kept depends on the seriousness of the offence or length of sentence,’ he adds.

That said, Hawkins also says that the watchdog ‘very rarely’ has need of a full transcript of a criminal trial but ‘routinely’ used specific parts of proceedings such as the summing-up or evidence given by a particular witness.

Dr Dennis Eady, case consultant at Cardiff Law School’s innocence project, reckons that the transcript of the judge’s summing up is ‘vital’ and in many cases this is destroyed along with the rest of the transcript, making a fair and informed review of the case virtually impossible. ‘In any event it normally costs several hundreds of pounds to get even the summing up from the transcription company,’ he says.  ‘However having the prohibitively expensive full transcript of the trial, as opposed to just the summing up, enables innocence projects to assess how reflective of the trial a summing up really is.’

In one Cardiff case, PhD student and case worker Holly Greenwood obtained 44 cassette tapes of a 13 day trial were obtained from a transcription company at a cost of £600 paid for by well-wisher nuns.

Students typed up some 275 pages. The transcript meant they could match the evidence given at trial to the summing up. ‘It revealed that the judge had wrongly told the jury a key witness had said in her statement that our client had confessed to her – in fact, she made no mention of this,’ she said.

‘Cost is a real barrier to obtaining trial transcripts for all but a few people.’ reckons Julie Price. ‘The transcripts frustration was aired by Dr Michael Naughton in the early days of the Innocence Network UK, and continues unaddressed.’ A prisoner recently wrote to Cardiff’s project claiming to have paid £11,000 for his trial transcripts and a client of the Centre for Criminal Appeals was recently quoted £19,000 for the transcript of a three-week trial. ‘The expense appears to be out of proportion to the work involved to produce these, and the private companies that hold these service contracts are businesses that exist to make a profit from what should surely be a public service,’ Price says.

Sophie Walker of the CCA reckons that the courts are ‘stuck 50 years back in time’. ‘There is perfectly adequate technology to do an electronic transcription,’ she says. ‘This is not a ‘miscarriage of justice’ issue, it is an ‘access to justice’ issue.’

‘People who want to fight their convictions absolutely need access to the evidence. But we also need it because of the importance of transparency, access to justice and the rule of law. Only one third of people who go to the CCRC have a lawyer. Many law firms considered to be leaders in the field of criminal appeals have shut their appeals departments down as a result of the freeze in legal aid rates years ago. It is becoming harder and harder to find decent representation. When you’re making your case to the CCRC you have to find fresh evidence – so you need to understand how the evidence was presented in the first instance. This is critical.’
Sophie Walker

Transcription companies insist their rates are not exploitative. They charge according to rates set out in their contracts with the MoJ according to a 72-word ‘folio’. According to Aileen Hodgkins, of Cater Walsh which covers courts throughout the North West, the rate works out on average as £150 per court hour plus VAT. ‘It takes about five times as long to type, as it did to listen to,’ she explained. ‘So we really aren’t making a huge amount of money out of this.’