December 01 2023

An affront to justice

An affront to justice

There was a time when the sight of an envelope addressed to me in green ink, as though written studiously along a ruler’s edge, with each letter truncated in line, signified one thing: a plea from prison. It was another inmate aggrieved by an unfair system and a wrongful conviction.

An affront to justice
Back in the 1970s and 1980s, there were only a limited number of ways to mount an effective challenge to a conviction, especially once the Appeal Court had rejected any approach on traditional grounds concerned with points of law and decisions by the trial judge. Uncovering fresh evidence – either evidence which was available at the time but was unknown, or evidence which has arisen since the trial – was a bridge too far in the normal run of cases.

A possible opening lay with the home office C3 Department. This took forever and was mostly unsuccessful. Another was via the good offices of sympathetic lawyers – solicitors and barristers.  At one time I was receiving a dozen requests per week. As a one-man band it was impossible to take on the enormity of the task, which to be done properly would require prison visits, retrieval of trial papers, fresh research and analysis, tracing witnesses old and new all to be undertaken without funding. There were one or two organisations who attempted to fill the gap, notably JUSTICE under the energetic and relentless investigative spirit of Tom Sargent. His caseload was unimaginable and insurmountable. He was however, the loan forerunner and trail-blazer of those who came later to pick up the baton marked ‘miscarriages of justice’.

Blind justice
In my view the force which shook the long-standing and entrenched bastions of the law was the power of investigative journalism. It had both resources and courage. Successive members of the higher judiciary took umbrage from Denning to Lords Lane and Taylor, They considered the television programmes to be an affront to the systems of justice undermining public confidence.

Grotesque attempts were made to besmirch the journalists’ efforts by alleging underhand methods and unprofessional practice. These were the desperate last ditch ploys to deflect from the central malaise which was an uncritical acceptance and belief in the rectitude of a system which had for too long permitted a form of noble cause corruption. It took initiatives like Rough Justice with Peter Hill, Trial and Error with David Jessel (later a CCRC Commissioner) and Yorkshire televisions World in Action to unravel notorious miscarriages encased in layers of misplaced assumption and mal-practice. Prime amongst them was the Birmingham Six and the discovery that playing cards could give rise to spurious positive results for explosive traces. It was blind justice itself which had undermined public confidence not the inquisitive journalist.

As a result the Runciman Commission was set up and after its report the CCRC was established in Birmingham, as was a separate one for Scotland.  For the first time since the Criminal Courts of Appeal were established in both jurisdictions at the start of the 20th century on the back of miscarriages brought about by serious misidentification, there was to be a permanent body whose function it was to investigate potential wrongful convictions.

The Commission is empowered to do this either on their own motion or upon application, and to refer such cases back to the Court of Appeal if it concludes there is a ‘real possibility’ the conviction would be over-turned. Even if the preconditions for referral are not satisfied they may still do so in ‘exceptional circumstances’.

The Commissioners combined with caseworkers have provided a formidable advance on what has happened before and the significance of this should not be undervalued.  Nevertheless as it has grown so have a number of problems.

Evidential unreliability has shifted from identification and confession evidence to the complexity and speed of forensic science developments.  This is an expensive and time-consuming area which requires intimate and up to the minute expertise.

The size of the caseload itself has not eased and once more resources are stretched to their limit. This has revealed a weakness in the system which has echoes in the past. The Commission has to sort out the deserving from the undeserving amongst a plethora of applications. As ever, presentation and focus are consummate aids to this exercise.  It requires considerable skill and the help of legal advisors to assemble and submit a dossier at a stage where there is once again little or no funding. The result is a situation redolent of pre-CCRC days where sympathetic lawyers and a few voluntary organisations have stepped into the breach. For example, Paddy Hill (ex-Birmingham Six) and Mojo, and Michael Naughton with his network of Innocence Project based at UK universities. Despite their excellent efforts they by no means meet the need.

A worrying trend
Above all the Commission has had the difficult, if not impossible task of trying to second-guess the Court of Appeal and the likelihood of success in order to cross the threshold for referral. To begin with the Commission’s work was welcomed but then judicial criticism began to surface particularly where cases were old.  Over the last decade however it has been possible to detect a worrying trend towards a more robust and less flexible approach to fresh evidence.  Whilst the statute which governs the Court of Appeal makes it clear that it is their decision alone and that it is for them to determine whether “they think” a conviction is safe (s2(1)aCAA68) they have increasingly adopted the stance of a trial court rather than a court of review.

As Lord Devlin repeatedly pointed out this is dangerous in a system which has entrusted the jury in serious cases with the primary task of adjudicating upon the facts. The Court of Appeal will never be able to reconstruct the effect much of the trial evidence which will only be available on paper.

The ‘jury impact’ test as it has been termed by which the Court of Appeal assesses whether a reasonable jury properly directed might have reached a different verdict is being marginalised and relegated to the status of a potentially useful but not essential tool. This is occurring both at the admission and the substantive stages of a hearing.

The CCRC needs to be supported and expanded. There can be no return of the iniquities of pre-history. There is a strong reactionary lobby which should not be underestimated, which embrace the doctrine ‘prison works’ and regards prisoners as almost sub-human meriting few facilities and heaven forbid the right to vote.  It is this lobby which no doubt would prefer to see the demise of the CCRC. This must be resisted.

This essay appears in Wrongly Accused? Who is Responsible for Investigating Miscarriages of Justice which  is published this week as part of the Justice Gap series.