May 19 2022

#CCRC20: Police misconduct and the CCRC

#CCRC20: Police misconduct and the CCRC

Police misconduct and the CCRC

In 2007, a Devon and Cornwall Police Constable commented under a Facebook video clip of a young man being arrested: ‘Look at this stupid c***, hope he got a good f***** shoeing in the cells.’

The post was reported by the local press, and, following a year-long suspension, the officer was found to have brought the force into disrepute. He was fined three days’ pay. This incident caught the attention of one team at Cardiff Law School’s Innocence Project, not because of the lightness of the sentence, but rather due to the consequences it had for a man called Simon Wainwright. Earlier that year, a night out in Exeter had landed Mr Wainwright with a conviction for a public order offence and a broken arm, allegedly sustained during his arrest. The suspended constable was one of the arresting officers. After a two-year campaign, Mr Wainwright’s conviction was overturned. The case is absent from the law reports but, judging from coverage in local newspapers, it appears the evidence of the Facebook post featured prominently in the appeal.

This article is by Alex Thomas, a graduate Diploma in Law Student, Cardiff University School of Law and Politics

This article is the third in the series by Cardiff Law School Innocence Project. You can read the entire series here.

You can read Prof Julie Price’s introduction to the series here.

‘If you are interested in the integrity of the justice system, then you should care about how this little-understood, cash-starved and  overwhelmed  organisation is functioning. There is plenty of interest in the topic of wrongful conviction generated by the likes of the US shows such as the Netflix series ‘Making a Murderer’ and the podcast ‘Serial’ but (we respectfully suggest) some of that should be directed to matters closer to home.’
Prof Julie Price

Police misconduct, whether brutality, corruption or incompetence, has been intimately connected with the work of the Criminal Cases Review Commission since its inception. The Commission was, in large part, a product of the reaction to miscarriages of justice brought about by systemic police malpractice. Times have changed since Paddy Hill and five others found themselves being ‘robustly’ interrogated by Birmingham CID.

Practitioners in the art of the ‘good f***** shoeing’ are, happily, a rarity today; for all its limitations, the IPCC provides considerably more oversight than that available in the seventies. Nonetheless, there will, arguably, always be instances of innocent defendants being convicted due to police misconduct of some kind. The approach taken by the CCRC and the Court of Appeal to cases of this nature will continue to be a touchstone of the effectiveness of the system that remedies miscarriages of justice. It is, therefore, worrying to hear anecdotal evidence from innocence projects in England and Wales indicating that the inclusion of allegations of police misconduct can be the kiss of death for an application to the Commission.

Cardiff’s Innocence Project is currently assisting the Centre for Criminal Appeals with a case in which, it has been suggested, police impropriety may have led to the imprisonment of an innocent man. This has prompted a consideration of the way in which the appeal system handles such cases.

A brief survey of reported cases shows that, on some occasions at least, the CCRC is willing to refer applications based on the conduct of investigating officers, and that the court will sometimes uphold these appeals. The cases of Davis, Livingstone and Foran saw the appellants have their convictions ruled unsafe because of police impropriety. These cases share two notable features. Firstly, despite the final appeals being heard in the 2010s, the offences were all committed in the 1970s.It seems possible that the system is more sympathetic to evidence of historical malpractice than to aspersions cast at still-serving officers.

Secondly, in each of these cases the testimony of specific police officers was crucial to the conviction. In the Livingstone case, for example, the ‘sole issue at trial had been the truthfulness of the police witnesses’. A CCRC investigation found, among other things, in that case, that there was substantial evidence that at least two of the officers in questions had been involved in the beating of a suspect in an earlier, unrelated, arrest. In cases such as these, in which the credibility of a key police witness is undermined, the connection between the misconduct and the safety of the conviction is easily established.

The situation is not, however, always this simple; misconduct can have more insidious effects. Cardiff’s work with the Centre for Criminal Appeals on the case of Roger Khan illustrates this point.

In 2010 Roger Khan was convicted of the attempted murder of his nephew’s brother-in-law. Amongst a litany of reasons to doubt the safety of this verdict, one is the relationship between an officer involved in the investigation and an alternative suspect in the case. The victim’s business partner was implicated in the crime by Mr Khan’s co-defendant; he had a history of violent offences, and arguably a more obvious motive for the attack.

Despite this, the police investigation appears to have neglected to follow leads that may have pointed to him, including DNA evidence on the weapon used in the attack that was never analysed. In this context, the fact that the daughter of one of the investigating officers worked for this other potential culprit, and that the officer herself was due to meet him for dinner on the evening following the attack, takes on a worrying complexion. Here then, we have a case in which the facts seem, at least, to raise the question of misconduct, but which cannot be tied to a specific piece of evidence provided at trial. If there was impropriety in the investigation it shaped the prosecution long before it arrived at the Crown Court.

On the evidence available, it appears that the CCRC is very reluctant to refer cases of this type. In this, it may well be deferring to the judgments of the Court of Appeal. The 2016 case of Charlton provides a simple statement of ‘the well-established principle’ in question:

‘… however extensive police misconduct may have been in a particular force, each case has to be considered on its merits. A proper analysis must be made of the evidence at trial, the extent to which there is fresh information and its impact on the safety of the conviction. Sweeping generalisations as to alleged misconduct will not suffice.’

For there to be a ‘real possibility’ of the Court finding the verdict unsafe, any suspected misconduct must be specifically tied to evidence presented at trial. There are, of course, very considerable difficulties in doing so in cases where the nexus between potential misconduct and possible miscarriage is more diffuse than those of Livingstone et al. Maxwell, another recent case, demonstrates the reality of investigating police corruption. Here a CCRC investigation using powers under section 19 of the Criminal Appeal Act 1995 exposed police misconduct on a grand scale involving the handling of confidential informants. In particular, a ‘supergrass’, crucial to the prosecution case, had been promised £10,000 for his testimony, as well as being provided with drugs and the services of prostitutes. The judge recognised the necessity of the appointment, under section 19, of an independent investigating officer and the obstacles they faced:

‘The investigating officer had to penetrate a closed world where police officers had been prepared to conceal the true position from the prosecuting authorities and the courts and where they had every incentive to conceal it from the CCRC investigation. Not surprisingly, therefore, at various points the statement of reasons indicates that evidence was obtained only in exchange for a waiver of any potential disciplinary action.’

In general, however, the CCRC, by its own admission, uses this power sparingly. In Roger Khan’s case the complete police file was not obtained and no investigating officer was appointed. The Commission merely noted that the officer in question had notified her superior and that ‘appropriate safeguards’ had been put in place. Behind the blackout curtains of the CCRC, we have no way of finding out what these safeguards were, or assessing their appropriateness. As Maxwell demonstrates, an investigation of the police will often require the use of police powers. In the absence of Section 19 investigations the only alternative is an inquiry undertaken by the appellant’s own legal team, but even this is stymied, as under the system of England and Wales, the full police file is not released to the defendant’s lawyers. This stands in stark contrast to the approach taken in the USA where attorneys preparing appeals have far greater access to relevant documentation. Some of the debates surrounding the release of this information have centred on the logistical burden it would impose and the effects it may have on the police. All that can be said is that other countries have taken this step and have found it workable.

To conclude, the CCRC sets a high bar for referral on the basis of suspected police misconduct. Some cases are successfully referred, but these appear to be relatively straightforward instances where the credibility of key police witnesses has been undermined. Limiting referrals on this basis may be justifiable on policy grounds, but it is only reasonable if cases of possible misconduct more removed from the trial itself are thoroughly investigated. There would seem to be two ways in which this could be achieved: the CCRC itself could make more use of its existing powers to compel investigation; alternatively, the full police file could be released to appellants’ legal representatives. If the first option is debarred by its resource implications, the second must surely be actively considered. In its absence, we may be allowing miscarriages akin to those that led to the creation of the CCRC to go uncorrected.