January 21 2022

The end of innocence, and the chance of a new beginning

Share on facebook
Share on twitter
Share on facebook
Share on twitter

The end of innocence, and the chance of a new beginning

Sketch by Isobel Williams
Supreme Court, journo, Isobel Williams

An interview outside the Supreme Court by Isobel Williams, www.isobelwilliams.blogspot.co.uk

The sudden demise of the Innocence Network UK (INUK) has caused consternation amongst those working with students on miscarriage of justice cases  – but it also offers a chance for a new beginning in clinical legal education in this country. Following my work at the Criminal Cases Review Commission (CCRC) and an American innocence project, I argued in 2006, that criminal justice policy transfers between these two countries are not straightforward. Now seems a good opportunity to revisit some of those concerns.

Many of the problems with the work of INUK stem from the fact that it was just assumed that innocence projects were a good idea in this country. Innocence Projects in the USA are a commendable – if wholly inadequate – response to the appalling numbers who are wrongly convicted, with no hope of post-conviction legal assistance. These projects investigate and litigate cases that can also help campaign for criminal justice reforms. The situation in England, Wales and Northern Ireland is very different (Scotland has its own body).

In this country, a range of measures governing the collection and use of evidence has reduced the most egregious errors – the television series Life on Mars was founded on the audience recognising how policing had changed since the 1970s. Unlike in the USA, very few cases turn on DNA analysis which means that most appeals are on the basis of unsafety – we can never know with certainty whether the individuals were factually innocent or not. The nature of the caseload in this country is different; there far more are domestic sex abuse cases which bring unique investigatory challenges. Most significantly, we have a state funded body that investigates miscarriages of justice and refers cases back to the appeal court where appropriate.

Rather than continuing trying to shoehorn the work being done into the Innocence Network’s (trademarked) template, we have an opportunity to reflect on the experience gained over the last decade and consider the best way to proceed. Now is the time to think about what these projects are trying to achieve and what kind of assistance they can offer those claiming to be wrongly convicted. This needs to take into account the different types of cases in this country, the different level of legal education (undergraduate here rather than post-graduate in America) and how to work with the CCRC which remains the only mechanism for getting a conviction quashed. The most important consideration is, of course, how appellants are treated but there are also questions about students that require attention.

Assuming the university-led work is to continue, at what the CCRC chairman has said is a challenging time for his organisation, the following points are important:

  • Should ‘innocence’ be in the name? It is a compelling title but – as the projects have discovered – vanishingly few cases are of demonstrable innocence. The legal test that students need to apply is ‘unsafety’ – boring, bureaucratic but infinitely more protective of both suspects and the integrity of the criminal justice system. We should be teaching students – some of whom will become defence lawyers, prosecutors, police officers, journalists or politicians – why that test is so important. Students at the University of Northumbria who worked on Alex Allen’s successful referral and compensation claim, work from the Student Law Office for example.
  • What work should the students undertake? As Michael Naughton explained in his statement about INUK’s future, the realities of the undergraduate curriculum mean that it is difficult for students to dedicate sufficient time to a case. Any case that is not concluded in the academic year, has to wait to be reallocated, new students have to familiarise themselves with the case – and more time is lost for the applicant. This is unsatisfactory for students who do not see a case to completion, and dispiriting for applicants and their loved ones. In cases where there is a potential referral, this can mean a person spending years longer in prison than if they had gone directly to the CCRC. It might be more profitable for all concerned, if students focused on writing applications to the CCRC for applicants and monitoring the case progression, (as I understand students at the University of Leeds Innocence Project do). Research has indicated that CCRC applicants with legal assistance have a greater success rate). Those projects that want students to undertake investigations could focus on cases that have already been rejected by the CCRC so there is nothing to lose by any delay caused.
  • What should students not do? Emily Bolton, who founded the Innocence Project New Orleans (IPNO) and is now establishing the Centre for Criminal Appeals said in an interview the answers are not going to be in the office or on the phone but found by knocking on doors and revisiting crime scenes. If I’m missing a fact, I get my car keys and get out and find someone who can give me the answers.’ This encapsulates exactly why the US experience cannot be imported here – such actions could fatally compromise an appeal if the Court of Appeal considers it has been tainted. There are also risks to students engaging in such work – whether in contacting potential witnesses, sex offenders who enjoy rehearsing the details of their cases, or through the distressing nature of some of what they read. Kevin McMahon, founder of Merseyside Against Injustice, was convicted of perverting the course of justice for seeking a retraction statement from a prosecution witness before an appeal hearing.

In 2005, I left the CCRC and spent six months working at IPNO. I planned to conduct a piece of research comparing how miscarriages of justice are dealt with in the UK and the USA. Within a week, I realised that my project would have to change – the two systems were worlds apart.

I had left a well-funded, stable institution with statutory investigative powers, for an office that was scrabbling for funding, run by a handful of overworked staff supported by interns, was literally being eaten by termites, faced huge resistance from the police and prosecutors and was shortly to have to cope with Hurricane Katrina.

I was filled with admiration for the work of innocence projects but returned home with a renewed appreciation of the – obviously imperfect – system in this country. I found it baffling that the American model was being looked to for inspiration when what we had here was so much better.

None of this is intended as a criticism of those who have worked very hard to establish these projects over the last decade, but good intentions can still have unfortunate consequences. These cases are amongst the most difficult in the criminal justice system – despite all the problems with the National Health Service, most of us would be uncomfortable at the idea of medical students attempting brain surgery. Whilst the Americans may love Sherlock, importing the Scooby Doo model here (‘… and I would have gotten away with it too, if it hadn’t been for you meddling kids!’) is not necessarily the answer.

To misquote George Bernard Shaw, when it comes to wrongful convictions, America and England are separated by much more than a common language. This country has led the world in its response to wrongful convictions. Maybe the furore over INUK marks the time to set out on charting our own distinctive course in clinical legal education.

5 responses to “The end of innocence, and the chance of a new beginning”

  1. Andrew Green says:

    Hannah Quirke’s points about how UK innocence projects should operate in future must be very seriously considered as we move forward towards establishing a mutual support network following the demise of INUK. Although claims that the term ‘innocence project’ can be trademarked seem ridiculous to me, in practice projects can only do their work of investigating claims of innocence with objectivity if we make it clear that we do not work under the instruction of clients or their lawyers, but reach our own conclusions based on evidence obtained both in collaboration with them and independently. So we have changed the name of the University of Sheffield Innocence Project to the Miscarriages of Justice Review Centre.
    May I reassure her that we take the protection of our students very seriously. We do take care to ensure that in cases which include distressing accounts and images, they are not exposed to them unnecessarily or without warning, and that they are not exposed to any dangers if they are included in crime scene visits or interviewing witnesses. I attended my friend Kevin McMahon’s trial, and although I disagree with the jury’s decision, the mistakes that he made when he contacted a witness that laid him open to prosecution are engraved on my memory, never to be repeated by any of our students.

  2. David Rose says:

    As an investigative reporter who has worked on many miscarriage of justice cases for over 30 years, I am a little baffled by the comment that going out to seek new evidence and interview witnesses could damage an applicant’s case, because “such actions could fatally compromise an appeal if the Court of Appeal considers it has been tainted”.

    How else is the fresh evidence which in most cases is the only route to a successful CCRC referral going to be obtained? Certainly, if such evidence is going to be obtained by students, they must be carefully supervised. But it’s hard to see how any wrongly convicted person is going to make progress without the help of volunteers, and I think it’s needlessly disparaging to use this term the “Scooby Doo model”.

    The somewhat mysterious demise of INUK does, in any event, create a vacuum. Currently I happen to be working on two cases with the CCA. I’ve known Emily Bolton for almost 20 years and Sophie Walker for about eight, so this comes as no surprise to me, but I am deeply impressed by their care, commitment and meticulous attention to both detail and fair process. It bodes well.

  3. Hannah Quirk says:

    Thank you both for your responses. Choosing new names for the centres raises interesting issues.

    Regarding protecting students, it is hard to know what material will be upsetting – I found that it was sometimes something wholly unexpected that preyed on my mind or upset me.Some applicants can be manipulative and inexperienced students may struggle with this. ‘Scooby Doo’ was meant as a joke rather than to be disparaging but if students get carried away, they can put themselves in danger – without staff necessarily knowing. This is not insurmountable but it is an issue that perhaps needs greater attention.

    Compromising evidence referred primarily to new witness evidence. The Court of Appeal is often sceptical about such evidence and wants to know exactly how it came to light. It can be particularly problematic if the witness is also self-incriminating as they should be interviewed under caution. I would argue that as the CCRC is the investigative body, it is better suited to that aspect of the work, otherwise witnesses are put through an extra layer of investigations and the integrity of the evidence may be regarded as compromised.

    The demise of INUK in its original form has created a space for a discussion that was lacking at the start of this project.

  4. David Rose says:

    In an ideal world, the CCRC would do all the investigating necessary to establish whether an application should be referred to the Court of Appeal, in each and every case. The problem is that in the imperfect one in which we live, it is under enormous pressure. It faces some 1,300 new applications every year, and over the years, its resources have diminished. It has no alternative but to reject many applications without doing any meaningful investigation at all, and even where it does undertake or order fresh inquiries, it is likely that applicants will face delays that stretch into years.

    In these circumstances, an application that is supported by cogent fresh evidence is more likely to be taken seriously, and if that evidence is strong, its progress through the CCRC will take less time. Sometimes, that will require applicants and their representatives to submit new witness statements.

    I take Hannah’s point that there are dangers here, especially where a witness may be incriminating himself or herself – either as the true perpetrator of a crime, or as someone who committed perjury at the original trial. In the rare circumstances where applicants’ representatives come across such a witness, they must proceed with extreme caution. It is certainly arguable that any such interviews should be carried out under caution, and investigators may well be wise not to undertake them at all.

    However, I would suggest these circumstances will be rare. I have never come across them. The Court of Appeal has always been reluctant to consider witnesses who retract trial testimony, unless there are compelling reasons for their doing so: after all, such retractions amount to an admission that a person has lied. Determining when that lie took place – at the trial, or afterwards – may well be very difficult, and the Court is likely to decide that the jury was best placed to determine whether the witness was telling the truth. Meanwhile, most people are unlikely to admit they lied in court. As to confessing to being the true perp, that is still less common.

    In my view, most new witnesses whose accounts are likely to figure in submissions to the CCRC will be people who did not give evidence at trial, who may nevertheless be able to change the balance of a case in critical ways. That is certainly my own experience. Volunteer or pro bono investigators who take statements from such people are, I would suggest, much less likely to contaminate the fresh evidence in the eyes of the CoA – though they do need proper training, and to do their work with care.

    I agree with Hannah that the demise of INUK creates a space for a discussion that ought to have taken place some time ago, and I not only welcome this but (as can be seen from the above) am keen to participate. Unfortunately, the cuts to criminal legal aid make this discussion all the more urgent. It ought to involve all those with an interest in tackling miscarriages of justice, including journalists, lawyers, pro bono organisations, and, I would suggest, the judiciary. Perhaps Justice Gap would like to organise a conference?

  5. David Rose says:

    I should have added to that last paragraph that the CCRC should also be involved in this discussion.

Related Posts