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.