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Beyond the Wall, HMP Glenochil, Scotland Gold Award for Watercolour

The pioneering Bristol Innocence Project launched at the fourth National Pro Bono Week back in 2004. Ten years later and the Innocence Network UK (INUK), the umbrella group that assisted the creation of 30-plus university-based ‘Innocence Projects’ has been disbanded and the movement is in disarray.

• This article first appeared in Criminal Law & Justice,m published in last month’s national pro bono week

‘The reality is that a lot of universities have jumped on the bandwagon because it’s sexy and they can use it as a recruiting tool,’ said INUK’s founder Dr Michael Naughton who called time on the network this summer. According to INUK in 2012 only 11 cases had been referred by universities to the CCRC. Of these, six were from Cardiff Law School which withdrew from INUK in 2010 over concerns about its lack of democracy. A further three cases have been referred from Cardiff and at least two from other universities. However, only a couple of cases have so far been referred by the CCRC to the Court of Appeal. None have been overturned.

This article was first published in National Pro Bono Week last month, the week where lawyers put modesty to one side and bang the drum for their volunteer activities. Pro bono need to be understood for what it is: enlightened self-interest. Dr Naughton was in characteristically strident form as he explained his reasons for dramatically pulling the plug on INUK.

The academic said that it was no longer acceptable that ‘hundreds of students around the country can say on their CVs that they are working with an INUK innocence project when they know next to nothing about INUK or how to work on an alleged wrongful conviction’. Funding constraints meant INUK did not have the capacity to operate as ‘a support service’ for projects and ‘a disproportionate amount of time’ was spent on universities that were ‘either not working to the protocols… or not doing much at all’. The academic recognised ‘an urgent need to start to work on issues around quality of assistance to alleged victims of wrongful convictions’. Finally – and somewhat surprisingly – the academic claimed eligible cases were ‘drying up’.

Innocence projects are now considering whether to continue their work and, even, what they should call themselves. The name ‘innocence project’ is trademarked by the Innocence Project in New York. INUK members were allowed to use the name as part of their membership.

I interviewed Dr Naughton shortly after the launch of Bristol Innocence Project. He quoted the then recent and infamous words of Tony Blair. ‘It’s perhaps the biggest miscarriage of justice in today’s system when the guilty walk away unpunished,’ said the prime minister.

New Labour was promising to ‘rebalance the criminal justice system’ in order to ‘restore the faith of victims and witnesses’. Political memories fade quickly. High profile miscarriages of justice so scandalised the British public that John Major’s government was forced to announce a royal commission on the day that the Birmingham Six were released. That led to the creation of the Criminal Cases Review Commission which opened its doors in 1997.

Five years down the line, political priorities had done an about-turn. ‘It’s a miscarriage of justice when delays and time-wasting deny victims justice for months on end,’ Blair said. ‘It’s a miscarriage of justice when the police see their hard work and bravery thrown away by courts who let a mugger out on bail for the seventh or eighth time… .’ Tony Blair’s government began to treat alleged miscarriages of justice as a problem that had to be tackled: one more symptom of the US-style ‘compo-culture’ contagion that seemed to be spreading across the Atlantic.

The issue faded away; the press lost patience with the difficult stories that comprised ‘miscarriages of justice’ (the BBC decommissioned Rough Justice after 25 years in 2007); and all the time successive governments whittled away defendants’ basic protections.

The CCRC was an unprecedented innovation, the first state-funded organization in the world set up to investigate wrongful convictions. But it became the Court of Appeal’s gatekeeper. The generation of campaigners who made the case for the Commission never wanted this. The likes of Tom Sargant’s JUSTICE always wanted a determinative body which operated independently of the courts. As soon as the CCRC opened its doors, JUSTICE left the field.

It was into this vacuum that INUK came. It shone a light on the performance of the Criminal Cases Review Commission. INUK argued that the CCRC was effectively being suffocated by its ‘statutory straightjacket’ -– in other words, the ‘real possibility’ test created under the Criminal Appeals Act 1995. The CCRC overlooked cases that it believed to be ‘factually innocent’, continued the INUK analysis.

Michael Naughton deserves credit for reawakening interest. But the ensuing debate polarised what was already a tiny community of interest. Many of those who remembered C3 and the ‘iniquities of pre-history’ (as Michael Mansfield QC put it) did not want to see a new body watchdog undermined in a politically hostile climate if the consequence was for it to be scrapped.

Ironically for a movement born out of academia, INUK had little taste for dissent within the ranks. The tenor of the debate turned off natural allies in a movement that badly lacked support. ‘It’s reminiscent of the bad old days when people on the left would spend all their time attacking their own brethren when the real problems were elsewhere,’ a veteran defence lawyer complained to me in 2007.

In spring 2012 INUK hosted a symposium calling for urgent reform of the CCRC featuring contributions from the likes of Chris Mullin, Bruce Kent, Paddy Hill, Professor Michael Zander QC and David Jessel. In the run-up to the conference, INUK published a dossier of 45 cases of alleged innocent victims of wrongful conviction. All had been refused a referral back to the Court of Appeal at least once by the CCRC. INUK argued that the CCRC was ‘unable to assist them because their cases [were] deemed to not fulfil the real-possibility test’.

The CCRC was not invited but INUK did not go unchallenged. Professor Zander, who was on the original Runciman Commission, was asked to consider whether the CCRC lived up to what was originally envisaged. The academic began by considering INUK’s solution: the replacement of the real-possibility test with one that allowed the CCRC to refer convictions back to the Court of Appeal if it considers that the applicant is or might be innocent. ‘I regret to say that I do not share INUK’s analysis,’ Zander said.

The academic reckoned that the Royal Commission would have probably found it would make no sense to suggest the CCRC should refer conviction cases ‘where it did not think there was a real possibility that the conviction would be reconsidered. It would have said, “What would be the point?”‘

‘The reform that I really hope for is a return to the constituency of concern around miscarriages of justice – not academic handwringing,’ David Jessel said. ‘Sniping at the CCRC demoralizes an organization already demoralized by hatred on the part of the Labour Government and indifference on the part of the current Government.’

There was another INUK conference towards the end of 2012. The CCRC was invited. David Robinson, legal advisor at the CCRC, pointed out that there were some 27 projects at that point investigating around 100 cases and ‘presumably dozens more’ for innocence projects outside of INUK. And yet there had only been applications relating to 17 submissions from a total five universities. Since 2005, 266 CCRC referrals had gone back to the courts – almost exactly half of the total number of cases referred by the Commission. ‘How many meritorious cases might there be out there in the hands of innocence projects and how many more referrals might we have been able to make if we had seen more applications from them?’ Robinson asked.

What next
The victims of wrongful convictions have few friends. It would be a disaster if the consequence of the current impasse meant that universities simply walked away. It would be a loss to the law if a generation of young lawyers are deprived of an opportunity to join in a high-minded and genuinely radical project about ‘law and justice’ before they consign themselves to the mundane realities of modern legal practice. They will be denied a unique lesson as to the fallibility of our criminal justice system.

It is unfair to attack innocence projects for taking on the cases that no-one else will touch and then failing to get them overturned. Who, after all, is successful? As Dr Dennis Eady, founder of South Wales Liberty and case consultant at Cardiff Law School Innocence Project, argued here for www.thejusticegap.com, innocence projects are ‘not to blame for the lack of success – the casuistry of the system is’. The greatest problem lies in the appeal process itself and ‘its irrational belief in the infallibility of the jury and its demand for a few neat, precise, new and compelling appeal points rather than an appreciation of the holistic picture’, Eady wrote.

For Dr Naughton, who has spent 10 years attacking the CCRC for an overly-restrictive approach to cases, to now assert that the number of ‘eligible’ cases are ‘drying up’ is bizarre. The CCRC receives close to 1,000 new applications every year (last year it made the application form more user-friendly to reach out to less literate prisoners and, as a result, received a record-breaking 1,500 applications). Since Inside Justice was launched by the journalist Louise Shorter to investigate miscarriages of justice in 2010, they have been asked to look at 851 cases. INUK itself reckons it has received 1,348 requests for assistance (and ‘assessed’ only 827 full applications).

One hopes that the current problems that beset the innocence movement provide a positive impetus for change. It could be an opportunity for projects to work more closely with the small and shrinking group of defence lawyers that take on appeal work as well as new groups like the Centre for Criminal Appeals.

Innocence projects are not about improving the career prospects of law students. Prisoners deserve to be given a quality of service. One hopes that universities and the pro bono community stick with their important innocence work.