Is there a future for UK innocence project work after the disbanding of the Innocence Network UK (INUK) earlier this year, see Jon Robins here? A resounding “Yes”, but perhaps under different names and banners, – that was the answer that emerged from a university criminal appeals conference hosted by Sheffield Hallam University last week, with constructive collaboration and autonomy replacing control and autocracy.
There was no complacency as to the scale of the challenges ahead, including how to deal effectively with applications for assistance. The umbrella of the long-established and soon-to-be charitably incorporated Clinical Legal Education Organisation (CLEO) was considered as the best vehicle for future collaboration.
The Sheffield conference was also timely in view of the House of Commons Justice Select Committee’s current review of the Criminal Cases Review Commission and its 5th December deadline for submissions, more below.
Centre for Criminal Appeals
A keynote speaker was the enthusiastic Sophie Walker from the Centre for Criminal Appeals (CCA), which is still an untested concept in the UK appeals landscape. If a current funding bid succeeds, the CCA will pilot a collaboration with a handful of universities. The CCA will sift cases and guide students, with files handed back to the CCA for progression during long student absence. If this model works, it might become a template for other collaborative criminal appeals work.
A word of caution is needed here, though. Anyone looking to the CCA as the single answer to the miscarriage of justice problem is going to be disappointed. As one charity with limited funding and personnel, it can only look at a small number of cases, as can Inside Justice with its 850 plus requests to date for assistance. The national problem is simply too great to be capable of one simple solution, and let’s always recognise the ongoing attack on legal aid which compounds the problem. But those of us working in this area can, and should, all play a vital collaborative part in keeping this political hot potato on the boil.
Let’s learn from the mistakes of INUK, which had many faults but was an admirable concept drawing on the resources of universities working together.
Trial transcripts and the CCRC
Justin Hawkins, head of communications at the CCRC, was another speaker at the Sheffield conference. He once again commented on the low number of applications to the CCRC from university projects, and the low take-up for the CCRC’s advice line for universities, launched a year ago.
I saw this as an opportunity to press the CCRC on a point that has exercised university projects for many years, and which was re-iterated by Sophie Walker. It relates to the non-availability of trial transcripts, which are often key to appeals. In the UK, private transcription companies dictate the practical availability of these, charging over £100 an hour to type them up. To compound problems, transcripts are only kept for five years after which the companies may, and do, destroy them.
Sophie reported a £9,000 quotation for trial transcripts in one case. That’s breathtakingly ridiculous and unfair, but not uncommon. Surely the right to trial transcripts is fundamental to an individual’s right to a fair trial/appeal.
How can it be right for vulnerable individuals maintaining innocence to be held to ransom in the interests of commerce? In our digital age, how can we justify profit-driven private companies destroying those tapes after five years? There must be an alternative.
Justin Hawkins agreed to take this issue back to the CCRC. Let’s hope they will agree to take this up at policy level. It must surely be in everyone’s, including the CCRC’s interests to avoid these recordings being systematically destroyed after five years.
Why can’t they be given to the CCRC instead of being destroyed? Digital storage space should not be an issue. Also, law students are an excellent resource – why could they not be used to type up transcripts when needed? There are enough senior academics in universities who could be charged with overseeing this. All that is needed is a dose of creative collaborative common sense to think outside the box and a willingness to allow profit to take a back seat to justice. So, come on, CCRC – please think positively about your potential influence here, and start to make noises to change something that is politically and morally unjustifiable.
Collaboration with journalism schools/journalists
Sophie also mooted the need to find creative ways of working with journalists and journalism schools, adding that the field is ‘crying out for social entrepreneurs’. Hear, hear. The sterling work done by Winchester’s school of journalism under Brian Thornton’s leadership shows that this is not just viable, but essential.
At a recent JENGbA (Joint Enterprise Not Guilty By Association) conference, Winchester students were there to record and report for www.thejusticegap.com, an excellent collaboration between a campaign group and journalism students. Journalists can offer an expertise on using the media, which is often uncomfortable to us as lawyers.
My colleague Dr Dennis Eady, a veteran of several successful campaigns over two decades, is an exponent of using the media cautiously but effectively. Seeing the Mail on Sunday’s recent article by David Rose, prompted by Brian Thornton’s investigative work has persuaded me of the importance, with careful consideration and the client’s permission, of publicly telling a powerful story to expose clearly bizarre events that should be in the public domain.
Collaborations and partnerships, with journalists and others, are the way forward. The resources available to universities should not be underestimated. At Cardiff, we have a leading medical school and the generous support of Dr Deryk James, a forensic pathologist, whose expertise is proving invaluable. We are also exploring partnership working between law students and medical students and forensic linguistic students. We know how attractive this work is to students beyond the disciplines of law and journalism, and educating future diverse professionals as to the iniquities of our appeal system has clear merit.
Moving forward/Justice Select Committee
One theme of the Sheffield conference and ‘moving forward’ in the post-INUK era was summarised by Dennis Eady, who urges that we should not lose sight of the ethical reasons why INUK was set up in the first place. This is where a degree of discomfort kicks in for law teachers, me included. When I started our Cardiff innocence project nine years ago, I naively thought we could collectively make a difference and overturning cases would follow naturally from perseverance and careful sifting of evidence. I have since learned lessons the hard way.
Despite years of meticulous investigative work and presenting powerful submissions to the CCRC, we have received rejections that have been in our view unwarranted. We have concluded that the statutory test and the casuistry of the system is to blame.
It is time for change, and we have to play a part in calling for this, however reluctant we might naturally be as campaigners. We have invited others to join us in signing a submission to the current Select Committee enquiry into the CCRC. Our joint submission calls for the real possibility statutory test to be changed in line with the RCCJ’s recommendation as a first step to reform.
We are calling upon the Justice Select Committee to consider the question posed by Glyn Maddocks: ‘What does it take to overturn a miscarriage of justice in the UK?’
We say that the Tony Stock case illustrates the Court of Appeal’s lack of willingness to engage with or even recognise the problem enunciated by Glyn Maddocks. We are calling for the Justice Select Committee to ‘go some way to redress the unequal balance of power between the CCRC and the CA’. We express grave concerns about the delay in the CCRC progressing the cases of Eddie Gilfoyle and Susan May.
We are concerned that only two cases have ever been referred by the CCRC to the Court of Appeal more than once – Tony Stock and Mr Z. We say that this demonstrates the CCRC’s concerns about the reaction of the Court of Appeal to any multiple referring of cases. The CCRC may argue that it is statutorily bound not to refer because of the real possibility test, but any such response would only serve to reinforce and amplify our requests for a fundamental review of the criminal appeals system that should consider the relationship between, and the relative powers of, the CCRC and the Court of Appeal. Acknowledging that the CCRC is underfunded, we are calling upon the CCRC and the government to recognise the need for the CCRC to seek an amended remit in line with that recommended by the original Royal Commission.
The ‘innocence project’ name: update
The issue of the name ‘innocence project’ being trademarked by The Innocence Project in New York has just come to a head. UK innocence projects received an email last week confirming that by July 2015 we have to change our names or join the international Innocence Network, stressing they are keen to work with us to reach a satisfactory outcome. I have previously explained the difficulties this poses for UK university projects. Whatever the strict legal position on this, understandably no-one would challenge the Innocence Project on this, preferring constructive discussion to confrontation. Some UK projects have already changed their names to ‘criminal appeals project’ or similar. At Cardiff, we are keen to make an informed decision rather than be rushed into changing our name, having operated as an ‘innocence project’ for nine years, yet fully appreciating that ‘innocence’ in a name can be problematic. Our decision on our future name depends partly on how the INUK website evolves over coming weeks, and whether the clarification we seek of its current status is forthcoming.
Jon Robins, editor of the www.thejusticegap.com and an experienced commentator on legal matters, says it would be disastrous if universities walk away from innocence work. I don’t think that is going to happen in a wholesale way – for the time being at least – but the future landscape will be different. There will be fewer university projects, as a result of the disbanding of INUK. But the closing of some was inevitable as many were struggling in this most difficult of university pro bono projects. The new and continuing projects may end up with an additional role – to campaign with a small ‘c’ for change in the law, and to encourage the CCRC to be more outspoken about its difficulties, albeit in a more supportive and constructive way than may have been the position in the INUK years. It is pleasing to see colleagues such as Brian Thornton taking the plunge by inviting the CCRC as partners in the process to have “fire in its belly and [be] up for the fight”. We readily recognise that the CCRC can do a fantastic job in some cases.
Legal aid warrior Mark George QC, another speaker at the Sheffield conference and a long-standing supporter of university projects, does not shy away from a political fight when it comes to attacks on legal aid. I hope that those left in this diminishing area of university work will take a lead from Mark and join us in challenging the CCRC to emerge as a spirited watchdog, not an underdog or lapdog.