May 18 2022

Dwaine George appeal: law students making history

Dwaine George appeal: law students making history

Dwaine George

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Cardiff Innocence Projects

Cardiff Innocence Project at the Royal Courts of Justice

Cardiff Law School Innocence Project made history today, as the Court of Appeal announced its decision that Dwaine George’s conviction for murder was unsafe.

Last year, Cardiff became the first university innocence project in the UK to successfully have a case referred to the Court of Appeal after submission to the Criminal Cases Review Commission (CCRC). Today, after almost 10 years of investigative work by students and academics on dozens of cases in innocence projects in more than 20 universities across England and Wales, this judgment is the first appeal success. Northumbria University Student Law Office succeeded in an appeal in 2001 for Alex Allen, but that was not as an innocence project.

The appeal of Dwaine George, who was convicted of murder at the age of 18 and has since served 12 years in prison, was heard at the Royal Courts of Justice on November 6th. My colleague Dr Dennis Eady runs our project assisted by PhD student Holly Greenwood. We were joined at the Royal Courts of Justice in London by Dwaine and his family, plus 30 Cardiff law students, past and present. We witnessed the result of the students’ investigative work presented by barristers from Doughty Street Chambers to a panel of appeal court judges, chaired by Sir Brian Leveson.

We welcome today’s decision as a milestone that may inspire understandably disenchanted colleagues across the UK to persevere with their good work in the face of extreme difficulty.

So what does today’s Court of Appeal decision mean?
It means, first and foremost, that the family of the victim, Daniel Dale, will be going through renewed agony, and we recognise and deeply sympathise with that. However, where there is a wrongful conviction there is more than one victim. We should be able to acknowledge this fact without detracting from the absolute respect and sympathy we have for victims of crime.

It means that Dwaine is released from the practical difficulties of being ‘on licence’, with the possibility of recall to prison for no meaningful reason constantly hanging over this family. Whether he can find a job befitting of someone with a First Class Honours degree, gained through study in prison, remains to be seen.

It means that Dwaine is unlikely to receive any compensation for his time wrongly spent in prison. We only have to see the disgrace that is the Victor Nealon case to conclude this.

It means that at long last, after a decade of working extremely hard in this most difficult area of real-client work, a group of universities has a glimmer of hope of success. Universities are known for research, with ‘impact’ as a current institutional driver. But today’s decision demonstrates that innovative teaching can also have huge impact. Law teaching is more than lecturing. It is about students learning how the law operates in the real world, not just in a textbook. I want to pay tribute to my colleagues at Cardiff and elsewhere on teaching, not research, contracts, who are dedicated to the student experience, but who are often overlooked in the promotion stakes.

Raising awareness
What it hopefully means for Cardiff’s project is an opportunity to raise awareness of issues we confront daily.

The burden of proof is being eroded in joint enterprise cases, where the phrase ‘gang crime’ often leads to media hysteria, justification of lynch mob mentality, and a trawling of youths for charging with the most serious of offences regardless of lack of evidence or actual involvement. It’s time for an overhaul of this ancient doctrine.

From the perspective of university caseworkers, joint enterprise adds in another virtually insurmountable hurdle, and presents virtual certainty of failure, despite compelling moral and evidential reasons for wanting to challenge a joint enterprise conviction. We currently have a joint enterprise case at the CCRC, whose progress we will follow with interest. It relates to a vulnerable 15-year old boy unable to speak English being convicted of murder (stabbing) even though he did not have a knife or know that the perpetrator did. We will be interested to see how the CCRC deals with our fair trial submissions as common sense dictates that this was far from a fair trial.

We hope discussion about today’s appeal decision will add to the momentum created by JENGbA’s (Joint Enterprise Not Guilty by Association) campaigning and Jimmy McGovern’s drama, Common.  The way that some joint enterprise cases are decided, for example by saying that a ‘knowing look’ (whatever that may mean) is sufficient for conviction, means that the burden of proof for such cases is far lower than that needed for the index crime itself. It seems that critics calling this a ‘lazy law’ are right.

Unrelated to today’s decision but comparable as regards the attack upon the burden of proof are historic sex abuse cases. We should recognise the sterling work of FACT (Falsely Accused Carers and Teachers), and the unpalatable reality that some people make false accusations motivated by compensation, with devastating effect upon the lives of innocent people convicted as a result.

Today’s decision also means that we have earned the right to reflect on our experiences over a difficult decade, and share our thoughts publicly on various myths and realities:

Nonsense 1:  juries don’t make mistakes. They do. Let’s be free to utter that opinion without being decried as heretics wanting to destroy our esteemed jury system. Let’s find a way to remedy mistakes more quickly and more fairly.

Nonsense 2: the police always act impeccably. They don’t. It’s intellectual dishonesty to ignore clear evidence of questionable police practice, even though we hope it is uncommon. Let’s always remember the Hillsborough tragedy. Let’s encourage the police to hold their hands up to mistakes rather than being inclined to cover them up, and the CCRC and the Court of Appeal to be more in tune with public opinion on this.

Nonsense 3: all convicted people say they are innocent. No they don’t. Of course some guilty people try it on. But maintaining innocence in prison is a very difficult pursuit, with reduced ‘privileges’ and a strong chance that you may never be released as a ‘denier’, so it’s not something to take on lightly. The fact is that they may well be innocent, but there is virtually no help for people maintaining innocence as legal aid lawyers with expertise are a dying breed. Universities and other voluntary projects can only ever be a sticking plaster and not a substitute for a properly-funded criminal legal aid system.

Nonsense 4: the jury hears the whole truth. No it doesn’t. It hears a selective version of events, in a setting that strictly controls what they are allowed to hear. Our ‘adversarial’ system of one barrister opposing another means that it’s not about finding the truth, but rather about winning a series of points based on strict rules of evidence.

Nonsense 5: if someone is convicted, they can always appeal (so what is the fuss about?) Contrary to popular opinion, it’s extremely difficult to appeal and overturn a conviction, and it takes a very long time, as today’s decision shows. The odds are stacked against appellants. There is an unfair playing field as regards access to evidence. There are ‘artificial’ rules of the game, and a clear inclination by appeal courts to uphold a conviction in the interests of the preserving the ‘integrity’ of the system. In our dictionary, integrity has a different meaning. For a reality check, we refer readers to a recent article by Glyn Maddocks, veteran appeals solicitor and co-founder of the Centre for Criminal Appeals, with the poignant title ‘What does it take to overturn a miscarriage of justice in the UK?

Returning to what today’s decision means – it also means that we can finally publicly salute our pro bono supporters on this case, to show that this work has to be collaborative.

Andrew Shanahan, a Cardiff solicitor, guided us and acted for Dwaine initially. Nigel Hodge provided pro bono forensic science help. Internationally, Mark Godsey in Ohio used Innocence Network contacts to connect us with gunshot residue (GSR) expert Dennis McGuire. We faced hurdles trying to obtain the FSS scientist files, but praise the CCRC Case Review Manager for overcoming this for us, demonstrating the great work that the CCRC can do. Michelle Diskin came to speak to our students about similar GSR issues in her brother’s case – Barry George’s wrongful conviction for the murder of Jill Dando. UK GSR expert Jennefer Gray from Keith Borer Ltd provided services at a reduced cost. Professor Peter French generously shared his expertise on voice recognition evidence. Colleagues in our Journalism School, Dr Paul Mason and Claire Wardle, had journalism students investigating media coverage. Barristers James Wood QC and Tunde Okewale, instructed by David McCorkle, worked in meaningful partnership with some of our students to prepare the appeal case. Justice Gap provided a forum for airing issues generally. Thanks to all, and any others inadvertently omitted.

I also want to indulge myself by paying tribute to colleagues in other institutions who daily deal with the difficult issues common to this area of work, and to encourage those not on research contracts to point to this result to demonstrate how the impact of innovative teaching can match the impact of research, and should be supported properly. Cardiff University, in particular past and present Heads of School, have invested in this project year after year to allow us to continue despite few formal links to research at this stage.

The final categories of support are the most significant:

Dwaine. He was a pleasure to work with. This intelligent, patient, respectful, articulate man was always grateful for our help yet sympathetic to our lack of expertise in the early years. He even re-packaged our submissions to the CCRC, improving them significantly!

More than 30 Cardiff law students worked on Dwaine’s case over four academic years until we submitted it to the CCRC in July 2010. A special mention goes to Sarah Magill, Lisa-Marie Musgrave, Lisa-Marie Knight, Caitlin Gallagher (thanks to Gregg Latchams solicitors for releasing her to work again on the appeal), Alanna Tregear and Rhiannon Lewis. Some visited Dwaine in prison. Later, other students helped hugely – Rhiannon Hughes, Samantha Day, Lydia Painter, Charles Westwood, Matthew Thomas etc. I hope the others will forgive me for not naming them all. They have learned that a throwaway line in a Criminal Law text book about opportunities to appeal a conviction is a million miles from the reality that it is virtually impossible in practice. They know that the concept of ‘beyond reasonable doubt’ is meaningless at appeal stage. They have learned to be better lawyers.

Dr Dennis Eady is that rare modest creature who combines academic expertise in miscarriages of justice with compassion and practical action, railing against injustice anywhere. Selflessly, he runs the family campaign and support group South Wales Against Wrongful Conviction. Families caught up in the miscarriage of justice nightmare unanimously want him to be the next King of Wales and The World. He tirelessly motivates and equips our students with the tools they need to carry on despite real prospect of defeat. Without Dennis, Cardiff’s innocence project would have closed years ago.

Finally, let’s not forget the contribution of Dr Michael Naughton, who co-founded the Innocence Network UK (INUK) with Carole McCartney back in 2004. Dwaine’s case originally came to us from Bristol in the early days of the INUK. Our parting of ways with INUK is well-documented. But Michael deserves huge credit for being the inspiration behind virtually all university projects in the UK, whatever difficulties later emerged from an unachievable dream.

Today’s decision is significant in the university innocence project world, as it shows we can make a difference. We face new and ongoing challenges, but we’re still here as a group of educators wanting to collaborate, albeit that some have different names now. It would be a shame to lose this valuable educational resource, and hopefully today’s decision will inspire colleagues to stick with it. At the same time, we must support our legal practitioner colleagues in their fight to save legal aid, because the number of wrongful convictions will inevitably increase.

Finally, again our thoughts and sympathies remain with the family of Daniel Dale on this difficult day for them.