‘We’re back where we were in the late 1980s,’ argued Campbell Malone, the veteran defence lawyer and miscarriage of justice campaigner at a debate in Manchester last week.  ‘We have a conservative and cautious Court of Appeal which has a deep-rooted scepticism of what they regard as the miscarriage of justice industry. That is supported by a lack of interest in the media.’

Campbell Malone, a consultant with Stephensons solicitors, was talking at the second debate about Wrongly accused: Who is responsible for investigating miscarriages of justice?, part of the JusticeGap series (and published by the Solicitors Journal).

• You can download it HERE.
• Read Marsha Willmer’s review of the event HERE.
• The event was organised with the barristers’ chambers Garden Court North and chaired by Pete Weatherby QC.
• It took place at BPP law school, Manchester. Thanks to BPP and GCN.

The panel comprised, included:

• Eric Allison, the Guardian’s prison correspondent;
• David Jessel, investigative journalist (Rough Justice, Trial & Error) and former commissioner at the CCRC;
• Campbell Malone, defence lawyer who specialises in miscarriages of justice and chair of the Criminal Appeal Lawyers Association. Campbell was acclaimed for his role in the overturning of Stefan Kiszko’s life-sentence for murder, 17 years after his imprisonment for a crime it was later proven he could not have committed;
• Robert Lizar, of Robert Lizar solicitors. Robert’s work as a criminal lawyer has included a number of Manchester miscarriage of justice appeals. He worked with ‘Rough Justice’ on the cases of Michael and Patrick McDonagh and Anthony Mycock and with the journalist Eamonn O’Neill on Robert Brown’s case. He worked for Jamal Al-Harith to obtain his release from Guantanamo Bay;
• Mark Newby, a solicitor advocate at QualitySolicitors Jordans and advisor to INUK with a strong track record of quashing convictions including the well reported cases of Sheikh, Joynson, Lawless and Fulton to name but a few;
• Dr Hannah Quirk, is a lecturer in criminal law and justice at the University of Manchester. She worked as senior researcher at the Legal Services Research Centre and as a case review manager at the Criminal Cases Review Commission. In 2005, she spent six months on a research sabbatical at the Innocence Project New Orleans, before joining the Law School at Manchester. Hannah has been a visiting scholar at the University of Melbourne and Queen’s University Belfast; and
• Richard Foster, chair of the Criminal Cases Review Commission representative.

‘No-one attending tonight will need to be persuaded of the scourge of miscarriages of justice,’
Pete Weatherby QC

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L-R: Campbell Malone, Robert Lizar, Eric Allison, Richard Foster, David Jessel, Hannah Quirk, Mark Newby, Pete Weatherby and Jon Robins

Hitting the woodwork
The Criminal Cases Review Commission was ‘like the English football team’, argued Mark Newby. ‘They have some great people in a squad that promises so much. The problem is when the chips are down they keep hitting the woodwork and they never get to the finals.’

Newby said of the CCRC: ‘if you start from a negative viewpoint, you end up with a negative result’. Speaking of his own experience in historic abuse cases, the solicitor-advocate argued that the Commission had a tendency to ‘knock down each individual point and come up with a reason why it shouldn’t refer’. ‘The CCRC should be looking for reasons as to why it should refer. It should be carrying out a full investigation.’

Hannah Quirk declared herself ‘more optimistic than some of my colleagues.’ ‘I am very concerned about the legal aid cuts and privatisation of the Forensics Science Service but we need to keep a perspective. Cases are being referred to the Court of Appeal, they are being investigated, and more people are having their convictions quashed than ever would have happened in the 1980s.’

The academic, who worked for four years as a case review manager at the CCRC, also spent at the Innocence Project for New Orleans. ‘Having worked in both systems, I’d want to be dealt with under the UK system every time. It has far more facilities than anything run by students or anything dependent upon charities for voluntary funding.’

She described the New Orleans project as ‘being eaten by termites, run by students and with an incredibly hostile prosecuting authority that would not allow us to come anywhere near the evidence.’

CCRC Chair Richard Foster acknowledged led to what had been argued by Newby was an over-reliance on desk top reviews. ‘Our budget has been frozen for the last six years – in real terms we have 33% less money than we did six years ago,’ he said.

Robert Lizar talked of the CCRC’s role in his client Robert Brown’s case – see HERE – without (as he put it) wishing to ‘over-praise’ the body. By contrast, he attacked the ‘shocking record’ of the shadowy C3 Home Office unit that preceded the Commission. ‘I’m not saying that that CCRC has everything right but it’s a major improvement on the Home Office who were in a completely untenable position because they represented the police and the criminal justice system.’

David Jessel, a former commissioner, warned that politicians might turn their sites on the CCRC. ‘There is quite a strong chance  – because of the lack of concern over miscarriages of justice, a lack of political support, and the financial constraints – that the CCRC might be forced into the sidings, downsized and limited in its remit.’

Mark Newby did identify what he called ‘some green shoots of change’ at the CCRC– notably, its new application form (see HERE) and ‘a greater willingness to engage in debates and not just fight criticism with attack’.

Wind of change
Campbell Malone spoke of the impact of cases such as the Birmingham 6, Guildford 4 and Judith Ward. ‘High-profile cases that truly horrified the public and caught the imagination and cases that, for a time, undermined confidence in the criminal justice system,’ he said. ‘There appeared to be a wind of change blowing through the criminal justice system.’ He cited the Royal Commission which recommended the creation of the CCRC which, in turn, was set up 13 years ago.

That trend was halted by Tony Blair’s attempt to ‘rebalance the criminal justice system in favour of the victim and – as Malone put it – ‘bizarrely doing so at the expense of the wrongly convicted’.

 ‘It is perhaps the biggest miscarriage of justice in today’s system when the guilty walks away unpunished.’
Tony Blair, 2002

‘By 2001 the pendulum was swinging back away from the mood of euphoria of the early 1990s,’ Malone said; citing a succession of ‘depressing cases’ such as Susan May, Eddie Gilfoyle and Sally Clark. May was in the audience alongside John Taft – thought to be the only two life prisoners released on tariff having always protested their innocence.

As a direct result of such cases, lawyers led by Malone and Michael Mansfield QC established the Criminal Appeal Lawyers Association. As ‘a measure of our success’ their 10 year anniversary conference earlier this year was called ‘Miscarriages of justice: who cares?’ ‘The truth of the matter is we are back where we were at the late 1980s,’ the solicitor added.

In denial
Eric Allison argued that there were more prisoners than ever claiming they were innocent. In one prison alone (HMP Albany, in the Isle of Wight) ‘half the population’ was ‘in denial’. ‘It means that they will not get re-categorised, they will not get parole and they will not get any of the benefits that you get when you comply with the system and show remorse,’ he said. ‘I am sure some of those people might not be able to face up to the crimes they have committed.’

Eric Allison

Allison is currently researching five cases but claimed that there were ‘hundreds more’ worthy of investigation.  He cited four main reasons contributing to a new wave of miscarriages:

• ‘cutbacks to legal aid leading to poor representation’ (‘…only going to get worse before it gets better’);
• prejudicial media reporting (‘and I include the Guardian);
• the introduction of the majority verdict;  (‘if two people on a panel of 12 are not convinced by the prosecutor’s case I would have thought that represented reasonable doubt); and
• the prosecution bringing up the defendant’s previous convictions.

‘It’s a recipe for disaster – it must have led to wrongful convictions and it must lead to more in the future. The jury is made up of ordinary people and many ordinary people live by the maxim a leopard never changes its spots.’
Eric Allison (on previous convictions)

Outrage and imagination
‘I like lawyers. I married one,’ began David Jessel. The journalist went on to accuse the legal profession of ‘a Panglossian complacency’. ‘It took you a 1,000 years to decide to have a Court of Appeal,’ he said; adding that there was a tendency on the part of the law to think the problems over miscarriages would be solved – first by the introduction of the Police and Criminal Evidence Act 1984 and then the introduction of the CCRC.

The journalist called for the miscarriage of justice campaign to be ‘reinvigorated’. He saw ‘encouraging signs’ in the success of the Sam Hallam campaign – not so much in the support from mainstream media, which he argued has largely given up on miscarriages, but from the online community (‘the power of Twitter and Facebook campaigns’) and in the work of innocence Projects and the JusticeGap. ‘We need to revive that sense of imagination and outrage that we had in the past,’ he said.

Robert Lizar shared Jessel’s call for ‘civic empathy’. He argued that the issue of miscarriages needed to be seen in ‘the wider political context, the attack on the idea of the welfare state’. ‘I share a birthday with 1949 Legal Aid Act. Legal aid was part of the wider welfare state brought in by the Labour government after the War. There was clearly an energy, a huge civic empathy and desire to change.’