Miscarriages of justice: who is helping the innocent?

(Originally published by Contributoria)

2014 is probably not a good year to be accused of a crime you didn’t commit. There is a near consensus among lawyers across the political spectrum that the government’s attempts to slash the legal aid budget will lead to poorer quality of representation for defendants in criminal cases.

In July the Judicial Executive Board – a panel of the most senior judges in England and Wales – published a detailed critique advising justice minister Chris Grayling to reconsider his proposed fee cuts for barristers and solicitors: “Poor advocacy is wasteful of resources,” they warned, “Cases are less well prepared…while simultaneously increasing the risk of mistakes and miscarriages of justice.”

Their suggestions have only partially been heeded. Following staged walkouts in courts across England and Wales last month, barristers eventually agreed a last minute deal with the Ministry of Justice on Thursday to delay some of the reforms. Solicitors and probation staff, meanwhile, remain incensed at the changes and will continue to walk out over the coming days causing mass disruption to courts around the country.

Yet outside of the legal profession and penal reform charities there has scarcely been any public opposition to the cuts. This is perhaps unsurprising given the extent to which miscarriages of justice have become one of British society's most under-reported issues. There have been no regular series on TV or radio uncovering wrongful convictions since the BBC’s Rough Justice was axed in 2007, and only a handful of print journalists are currently focusing on them.

Officially, the task of investigating miscarriages of justice is that of the Criminal Cases Review Commission (CCRC) - a statutory body set up in 1997 following a spate of high profile cases including the Birmingham Six and Guildford Four. When innocent people convicted of serious crimes are unsuccessful at their first appeal, they must send fresh evidence to the CCRC for review and referral to the Court of Appeal. But concerns have been raised that many victims of miscarriages of justice may have been failed by the Commission.

Out of 17,479 applications made to the CCRC since it was established, only 549 (around 3%) have been referred. Furthermore, while demand for the Commission’s services has steadily grown, its resources have not. In 2012 the Commission received 1,625 applications for cases to be reviewed – 64% higher than the previous year. Last year its budget was increased by 10%, but only after successive governments had frozen it for seven consecutive years between 2006 and 2013, amounting to 33% cuts in real terms.

The CCRC’s chair, Richard Foster CBE, is clear that the Commission’s current budget is insufficient to cope with the volume of applications they receive, and agrees with the Judicial Executive Board that legal aid cuts will undoubtedly make matters worse. “The more resource that you take out of the criminal justice system at the trial end of the business the more likely it is that you increase the probability of miscarriages recurring…So I’m quite certain that the legal aid cuts will add to our problems,” he says. “I’ve said to the Ministry of Justice that we need about a million pounds. If I had another million pounds I could get on top of the queues and eliminate them.

For many applicants, the long waiting times are difficult to accept. Eddie Gilfoyle spent 18 years in prison for the murder of his pregnant wife, Paula Gilfoyle, in 1992. According to the prosecution, Gilfoyle forced his wife to write a suicide note before murdering her and putting a noose over her neck to make it look as though she had killed herself. Paula, the jury was told, was a well-adjusted and contented mother-to-be who could never have taken her own life.

Throughout his incarceration Gilfoyle and his campaigners maintained that his wife had committed suicide. Then, in 2012, a box was discovered which suggested he may have been right all along. For 16 years Merseyside Police had withheld the contents of the box from Gilfoyle’s defence team. When they were finally granted access, they found it contained Paula’s personal papers and a diary in which she had written about a previous suicide attempt, as well as relationships with ex-boyfriends who had threatened to commit suicide. This evidence was submitted to the CCRC in 2012, yet more than two years on a decision has yet to be reached.

Then there is the case of Susan May, who was convicted of murdering her elderly aunt at her home in Royton in 1993 and spent 12 years in prison for a crime she insisted she never committed. Initially, May seemed an unlikely suspect; she had no criminal record, and as her aunt’s main carer devoted much of her life to looking after her. Although the crime scene showed all the classic signs of a botched burglary, May became a suspect when police found her fingerprints in blood on the victim’s bedroom wall. She was found guilty but always protested her innocence, and despite two failed appeals continued to fight her conviction upon her release in 2005.

In 2012, backed by the support of a strong campaign and 72 MPs, her legal team submitted a fresh application to the CCRC based on witness testimonies alleging the police had deliberately concocted a case against her, ignoring credible leads which implicated a known burglar. Further evidence was submitted by a fingerprint expert in the Netherlands who authored a report claiming the marks on the wall in which May’s fingerprints were found consisted of sweat rather than blood, and that the prints had been made prior to the murder.

While her lawyer seemed optimistic of a referral, May was less so. "I should believe I'll be exonerated because I know I'm innocent and I know the evidence is there,” she told me shortly after submitting her evidence, “but after everything I've been through, sadly I'm not overly confident." A year later she died following a battle with cancer, in the eyes of the law still a convicted murderer. The CCRC have yet to reach a conclusion in her case.

Long queues are not the only source of frustration for applicants to the CCRC. As a statutory body the Commission is bound by the Criminal Appeals Act 1995 which states it may only refer cases which have a ‘real possibility’ of being successful at the Court of Appeal. But the test is open to interpretation, and the Commission’s rate of success (70% of cases referred have resulted in a quashed conviction or varied sentence) shows the threshold is very high. Doesn’t the Commission risk neglecting cases which have a very strong possibility (perhaps even probability) of success, but fall short of the Commission’s standard for referral? Foster doesn’t think so:

“You’re damned if you do and you’re damned if you don’t…My own feeling is that two thirds is about right. Two thirds demonstrates that you are referring cases that ought to be referred but you’re not in the Court of Appeal’s pocket because you’re also referring a significant proportion of cases where the Court of Appeal doesn’t quash the conviction. Real possibility has to be more than bare chance but it’s less than slam dunk.”

Not everyone is convinced. Among those calling for radical reform to the way wrongful convictions are handled is Dr Michael Naughton, a sociology lecturer at the University of Bristol. In 2004 Dr Naughton founded the Innocence Network UK (INUK), a network of projects at university faculties around the country where law students investigate the evidence behind claims of innocence.

“The reason I set up Innocence Network UK was because I was inundated with letters from people saying ‘I’ve applied to the CCRC and they’ve said no,’” explains Naughton. “So I started looking into these cases and it was through people saying the CCRC wasn’t working that I began to understand why the CCRC isn’t structured in a way that helps people who may be innocent.”

In 2010 Naughton authored a book called The Criminal Cases Review Commission: Hope for the Innocent? In it he argues that the CCRC has failed in its remit because, among other factors, its independence is compromised by the constraints of the Criminal Appeals Act. The book divided opinion between those in the criminal justice world who would like to see a Commission unbound by the Act, and those, like Foster, who believe such a reform would be counterproductive. It’s an issue which remains at the centre of a seemingly perennial row over how the system should be reformed to best suit the interests of miscarriage of justice victims.

“Might there be a better test? Is it the wrong test? Do we rely on that lots of people think this person is innocent? In that case where does that take you?” Foster asks.

But Naughton stands by his conclusions, insisting that a Commission genuinely working in the interests of the innocent would base its decisions purely on the strength of the evidence, without having to second guess the Court of Appeal. “The real possibility test governs everything that the CCRC does, and it means the CCRC is not independent in the way the Royal Commission on Criminal Justice said it should be,” he says.

Despite these disagreements, a precedent was set last November which may offer some hope. For the first time in its history the CCRC referred a case to the Court of Appeal based on evidence uncovered by the work of an Innocence project. The case of 29-year-old Dwaine George, convicted of murdering Daniel Dale in 2001, was referred following the identification of gun residue by law students at Cardiff University, and is currently being heard at the Court of Appeal.

A quashed conviction could be cause for cautious optimism. However, like the CCRC, Innocence Projects also face serious funding problems, and it is unfortunate that Naughton’s most depressing comment – his pessimistic assessment of the future of miscarriages of justice - is perhaps his least controversial.

“If lawyers aren’t able to do their jobs properly, or there aren’t lawyers available, there will be more people who are wrongly convicted…There are going to be challenges in terms of defence representation and it must be logically correct that there are going to be more wrongful convictions. Looking forward I do think it looks bleak,” he laments.
Few students of the criminal justice system would disagree.

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