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Addressing Wrongful Convictions

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About The Author

Hannah Larsen (Writer)

Hannah graduated from the University of Bristol in 2013, with a LLB Hons. Hannah works for an organisation issuing multinational employers with guidance on employment law and labour relations across the globe, and is undertaking her BPTC part-time at BPP Holborn.

The law in action is not concerned with absolute truth, but with proof before a fallible human tribunal to a requisite standard of probability in accordance with formal rules of evidence.

DPP v Shannon [1974] 59 Cr.App.R.250.

There is an inherent degree of risk in our criminal justice system flowing from how a person’s guilt is determined. Asking the jury whether they have been convinced beyond reasonable doubt that the accused committed the crime essentially requires the jury to choose whether they believe the version of events as presented by the prosecution or the defence. Neither may present the true course of events, yet the arguments and evidence presented will undoubtedly be tailored towards the opposing tales of the prosecution and defence.

‘Beyond reasonable doubt’ may appear to be a hard test to satisfy, and indeed convincing 12 people all to this standard does impose an arduous task on the prosecution, but it is essentially a probability and does permit a degree of uncertainty within the minds of the jury. It is within this degree of uncertainty that facts can be overshadowed and innocent people can be convicted of crimes that they did not commit. Attempts to address wrongful convictions are made by the Criminal Cases Review Commission and by independent not-for-profit organisations, the success of each will be discussed in this article.  

The risk of wrongful conviction is heightened where inadmissible evidence or flawed expert evidence is presented, or alternatively where evidence has not been disclosed, such as the 200 witness statements omitted by the police leading up to the trial of Johnny Kamara. Police conduct during the investigatory stage has further come into question; for example, 14 year old Paul Blackburn was imprisoned for quarter of a century after being physically coerced into signing a confession which had been written by the officers themselves. 

It has also been suggested by Dr Michael Naughton, a Reader in sociology and law at Bristol University, that the presumption of innocence leads to defence teams taking a more passive role and being allocated fewer resources, hence reversing the protective effect of the burden and placing the accused at risk. It is tempting to support this proposition, especially in light of legal aid being recently ravaged, but to do so is to overlook the overwhelming effort and commitment the majority of defence teams give to their clients.

Some miscarriages of justice are well known and have attracted a great deal of press attention, for example that of the Birmingham Six who were wrongfully convicted of bombings in 1974, and Sally Clark who had been wrongfully convicted of murdering two of her sons. Furthermore, the BBC broadcast ‘Rough Justice’, a series analysing potential cases of wrongful conviction, for 27 years before finishing in 2007. Channel 4 also presented a rival programme, Trial and Error, which was axed in 1999. However, in recent years press attention and public knowledge seems to have lapsed despite instances of wrongful conviction continuing to come to light.

Failing to address wrongful convictions

The Criminal Cases Review Commission (CCRC) replaced the Criminal Case Unit (a division in the Home Office) in the role of reviewing potential miscarriages of justices in 1997 and referring those of concern back to the Court of Appeal. The CCRC provides an independent and thorough review of cases where there may have been a miscarriage of justice; that is if we ignore the fact that it is (poorly) state-funded, overly concerned with statutory criterion and intrinsically linked to the Courts, neatly described by Jon Robins in the Guardian as ‘the Court of Appeal’s gatekeeper’.

The CCRC’s own gates do not open far. An application will not be considered unless the applicant has exhausted all of the normal appeal routes (i.e. their application for appeal or the appeal itself has been rejected by the Court of Appeal, or judicial review has proven unsuccessful). Even where an applicant meets these criteria it is important to note that the Commission has the power to consider the applicant’s case, as opposed to a duty. The Courts have however encouraged the CCRC to exercise this power, for example Lord Hughes emphasised that it ‘should not, make enquiries only when reasonable prospect of a conviction being quashed is already demonstrated. It can [...] in appropriate cases make enquiry to see whether such prospect can be shown.’    

If an applicant’s case makes it to the review stage, assessments are undertaken on the basis of ensuring that all the necessary tick box rules and procedures were satisfied when the convictions were achieved and as such, the Commission is not strictly focused on investigating the possible innocence of those convicted. Nor is the Commission generally concerned with questions of policy, such as whether the law which led to the conviction is just and fair, although the CCRC suggests that it could contribute its expertise to reform of the law.  

The CCRC is however very concerned with section 13 of the Criminal Appeal Act which provides that the Commission may only refer a case back to the Court of Appeal if it considers that there is ‘a real possibility that the conviction [...] or sentence would not be upheld were the reference to be made’. In the CCRC’s question and answer section it is stated that this requires ‘significant new evidence or new legal argument’. Bearing in mind that applicants are required to have exhausted the appeals process, they are unlikely to be teeming with fresh material. Even if this was the case it is quite likely that they do not have the resources (or freedom) to pursue evidential leads or to instruct legal counsel. In addition, the requirement that the evidence is ‘new’ prevents applicants from relying upon evidence which was acknowledged but unused or had been presented differently at their original trial. Even if such evidence or legal argument could be found, it was noted by Mr Justice Richards, then the Lord Chief Justice, in Smith (Wallace Duncan) [2004], that ‘the Commission retains a discretion whether to make a referral’.

Bearing these requirements in mind it is not surprising that of the 17,183 applications analysed up to 30 November 2014 only 568 were referred to the Court of Appeal. The CCRC does claim that 374 convictions have been quashed following their referral. But it should be noted that this figure includes instances where only the sentences have been varied and represents the number of convictions not individuals. Unfortunately the CCRC provides a beacon of hope for many potential victims of miscarriages of justice who do not realise that their case is likely to be outside the ambit of the CCRC’s tick boxes and statutory criterion.

Providing hope for wrongful convictions

Alive to the need for cases of wrongful conviction to be investigated and understood, a number of not-for-profit organisations have come into existence. Some campaign to raise awareness of wrongful convictions, such as INNOCENT and Miscarriages of Justice UK, whilst others, such as The Innocence Project, undertake hands-on case research to assist with cases directly.

In America, ‘The Innocence Project’; provides the headquarters for an affiliation of organisations referred to as ‘The Innocence Network’ who primarily rely on DNA evidence to overturn wrongful convictions. The organisation notes that such evidence has led to the exoneration of 325 people, with another eight exonerated by other means. In 2013 alone the Network’s efforts led to the freedom of 31 people. Each member organisation manages its own cases, relying on the work of volunteers and charitable donors to conduct and fund investigations. Although predominantly American, there are international member projects in countries like Taiwan and France.

Within the UK, the Innocence Network (INUK) was established in 2004 by Dr Michael Naughton and Carole McCartney, a Reader of Law at Northumbria University, reflecting on the work of the American organisations and the potential for such projects to be undertaken by UK Universities. The Network began at Bristol University, where I myself donated my Wednesday afternoons to investigating potential claims of innocence, and led to the establishment of 36 Innocence Projects across the UK, including one at international law firm, White and Case.

Primarily, INUK was an overarching organisation, providing a central fronting to applicants and a standardised procedure for dealing with the applications, which had been approved by the Attorney General’s Pro Bono Committee. The individual member Universities, including Bristol itself, then operated a pro-bono workshop where students and staff undertook case investigations. This work ranged from analysing witness statements to learning about and scrutinising evidential techniques, often seeking gratuitous assistance from experts. The applications flooded in with awareness and hope levels rising amongst potential victims of wrongful conviction, such that the Network often stated that there were more applications than it could possibly expect to process within any predictable timescale. 

Fundamentally, however, the Network was restrained by its limited investigatory powers with regards to confidential data and its reliance on the co-operation of other organisations such as the Forensic Science Service or the police to provide copies of evidence. Similarly, because of restrained financial resources it was necessary for the Network to rely on gratuitous assistance of experts and legal professionals to assist with investigations.  

The Network discontinued as an overarching organisation in September 2014, it is stated because of ‘a general lack of interest and input by its member innocence projects’. However, this quote should not be taken to suggest that member projects did not contribute or were not whole hearted in their efforts.  

Careful consideration by the University of Bristol Innocence Project of the Judge’s directions to the jury, as well as the eyewitness and identity parade evidence relied on, enabled submissions to be made to the Scottish CCRC as to William Beck’s potential innocence. ‘Wullie Beck’ had been convicted of assault, robbery and theft and sentenced to 6 years imprisonment in 1982 despite his claims that he was over 40 miles away when the robbery of a post office had occurred. Persuaded by the Project’s findings and having conducted its own investigation into the case, the SCCRC referred the case back to the High Court of Justiciary although Wullie was not successful in his appeal.

Further, the work of Innocence Projects continues to make huge progress in the cases of many applicants, as the dissolution of the Network has not resulted in the deconstruction of the projects. Most recently, in December 2014 the conviction of Dwaine George was overturned by the Court of Appeal.

In 2002, Dwaine was found guilty of the murder of Daniel Dale, a teenager due to give evidence in another murder trial, and sentenced to life imprisonment. The prosecution had presented a minuscule amount of gunshot residue found on a hoody in Dwaine’s home as evidence and it is considered that this ultimately led to his conviction. Following Dwaine’s application, Cardiff Law School Innocence Project spent four years scrutinising his case and in particular the gunshot evidence. The case was then considered for a further three years by the CCRC who decided that the case met the criteria for a referral. On revisiting the case 12 years later, the Court of Appeal was required to refer to guidelines issued by the Forensic Science Services in 2006, to determine the evidential value of the number and type of particles identified. Application of the guidelines determined that the gunshot residue had no evidential value and the chair of the bench, Sir Brian Leveson, stated that the Judge’s directions to the jury ‘would have been couched in terms of much greater circumspection and caution’ had these guidelines been available in the original trial. Dwaine’s case is just one of six that the Project submitted to the CCRC in 2010.

The work of Innocence Projects and other charitable organisations have and continue to highlight that there are potential cases of wrongful conviction. More so, that doing justice does not require fancy tick box exercises or intricate statutory criterion, but instead a thorough and conscientious examination of the factual evidence.

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Tagged: Criminal Law, Justice

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