A method for investigating claims of innocence
(second extract from 'Claims of Innocence' by Michael Naughton and Gabe Tan)
Introduction: Once an alleged victim of a wrongful conviction has lost in his/her appeal and been refused a referral back to the Court of Appeal (Criminal Division) (CACD) by the Criminal Cases Review Commission (CCRC) there is a very slim chance that they will be able to overturn the conviction.
In these circumstances, victims of wrongful conviction are likely to have also exhausted the legal aid system and it will be down to themselves, their families, supporters, pro bono lawyers and voluntary groups to unearth the evidence of innocence and present it to relevant authorities such as the CCRC if they hope to get the conviction referred back to the CACD to be overturned. Investigating an alleged wrongful conviction is a lengthy and challenging process. Cases of high profile miscarriages of justice such as the Cardiff Newsagent Three, Paul Blackburn, Robert Brown, Sean Hodgson, and so on, show that it can take years and even decades of investigation before the evidence that led to the quashing of the conviction is found.
This chapter is not meant to be a comprehensive guide on how to investigate an alleged wrongful conviction. Rather, its aim is to provide a general and systematic method of investigation that can assist alleged victims of wrongful conviction and those seeking to investigate claims of innocence.
Step 1: Ensuring the retention of evidence and case documents
Before commencing an investigation into an alleged wrongful conviction, it is crucial to ensure that ALL evidence and documents obtained in the course of investigation are not destroyed. To this end, the following provides an outline of the respective retention policies of the Police, the Forensic Science Service (FSS) and solicitors finns.
Retention of material by the police
The duty of the police to retain material relevant to the investigation is set out in the Code of Practice made under s.23 of the Criminal Procedure and Investigations Act 1996 (CPIA).
Under the Code of Practice, all material which may be relevant to the investigation must be retained by the police until a decision is made on whether or not a person should be charged with the offence. If the Crown Prosecution Service (CPS) decides to proceed with criminal charges, all relevant material must be retained at least until the defendant is convicted, acquitted or the CPS decides not to proceed with the case.
Upon a conviction, all relevant material must be retained by the police until:
- the convicted person is released from custody, or discharged from hospital, III cases where the court imposes a custodial sentence or a hospital order;
- six months from the date of conviction in cases where a custodial sentence has not been imposed, or, where the custodial sentence given is less than 6 months.
If an appeal against conviction is in progress, all material must be retained until the appeal is determined, Similarly, if an application has been made to the CCRC, all material must be retained until the CCRC reaches a decision or until the appeal resulting from a referral by the CCRC is heard.
If you are still seeking to challenge your conviction even after you have lost in your appeal or the CCRC has refused to refer your case back to the appeal courts, it is vital that you make a formal written request to the relevant police force for all material relating to your case to be retained.
Retention of material by the FSS and other forensic science providers
The CPIA does not cover third parties such as the FSS. Instead, the main provisions relating to the retention of case material are detailed in a Memorandum of Understanding between the Association of Chief Police Officers (ACPO) and the FSS. These are simply 'best practices', rather than mandatory provisions that impose specific duties on forensic scientists in relation to the preservation of material.
All items submitted by the police to the FSS will normally be returned to the police upon completion of the laboratory examination except in circumstances where the samples are thought to pose a potential hazard (e.g. biological samples such as blood), or, where an agreement has been reached with a relevant police force/organisation for the FSS to retain them, or part of them, under specialised storage conditions, for reference purposes or for possible future re-examination using improved techniques.
The FSS will maintain a documented audit trail in relation to retained and destroyed material.
The FSS will retain material for 30 years as a matter of course in serious cases including:
Murder (including attempted murder) Other suspicious deaths
Section 18 assaults Terrorism Explosives Rape
Kidnapping and abduction Blackmail Robbery Aggravated burglary
Materials relating to all other types of offences will be retained for a period of 7 years.
However, materials in the following type of cases will only be stored for 3 years:
Simple possession of drugs Driving after consuming alcohol/drugs Alcohol technical defence
It is important to note that the 30, 7 and 3 years retention periods do not cover 'items of a perishable nature' such as bodily fluid samples which can be listed for destruction even prior to the conviction. A 'Notification of Intention to Destroy Items of a Perishable Nature' will be sent to the defence team prior to destruction which lists the items that the FSS are intending to dispose of.
As with material retained by the police, exhibits and samples held by the FSS could be vital in proving a claim of innocence. They could be tested and analysed with forms of forensic science techniques not utilised or not available at the time of the police investigation which could yield results that exonerate an alleged victim of wrongful conviction.
It is crucial that alleged victims of wrongful convictions instruct their defence team to respond to the FSS's 'Notification ofIntention to Destroy Items of a Perishable Nature' and request for the destruction to be stayed - stopped. In addition, a formal request to the FSS should be made for other non-perishable materials to be retained beyond the minimum retention period.
In addition, even though the original item has been destroyed, it is possible that material taken from the item has been retained. Checks should be made whether such derived samples exist; for example, DNA extracts that may have been frozen. Items listed on the destruction order might also still exist even if the original defence solicitor had failed to make a request for them to be retained. It is, therefore, worth contacting the FSS to ascertain the specific items and samples that they still hold in relation to your case.
Finally, it is important to point out that the police are increasingly using other forensic science providers. The retention policy with forensic science providers other than the FSS is contained within the General Specification Schedule 6A Items 3.22-3.26 Storage, Retention and Disposal. The details of this policy are the same as the Memorandum of Understanding between the Association of Chief Police Officers (ACPO) and the FSS, i.e. the 3, 7 and 30 year guidance, with the option for forces to request extension periods.
It is recommended that it be requested in writing to the forensic science provider and the investigating police force that all items be retained. The reason that the police need to be contacted is that once a forensic science provider has finished with a case, most exhibits will be sent back to the police. However, certain items such as microscope slides, DNA extracts, acetate sheets containing fibre tape lifts etc will be retained by the forensic science provider for a variable amount of time.
Case study: Sean Hodgson was convicted for the murder of 22 year old Teresa De Simone in 1979. In March 2009, after serving 27 years in prison, his conviction was overturned when DNA testing of the semen sample collected at the crime scene did not match his profile. Hodgson could have been exonerated 11 years earlier had the FSS not incorrectly declared that all exhibits in the case were destroyed when the first request for DNA testing on the samples was made.
Retention of material by solicitors
The Law Society does not specify how long individual files should be retained. Most law firms will retain files for a minimum of six years from when the case is closed. It is crucial that alleged victims of wrongful conviction instruct their solicitor in writing not to destroy their files, including instructions and briefs, attendance notes and correspondences sent to third parties on their behalf.
Solicitors will typically invite their clients to take possession of their own papers when the case is closed. However, this is not always ideal if the client is in prison as most prisons only allow inmates to retain a limited quantity of paperwork in their cells. If alleged victims of wrongful conviction are in prison, it is advisable that they either ask for their file to be transferred to a reliable family member or supporter or ask for it to be retained within the law finn's storage facility until they find another solicitor that their case documents can be transferred to.
It is vital that alleged victims of wrongful conviction do not lose any documents that have been released to them or their families/supporters. If alleged victims of wrongful conviction are seeking assistance from other law firms or voluntary groups such as innocence projects, they must always send their documents or copies of them by registered mail to ensure that they do not get lost in the post.
In addition, alleged victims of wrongful conviction should not dispose of any documents or evidence which they think may be irrelevant to their case. Witness statements, reports and other documents which they may think are unhelpful to their claim of innocence might subsequently prove to be highly important in proving that they are innocent!
Step 2: Understanding how and why the jury convicted
The first step in investigating any alleged wrongful conviction is to examine the trial proceedings and try to understand how and why the jury decided to convict.
The best way of making sense of how the conviction was obtained is by reading through the trial transcript and the judge's summing up. Although, ideally, the transcript of the entire trial should be obtained, this can be very costly, often amounting to thousands of pounds. Transcripts of the judge's summing up of the verdict can be obtained by the Registrar on application for leave to appeal against conviction.
Read the trial transcript and/or judge's summing up carefully and make a detailed record of the following:
The Prosecution's case
What is the prosecution's version of what happened, i.e. why the crime happened 41 ( e.g. motive), when and where the crime happened, and, how the alleged crime was committed.
- What evidence was produced by the prosecution to support its version of events?
- What evidence was produced by the prosecution to undermine the defence's case?
It would be useful to construct a list of all the prosecution witnesses (including expert witnesses, forensic scientists and police officers) who testified in court or whose statements were read out in court, and, the evidence given by each of these witnesses.
The Defence's case
- What is the defence's version of events, i.e. the defendant's account of what s/he was doing at the time the alleged crime took place, where s/he was, and why it was not the defendant who committed the alleged crime.
- What evidence was produced by the defence to support its version of events?
- What evidence was produced by the defence to undermine the prosecution's case?
Once again, it helps to construct a list of all the defence witnesses whose evidence was used in court and the evidence given by each respective witness. Look, also, for any significant gaps in the judge's summing up of the evidence and note the weight s/he attaches to the evidence of each witness.
Evidence of 'facts'
'Factual evidence' consists of evidence that is clear and undisputed and is not contested by the prosecution or the defence. What constitutes 'factual evidence' varies from case to case. It might include telephone records, utility bills, employment logs, pathology reports, CCTV footages or witnesses' accounts of when the victim, defendant or witness was last seen at a particular place, etc.
Step 3: Going beyond the trial documents
Going through the judge's summing up and the trial transcripts only provides a picture of the circumstances that led to the conviction. Whilst this is a crucial starting point, it is equally, if not more, important to go beyond the key trial documents and get to grips with how the police investigation was conducted, how the evidence was obtained, and whether there is evidence that could support your case at trial which was not disclosed by the prosecution or which was omitted by the defence team.
The following provides a general (although not exhaustive) checklist of materials that might be required for a thorough investigation to be undertaken:
1. Schedule of Non-Sensitive Unused Material. This is a record of all unused material classified by the disclosure officer as 'non-sensitive' that is given to the defence so that they can consider whether or not to seek further disclosure
2. Unused Materials. These include witness statements, forensic reports and other
records that are contained in the Schedule of Non-Sensitive Unused Material.
3. Defence statements
4. Medical examination reports
5. Any Public Interest Immunity (PH) applications made to the court
6. Interview transcripts
7. Transcripts of interviews with other suspects
8. Previous convictions of the defendant, witnesses and other suspects
9. Scene of crime records, photographs and videos
10. Laboratory case files
11. Incident Report Log Book
12. HOLMES computer records
13. CID Office Diary. This is not disclosed unless requested by solicitor.
14. Notebooks/desk diaries of CID Officers. not disclosed unless requested by solicitor.
15. Custody records
16. Search warrants
17. Records of House-to-House Enquiries
18. RIP A application forms. These are applications for permission to place bugs and make recording
19. Post-mortem photographs
20. Pathology and scientific reports
21. Solicitor's correspondence file
22. Appeal documents such as advice on appeal, appeal judgment
23. CCRC Statement of Reasons
24. All disclosed material secured in the course of review by the CCRC
Bear in mind, also, that other agencies may also hold documents relevant to your defence, e.g. local authorities may have maps of scenes of crime, CCTV pictures. Medical and social care agencies may hold relevant records relating to your accuser and/or witnesses. Your legal adviser may be able to access these.
Step 4: Investigating the evidence that led to your conviction
Once a person has been convicted, simply saying to the appeal courts or the CCRC, 'I am innocent' or 'the prosecution witness lied in court and the evidence against me is false or flawed' is not going to overturn the conviction. Indeed, the presumption of innocence can be said to be reversed when a person is found guilty of a criminal offence. This means that you have to actively find evidence that undermines the prosecution's case and/or produce new evidence that could positively establish that alleged victims of wrongful conviction are innocent of the crime that they have been convicted of.
This section provides some general tips on how you can investigate the evidence that led to the alleged wrongful conviction. Of course, case investigation strategies vary from case to case but the overarching principle is to understand the key evidence that led to the conviction and seek to undermine it or disprove it totally. The following provides an outline of the main forms of evidence that are often used by the prosecution to obtain convictions and how you might investigate them to prove their unreliability:
Witness testimonies can range from an accuser's allegations, testimonies of a co-accused to witnesses who support part of the prosecution's case against an alleged victims of wrongful conviction (for example, a witness might testify that an alleged victim of a wrongful conviction confessed to him/her; they might testify that they witnessed them committing the crime; they might say that they saw them in the vicinity of the crime scene round the time when the crime allegedly occurred; or, they might say that they told them in the past that they planned to commit the crime).
As demonstrated by cases of wrongful convictions that have been overturned (see Chapter 2), there are a variety of reasons why witnesses might make false allegations or give false testimonies. They might have been pressured by the police to give false evidence, they might have a financial or other incentive to do so, they might have a grudge against the alleged victim of wrongful conviction, or they might have a psychological disorder which makes them prone to making false allegations.
However, unless the witnesses or the accuser(s) are willing to retract their evidence, it is insufficient to simply state the reasons why they might lie. Evidence needs to be found that contradicts their statements or testimonies. The following are some pointers and key questions you should investigate when seeking to disprove the evidence of a prosecution witness:
- Arrange all used and unused witness statements in chronological order. This will give some sense of the order in which witnesses were interviewed by the police and when a particular piece of evidence came to light.
- Look at the statement(s) given by the witness to the police or the transcript(s) of his/her interview(s) with the police. Is the evidence given to the police consistent with the evidence that the witness gave in court? If not, what are the reasons behind the change in evidence?
- If a witness provided more than one statement, and the evidence which incriminates the alleged victim of wrongful conviction only came out in the later statement, it is crucial to question why the witness did not provide the evidence in his or her earlier statement(s). Look at the police notebook to find out what led the police to interview a particular witness.
- If you think that a witness might have been pressured or offered incentives by the police to give false evidence, try to obtain the particular police officer's disciplinary records. Look into all the unused material, particularly unused witness statements - is there anything in the unused material that contradicts the witness's evidence?
- Try to obtain as much information as you can about the background of the witness or the accuser. Does s/he have a history of making false allegations? Is the witness a vulnerable witness? Could the witness or the accuser have a psychological disorder that makes him or her prone to giving false testimonies?
- Are there any potential witnesses, including alibis, who could support the alleged victim of a wrongful conviction's defence that their defence solicitor at trial failed to interview and/or produce in court? If so, obtain affidavits from them.
- Could the alleged victim of a wrongful conviction's employment logs, phone records, receipts, travel documents, bank statements, utility bills, etc., prove that they were not in the location on the date(s) when the offence was alleged to have taken place?
- Has the witness or accuser confessed to other people that they have given false testimonies since the conviction? If so, obtain affidavits from the person(s) that the witness or accuser has confessed to.
Eyewitness misidentification is the most common cause of wrongful convictions in the United States, featuring in over 75 per cent of convictions which have subsequently been overturned through DNA testing. Although the actual statistics are unknown, this phenomenon does not appear to be as prevalent in the United Kingdom.
However, if eyewitness identification evidence featured in the prosecution's case at trial and you think that the eyewitness might have been genuinely mistaken, (i.e. you are not claiming that the eyewitness lied to the police or in court) the following pointers could assist in proving that the eyewitness identification evidence is unreliable:
- Turnbull Directions: These are guidelines which were developed in the case of R v Turnbull where Lord Widgery CJ laid down warnings which should be given to the jury where a defendant is claiming mistaken identification by an eyewitness. These warnings include: the length of time the witness saw the suspect and the distance between them; visibility at the time the witness saw the suspect and whether there are any objects which might obstruct the witness's view; whether the witness knows the suspect or has seen him/her before; any particular reason for the witness to remember the suspect; time lapse between seeing the suspect and giving evidence; any inconsistencies or errors in the description given by the witness.
- Check whether the identification procedure complies with the Police and Criminal Evidence Act 1984, particularly, the Code of Practice for the Identification of Persons by Police Officers (Code D).
- If the alleged victim of a wrongful conviction was identified on an ID parade, examine the pre-parade procedure. For instance, was the witness shown CCTV footage prior to the ID parade? If so, the witness might have based his/her identification on what was in the footage, rather than what s/he actually witnessed.
- The witness should not see the suspect or any photographs or description of the suspect prior to the ID parade. Check whether the witness could have had sight of a photograph of the suspect prior to the ID parade, or had sight of the suspect in the police station prior to the ID parade.
- Could the witness have read or heard any description of the suspect from the media prior to making the identification?
- If the identification is made by way of showing of photographs, the following steps should be complied with in accordance with the regulations set out in PACE: i) The process must be supervised by a Sergeant; ii) The first description given by the witness must be recorded before any photographs are shown to the witness; iii) Only one witness at a time may view the photographs; iv) There must be not less than 12 photographs shown to the witness; v) The showing of photographs should stop if a positive ID is made by a witness; vi) A record of the whole process should be kept.
- Could there be any potential problems with the way the ID parade was carried out? For instance, if the witness is from the same area as the volunteers and/or knows them, s/he may select the defendant not because s/he positively identifies him/her as the person s/he had seen committing the crime, but by way of elimination.
- If the parade is held seated, the witness does not have the opportunity to examine the defendant's height and may incorrectly identify the defendant although s/he could not possibly be the offender because of the height difference.
- Always compare the witness identification with the very first description of the suspect, which may be by way of description given in a '999' call or a verbal description given by a witness to a police officer at the scene of crime.
- Post-parade identification: If a witness did not identify the defendant during the ID parade, but makes the identification subsequently, such post-parade identification evidence has to be treated with extreme caution. Questions need to be asked about whether or not the witness could have been influenced for example, by the media, other witnesses or, even, police officers, and whether his or her reason for failing to identify the defendant during the ID parade stacks up.
- Are there descriptions from other witness( es) in the unused material which do not match the identification evidence of the Prosecution witness?
False confession has featured in many high profile cases of wrongful convictions in England and Wales. There is a long list of examples, including the Guildford Four, Birmingham Six, Cardiff Three, Cardiff Newsagent Three, Paul Blackburn, Robert Brown and, more recently, the cases of Sean Hodgson and Ian Lawless. These cases demonstrate two key reasons why innocent individuals would confess to crimes they did not commit. They might have been subjected to coercive or inappropriate police interrogation techniques. Alternatively, they might suffer from a psychological or personality disorder that makes them vulnerable to making false confessions.
If an alleged victim of wrongful conviction is convicted on the basis of a confession, and s/he is now claiming that the confession is false, the following pointers might assist in showing the unreliability of the confession:
- Following the introduction of PACE, all police interviews with suspects have to be audio recorded. This has changed police investigation practices and confessions now play a much lesser role in the achieving of convictions. However, if an alleged victim of a wrongful conviction is claiming that they were forced into making a false confession post¬P ACE, check whether the police have complied with the provisions set out under the P ACE Code of Practice C, which deals with questioning and treatment of suspects, and P ACE Code of Practice E, which sets out the procedures that the interviewing officer should follow when recording the interview.
- If the alleged victim of a wrongful conviction is a vulnerable suspect, for instance, if s/he was a minor at the time of questioning or suffers from a mental or physical disability, check to see if the proper procedures for interviewing vulnerable suspects were adhered to.
- Does the confession contain descriptions, for instance, of how the crime was committed which do not fit with the evidence?
- Look through all the statements and transcripts of interviews with the alleged victim of a wrongful conviction. At which point did the confession emerge? Are there any inconsistencies in the evidence given by the alleged victim of a wrongful conviction in the course of the police investigation? Did the alleged victim attempt to retract their confession in the course of the police investigation?
- Look at the custody record - how long was the alleged victim of a wrongful conviction detained in custody before making the confession?
- Was the confession made in the presence of a solicitor?
- If the alleged victim of a wrongful conviction is alleging that the confession was fabricated by the police, send the statement for analysis by a forensic psychologist. There might be words or forms of expression contained in the statement that does not fit with the age and/or educational background of the alleged victim.
- If the alleged victim might have an undiagnosed mental or personality disorder which could make him/her vulnerable to making a false confession, arrange for a diagnosis by a forensic psychologist.
Forensic science and/or expert evidence
Expert evidence is a growing form of evidence used by the police and the prosecution to gain convictions. This includes evidence such as DNA, fingerprints, fibres, cell site evidence, digital evidence obtained from computers, facial mapping analysis, or simply the opinions and testimonies of expert witnesses. Despite the 'CSI effect' and the widespread belief in its reliability, much forensic science and expert testimonies are far from foolproof. Research and cases of wrongful convictions which have subsequently been overturned demonstrate the limitations of such forms of evidence and how they can cause the wrongful conviction of innocent people.
The wide range and variety of forensic science evidence means that it is not possible to provide a comprehensive account of the limitations of each form of forensic evidence here. Generally this fonn of evidence has two components: 1. Is there a match between something from the crime scene and the suspect? For example, clothes, DNA, hairs, fibres, paint, semen; and, 2. What is the significance of that match? That is, how many people or things could that match be made to? So, if a paint is very common then it has very little value as evidence if it was found on a suspect, but if it is very rare type of specialist paint then it has more evidential value. This section provides some tips on how to conduct an investigation into the reliability of such forms of evidence and resources that might assist in your research.
- Trace the trace evidence: If you believe that the material that was matched was somehow introduced to the evidence, such as DNA or fibres, it is crucial that the entire process is reviewed from the collection of the evidence to its presentation in court. The purpose of that check is to see if there was any opportunity for the evidence to be transferred in a different way to that claimed by the Crown. For example, a police officer visiting a firearms scene then interviewing the suspect could transfer gunshot residue to the suspect's clothes. Try to establish a timeline or diary of exactly what happened to the evidential item. Go through the scene of crime records - when, where and who collected the evidence? Who and when did the scene of crime officer give the evidence to? Where and under what conditions was the evidence stored? When was it sent to the forensic laboratory for analysis? Who conducted the analysis and when? Does the statement(s) or evidence provided by the forensic scientist reflect the results that s/he had obtained? Were the proper procedures followed in the collection and examination of the evidence? There should have been records created at the time; statements may or may not be based on these. It is the record made at the time that is the most useful document to have.
- Try to find out as much as you can about the expert evidence that led to the conviction, including the specific techniques involved, best practices and the potential limitations of the form of evidence. A good starting point in the National Academy of Science's Report:
Strengthening Forensic Science in the United States: A Path Forward. This report provides a comprehensive discussion about the problems with a whole range of forensic methods and technologies. You can search the internet for experts. However, most experts will not do much more unless you have a lawyer as, although the evidence may be scientifically flawed, there may be legal reasons why that is not enough to mount an appeal.
- If you find an expert to re-examine the evidence that led to the conviction make sure that the expert has the necessary expertise in the area of evidence you are seeking opinion on. This is not easy for the lay person, so you may want to speak to a few experts before making your mind up.
- Discover whether there are cases in the UK or internationally where victims of wrongful conviction have overturned their convictions and the form of forensic evidence that you are challenging featured in the evidence that led to their wrongful convictions.
- Be cautious of terms used by forensic scientists such as 'cannot be excluded'; 'consistent with' or 'indistinguishable'. These terms are potentially misleading and can cause confusion or wrongly placed emphasis on evidence or argument presented to a jury of ordinary people. For instance, the terms 'cannot be excluded' and 'indistinguishable' are not the same as saying that the evidence is an identical match. Similarly, evidence which is 'consistent with' the prosecution's case might equally be 'consistent with' a variety of other scenarios which might support the defence's case. It is important to understand the subtleties of terms used by experts or even lawyers.
- Clarify any questions you have raised from your research with the expert.
- Could the evidence be tested using more advanced techniques?
- If the alleged victim of a wrongful conviction was convicted on evidence such as DNA, fingerprints or bite marks, and they are absolutely convinced that this/these could not originate from them, get the actual evidence re-tested by another forensic expert.
- Investigating police investigations
In addition to challenging the evidence that led to the alleged wrongful conviction, relevant policies such as M.I.R.S.A.P. (Major Incident Room Standardised Ad