"Challenging Miscarriages - the Inability of the System to Accept Responsibility"
by Mark Newby, United Against Injustice, Conference, Liverpool, Saturday 10th October 2015
Thank you for inviting me here today to speak to you about a subject that not only we are concerned about but that every right thinking member of society should care about - miscarriages of justice.
Today I want to talk to the subject of the inability of the establishment to accept responsibility.
My argument here today is that we are probably at the worst moment we have ever been at for tackling such miscarriages and I would say that one of the fundamental reasons for this is the inability of the machinery of the state to accept responsibility and admit error when they are wrong.
You see we are all human beings in the end and a system that relies on individuals will in the end deliver outcomes based upon human error. Whether you are the hapless accused, the Police, the Prosecutor, the Defence Counsel, the Jury, the Judge, the appeal lawyer, the CCRC or the Appeal Judges We All Make Mistakes And We Are All Infallable .
Of course the fundamental problem with a system that never admits mistakes is that it is in a downward spiral - organisations that cannot admit fault in the end will become failing organisations. The easiest answer is to brush it under the carpet or find an excuse for why things went wrong.
But sticking plasters will not save a system which is bleeding from every artery.
As we will see one case which demonstrates better than most complete system failure is the case of Victor Nealon and you will hear from Victor this afternoon about this and the personal impact the best part of the last two decades have had upon him. But of course there are other illustrations and so for example I will also mention another case I am now instructed in and have been interested in for some time the Appeal of Susan May. Finally I would like to deal with the current spate of cases in the aftermath of the Savile scandal.
But before we enter into the cases let's consider how bad the situation is and look at some of the key issues facing us :
1. We have given control of our Justice System to the Media and Politicians
2. We have removed fundamental safeguards of those accused and each year these safeguards are eroded further
3. Public funding has been subject to a sustained and unremitting attack
4. Past cuts have encouraged poor representation and cases where every corner is cut
5. The CPS is in my view badly administered and massively underfunded, high quality advocacy and review in the CPS has been positively discouraged by the changes introduced for example the new policy on charging offenders in sexual offence cases leading to the lowest common denominator for prosecutions.
6. We have taken the Forensic Science Service which was admired across the World and decimated it and the retention of exhibits for another perceived financial saving. Now we leave exhibits in the hands of private organisations with restricted ability to access those exhibits when a case goes wrong.
7. The Police themselves have equally been attacked by substantial cut backs, large reduction in experienced investigators and a drive towards results at all costs.
8. The Courts are skewed in favour of convictions at all costs and we live in a world where "statistics" are the order of the day, we charge additional fines and disincentivise those who want to plead not guilty.
9. We have a public funding system for criminal appeals which is non-existent, difficult to achieve and awash with delay.
10. The Court of Appeal has become a hurdle which few get across in seeking to appeal their convictions and the Court itself has put in place significant hurdles. For example it has over recent years narrowed appeals based on false memory, weakened fatally good character directions and recently introduced a requirement for original legal teams to comment on the grounds and factual basis. Whether through design or by accident the net effect of these reforms has been to narrow the opportunity to appeal.
11. The Supreme Court in Nunn has reinforced difficulties in obtaining access to Original Exhibits denying some appellants the opportunity to ever put right their wrongful convictions
12. The CCRC remains under funded, delays are wholly unacceptable and there remains a lack of dialogue and accountability for CCRC decisions
13. Even if you manage to achieve against all odds a successful quashing of your conviction it is virtually impossible to be compensated for what has happened to you.
This brings us nicely to the case of Victor Nealon, we will return to some of the other issues shortly.
Victor Nealon was convicted of attempted rape in 1997. The victim was attacked outside a nightclub in Redditch by an unknown male. The evidence used to secure his conviction was a disputed ID parade and a weakened alibi. The court was under the impression that there was no DNA evidence available from the exhibits. This was a false impression.
Most witnesses did not pick out Victor Nealon, there was no identification by the complainant or her friend and of the 3 that did 2 may have been privy to conversations with a police officer at the time of the ID and a third said at trial that he had a lurking doubt that he was right.
As for the alibi it was a cheap attempt to attack Victor Nealon's credibility by contradicting videos which were said to have been rented from a Video Store.
Importantly, Victor Nealon had offered his DNA to the police in order that they could have exculpated him from the offence. The officer did not arrange any DNA tests.
What the jury did not know was that the exhibits had not been tested. Only the skirt of the victim was produced at the trial and the remaining exhibits remained in their sealed bags.
Following a first failed appeal by the same legal team, who it appears had taken their eye off the ball during the original case, Victor Nealon was left to apply to a newly formed independent body CCRC. His was not a fishing expedition to seek to obtain DNA evidence to support his cause, he knew his DNA was not on the items and he urged the commission to undertake those tests. In two separate applications advanced by experienced appeal lawyers, the Commission rejected the application putting forward - an erroneous proposition that "it did not undertake speculative tests". This was a serious error by the commission. You might have thought that the commission having been newly created it would have dedicated itself to cases such as these and sought to undertake that work.
The truth is of course that in those formative years for the commission it was swamped with old cases from the old C3 Division at the Home Office and the organisation quickly fell into one which it was never envisaged to be - a desktop case review body rather than a body set up to independently investigate miscarriages of justice.
We now know of course that the Commission has taken an exceptional approach to this case and the Chairman has apologised in person to Victor Nealon. Apologies are a rare thing in the criminal justice system. But as we shall see this simply isn't enough.
In 2008 having been approached we saw the only way forward was to seek to do what the Commission would not and, as a result, with support from the Legal Aid Agency we commissioned DNA tests. As we know the results were startling - showing that on most of the victims clothing (intimate areas) an unknown male was identified as the contributor, not Victor Nealon.
The Commission then undertook comprehensive work in its third review to discount every possible innocent explanation for the presence of the DNA.
This allowed Peter Wilcock QC counsel for Nealon to say in the Court of Appeal on 13th December 2013 that such evidence was likely to have had a dynamite impact upon the Trial. That of course is not the end of the story in this case.
But this case isn't just about the CCRC in the affair:
it poses questions of other players
The Police. There was the disputed ID evidence in which Victor Nealon was not identified by any of the key witnesses. In respect of the limited identifications that did follow there remains the question of why the police officer dealing with the case was present at the ID Parade. There is the question why the same officer failed to act on the DNA evidence and why late rebuttal evidence over an alibi was not produced until the end of the trial.
There is the question of why the officer arguably misled the Court and the CPS and continued to do so during the appeal investigation.
In a current atmosphere where the integrity of the police is called into question this case offers little comfort. It is yet another troubling case for the police.
To West Mercia Polices credit they launched a fresh investigation to find the true suspect for the original crime and an ongoing investigation called for by the major crime review team into the original investigation and the officers involved was initiated by the Professional Standards Department.
Unfortunately it is particularly disappointing to say that 18 months down the road that investigation is still running and the Professional Standards Department have fallen into serious delay with the investigation.
At the same time Proceedings have now been instigated against the Chief Constable of West Mercia Police based upon misfeasance in public office, malicious prosecution and false imprisonment.
There are of course other players as well who should answer for what has gone wrong. We alluded to the Criminal Cases Review Commission and the apology that they have proffered both in writing and personally to Victor Nealon . There is no doubt that serious errors were made in failing to investigate the forensic position and relying on what they were told by the police.
The issue is however is that enough? Should a man simply say that I have been given an apology so that is all I can do? We think not, those who are at fault should make recompense.
Accordingly notice of intended proceedings have been given to the CCRC. This will be an action grounded in negligence and will bring with it its own challenges. I will not elaborate too much on this action as it is pending and I do not want to place the CCRC who have come today in a difficult position answering an action they cannot publically comment upon. Suffice to say this, we have weighed up all arguments but have come to the conclusion that proceedings should be brought, if they can, because how else does a man ensure the power of the state not to make gross mistakes is checked.
The perverseness of the situation is made even clearer then when in the aftermath of Victor Nealon's conviction being quashed:
Both the CCRC and the Police indicating their support for his challenge against the MOJ but didn't want to address their own failings. There is of course a pattern here - no responsibility but a willingness to pass responsibility to others.
There is also a current dialogue with Victor Nealons original solicitors whom also are seeking to avoid any liability. This time his lawyers are seeking to return to the old favourite of civil limitation to seek to avoid a claim, where it is clear all of the issues in this case might be avoided if his original solicitors had done what a competent lawyer would have namely commissioned their own DNA tests.
So if the appellant was let down by the police, his solicitors and the CCRC in the past, you might of at least thought he could rely on the support of the state on his release.
The reality is that whilst the Court of Appeal has a miscarriage of justice unit, it is wholly underfunded and as a result there is little safety net for those who are released by the Court of Appeal. This is exaggerated when due to cost saving an appellant like Victor Nealon is released from a distant prison when the Court uses a video link.
The net result was that he was left abandoned on the 13th December 2013 having been dumped at Leeds Railway Station. He was only saved when a BBC Journalist offered to get him a room in return for an interview.
We should have a system in place for cases like this where those released are fully supported and receive urgent interim financial support. Disturbingly the State will instead put every hurdle in the way of Victor Nealon as he fights to have his life restored.
His claim for compensation has been refused and the Secretary of State with his new miscarriage test is seeking to go behind the decision of the Court of Appeal Criminal Division. The new test now requires an applicant to show beyond a reasonable doubt that he did not commit the offence.This is an innocence test one which should be specifically excluded. The previous law made quite clear that an applicant is not required to demonstrate his innocence, the SSJ should not be allowed to go behind the judgement of the court of appeal which restores innocence to the applicant. The new section was only enacted following the successful challenge of Ian Lawless in Ali and Others [ 2013 ] where the court settled on a formulation that entitlement to compensation was merited where no reasonable jury properly directed could not convict the applicant on the basis of the newly discovered fact.
In Ali the Secretary of State had sought again to go behind the Court of Appeals decision and argue that just because the confession evidence was deemed unreliable there could still have been a re-trial. A nonsense of course because there was no other evidence upon which to try the hapless Mr Lawless. He had made the whole thing up.
Only recently did Ian Lawless finally get an offer of compensation - 5 years after his conviction was quashed. A wholly unacceptable time period during which Ian Lawless has suffered greatly.
It should also be remembered that the test in Ali and Others was not a generous one so for example Barry George could not achieve compensation because his case went all the way to re-trial and therefore the Court was able to conclude that there was evidence for a properly directed jury to consider.
As a result there was no reason for the Govt to enact the new section other than a pure ideological intention to stop those wrongfully convicted being compensated at all costs.
Where are we now with the Miscarriage of Justice Challenges?
The case was refused in the Divisional Court and is now with permission on appeal to the Court of Appeal Civil Division. It is likely that whatever the outcome there the losing party will appeal on to the Supreme Court, particularly as the Secretary of State for Justice contends the Courts are bound by the Supreme Court decision in Adams.
It would take a whole day of the conference to explain just how complicated the current arguments are over the New Scheme, the meaning of Innocence and whether the new section breaches article 6 (2) of the European Convention of Human Rights.
The essence of the argument is that:
1 - We say the new section is unlawful
2 - The new wording of commit is the same as asking someone to prove innocence
3 - We can prove Innocence in any event
4 - We dispute whether the Court in Adams really did declare that the test was a "lex special is" or that 6 ( 2 ) would not apply. The SSJ arguing the Court has previously declared the law on this issue to be a special category to which normal judicial review principles do not apply - " lex special is"
5 - We are satisfied that if this case goes to Europe that unlike in Allen the Court is very likely to conclude the Governments new scheme is a breach of the convention and should not stand.
6 - The Govt cannot escape in this litigation simply because at the end of every refusal letter they record a hollow sentiment that just because they have refused compensation doesn't mean that the applicant tis not innocent.
What is clear is that all these legal challenges eat up time during which Victor Nealon will not achieve any just settlement for what has happened to him.
Not only that but the Government will use the current position to refuse everyone the prospect of any miscarriage compensation.
So there we have it the sorry tale in the Victor Nealon Case of a system unable to accept responsibility. The Police who misused their powers to secure a wrongful conviction, his defence lawyers who incompetently let him down, the CCRC who made serious mistakes in reviewing his case and the ministry of justice who are financially seeking to avoid a just settlement at all costs.
If only the efforts all of these organisations have now put in to defend themselves had been put into dealing with the case in the first place Victor Nealon would never have had to endure what has befallen him.
Perhaps one of the greatest issues that challenge appellants today is that of delay. Another couple of cases illustrate the point. Firstly an unsuccessful CCRC Referral - Dent. Mr Dent applied to the CCRC many years ago and was given a provisional statement not to refer. Representations were made as to why that was wrong - that was in 2006/7 - it was not until 2012 that his case was finally referred. By then of course the tide had turned once again over sexual offences and the net result was that his appeal was refused.
Another person for whom time ran against them was Susan May. I am pleased to have been asked to help Susan's application having had the honour to meet her at such conferences several times.
Susan's family and supporters worked tirelessly to get a fresh application to the CCRC It has been a long fight one which Susan was not to see the end of having sadly passed away in October 2013. If you want to know more about Susan's case then I would urge you to visit her website and watch the documentary which has been made over the case.
For a considerable amount of time the Commission have had this latest submission based upon some excellent work from Arie Zellerman who you will hear from later. Sadly this is another example of a case which seems lost in the CCRC with the latest update referring to scoping work between forensic scientists.
If the Commission agree with the Family's Expert then it is likely that this case will call for referral on the basis that key evidence the Crown relied upon was wrongly attributed to Susan.
Of course it may be to the applicant's considerable advantage that this detailed work is being done but it seems a repetitive theme that cases nonetheless get lost in the very structure of the CCRC and its endless committees and deliberations rather than action and feedback.
Let us then consider some of the other worries to which I have alluded to. The Savile Scandal and the issue of historical allegations.
Of course the fallout from the scandal is not all bad and if some genuine victims do get justice as a result then that this outcome must be respected.
The unpalatable truth however is that such investigations lead to many false allegations and this is particularly so when officers charged with conducting an independent investigation start an enquiry by making public statements indicating that they "believe the victims". I am sure some of you saw the recent Panorama programme and this is indicative of the problems that are now faced.
It is clear that some allegations have been given far too much support rather than a sceptical eye. It does not mean that some should not have been prosecuted or that the police had placed in the past too much store in support from the establishment but that does not provide an excuse for a lurch to a threshold for testing allegations pre charge which is now non-existent.
We are involved in a number of these enquiries across the country and whilst the last outcome shouldn't affect future trials it is perhaps disturbing that for example in North Wales we have secured 3 consecutive acquittals.
Where cases collapse or proceed to acquittal with regularity this raises serious questions over whether the pendulum has swung too far. Not only does bringing false allegations or flimsy prosecutions ruin the lives of those accused but it also acts as a positive disincentive to these who are genuine victims.
What then of the Court of Appeal? This is an institution which was almost universally criticised during the recent Justice Committee Enquiry to which I was one of those who had the pleasure giving evidence. This had led to a strongly critical report by the Committee calling for a review of the test for quashing convictions and in turn if required a review of the CCRC test for referral.
Ultimately the Court of Appeal is not considering cases in the way that was envisaged following the Criminal Appeal Act 1995 and the suggestion in its defence from the former Lord Chief Justice that it was open to consider general safety of what might often be referred to as "lurking doubt" is unsustainable.
The problem is that the evidence is that the Court is now pursuing a strategy of narrowing the opportunity to appeal at every turn. From the outside it seems like it is seeking to plug every gap for an appeal in the hope that this will somehow protect the integrity of the system when in fact the converse is true.
Some examples have been:
Requiring a Single Judge to no longer grant permission to appeal on the papers in a case long out of time but to refer it to the full court for consideration.
Blocking the availability of Good Character directions in any case where the Crown might rely on bad character
Requiring appeal lawyers to confirm the factual basis and obtain comments on any grounds of appeal
On bad appeals reporting Solicitors and Counsel to their regulatory bodies Reducing to an almost non -existent level the availability of rep orders in the Court of Appeal for Solciitors .
Plugging the gap rulings - where there is an appeal granted subsequently targeting that new point and over turning it in subsequent cases
The CCRC - I have said something about the CCRC already and I probably don't need to say too much more. Too slow, still too secretive and not referring nearly enough cases. Yet it is still a vital organisation and one with many good commissioners and lawyers such as those who have supported this conference today. The inconsistency and lack of transparency remain the vital issues which the commission still have to address.
We don't want to see headlines about Professional Footballers applying to the CCRC we want to see headlines about the increased numbers of referrals and quashed convictions of ordinary applicants.
Finally perhaps the gravest challenge to the future is the systematic attack on Legal Aid. We now have a system that has sustained:
17.5% cuts on fixed fees
Those fees had already been reduced year on year for the last 15 years
Payments incentivised towards securing guilty pleas
A dramatic reduction already in the number of providers
Proposals to reduce the number of duty solicitors contracts from 1200 to 525
A systematic attack on criminal appeal firms with aggressive auditing practices
Limits on when firms can grant funding
Reductions in the fees that can be paid to expert witnesses
The removal of defence cost orders to anyone who has not been refused legal aid and then only paid at legal aid rates
The consequences of which are large numbers of firms can no longer operate financially and are leaving. The pool of good miscarriage of justice lawyers is rapidly diminishing at a time when conversely the amount of miscarriages are increasing.
Ultimately there is a common thread to all of this …….it is easy to attack legal aid, to restrict appeals and fail to refer or to investigate or prosecute flimsy cases when the system has nothing to worry about because it does not answer for its mistakes .where error can be swept under the carpet.
However .. perhaps we are coming close now to a time when the cracks can no longer be papered over. Where the efforts to block justice have become so perverse that they will soon be no longer sustainable. Where scandal has fatally damaged the police, where prosecutions are collapsing with too much regularity and where our appellate system is being criticised by the establishment itself.
The next few years will determine what sort of society we want to be in the end, if we truly believe in justice we shall have to learn how to say sorry and put right our errors.
We should not fight against compensating men such as Victor Nealon, Sam Hallam and Ian Lawless we should embrace the opportunity to do so. We should embrace our failures they are the road to success and better organisations. Let me remind you what Michael Jordan one of the most successful basketball players the world has even seen said:
"I've missed more than 9000 shots in my career. I've lost almost 300 games. 26 times, I've been trusted to take the game winning shot and missed. I've failed over and over and over again in my life. And that is why I succeed"
Thank you all for listening,
United Against Injustice, Conference, Liverpool, Saturday 10th October 2015