In my role as director of the Innocence Network UK (INUK) I am regularly contacted
by lawyers, both criminal and non-criminal, who offer their services freely to a
member of the innocence project working on the cases of people who say that they
are innocent of the serious criminal offences that they were convicted of, mainly
murder and rape. They say that they want to work with an innocence project because
they want to give something back, that they care about justice and they want to help
innocent people who may have been wrongly convicted to achieve it.
In the five years since the establishment of INUK, this has led to dozens of pro
bono lawyers assisting approximately 500 student caseworkers in the 25 member innocence
projects in universities all around the country that are currently collectively investigating
78 cases of mainly long-term prisoners maintaining innocence. Such lawyers are welcomed
for the vital legal work that they can provide to innocence project investigations.
This includes facilitating prison visits, ensuring that correspondence to prisoners
is confidential and not opened before it reaches them, obtaining affidavits from
witnesses who want to provide alibis or retract their incriminating statements and
appointing a barrister when the case is referred back to the Court of Appeal (Criminal
This is ironic because INUK was established precisely because the existing appeal
and post appeal provisions are failing potentially innocent victims of wrongful conviction
and are in urgent need of reform. To start with, the principal way that alleged wrongful
convictions for serious offences are overturned in law is by fresh evidence or argument
that was not available at the time of the original trial as required by s. 23 of
the Criminal Appeal Act 1968. As such, evidence of innocence will not generally even
constitute grounds for appeal, let alone overturn a wrongful conviction unless there
are exceptional reasons for why it was not adduced at trial.
This requirement for fresh evidence is reinforced by the Criminal Cases Review Commission
(CCRC). The CCRC was set up in the wake of notorious cases such as the Guildford
Four and the Birmingham Six and is the official (so-called) independent public body
that reviews alleged miscarriages of justice at post appeal stage. The CCRC is widely
believed to have been established to fully investigate claims of innocence and assist
in overturning wrongful convictions if evidence of innocence was found. However,
the CCRC is, in fact, bound to the appeal courts by statute, ostensibly s.13 of the
Criminal Appeal Act 1995, to only refer cases back to the appeal courts if it is
felt that there is a 'real possibility that the conviction will not be upheld'. In
consequence, innocent people can remain languishing in prison even if the CCRC is
presented with evidence of innocence if that evidence was or could have been made
available at the time of the original trial.
In contrast to the current appeal process, INUK's innocence projects are not restricted
to the search for fresh evidence that seek to show that criminal convictions may
not be 'safe in law'. Instead, innocence projects are best seen as akin to public
inquiries of claims of innocence to establish if they are true or not. Student caseworkers
undertake full investigations of all of the evidence that lead to the conviction
to determine its reliability and/or applicability to the conviction. They investigate
all of the available unused material for evidence of innocence and carry out fieldwork
investigations, such as interviewing potential witnesses, finding possible alibis,
and researching new scientific technologies that could establish innocence or guilt.
In this way, INUK reflects both the popular belief and the public aspiration that
the criminal justice system should convict the guilty and acquit the innocent.
Despite this difference of approach, lawyers working with INUK's innocence projects
still resign themselves to working within the legal framework. Perhaps due to a deeply
engrained cultural resistance, many do not seem to be able to step outside of the
very processes INUK seeks to challenge. Instead, they often opt to subordinate innocence
project investigations to the criteria of the CACD and the CCRC by advising students
to ignore the question of factual innocence or guilt and seek out legal grounds for
appeal, attempting to close cases if no obvious grounds for appeal can be found.
This is, perhaps, not surprising as it is not usual for lawyers to question the correctness
of the legal process. Instead, they are encultured to dutifully learn and apply the
law in the area that they practise. They are not inclined to see any value in critiques
or challenges of existing law for the clients that they represent.
As such, lawyers working with INUK's innocence projects typically tell student caseworkers
not to look at unused evidence from criminal trials as, by definition, there is unlikely
to be anything fresh to be found there that will satisfy the CACD or the CCRC. Instead,
what might be termed 'desktop reviews' are recommended of the transcript of the judge's
summing up for any apparent misdirection in law or any possible breaches of procedures
in the trial process that could constitute grounds of appeal. But, such legal reviews
for grounds of appeal are unlikely to help applicants to the INUK who have already
failed in appeal and many of whom have also been refused a referral by the CCRC.
Worse, such activities take place entirely within the legal framework INUK exists
to challenge. They assume the very point at issue, namely the justness of the rules
of criminal appeal.
As a sociologist working in a university law school directing the University of Bristol
Innocence Project (UoBIP) I ask my law student caseworkers to suspend the pursuit
of legal grounds and focus their investigations on finding out if the alleged innocent
victim of wrongful conviction is telling the truth. This approach has yielded dividends
in the case of Simon Hall. A meticulous search of the unused evidence unearthed the
evidence that may prove that Hall is factually innocent of the murder of 79 year¬old
Joan Albert, stabbed 12 times in a claimed interrupted burglary. Student caseworkers
found a statement that indicates that the murder weapon originated from another burglary
that occurred ten minutes away from Joan Albert's house around the same time that
she was murdered, which Simon Hall could not have committed. They also found in the
'schedule of unused actions' a reference to DNA on the handle of the murder weapon,
the profiles of which were not disclosed to the trial solicitor on the basis that
it would be of 'no practical use'. Perhaps, it may have been considered to be of
some practical usefulness if it incriminated Simon Hall? It is most unlikely that
Hall's criminal appeal lawyer would have uncovered this evidence, operating under
the conventional appeals paradigm. It thus demonstrates the importance of thinking
'outside the box' when it comes to evaluating claims to innocence.
In the case of Neil Hurley, also investigated by the University of Bristol Innocence
Project, two criminal appeal lawyers, a solicitor and a barrister, told us on separate
occasions to drop the case. They said that legal grounds were unlikely to be found
because there have already been three failed applications to the CCRC. A trawl of
the unused evidence, however, unearthed over 120 exhibits from the crime scene which
have never been tested for DNA, despite the fact that they may prove one way or the
other if Hurley is innocent of the murder of his former partner, Sharon Pritchard,
Hurley's previous appeal solicitors failed to identify the obvious potential of DNA
testing in his three failed applications to the CCRC. They uniformly restricted their
submissions to questioning the reliability of the evidence that lead to his conviction
in attempts to cast doubts on the safety of his conviction in law rather than thinking
'outside the box' and looking for ways to determine whether he was innocent or not.
These practical examples remind us of the importance of placing investigating claims
of innocence at the heart of criminal justice to ensure that convictions are reliable.
If innocent people are in prison for crimes that they did not commit, guilty offenders
remain at liberty with the potential to commit further crimes. If an innocence project
finds that an alleged victim of a wrongful conviction is in fact factually guilty
then justice can be said to have been done because a claim of innocence is settled
and any doubts that the criminal justice system has got it wrong can be laid to rest.
At the same time, the cases of Simon Hall and Neil Hurley show how lawyers, who see
themselves as being part of the solution to the wrongful conviction of innocent people,
are, in reality, part of the problem. By complying with the rules of the system which
prevent the exoneration of the innocent they are implicated, whether they like it
or not, in the sacrifice of potentially innocent people. Simon Hall, imprisoned aged
24 for a murder he is unlikely to have committed, has maintained innocence for almost
eight years whilst his life ticks away. Meanwhile, if Hall is, indeed, innocent a
violent murderer remains at large. Neil Hurley has so far served 17 years and is
three years beyond his tariff date (the date he could have been released on parole).
He claims that he is prepared to die in prison until his innocence is established
so his daughters know he did not kill their mother.
It is of vital importance that we have lawyers working with INUK's innocence projects
because they are qualified to provide much-needed legal assistance. Such lawyers
are well-intentioned and say that they are passionate about assisting alleged victims
of wrongful conviction who may be innocent and this is totally welcomed and appreciated.
It would be tragic for all concerned - the lawyers working pro bono, the student
caseworkers and most of all the victims of the wrongful convictions themselves -
if in fact the lawyers, so far from advancing the aims of INUK, actually ended up
jeopardising the whole venture.
Yet, many lawyers working with INUK fail to understand our aims and are subverting
the central issue of investigating claims of innocence to get to the truth in favour
of technical questions about the 'safety' of convictions in law. Ultimately, the
work of hundreds of student caseworkers is diverted as they find it difficult to
resist the advice proffered by lawyers, not least because they are, for the most
part, law students who want to be lawyers. Students who signed up to innocence projects
because of a passion for truth and justice risk having it thwarted by lawyers who
say that there is no hope in the cases that they are working on despite the possibility
that the alleged victims may be innocent.
If it is the case that lawyers working with INUK's innocence projects are, indeed,
passionate about people, truth, innocence and justice then the time has come for
participating lawyers to follow through on these convictions and to help to truly
challenge the criminal appeal system to bring about the reforms necessary to produce
the results that we are together supposed to be working towards.
Innocent Network UK
Educating to overturn and prevent the wrongful conviction of innocent people.
Dr Michael Naughton is the Founder and Director of the Innocence Network UK (INUK),
the umbrella organisation for member innocence projects in UK universities, and Director
of the University of Bristol Innocence Project (UoBIP), the first dedicated innocence
project in the UK, through which he coordinates student investigations of cases of
alleged wrongful imprisonment.