MOJUK: Newsletter �Inside Out� 75

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Sally Clarke and the Miscarriage of Justice

The controversy over the case of Sally Clarke once again highlights the failings of the judicial system in respect of the non-disclosure by the prosecution of evidence in their possession likely to be favourable to the defence.

It is noteworthy that in the emotive and sensationalist atmosphere of the Court of Appeal judgement and the issues of cot-deaths, that the main feature of this miscarriage of justice has not been subject to closer scrutiny. Indeed, the prosecution have been remarkably silent on the issue of the non-disclosure of the crucial evidence which would have cleared her at her original trial, had she ever faced trial at all if the evidence had been revealed to the defence.

Certainly, it would have been normal practice at post-mortem for the investigating police officer to have been present and for the sequence of the autopsy to have been recorded on audio tape. Throughout the pre-trial proceedings there would have been case conferences between the 'experts' and the Crown Prosecution Service to shape the case for the Crown.

It would however be premature to suppose that all those convicted of the murder of their children could rely on the cot death phenomenon or that this defence is available to them.

We do not know how aware the prosecution were in presenting flawed 'expert' testimony or whether they knew or had in their possession that evidence which would have cleared Sally Clarke, but it does seem inconceivable that the prosecution were not aware of the inconsistencies More importantly that they compounded that by not disclosing it to the defence.

Moreover, that they were prepared to accept preposterous and flawed guesswork and present it to the jury as if it were scientific fact. The role of the 'expert' witness is ostensibly to assist the court and to remain independent in that function.

The reality however is somewhat different due to the adversarial process in the criminal trial where each side will present their own 'expert' who will advance an argument favourable to the side who intend to rely on his or her testimony which does little in arriving at the truth.

Such 'experts' are in effect the archetypal 'hired gun' who are capable of tailoring their evidence according to the needs of the side for whom they appear.

In many cases, 'experts' have almost carte blanche to advance theories and speculation that can render them as being 'loose cannons' which is knowingly overlooked by the side instructing them.

Non-disclosure by the prosecution can and does pervert the criminal justice process and is weighted heavily in favour of the prosecution who remain the sole arbiters of what should and should not be disclosed, even though the 'equality of arms' in the adversarial process imposes upon the prosecution an obligation to disclose any material in their possession or which they may have access to which may assist the accused.

Clearly this is not happening and it does appear that nothing has been learnt from the Birmingham Six, the Guildford Four, and the later case of Judith Ward.

Since then, non-disclosure has featured in several high profile cases at the Court of Appeal, one most notable case being that of me alleged M25 'gang* who had been convicted of murder and other serious offences for which they served several years in prison before their convictions were quashed. Certainly, the European Court of Human Rights have in recent years declared there to have been violations of Article 6 - The right to a fair trial in several claims against the United Kingdom in which non-disclosure was the main issue, ref. Edwards (1998), Jasper (2000), Rowe and Davis (2000) and of course the Guinness three, Lyons, Pames and Ronson (2000).

That courts continues to hear similar like cases and with the Sally Clarke case presently in the public view, it is likely that many other cases will consequently turn to the ECHR for a remedy to the non-disclosure of evidence that result in miscarriages, if such defects cannot be remedied in the domestic courts.

The Attorney General's Guidelines of 1981 remains the criteria for disclosure of evidence by the Crown to the defence, but it is quite clear that this guide and subsequent case-law still favours the prosecution which is likely to give rise to further miscarriages of justice and consequently unsafe convictions.

Charles Hanson

���������� �HMP Kingston, Friday 7th February 2003.

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Taxpayer to foot �2m bill for prison brutality scandal

By Ian Burrell Home Affairs Correspondent The Independent, Tuesday 11 February 2003

The hidden cost of the prison officer brutality scandal at Wormwood Scrubs in London is expected to exceed �2m, with the Government compensating inmates in a succession of out-of-court settlements.

The Prison Service has agreed to pay out in 20 cases where current and former prisoners have alleged that they were beaten up by officers. The compensation payments total more than �300,000. A further nine alleged victims are due to have their cases heard at civil court trials starting in May, with an additional 25 claimants still awaiting confirmation of a trial date.

The cost is in addition to several million pounds of public money spent on the criminal investigation and prosecution.

In a case at the Central London County Court on 11 September last year, government lawyers admitted they were facing about 50 claims for damages from brutality, that the claimants' legal costs already exceeded �200,000 and would ultimately rise to �1m. The Government's legal costs could total a further �1m, on top of the hundreds of thousands of pounds in compensation.

The huge bill for the taxpayer comes after the largest criminal investigation in penal history, which led to 26 prison officers facing charges of violence. In a succession of trials last year, six of the officers were found guilty and three of those had their convictions overturned on appeal.

The Metropolitan Police's four-year investigation into more than 100 complaints of brutality by staff is now at an end, with a handful of remaining cases still being considered by the Crown Prosecution Service.

Some prison officers' leaders have questioned whether the criminal investigation should have taken place at all.

But although the criminal trials showed that juries were not prepared to accept the uncorroborated evidence of prisoners, the Government's response to the civil claims suggests that many of the allegations would stand up to a lower standard of proof. The Independent has learnt that among those prisoners who have received compensation payments is a one-armed inmate who was beaten up in the jail's segregation unit after complaining of repeated strip-searching. The prisoner, who was attacked in 1993, suffered grazes and abrasions to his face, neck, back and inner thigh. He was paid several thousand pounds in damages in a settlement in 2001.

Payment was also made, in October last year, to a prisoner serving a life sentence who was assaulted by officers in the segregation unit. Senior Prison Service officials were surprised to find that six officers had accompanied the inmate into his cell to read him the "rules" of the unit.

Timothy Donovan received a settlement last October after an alleged beating in 1998, in which he was punched and kicked for up to five minutes. Three officers received sentences of between 12 and 18 months in 2000 but their convictions were overturned on appeal.

Daniel Machover, of the London solicitors Hickman and Rose, said the payments, averaging �15,000, demonstrated the need for a public inquiry into the events at the prison. He said: "These out-of-court settlements are not satisfactory in that even the prisoners accepting those payments feel very strongly that they are not getting the opportunity to bring what was happening at Wormwood Scrubs out into the open."

The Prison Service said: "There are a number of ongoing civil proceedings brought by prisoners and former prisoners at Wormwood Scrubs and therefore it would not be appropriate to comment."

David Blunkett, the Home Secretary, who commended the jail's efforts on training prisoners for work on their release, has resisted pressure for a public inquiry.

Beaten and racially abused

Raphael Rowe spent 12 years in jail before his convictions for murder and robbery as a member of the so-called M25 gang were quashed in July 2000.

Mr Rowe, who went on to become a reporter on BBC Radio 4's Today programme, claimed that officers at Wormwood Scrubs took him to the segregation unit where he was kicked and punched.

He alleged that officers racially abused him during the attack in January 1993. He said they shouted: "You murdering black bastard, don't tell us what to do, we have thousands like you coming in here."

His case for compensation was due to be heard at the Central London County Court three years ago but Prison Service lawyers opted to settle. The settlement has been described as modest.

Since his release from prison, Mr Rowe has said of the incident: "I was assaulted by prison officers in Wormwood Scrubs. I refused to bang up and I was taken to an isolation block where four or five screws punched and kicked me.

"I had cuts on my head, arms and bruises and I couldn't sleep that night because I was frightened they'd come back. I reported it, but nothing happened until I left the prison system."

Prisoners Fightback: Uprising at HMP Shotts Scotland

On 2 January 2003 at least 80 long-term prisoners at Shotts maximum security prison in Scotland staged a mass protest by seizing control of two wings of the gaol for 19 hours. A negotiated end to the �disturbance� eventually took place, indicating a recognition by the authorities that the use of physical force to end the prisoners� protest would encounter fierce resistance, although the source of the prisoners� rage remains unresolved.

Throughout the protest the Scottish Prison Service (SPS) maintained a conspicuous silence on exactly what had fuelled the prisoners� action, while the media�s reporting of the protest focused almost solely on the alleged injuries received by two prison officers, who, it was claimed, had been hurt while trying to intervene and stop a fight between rival prisoner gangs. This was a total lie as it turned out, and eventually the prisoners hung a banner from a window, saying �Leave our visitors alone�, indicating that the protest had been sparked by the treatment of prisoners� families. An earlier uprising at Shotts in the late 1980s was provoked by the strip-searching of prisoners� families, including old people and small children.

Less than a week after the protest on 2 January, a second �disturbance� broke out at Shotts. This time in a special unit for �difficult� prisoners, and again the media focussed exclusively on the injuries allegedly sustained by prison officers, while the SPS maintained its usual silence on exactly why Shotts was so clearly in a state of turmoil and open revolt. The impression deliberately created was one of violent and unmanageable prisoners attacking and injuring prison staff without reason or cause.

In reality, Shotts as an institution is intrinsically designed to provoke bitterness and confrontation, and since its creation in the early 1980s, its regime has been based on the principle of completely disempowering prisoners and denying them any opportunity or right to peacefully resolve their differences with the administration. It is a gaol purpose-built for repression and brutality.

Since 1987 there have been at least five major uprisings at Shotts, and for much of the gaol�s history prisoners there have experienced a virtual lock-down regime. In 1995 prisoner John Brannan described to FRFI something of the atmosphere prevailing at Shotts:

�Each Hall is divided up into six sections, each containing 20 prisoners who are caged as a group into a tiny self-contained area that is sealed almost the whole time by locked grille gates. The screws remain beyond the gates, entering the sections only to lock us in our cells. We only leave the cells for work and are made to walk in strict single file to and from the work-sheds. The atmosphere of intimidation is something that you�re up against here day and night. Tension within the living sections is really bad and prisoners just pace up and down all the time, full of anger and paranoia. The screws obviously feel safe and in control with everyone locked up on the sections and have dished out so much shit that they�re now too frightened to open up the gates and deal with us as a larger group, face to face. People here are being seriously damaged mentally and I think that few of us will ever be able to readjust to normal life again.�

John Brannan�s description clearly illustrates how the administration at Shotts was and is itself responsible for creating the conditions for revolt and rebellion.

In 1995 the Scottish Inspectorate for Prisons strongly criticised the SPS for its treatment of prisoners at Shotts. In 2002 the Inspectorate again criticised conditions at Shotts. Unfortunately, the SPS has never been particularly receptive to even official criticism of its methods, and the continuously repressive and confrontationist nature of the Shotts regime is indicative of this.

The protests and �disturbances� will therefore, continue at Shotts because of two related factors: the unwillingness of the administration there to treat prisoners with human dignity, and the proven ability and determination of long-term prisoners in Scotland to organise, resist and fight back with courage and tenacity.

John Bowden, HMP Durham

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Prisoners Fightback - Uprising at HMP Lincoln

On 23 October Lincoln prison exploded into an open rebellion that raged for eight hours, three hours of which saw most of the gaol in the hands of the prisoner insurgents. It took 240 prison officers in riot gear five hours to regain possession of the prison, an operation carried out with maximum force and violence that, by official estimates, resulted in the hospitalisation of 27 prisoners. One prisoner was discovered dead in his cell on the morning following the rebellion. Two hundred police officers ringed the perimeter of the prison for the duration of the incident. JOHN BOWDEN reports.

This was a 'disturbance' as intense as the 1990 Strangeways uprising and would have equalled it in duration had the authorities not decided to crush it precipitately and prevent it becoming a sustained focus for prisoner unrest elsewhere in the system.

The Lincoln uprising was the latest in a series of rebellions in the prison system this year, a manifestation of accumulated rage and desperation created by chronic overcrowding, deteriorating regimes and a climate of ever-increasing repression. The media-driven frenzy of imprisonment and the 'tough on crime' obsession of New Labour has swelled the prison population to over 73,000 and turned prisons like Lincoln into little more than human warehouses, overcrowded hell-holes where prisoners are confined two and three to a cell and denied the most elementary rights. Control has been largely maintained by brute force and the threat of prosecution, to be followed by possible ten year sentences, should collective resistance be attempted. Until relatively recently this threat has worked. Lincoln has shown, however, that control by fear has its limits and that when the situation of prisoners is made unbearable, then no amount of intimidation and repression will deter resistance.

Martin Narey, who has attempted to cultivate an image as a reasonable and humane Director General of the Prison Service, revealed his true nature when reacting to the uprising at Lincoln. First, he rubbished the claim by his own staff that overcrowding had been a factor in what happened (Lincoln was designed to hold 377 prisoners and held 571 when the gaol erupted) and then dismissed the protest as 'a criminal act' which would be severely punished. He also warned prisoners throughout the system that any attempt to emulate the example of the Lincoln prisoners would be 'dealt with swiftly'. His message was brutally clear: resist and you will be crushed. Our message to him is also clear: deny us our human rights and no amount of brutality will keep us down!

The Lincoln uprising is a harbinger of things to come, a struggle that will continue and intensify in direct proportion to the degree of overcrowding, ill-treatment and barbarism which we are subjected to. To function effectively as an apparatus of repression, the prison system depends on the passive co-operation of the imprisoned. When that co-operation is withdrawn, as it was at Lincoln, prisons become social battlegrounds and front-lines in the conflict between the poor and the state. The political legitimacy of that struggle should be recognised and supported by all those genuinely committed to revolutionary class struggle.

Prisoners moved out of Lincoln are now all over the prison system. FRFI is keen to hear from any prisoner who was present at the uprising and would like to submit their eyewitness account for publication. We are also interested to hear from anyone facing criminal charges for their alleged involvement.

Prisoners Fightback, BCM BOX 5909 ,LONDON ,WC1N 3XX

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