6th National Miscarriage of Justice Day Public Meeting

United Against Injustice (UAI) held its 6 th National Miscarriage of Justice Day Public Meeting on the 13 October 2007 at The Dragon Hall, Covent Garden. The meeting was preceded by two morning workshops, first, on disclosure of documents pertaining to an alleged miscarriage of justice conducted by Kevin McMahon and Dr. Andrew Green, and second, on how miscarriage of justice websites can be improved, led by Stuart Jessiman. This report covers the contributions by the various speakers in the afternoon sessions chair ed by Bruce Kent, best known as a peace campaigner, most notably, for his involvement and contribution to the Campaign for Nuclear Disarmament (CND). Bruce’s interest in miscarriages of justice derives from his experience as a prison visitor to a prisoner maintaining innocence and as the Chair of Progressing Prisoners Maintaining Innocence (PPMI), a group which exists to assist prisoners maintaining innocence progress through the prison system and achieve release.

Mark Macdonald

Mark Macdonald , a defence barrister at 1 Pump Court Chambers, spoke on two themes. First, he examined how new pieces of legislation recently introduced into the criminal justice system are dramatically changing the ways in which convictions are obtained. Under the Criminal Justice Act 2003 for instance, previous convictions, where relevant, can now go before the jury during the trial. This, Mark noted, may possibly cause the accused to be convicted, not based on evidence directly pertaining to the crime, but as a result of his/her past offence, which fundamentally goes against the presumption of innocence. Mark also discussed the implications of recent government plans to reform legal aid. Once enacted in the coming year, fewer crimes would be eligible for legal aid and small legal firms that rely heavily on funding from legal aid may be seriously impacted. This would inevitably result in more people convicted in court without legal representation.

Mark went on to discuss the case of Michael Stone, which he has recently been working on. Despite having no direct, forensic or identification evidence, Stone was convicted in 1998 at Maidenstone Crown Court for the murder of Lin Russell and her six-year old daughter, Megan, after the jury heard from three prisoners that Stone had allegedly made a number of cell confessions to other inmates while he was in remand. Shortly after the conviction, one of the prisoners who gave evidence in court, Barry Thompson, admitted that he had lied during the trial. Another prisoner, Mark Jennings, was also later found to be unreliable. The conviction was subsequently quashed and a retrial took place in 2001 at Nottingham Crown Court, where Stone was found guilty once again after the jury decided to accept the evidence given by the remaining witness, Damien Daly.

Although evidence given in the appeal in January 2005 showed that Daly was a heroin addict and an unreliable witness, Stone’s appeal was dismissed by a panel of three appeal judges on the ground that this was insufficient to quash the conviction. The case is currently being investigated by the Innocence Project at Inns of Court, School of Law, where Mark acts as the supervising lawyer.

Sandra Lean

Sandra Lean is the author of No Smoke, the Shocking Truth about British Justice (Exposure Publishing, 2007), a book which details her research into miscarriages of justice. Speaking of her experiences from working on the book, Sandra questioned the dominant belief that there is “no smoke without fire”, and the factually innocent should have nothing to be afraid of. Asserting that public faith in the criminal justice system is, in fact, untenable, Sandra described how the criminal justice system does not allow for the exercise of fundamental rights put in place to protect the innocent from wrongful convictions: You were asked by the police to assist in an investigation. You were interviewed for more than five hours, without food or water. You start to get confused, wondering if you are a suspect. You asked for a lawyer or a phone call, but these were denied since you had not been arrested, and hence not entitled to the rights of a suspect. Finally, you signed the statement which eventually became a “death warrant” that led to your wrongful conviction. The innocent, it seems, have everything to be afraid of.

Illustrating her point with the case of Luke Mitchell who had allegedly been wrongfully convicted of the murder of 14 year-old Jodi Jones in 2003, Sandra revealed how the flaws of police investigation, court procedures and the media can lead to the wrongful conviction of the innocent on a routine basis. The police can influence the media to ensure that a case investigation goes in a particular direction. One of the cases that Sandra has researched, for instance, involved a “surprise” raid, which by the time the police arrived, was already awaited by more than twenty reporters and journalists. Sandra claimed that journalists do not just “know these things”. Rather, these are deliberate and calculated strategies undertaken by the police to ensure that the case is portrayed by the media in their favour. Indeed, this is particularly disconcerting as “today’s readers may be tomorrow’s jury”. Juries, who are supposed to base their decisions on the facts presented in court are, however, frequently influenced, if not, wholly reliant upon the media’s account of the court proceedings. In her interview with a juror, for instance, Sandra noted how the juror, having read about the previous day’s proceedings on the newspapers, concluded that he must have missed a point in court, and the account in the newspaper must be accurate.

In ending her session, Sandra raised the question of how is it that despite these glaring problems with the police, court procedures, the media, and the routine wrongful conviction of the innocent, these failings of the criminal justice system can remain so well-hidden? She attributed this to the lack of public concern which has been drawn towards “bread and butter” issues more connected to people’s lives, exacerbated by our fear of crime and politicians’ increasing subscription to “crime-control” policies. As such, she alleged, although it only takes “scratching the surface” to reveal the myriad of problems with the criminal justice system and the everyday occurrences of wrongful convictions, nobody does. What is necessary, she concluded, is to generate public concern on this issue by exposing these criminal injustices which serves as a caution to the public that anyone of us could be next.

Professor Allan Jamieson

Professor Allan Jamieson , director of the Forensic Institute in Edinburgh discussed the nature of forensic science and expert evidence. The forensic process of a case and the chain of evidence begins at the scene of the crime. It is therefore highly crucial that the crime scene is well protected and nothing is added or taken away which could interfere with the identification of evidence. Evidence, he noted, are things that can prove or disprove particular hypotheses. The identification, selection and interpretation of evidence, however, is not a straightforward process. Decisions have to be made on which evidence to collect or not collect; which evidence should be sent to the laboratory for testing, and what can be inferred from the results. The role of the scientist, therefore, is to discover the crime scene by using the evidence to create a story. However, a piece of evidence can be “consistent with” and fit many scenarios, signalling a need for rigorous tests on the nature and significance of scientific evidence.

Turning to DNA evidence, Allan noted how contrary to public belief, DNA evidence may not be as accurate and infallible as it is often made out to be. DNA matches are done by identifying “peaks” which indicate the presence of human DNA. The higher the peak, the greater the quantity of DNA present. However, whether a peak can be identified, or how high or low the peak is, is relative to the baseline which is subjectively drawn. As such, DNA assessment is an essentially subjective and a potentially risky process, particularly where the amount of DNA available is of a minute quantity.

Allan went on to demonstrate how in cases involving mixtures of at least two different DNAs, it is almost impossible to conclude who, or how many people may have contributed the respective DNAs. Without calculations of the probabilities of false inclusions, little inferences can be drawn in such scenarios. Indeed, he noted how cases have been dismissed in court because forensic scientists involved were unable to produce probative values on the probabilities of false inclusions of unrelated DNAs.

The limitations in existing methods of DNA analysis does not mean that DNA evidence should be completely abandoned. Rather, the risks of misunderstanding DNA evidence, and the potential for error should be recognised. The role of the expert witness therefore, as Allan sees it, is not only to interrogate and examine the science that underpins forensic evidence, but also to provide adequate and comprehensible explanations that lawyers and the courts can understand and make fair judgments from.

Allan Bayle

Allan Bayle is an internationally renowned fingerprint expert. Speaking about the nature and limitations of fingerprint evidence, and how they can potentially cause wrongful convictions, Allan described how fingerprints found on objects related to the crime scene may be left behind as a result of previous contact by a person completely unrelated to the crime. The lack of universal standards on how fingerprint analysis should be done is also highly problematic. Fingerprint matches are made on the basis of what is known as “points of comparison”- friction ridges that make up the fingerprint. Traditionally, there used to be a 16-point standard that must be fulfilled before two prints can be said to “match”. Currently, however, there are none, and fingerprint “matches” are obtained through a highly subjective process which can call into question, the reliability of such evidence.

Allan illustrated the limitations of fingerprint evidence with a series of cases that he had previously worked on. In the case of Alan McNamara, for instance, the Bolton businessman was convicted of burglary and jailed for 30 months as a result of a thumbprint alleged to have been found on a wooden jewellery box at the crime scene. Allan, who was contacted to assist in McNamara’s defence, discovered after conducting his analysis, that the fingerprint indicated that it had been obtained from a curved and smooth surface, and could not have been taken from the wooden jewellery box as alleged.

Similarly, in Shirley Mckie’s case, the police woman was charged of perjury after the Scottish Criminal Records Office (SCRO) alleged that she had left her fingerprint behind in the scene of crime. When five independent experts, including Allan, were asked to look at the evidence, they all concluded that the print did not belong to Mckie. Since the Mckie case, Allan has publicly criticised the SCRO for its gross negligence and poor standards, and has been supporting the campaign to reform the fingerprint system in Scotland.

Paul Dietrich

Paul Dietrich, deputy editor of South London Press, joined London Against Injustice after his father-in-law, Geoff Hyde, was given a 22-year jail sentence for drug smuggling.

Detailing the case, Paul described how Hyde, a former Surrey haulage boss, was found guilty of conspiring to supply £9.5m worth of cocaine, after a four-week trial at the Inner London Crown Court in November 2006. His two co-defendants, John Paul Town and Francisco Ibanez-Cantero, were also found guilty and jailed for a total of 40 years. They were arrested in February 2006 when officers from the Metropolitan Police raided a haulage yard in Chertsey, owned by Hyde. 77kg of drugs was being unloaded from an articulated lorry into a white van. The cocaine was concealed inside a metal structure underneath the truck, carrying salad produce from Spain. Hyde had maintained his innocence throughout, claiming instead, that he thought he was letting someone into the yard to fix the brakes.

Paul described how the case against Hyde was full of flaws. There were no direct evidence linking Hyde to the crime, and he was arrested solely on the basis that he was the owner of the yard where the crime took place. He made two grave mistakes when he was arrested by the police: believing that his innocence of the crime alone would safeguard him against a wrongful conviction, he declined the offer of a solicitor. Further, he had also failed to disclose the multiple phone calls he received asking whether a lorry could come into the yard for its brakes to be fixed.

Paul noted how the Prosecution had created a script about the phone calls. There were eight unrecorded phone calls in total, the longest lasting one and a half minutes. Although the caller could not be found, the Prosecution alleged that these were exchanges between Hyde and the unidentified drug dealer, informing him of when and how the truck containing the drugs would arrive at his yard.

Despite of the apparent lack of evidence in this case, Hyde’s solicitors were unable to find grounds for appeal and consequently could not help to appeal against his conviction. Faced with the lack of information and practical assistance frequently experienced by families and supporters of those believed to have been wrongfully convicted, Paul joined London Against Injustice whom he acknowledged, had provided invaluable support, assistance and contacts for his campaign to try to overturn Hyde’s conviction.

Paul’s account is one of many real examples of how it is difficult, sometimes impossible, for prisoners who may be innocent to have their cases referred back to the Court of Appeal. It also illustrates how the structures of the existing criminal appeal system cannot guarantee that all innocent victims of wrongful conviction will overturn their convictions.

Dr Michael Naughton

It is due to these limitations of the criminal justice system, that the Innocence Network UK (INUK) was launched in September 2004 with the aim of “educating to overturn and prevent the wrongful conviction of the innocent”. Dr. Michael Naughton, the founder and chair of the network, gave a brief account of the recent key developments of the INUK, such as the appointment of new personnel as the organisation grows and the national training programmes for innocence projects which see over 200 students from 20 universities come together to gain the basics of running innocence projects and case investigation. Perhaps most significantly, however, is the growing number of member innocence projects. Since the establishment of the first innocence project in University of Bristol in January 2005, there are currently fifteen member innocence projects, with more in the pipeline. This equates to an estimated 300 students actively working on approximately 40 cases of alleged innocent victims of wrongful conviction and imprisonment. It is still very early days and no innocence projects have, as yet, helped to overturn any wrongful convictions. However, the level of activity by student investigators bodes well for the future.

Gabe Tan and Joseph Oppenheimer

The last speakers of the meeting were Gabe Tan and Joseph Oppenheimer, representatives from the University of Bristol Innocence Project (UoBIP). As the founding members of the first Innocence Project in the UK, they gave a critical discussion about the promise and limitations of Innocence Projects.

Gabe explained how the promise of innocence projects stems from its unique position as an educational enterprise not subordinated to the rules and procedures of the criminal justice system: unlike practitioners or the CCRC who can only defend or refer cases where there are legal grounds for appeal or referral (i.e. “fresh evidence/ arguments” or “exceptional circumstances”), students are in a position to continue investigations in cases of possible wrongful convictions, even where no legal grounds for referral or appeal can be found. As such, in cases where there is evidence of innocence, but which cannot be referred by the CCRC or overturned by the Court of Appeal because the evidence of innocence was available at the original trial, for instance, innocence projects can help to generate the public pressure necessary for such cases to be considered through bringing them to the public and media’s attention.

Discussing the impact of innocence projects on universities and legal education in general, Gabe described how at the University of Bristol law students are becoming more aware and interested in the issues relating to miscarriages of justice and wrongful convictions through the activities of the UoBIP and the incorporation of miscarriages of justice into the curriculum. This is changing the way in which law students and even lawyers relate to the law: conventionally, legal education and practice tend to engage with the criminal justice system in terms of clients, rules and procedures. Innocence projects, by raising concerns about the wrongful conviction of innocent prisoners, serve as a pertinent reminder that the system, more importantly, is about people, families and lives that can be seriously harmed when wrongful convictions occur.

Joseph continued the discussion on innocence projects by addressing some of its key limitations. In comparison with the CCRC, Innocence Projects are significantly incapacitated by its lack of powers of investigation.

For instance, case investigations by innocence projects are often obstructed by difficulties in obtaining case materials and evidence from relevant public bodies such as the Forensic Science Service (FSS), the police, and the Crown Prosecution Service (CPS). In contrast, the CCRC can require any public body under Section 17 Criminal Appeals Act 1995, to retain all material relevant to the case it is reviewing.

This poses significant problems particularly in examining and reviewing police investigations, a key part of casework undertaken by the UoBIP and other innocence projects. Reflecting on a recent meeting that the UoBIP had with the CCRC, Joseph noted how the CCRC has unrestricted access to the HOLMES2 database, which enables them to access vital information such as the lines of inquiries and actions undertaken by the police, data collected from police investigation and intelligence, and list of suspects that came into the police’s matrix.

Despite these limitations, innocence projects have, potentially, an important role to play in influencing the CCRC’s case review process by providing the CCRC with good applications for their further investigations. Joseph illustrated this problem of CCRC’s investigation process with one of the UoBIP’s cases. The case involved two men who have been charged and convicted of a murder they had always maintained, they did not commit. During the trial, the defence was informed of the discovery of two DNA samples on the alleged murder weapon that did not match either of the defendants. Unfortunately, due to a tactical decision made by the defence, this crucial piece of evidence was not used in trial. Despite the weight of this evidence, the CCRC was unable to refer the case on the basis that the evidence, being available at the time of trial, did not constitute “fresh evidence” required for a referral back to the Court of Appeal. In such circumstances, innocence projects will strive to bring these cases to the media‘s attention, for instance through the production of documentaries such as the recent BBC Rough Justice Special on the case of Simon Hall.