Source: The Conversation – UK – By Brian Thornton, Senior Lecturer in Journalism, University of Winchester
The following story is the winner of The Conversation Prize for writers, a competition run in partnership with Faber and Curtis Brown. Read more about the competition here.
A young man called David Lace sits in a windowless interrogation room in a Portsmouth police station. He has just been arrested over a spate of burglaries across the city. Out of the blue, in the middle of the interview he tells the detectives something extraordinary. He’s killed someone, he says. A young woman.
He can’t live with himself anymore. The guilt is driving him mad. In the bleak little room he confesses everything. But Lace is never charged with murder. Never put on trial. Never jailed. Instead, all that happens to another man. An innocent man called Sean Hodgson. The Lace confession, along with all the forensic evidence with Lace’s DNA goes missing. Hodgson serves 27 years in prison.
When five police officers turn up at his mother’s flat on October 20 2004, Sam Hallam knows they have made a mistake. A few days earlier a 21-year-old was stabbed to death in a street brawl. Hallam had heard about it but wasn’t there. He explains all of this to the police officers who arrest and later charge him. He explains it to the jury during his trial. No one listens. Hallam is jailed for life. He is 17 years old.
On the night of the murder he had been in the pub with his father. There is a photo on his phone to prove it. But the phone containing the photo sits in a police evidence room for years. It sits there gathering dust as Hallam is beaten up in prison, and while both his grandmothers die. It sits undisturbed as his father Terry, struggling to deal with the imprisonment of his son, takes his own life.
A young woman is murdered in Cardiff and eyewitnesses see a white man covered in blood leaving her flat. Three innocent men, none of them white, are later jailed for life for her murder.
And on and on it goes.
The Birmingham Six, the Guildford Four, Judith Ward, Stefan Kiszko, John Kamara, the Darvell brothers, the Cardiff Newsagent Three, Ivan Fergus, Sally Clark, Andrew Malkinson, the hundreds from the Post Office scandal. On and on.
Hundreds and hundreds of people wrongly convicted. Lives destroyed. Families and communities blighted. Killers left free.
But wasn’t all of this sorted out years ago? Aren’t miscarriages of justice a bit … 1980s?
While millions might have once tuned into Rough Justice and Trial and Error to watch investigations into miscarriage of justice cases, those shows are now long gone, cancelled due to lack of interest. Even legendary investigative journalists like David Jessel packed up and moved on, admitting that the game had changed.
They may have gone under the radar for a while but these types of cases never went away, and it now seems we’ve entered a period where there are more than ever. Perhaps the reason no one noticed is because of a relentless campaign to turn the clock back, to a time when the innocent were fair game.
When the Birmingham Six were trying to overturn their convictions they were thwarted again and again over 16 years by a stubborn and dismissive establishment. The attitude was epitomised in the iconic judgment by Lord Denning. He refused to countenance the idea of them being innocent because that would damage the integrity of the system – and in his opinion the system needed to be protected at all costs. In his judgment Denning said:
If the six men win, it will mean that the police were guilty of perjury, that they were guilty of violence and threats, that the confessions were involuntary and were improperly admitted in evidence and that the convictions were erroneous. That would mean the Home Secretary would either have to recommend they be pardoned or he would have to remit the case to the Court of Appeal. This is such an appalling vista that every sensible person in the land would say: It cannot be right these actions should go any further.
For decades the “appalling vista” approach held while the injustices grew and grew. But on a bright spring morning in 1991 the whole thing exploded in a visceral, cathartic dam-burst.
Amid chaotic scenes outside the Old Bailey the Birmingham Six were released and one of them, Paddy Hill, grabbed a microphone and unleashed a savage attack on the institutions that had taken his freedom:
For 16 and a half years we have been used as political scapegoats. The police told us from the start they knew we hadn’t done it. They told us they didn’t care who had done it. They told us that we were selected and they were going to frame us. Justice, I don’t think the people in there have got the intelligence nor the honestly to spell the word, never mind dispense it. They’re rotten.
A crisis was erupting that threatened the legitimacy of the entire criminal justice system. Swift action was needed and so on the very day that the Birmingham Six convictions were quashed, the government established the Royal Commission on Criminal Justice.
Nothing it appeared, would ever be the same again.
Out of the Royal Commission sprung a new body – the Criminal Cases Review Commission – given the sole task of investigating miscarriages of justice. The message was sent out loud and clear: the innocence crisis had now been solved and the media, the criminal justice system and the politicians needed to move on to more pressing issues.
But while no one was looking, a silent counter-revolution was happening.
The great rebranding
Stealthily and relentlessly a hostile environment for victims of miscarriages was being created. The first target was to undermine the actual term “miscarriage of justice” itself. In a seminal speech in 2002 Prime Minister Tony Blair declared that “the biggest miscarriage of justice in today’s system is when the guilty walk away unpunished”.
Blair was calling for a reappraisal of what we considered an injustice. Essentially what was being assumed was that the “innocence crisis” had been dealt with and energies should now be focused on other areas where the criminal justice system was misfiring; namely, in the effective punishment of the guilty. Tough on crime, tough on the causes of crime.
The right wing press gleefully embraced this reframing. Newspapers like The Sun and Express, who had not concerned themselves with miscarriages of justice before Blair’s intervention, were now falling over themselves to expose these new injustices. Two headlines in the Express read: “Rapist who was free to strike again: This is a travesty, a real miscarriage of justice,” and “Don’t let them get away with murder: Proposals that would see murderers spend less time in jail are the biggest miscarriage of justice we have seen”.
The rebranding of “miscarriage of justice” was so successful that in 2006 when The Sun asked its readers: “Do you know about a miscarriage of justice? Call us on 020 7782 4104”, it did not need to explain to anyone what it was talking about – its readers knew exactly what the paper meant. They knew it was looking for tales of “evil perverts” and “crooks” who got “soft sentences” so that it could use its “Justice Campaign to have lenient judges turfed out”.
But the creation of a hostile environment for the innocent still had a long way to go. It was one thing to convict people – and sentence them to longer terms – the next thing was to ensure they stayed there.
And so a concerted campaign began to strengthen the finality of convictions – essentially making it near impossible to challenge guilty verdicts. Technology helped. Since 2011, most court transcripts have been recorded digitally. But without fanfare the decision was taken to routinely delete them.
It means that while it is possible to access full records of Victorian court cases, modern court transcripts vanish after seven years and they are eye-wateringly expensive. An MP was recently quoted £100,000 for a Lucy Letby court transcript. In the US, defendants automatically get a copy of their court records – in the UK the records are destroyed, and no one has ever really explained why.
So if you are trying to challenge your conviction you may not have access to – or cannot afford – your court records. But what about the evidence that convicted you? We are all familiar with the US movies and documentaries that show lawyers saving prisoners from death row or prison sentences thanks to new DNA evidence. Why doesn’t that happen in the UK? Because in 2014 the Supreme Court decided that a defendant no longer has the right to access any of this evidence. It ruled:
What is essentially sought by the claimant is access to material to enable the case to be re-investigated and re-examined. The time for that investigation and examination was the trial.
All police forces now have a template letter in which they explain that due to this judgment they will not grant access to any evidence after conviction, and every appeal lawyer in the country has enough of these letters to wallpaper their offices.
But what of the great promise of the CCRC – the body that was supposed to investigate miscarriages of justice? After some early successes it has been slowly hollowed out. Its budget has been slashed, its powers eroded and it has haemorrhaged talent.
The commission that was once lauded as an example for the rest of the world is now such a shambles that when the scandal broke about the handling of the Andrew Malkinson case, who had been wrongfully imprisoned for rape, the chair of the CCRC was in Montenegro, promoting her property business. Helen Pitcher told her social media followers that she was “having an amazing time at Milos Mussels bar”. The CCRC said Pitcher was on a lunch break while working remotely from Montenegro that day and that she did not manage her own social media. Pitcher said: “The CCRC is a remote-working organisation, and I sometimes work from a property I own abroad.”
In January, Pitcher resigned saying she had been made a scapegoat for the Malkinson affair. Those involved in criminal appeals used to laugh at how hapless the CCRC was – they are now in open despair.
More than 1,500 people apply to the CCRC every year claiming they have been wrongfully convicted and about 97% of these applications are rejected. But there are serious concerns over the quality of the CCRC’s investigations into these cases. An inquiry in 2021 found that budget cuts and an obsession with targets had “compromised the CCRC’s ability to carry out its role effectively in all cases”.
The handful of cases that make it through the CCRC and to the Court of Appeal face another fight against the odds – the court normally rejects at least a third of these cases.
Victims of injustice such as members of the Birmingham Six say they would never have been freed if the CCRC had investigated their case. And if you do somehow manage to beat all the odds and overturn your conviction – like Victor Nealon – you will leave the Court of Appeal with a grand total of £89 in your pocket. It does not matter if you have unfairly spent decades in prison, if imprisonment has destroyed your physical and mental health and laid waste to your relationships and reputation. It’s still £89. There is no compensation for the stolen years, for the outrageous injustices you have suffered.
In 2014, when the coalition government was in thrall to austerity, it was decided to restrict the payment of compensation to miscarriage of justice victims. The High Court rejected a challenge to this new law by telling a miscarriage of justice victim he was “not innocent enough to be compensated”. The public outrage over the Malkinson case shamed the Ministry of Justice into offering him compensation but he is very much the exception – 93% of applicants whose convictions have been overturned receive no money.
Nealon and Sam Hallam took their claims for compensation all the way to the European Court of Human Rights and lost. But the judges said the current UK system for compensation was “a hurdle which is virtually insurmountable”. The hostile environment against the innocent was now complete.
A Supreme Court’s decision in the Kevin Nunn case in 2014, which prevented him from getting access to key evidence in his case to submit to more modern forensic testing, has effectively removed any semblance of transparency over what evidence police hand over during a criminal trial. It has resulted in disclosure problems blighting criminal court cases because there is no oversight – police can act with complete impunity.
They also know that there will be no comeback if things go wrong – no officer in any of the major miscarriages of justice cases has ever been convicted of anything. The attempt to prosecute officers in the Cardiff Three case collapsed – due to disclosure problems.
No oversight, also means that all the old tricks are back: the overheard conversations, the jailhouse confessions, criminals blackmailed to act as witnesses, crucial evidence mislaid or withheld.
Once someone is convicted their court records will be deleted or made unaffordable, their legal aid will be slashed and they will be denied access to any of the evidence that convicted them. Their only option will be to apply to a crumbling and aimless institution which even the legal system views as a joke.
This is how they system wins and how the victims of injustice are betrayed. This is how you convict the innocent.
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Brian Thornton does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.
– ref. Convicting the innocent: how a rotten system ensures miscarriages of justice will continue – https://theconversation.com/convicting-the-innocent-how-a-rotten-system-ensures-miscarriages-of-justice-will-continue-249536