Jon Robins’ powerful and timely critique exposes the catastrophic failings in the underfunded criminal justice system, that sends innocent people to jail, and how that injustice is compounded by the failure of the the Criminal Cases Review Commission (CCRC) and the Court of Appeal to correct those wrongs.
Hot on the heels of the Secret Barrister’s Stories of the Law and How it’s Broken, which lifts the lid on the crisis in the justice system, Robins’ compelling book, launched with less fanfare, tells vividly the human story of those whose lives are devastated by the all too frequent miscarriages of justice, but who are treated as ‘collateral damage’.
More than a quarter of a century since scandalous miscarriages of justice, such as the Guildford Four and Birmingham Six, ‘shocked the public out of its complacency about the supposed infallibility of the courts’ — and despite a royal commission and ensuing reforms, Robins’ book shows how little has changed for the better.
Setting the scheme in the foreword, Michael Mansfield QC, veteran barrister synonymous with miscarriages of justice, observes: ‘It’s not that nothing has changed; it has got worse.’
British justice, says Mansfield, has been ‘diminished and demoralised’. Lawyers fees have been frozen for two decades, the austerity agenda has seen the Ministry of Justice’s budget slashed by 40%, and the criminal justice pendulum has swung dramatically in the direction of complainants.
The book is published in the wake of the narrowly avoided miscarriage of justice in the case of Liam Allan, a student whose trial for rape was halted at the eleventh hour when the prosecution disclosed thousands of previously hidden text messages that showed his innocence.
The prosecution barrister, Jerry Hayes, told the court it was the most appalling failure of disclosure he had ever encountered, and later commented: ‘This is a criminal justice system which is not just creaking, it’s about to croak.’
Robins considers 11 cases, exploring the common ground between them to shine a light on why the system keeps failing – they feature a mixture of false confessions, police misconduct and confirmation bias, non-disclosure, over-reliance on flawed expert evidence and misconceptions about statistics and probability.
Much of the book was written during the year that the CCRC celebrated its twentieth anniversary. The body came out of the recommendations of the Runciman Royal Commission on Criminal Justice, set up on the day that the Birmingham Six were released with the aim of restoring the battered reputation of British justice.
But Robins argues that the body designed to deal with wrongful convictions is underfunded, understaffed and oversubscribed. As it comes of age, he says, it ‘appears to be becoming increasingly timid’ and provides no effective safety net.
The CCRC saw the deepest cut anywhere in the justice budget (60%). But aside from its chronic underfunding, it is dogged by concerns over its lack of independence and inbuilt conservatism. Only cases with a ‘real possibility’ of being overturned can be referred back which, critics argue, makes it second-guess the Court of Appeal and take too pragmatic a view.
On average it receives 1,500 applications a year and refers just 0.77% of cases back to the Court of Appeal – fewer than its predecessor body, the ‘shadowy and discredited home office department known as C3’.
Eddie Gilfoyle, who is fighting against a conviction for murdering his pregnant wife in 1993, is quoted saying of the CCRC: ‘It’s not independent. They are the same as the Court of Appeal. They have become the Court of Appeal. They are so scared of the Court of Appeal they might as well be the Court of Appeal’.
Lawyers are tribal creatures and often reluctant to criticise senior judges. But Robins is not a lawyer; he is a journalist and author of the website The Justice Gap and he does not shy away from such criticism.
The Court of Appeal takes a battering for its continued failure to get to grips with miscarriages of justice. The book suggests how little distance has been travelled since the bad old days of the Birmingham Six appeals.
In 1980, the then Master of the Rolls, Lord Denning, so beloved of today’s law students, ruled that the six should have no further appeals. If they won, he said, ‘it would mean that the police were guilty of perjury; that they were guilty of violence and threats; that the confessions were involuntary and improperly admitted in evidence; and that the convictions were erroneous’.
And in 1988 Denning reasoned: ‘It is better that some innocent men remain in jail than the integrity of the English judicial system be impugned.’ Cases in Robins’ book suggest in many cases, that remains the ethos of the court of appeal.
Founded in 1907, Robins describes the Court of Appeal as a ‘compromise and misnomer’ confining itself to examining only points of law, and ‘unfortunately, guilt or innocence is not a point of law’.
In his unfinished autobiography, quoted in the book, the late Tom Sargant, criticises the courts ‘unreasoning respect’ for jury verdicts and ‘unwillingness to let down the police’.
Glyn Maddocks is the solicitor for the late Tony Stock, whose appeal against his conviction for robbery has twice been referred to the court and twice rejected, even though a super-grass confessed and confirmed that Stock was not involved and the Court of Appeal’s decision has been shown to be wrong.
Maddocks slams the court for its ‘lack of willingness to engage with (or even recognise) the problem and its often intransigent, often arrogant and, dare I say, obdurate view that it knows best and is constrained by its own previous decisions, however wrong they may have been’.
‘The Court of Appeal does not do apologies’ says Robins, and even on the rare occasions that it does quash wrongful convictions there is often an appearance that it does so through gritted teeth.
He sites the case of Sam Hallam, one of the youngest victims of a miscarriage of justice. He was convicted aged 17 for a gang-related murder and spent seven years in prison. His father took his own life during his imprisonment, as a result of his son’s ordeal. There was no sympathy expressed by the court for Hallam, says Robins – ‘in fact, there was more than a suggestion that the then seventeen-year-old was the architect of his own fate’.
More shockingly, Robins shows the impact on the lives of those who are wrongly convicted — many lose not just their liberty and livelihood, but their friends and family, and come out of prison deeply damaged people, suffering depression, paranoia and post-traumatic stress disorder.
When a conviction is quashed, the wrongly convicted person often walks out with no notice or preparation, with less state support than other prisoners receive. Their only source of help is the Royal Court of Justice’s miscarriage of justice support service, run by Citizens Advice. In 2011, it is reckoned that one third of its clients found themselves homeless after being freed.
‘My sentence started when I was released,’ says Paddy Maguire, the youngest of the Maguire Seven, arrested aged 13 and wrongly convicted for an IRA bombing campaign in the 1970s.
When a conviction is quashed the Court of Appeal does not reinstate the presumption of innocence; it almost never offers an unequivocal declaration of innocence. And those who have been wrongly convicted are rarely entitled to compensation.
Tony Blair’s Labour government scrapped ex gratia payments for victims of miscarriages of justice and the coalition government limited compensation to those who can demonstrate their innocence ‘beyond reasonable doubt’ – so much for the presumption of innocence and, as Robins states, those whose convictions are overturned are ‘innocent – and yet not innocent enough’.
Sam Hallam and Victor Nealon (who served 17 years for a crime he didn’t commit and left prison with three hours notice, £46 in his pocket and a train ticket to Shrewsbury) have challenged this position and are waiting for a judgment form the Supreme Court.
‘The cases in this book should send shivers down the spines of every law-abiding citizen,’ states Rod Hayler, of Old Bailey Solicitors, in the preface. It is a book that informs, shocks and demands a response. It demands justice.
Guilty Until Proven Innocent is published by Biteback Publishing and costs £12.99