"Kvetch - HMP Grendon, Buckinghamshire, Ariane Bankes Outstanding Award for Oil Acrylic Painting 2008" cut

“Kvetch – HMP Grendon, Buckinghamshire, Ariane Bankes Outstanding Award for Oil Acrylic Painting 2008” cut

How long is it acceptable for a person to have to remain in prison for a crime they did not commit? That is the question at the heart of the report issued by the Justice Select Committee this week on the performance of the Criminal Cases Review Commission. Thanks to cuts to the funding of the Commission, the answer appears to be ‘two and a half years’ —  minimum.

Human beings make mistakes and no system has more human parts than the criminal justice system. Imagine you have been sent to prison for a crime you did not commit. How does the system deal with this? How long should it take to set things right?

Convictions can only be overturned on the basis of ‘fresh evidence’. This means someone needs to go out and find it. That won’t be the police, their job is done once the case comes to court. The trial solicitor can file a form asking for an appeal. The funding regime for appeals like this does not envisage any street level investigation being done. Instead it only allows for a trial barrister to highlight errors in the judge’s conduct of the trial. As fresh evidence is typically an ‘unknown unknown’, the trial barrister is unlikely to find it in the record.

So, first appeals in these cases often fail. That will take place six months to a year after conviction. In practice, this means that anyone wrongfully convicted in this country will definitely spend 6 months to a year in prison before the system can even begin to address the mistake.

The long and uncertain road to the Court of Appeal

In 1997, the Criminal Cases Review Commission was established to step in at this stage, review the case, look for fresh evidence and, where it deems it appropriate, send the case back to the Court of Appeal. This offered a new lifeline to innocent people trapped in prison.

Since then, the Commission’s funding has been drastically cut (from £8.1 million to £5.1 million), while the number of prisoners complaining of mistakes has increased by 60%. This means that the wrongfully convicted prisoner will wait a further 18 months for a decision from the Commission. That brings the prison time served to a minimum of two years. Then the case must go back to the Court of Appeal — which, with scheduling and preparation for a hearing at the court, may add another six months.

This means that anyone wrongfully convicted in this country must serve, under the current system, at the very least two and a half years of their sentence, and in reality it often takes five or six years, before it can be rectified. All that time is spent locked up in prison, away from your family, your work and your life.

Among the people the Centre for Criminal Appeals works with, in the last year the toll of that time has been profound. One prisoner lost the chance to see his mother one last time before she died. He was not permitted to attend her funeral. A second has been waiting over 115 weeks for the Commission to take a view on his case, and, in a desperate move to get the system to hear him, risks his life by hunger striking. A third prisoner was about to propose to the love of his life when he was arrested — now he fears he will never get that chance. A fourth had worked for years building up a small business at considerable personal sacrifice – that business has now dissolved and his wife and young children struggle to hang on in the family home.

We firmly believe that these prisoners’ cases will ultimately be exposed as miscarriages of justice. They will be freed. Their experience will leave them with all the scars of a kidnap victim, but little of the recognition. If they are able to win compensation for their ordeal, it will be capped at £500,000. They will be suffering from post-traumatic stress disorder, depression, anxiety, for which they will need life-long treatment. Nothing can compensate a person for the losses that these prisoners will have experienced by the time they are set free.

But the system can and must attempt to prevent them from occurring in the first place and one of the simplest ways of doing this is to fund the CCRC properly. The Justice Select Committee recommended an increase of £1 million to the budget of the CCRC. That doesn’t even begin to address the problem. The Commission needs to be funded to a level that it can refer miscarriages of justice to the Court of Appeal within three months of receiving an application, maximum. The Commission keeps good data on its performance costs and so this figure should not be difficult to work out. Funded at this level a wrongfully convicted prisoner has a small chance of seeing freedom within a year. Even that is too long, but it’s a start.

  • Emily Bolton is founder of the UK charity the Centre for Criminal Appeals, soon to be launched as a not-profit law practice to address the shortfall in access to justice for wrongfully convicted prisoners in England and Wales. In 2000, Emily established Innocence Project New Orleans (IPNO), a non-profit law office providing legal representation to the wrongfully convicted in the Deep Southern United States. IPNO has so far freed 25 innocent prisoners.
  • Please note the Centre for Criminal Appeals is not currently engaged in the provision of legal services, is not regulated by the Solicitors Regulation authority, and the UK cases referred to in this article relate to the casework pilot being conducted by Emily Bolton through her practice with a separate fully regulated law firm, Scott-Moncrieff and Associates, Ltd.

The case of Jamie Green and the Freshwater Five

Jamie Green and his four co-defendants (collectively known as the Freshwater Five) have been waiting for justice since they were arrested in May 2010. Their proceedings were riddled with late disclosure, presentation of misleading evidence and even jury tampering according to a whistle-blower on the jury. The five men are now serving a total of 104 years in prison.

Jamie Green

Jamie Green

They were convicted of using Jamie’s fishing boat to collect drugs from a container ship mid-Channel and transporting them to Freshwater Bay off the Isle of Wight. Evidence suggests that the five men were just in the wrong place at the wrong time — in their search for lobster and crab, they had unwittingly sailed straight into the middle of a failed drug surveillance operation and got tagged and arrested, seemingly for want of better suspects.

When £52 million worth of cocaine was found in Freshwater Bay the next day the police became convinced that they must have the right people and apparently retrofitted the case against them — including bending evidence regarding the positioning of the container ship and observations made of Jamie’s fishing vessel. The case of the Freshwater Five is now before the Criminal Cases Review Commission for further investigation.


The case of Roger Khan

Roger Khan has been waiting for justice since he was arrested in November 2010. He was accused, along with his nephew, of the attempted murder of his nephew’s brother-in-law, after his DNA and fingerprints were found in a car they had ridden in together. Roger maintains he had no knowledge of what his nephew went on to do that day after dropping him off.

Roger ended up without a lawyer to represent him at trial, as those he was assigned did not act promptly enough to secure CCTV footage of his alibi. When he complained of this to the judge, he was left with the choice of these lawyers or no lawyers. Papers he had never had the chance to read piled up beside his desk in court in bin liners.

He was convicted despite DNA evidence pointing to someone else being responsible for the beating. He has been trying to get the evidence before the court of appeal for over three and a half years, but has been stymied by the system. His case has been before the CCRC now for more than 115 weeks.

Utterly frustrated by the lack of progress, Roger says: ‘I don’t want sympathy, I just want a chance to present the evidence. Just look at the DNA. I wasn’t there, so why am I here?’

Profile photo of Emily Bolton About Emily Bolton
Emily is founder of the Centre for Criminal Appeals which was set up to address the shortfall in access to justice for wrongfully convicted prisoners in England and Wales. In 2000, Emily established Innocence Project New Orleans, a non-profit law office providing legal representation to the wrongfully convicted. IPNO has so far freed 25 innocent prisoners

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12 Comments

  • Christopher Lennon March 28, 2015 5:13 am

    Isn’t the question put in a rather odd way? If someone is innocent, then we all agree they ought not to have been convicted and every day in detention is one too many. All these people, however, were convicted by a jury ‘beyond reasonable doubt’ and who were ‘really sure’, as judges put it. If there was anything wrong with the judge’s charge to the jury, defence lawyers can use it effectively to mount an appeal. But searching for ‘new evidence’ is bound to be potentially time consuming and difficult. To the extent the police have done their job properly, the more problematic it will be. The jury is the foundation of our criminal justice system and if it were easy to overturn the verdict of a jury, what sort of system would we have? Some people mounting appeals are in fact guilty, or not entirely innocent, shall we say. That must be as much a certainty as that there will be miscarriages of justice, inevitably and as history has shown, through human error, or for other reasons.
    What, realistically, can be done, that is not already available? The biggest beef is the time the process of appeal takes, but that cannot be magically reduced to no time at all, can it? The best would be to reduce it wherever possible.

    • James Colton April 7, 2015 11:23 pm

      Mr Lennon your faith in a flawed system beggars belief; you have either just exited a convent or woken from a very long coma.

  • Kaye June 13, 2015 8:41 pm

    There are far too many convictions on False allegations of “child sexual abuse”. Because of “Media Hype” on this subject, when the Jury hear the 3 words “child sexual abuse” they do not really bother to listen to the defense Barrister, the 3 words trigger a “must be Guilty” in their minds and the case is more or less decided before the facts are presented.

    Reasons for False Allegations
    1) Attention seeking.
    2) Malice.
    3) Money Grabbing (compensation)
    4) Mothers goading to get back at ex Husband or Partner.

    These are some of the reasons cited by a High Court Judge. 2014.

    • K January 22, 2016 4:02 am

      Absolutely correct, Everybody cries wolf on child sexual abuse now a days. No evidence is needed at all in these cases.
      Unfortunately your list is 100% correct to, money grabbers, scorned exe’s persuading kids to say that their previous partner did this or that only to punish them for not wanting to be with them any more.

      A complete disgrace the justice system is now a days.

      In the month of september 2015 – in the midlands alone it was reported 1000 child abuse claims were made…. sussed much.

      unless you have secure evidence like a video, picture or voice recording you should not be going to jail for he said she said crimes.

      Many will disagree with my words and honestly i dont care, i have seen someone i love very much succumb to a liar!!!

  • Mr Lennon June 14, 2015 10:03 am

    Mr Lennon you are obviously not up to date with the justice system these days. No evidence is needed in historical sex cases whatsoever. And the words beyond reasonable doubt are not used by judges anymore. People are being convicted for crimes that DID NOt HAPPEN? But police and cps are hitting their targets. This could happen to YOU any day now as accusers are being paid by the tax payer to come forward and tell lies. The cost of miscarriage of justice to the tax payer is phenomenal ?

  • Ron Barker June 14, 2015 1:44 pm

    I wish you would stop attacking the Criminal Justice System. Mistakes are very rare and as Lord Denning said …”It is better that some innocent men remain in jail than the integrity of the English judicial system be impugned”. What I really meant to say it is all uphill when the establishment take this view and believe for the most part they do. ‘Magna Carta’ what’s than then!

  • Jacques More November 7, 2015 9:47 pm

    Great article. Well done

    Your link to the CCRC at the parliamentary committee is not working

    Please email me link once fixed

  • Louise Long November 7, 2015 9:54 pm

    Unless you have been in this system, you have no idea what to expect or who to turn to for professional help. You turn to your local conveyancing lawyer as you know you have done nothing wrong AND OUR JUSTICE SYSTEM WILL PREVAIL. Mistakes however rare should not be made in the first place, human error for a term in prison is not good enough. Kaye, all four points should be sought by enquiries not only on the accused but the accuser. Fair and thorough investigation would surely throw better light on the situation than a prosecution lawyer and defence lawyer stating the facts to laymen who are of the opinion, guilty until proven innocent.

  • James Colton November 9, 2015 1:16 pm

    THE SYSTEM IS SO CORRUPT ITS BECOME NORMAL FOR A DEFENDANT FACING FALSE ALLEGATIONS TO BE STITCHED-UP.

    My Defence Lawyers refused to

    make a ‘Defence statement’ (sets out the defendants case against the prosecution)

    complete the Plea and Case Management Form (i.e. what witnesses the defendant had requested)

    use previous inconsistent statements (Affidavits) made by the complainants

    have any contact with the defendant (documented) and a friend on his behalf (documented). Therefore Court Agent appointed to represent defendant

    hand over the full police statements of the complainants, which contain evidence of admitted perjury in Affidavits made in 1999. Also different accounts too same allegations used in divorce proceedings.

    hand over 2 (unused) witness statements both highly relevant to the defendants case

    Make s9 Statements (Criminal Justice Act 1967) In any criminal proceedings (other than committal proceedings) section 9 provides that a written statement is admissible in evidence to the same extent as oral evidence.

    Plea and Case Management Hearing (PCMH)

    No defence statement

    No PCMH Form

    No request for witnesses

    No request for further exculpatory [available] evidence be obtained requested by the defendant

    No indication of any applications (i.e. abuse of process)

    No case law cited (i.e. HUSAYN (ABU ZUBAYDAH) v. POLAND (Application no. 7511/13))

    No skeleton argument in accordance with the Consolidated Criminal
    Practice Direction’s

    No comment by Judge on why the Criminal Practice Rules had not been adhered too.

    According to the CCRC, the above statutory requirements are a load of bollocks! The Commission makes it clear, anyone charged with a criminal offence, has no right to defend themselves by the making of a ‘Defence Statement’ call ‘witnesses’ or use previously made ‘inconsistent statements’.

    IF YOU LISTEN CAREFULLY GOREGE ORWELL CAN BE HEARD LAUGHING FROM HIS GRAVE

  • Dan spencer July 3, 2016 5:33 pm

    This ain’t no peadophile case,and therefore u can’t compare cases,this is supply and demand,not evolving juveniles,that’s the problem with the judisary they value money more than life!

  • Buddy McFudhy August 7, 2016 12:09 am

    While it is a noble cause to save wrongly convicted people, the system is pretty heavily weighted in favor of any defendant. This article would like us to believe that many cases are an injustice.
    I suspect it pays well to fight these cases and maybe through public funds or charities. I saw the program on the fishermen and thought it was a very strong case. The lawyer trying to appeal the convictions spoke as though she knows for sure they are innocent. She was no more present at the crime scene that were the jurors.

  • Mrs Clark August 18, 2016 3:05 pm

    Over 50% of all trials are now sex cases,current system is that as an accuser “you will be believed”. The accuser is then called a VICTIM, the accused is forced to prove his/her innocence as law in all sex cases states accused is GUILTY and must prove their INNOCENCE. corroborated evidence is not required &beyond reasonable doubt has been removed,anyone can make a false allegation against anybody,people with grudges or hungry for free money are being believed many 000s of innocent people are being wrongly convicted. It’s 1persons word against the other. The accused without wealth has no chance. Families are being destroyed. Grandchildren, Children,Parents,Grandparents are all in trauma .So please don’t tell me that the system is pretty weighted in favour of any defendant until you do your research and quote FACTS. Police, & CPS are conviction chasers not truth chasers. unless things change this can happen to any1 at any time including you or any member of your family.

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