Beyond the Wall, HMP Glenochil, Scotland Gold Award for Watercolour

Beyond the Wall, HMP Glenochil, Scotland Gold Award for Watercolour

The announcement that Innocence Network UK (INUK) had disbanded in September 2014 came as a real shock to those of us on the inside still fighting for justice. There had been no indication to those of us on their waiting list that the organisation was having any problems, so it all seemed rather disappointing and confusing when the news finally reached us.

What had gone wrong, and why would they seemingly give up on us like that?

INUK was essentially a casework referral service that assessed applications from prisoners who protested their unequivocal innocence in a crime for which they were wrongly convicted. Members of the network signed up to common operating protocols and investigative methodologies, and were allocated eligible cases by a centralised co-ordinator following assessment.

The Innocence Network helped to fulfill the desperate need for investigative assistance in criminal appeal cases which simply couldn’t be met under legal aid. INUK helped to bridge the chasm between what a legal aid lawyer could achieve and what needed to be pursued in an investigative context. With INUK’s disbandment – and the simultaneously crippling effects of legal aid reforms – that void has not only reopened, but become bigger than ever.

My own firm of solicitors were forced to close their criminal appeals department at the beginning of 2015.

Those of us struggling with exhausting and lengthy appeals know how easy it would be to just give up in the face of obstacle after relent- less obstacle.

Regulation and governance
The simultaneous curse and blessing of the INUK model is that it relies almost entirely upon student manpower. On one hand, the great advantage of this is that there is an almost endless source of talented young minds in our universities with the dedication and enthusiasm required to plough through the stacks of material in a case. As Dr Andrew Green pointed out on ‘No one working under the restrictions of legal aid funding or the budgetary constraints of institutions such as the CCRC is likely to do the detailed work that students are prepared to do.’ However, given their lack of experience and the quick turnover of university students, much of the advantage is lost in the continuous cycle of training new recruits up.

For future innocence projects to run efficiently, they need to develop a vigorous and intensive training programme to get their students into shape. A formulaic approach is critical and the first thing they need to get to grips with is what constitutes a valid ground of appeal. Once you’ve familiarised yourself with the common errors that occur at trials or in police investigations, you’ll have a good idea of what you should be looking out for: things like the wrongful admission or exclusion of evidence; non-disclosure; counsel incompetence or misconduct; poor summing-up, or misdirection, by the judge; police failure to pursue reasonable lines of enquiry, or secure evidence; abuses of process; and so on. Recognising the symptoms of a wrongful conviction will enable students to diagnose them.

The next big thing is understanding the various tests applied by the CCRC and the Court of Appeal: the ‘safety’ test (including the ‘lurking doubt’ test and, more recently, the ‘risk of a miscarriage of justice’ test); the ‘real possibility’ test; the ‘jury impact’ test; the cumulative effect of multiple grounds of appeal; and the court’s discretion ‘in the interests of justice’. In addition, an appreciation for historic cases and campaigns will help students to identify patterns of failure and spot the tell-tale signs of a miscarriage of justice.

Finally, an understanding of what ‘fresh’ evidence is and the issues surrounding admissibility should fully arm an innocence project member with the basic tools they need to pick apart a prosecution case and identify the threads that merit further investigation, or the commissioning of an expert, before submissions can be prepared.

There wasn’t an innocence project at my university when I was at law school in 2010. How I wish there had been, if only to structure my expectations. I walked into the Crown Court with the lofty principles and beliefs of the lecture hall. What I received in return came as a cold, sharp shock. Innocence projects serve a vital educational purpose, grounding future lawyers and barristers in the realities and practicalities of a fallible justice system.

The most fundamental problem facing any innocence project is funding. Without it they lack the resources or the capacity to meet demand. A radical approach is needed if others are to improve the service they can provide. When I was at university I stood for our Law Society elections. Fundamental to our role was approaching law firms to sponsor our society events, open days, competitions, etc. Every student law party we hosted was funded partly by a firm keen to attract future applicants, and partly by our own membership fees. Law societies have a responsibility to reflect the ethical interests of their student members, and I believe that in this capacity they can play a much greater role in the innocence project movement.

If student law societies allocated part of their funding to their university’s innocence project then they would be able to secure its longevity and increase its capacity. This would involve student representatives actively approaching law firms to fund their innocence projects. They may also choose to mark-up their membership fees on the basis that a percentage was going towards the initiative. Innocence projects have everything to gain from affiliations with law firms. Many will be willing to donate time rather than money, supporting projects through the provision of invaluable expertise and legal oversight.

Exciting collaborations like these have already started appearing in the past six months alone: at the University of Essex, for example, who have begun working in partnership with Inside Justice (itself funded by the Esmee Fairbairn Foundation, Inside Time, and the Roddick Foundation); or Sheffield Hallam University, who are now working in conjunction with Cartwright King (albeit on prison law); and of course, the all new Centre for Criminal Appeals, which – whilst an independent law practice in its own right – is funded on a similar basis by charities. Their vision of bringing an American model of miscarriage of justice investigation to Britain – with a focus on defence orientated ‘boots on the ground’ reinvestigation – is perhaps the most exciting ideological departure from INUK yet.

Corporate Social Responsibility
Above all, student law societies and innocence projects alike need to tap into the increasingly prevalent mind-set of Corporate Social Responsibility (CSR), through which corporate law firms pledge to channel a percentage of their time to pro bono work (free legal help) each year. CSR is founded upon the belief that corporations ultimately have a moral duty to give something back to society, and that the legal profession in particular is ethically bound to promote access to justice and equality of arms. Over recent years, this has seen a growing amount of private sector involvement in traditionally state-funded areas such as social welfare law. Indeed, the idea of setting an aspirational target of pro bono hours for all lawyers and firms to aim for is gaining increasing currency within the profession.

The Attorney General’s pro bono envoy, Michael Napier – in expressing his own concerns about cuts to legal aid – commented that, “There is pressure in every direction to meet the gap in unmet legal needs”. Pro bono should never replace legal aid – indeed it can’t – but it already makes a huge contribution in supplementing its provision. As Rebecca Hilsenrath, chief executive of the charity LawWorks, notes: “It doesn’t help if, as a profession, we simply maintain the line that this is the government’s responsibility. Even if some of us can’t do much, it is beholden on us to do as much as we can”. Smarter marketing will enable innocence projects to garner both the support they need and the cases they need to work with.

Dennis Eady, of the Cardiff University Innocence Project, has suggested that the breaking up of INUK may ‘provide a timely opportunity for universities to close down their activities’, but I have to disagree. Rather, they should take this opportunity to consider a new approach. We need our innocence projects now more than ever. They play an invaluable role not only in expediting justice, but in shining the spotlight on the prevalence and scale of miscarriages of justice in Britain. From the ashes of INUK lingers a glistening phoenix. Exciting opportunities await. Now is the time to grasp those opportunities and foster the rebirth of an all new innocence movement in our country. There has never been greater potential for change in this field. Let us rise to the occasion and unite in our pursuit of justice.

A version of this article appeared in Inside Time here

This is an article by Mark Alexander, a prisoner at HMP Gartree. Mark is writing as part of the British Convict Criminology project – set up after a 2011 British Society of Criminology conference by a group of academics. Convict Criminology is a branch of criminology started in the late 1990s by American academics dissatisfied with the absence of a prisoner perspective in research on crime and justice

Profile photo of Mark Alexander About Mark Alexander
Mark Alexander is a prisoner at HMP Gartree. He is writing as part of the British Convict Criminology project - set up after a 2011 British Society of Criminology conference by a group of academics. Convict Criminology is a branch of criminology started in the late 1990s by American academics dissatisfied with the absence of a prisoner perspective in research on crime and justice

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1 Comment

  • Julie Price May 13, 2015 3:22 pm

    Thank you, Mark, for writing such an informed and positive piece.

    I have a few thoughts in response:

    The concept of a large number of universities working together to try to help individuals overturn wrongful convictions, and at the same time trying to influence criminal appeals policy for the better was, and remains, a fantastic collaborative idea that would be difficult to match. It is only with hindsight that we can offer views on why INUK was unsustainable: it was too dependent on a tiny number of people; it lacked core funding; there was no accountability (any “regulation and governance” was informal) and no democratic mandate for messages sent out in the name of “INUK” ,which arguably led to confusion. Those of us involved in the early years bear some responsibility for not speaking out more loudly when problems arose, and possibly for giving up on the network idea too soon (Cardiff withdrew from INUK in 2010). Michael Naughton will, I’m sure, likewise take responsibility for other aspects of its failure.

    However, the main reason for INUK not thriving is arguably that the work that innocence projects were/are doing is simply too difficult. That is no-one’s fault, and is due to the very restrictive statutory appeals system. A decade ago, we thought all that was needed was enthusiastic students and staff, and we’d be looking at dozens of overturned convictions. We had no real appreciation that we would need to also be “campaigners” as well as caseworkers. If we did not start calling for reform, much of our work would be pointless because it had no chance of passing the CCRC hurdle. We also had no idea how difficult it would be to access information and documentation that was key to being productive. The inertia that comes from hitting brick walls is an understandable by-product of this work. Setting aside wider ethical discussions, it is understandable that some projects were unable to make progress.

    I think it was right that some universities took the opportunity of INUK folding as a chance to evaluate whether an innocence project (or whatever name they choose) was for them. It forced them to reflect on the difficulties involved in running such a scheme, which are significantly higher and more complex than other clinical legal education schemes, in my view. We can now say that without any embarrassment or attribution of blame.

    It is not surprising that INUK folded – the surprise is that it survived for a decade, and that was due principally to the dogged determination and huge investment of time by Michael Naughton.

    I think we’d all agree with Mark Alexander that the need for this sort of work is greater now than ever. There are still many universities doing this work. Some now have different names, but their work and the challenges remain essentially the same. I hope that the recent Justice Select Committee recommendations, plus the inevitable post-election legal aid battles will reinvigorate people, with collaborations perhaps happening in less ambitious ways than had been intended with INUK.

    I also think it’s important that the INUK Twitter account and website are updated to make it clear that it is no longer a network that speaks for UK innocence projects. I hope that will be done soon in the interests of avoiding understandable confusion over its current status.

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