The UK is at the ‘worst moment it has ever been’ for tackling miscarriages of justice, according to solicitor advocate and wrongful conviction specialist, Mark Newby. In a speech to the United Against Injustice conference held in Liverpool on 10th October 2015, Newby spoke of the urgent need for the establishment to accept responsibility for miscarriages of justice, and to recognise the effect of human error.
‘The fundamental problem with a system that never admits mistakes is that it is in a downward spiral – organisations that cannot admit fault in the end will become failing organisations.’
Newby spoke at length about the case of Victor Nealon – as featured on www.thejusticegap.com – one which has exposed ‘a system unable to accept responsibility.’ Nealon, a former postman, was convicted of attempted rape in 1997 and spent 17 years in prison. The evidence used to secure Nealon’s conviction was a disputed ID parade and a weakened alibi. DNA exhibits shown to the jury were not tested at the time of the case, and two applications to the Criminal Cases Review Commission (CCRC) to test the DNA Nealon himself had offered were rejected on spurious grounds.
Nealon did eventually receive an apology from the Criminal Cases Review Commission for their failures in respect of his case, and although Newby welcomed this, he understandably felt that it fell short of making up for all that Nealon has endured as a result of his wrongful conviction.
In 2008, in an attempt ‘to do what the Commission would not,’ DNA tests were commissioned on behalf of Nealon, with support from the Legal Aid Agency. These tests revealed startling results: while DNA evidence was found on the victim’s clothing, it did not match Nealon’s.
According to Newby, Nealon’s case represented ‘complete system failure’, and offered little hope to others who find themselves in this predicament. He said: ‘Even if you manage to achieve, against all odds, a successful quashing of your conviction, it is virtually impossible to be compensated for what has happened to you.’
Newby also used his speech to take aim at the police saying ‘this case offers little comfort’. Although West Mercia Police launched a fresh investigation into the case in order to find the true suspect for the original crime, Newby noted with disappointment that 18 months later, the investigation is still ongoing. Furthermore, an investigation by the Professional Standards Department into the original investigation and the officers involved has become seriously delayed.
And while both the CCRC and the police indicated their support for Nealon’s challenge against the Ministry of Justice, it was clear that they were keen to avoid addressing their own failings in the case— according to Newby, a pattern of ‘no responsibility but a willingness to pass responsibility to others.’ To add insult to injury, Nealon’s ‘incompetent’ original solicitors were also seeking to avoid liability.
‘If the appellant was let down by the police, his solicitors and the CCRC, you might at least have thought that he could rely on the support of the state on his release,’ Newby said.
After 17 years in prison for a crime he did not commit, Victor Nealon spent his first night of freedom sleeping on the streets of Birmingham. His claim for compensation has been refused under the new Anti-Social Behaviour, Crime and Policing Act 2014, whereby eligibility is restricted only to those who can demonstrate their innocence ‘beyond reasonable doubt’—an approach branded by Newby as ‘a pure ideological intention to stop those wrongfully convicted being compensated at all costs’.
Newby went on to address a number of other issues, including the systemic attacks on legal aid, delays in referring cases, and the investigations into historic sex abuse claims, and highlighted the need for greater transparency and recognition of error: ‘If we truly believe in justice, we shall have to learn how to say sorry and put right our errors.’
In his career, Newby has been successful at putting right a number of wrongful convictions; however, he fears for the future, where ‘the pool of good miscarriage of justice lawyers is rapidly diminishing [as a result of legal aid cuts] at a time when conversely the number of miscarriages are increasing’.
In closing, Newby made what amounted to a rallying cry to the legal community: ‘We should not fight against compensating men such as Victor Nealon, Sam Hallam and Ian Lawless; we should embrace the opportunity to do so. We should embrace our failures—they are the road to success and better organisations.’
‘Perhaps we are coming close now to a time when the cracks can no longer be papered over. Where the efforts to block justice have become so perverse that they will soon no longer be sustainable. The next few years will determine what sort of society we want to be.’
Lucie Boase is a paralegal specialising in actions against the police. She is Young Legal Aid Lawyers (YLAL) committee member and co-ordinates YLAL South West