For a young man who has always protested his innocence and for his family and supporters this is fantastic news. The Court ordered his immediate release from prison pending the giving of its formal judgment later this week. But just hold on a minute and consider this: Sam Hallam’s first appeal against his conviction was heard in 2007 and was rejected by the Court of Appeal. If we had still had the death penalty in the UK it is a sure-fire bet that Sam Hallam would have been dead now for several years.

When we did have the death penalty in the UK the period between final appeal and execution was measured in weeks not months. Sam Hallam, an innocent man, would have been executed! Anyone who believes we should restore the use of capital punishment in the UK should consider that sobering thought long and hard.

The simple fact is that we are all human and mistakes get made. Bent coppers, corrupt prosecutors and lying or simply mistaken witnesses are a sorry fact of life.

By a curious coincidence on the same day as the Court of Appeal announcement in Sam Hallam’s case a story broke in the United States that is one that will haunt supporters of the death penalty in that country. After a painstaking four-year period of research by Professor Liebman and a group of students at Columbia Law School, they have produced a lengthy report which seems to establish beyond any reasonable doubt that Carlos DeLuna executed in the state of Texas in 1989 for murder was the victim of a simple mistaken identity. The real killer, a man called Carlos Hernandez was so similar in appearance that even DeLuna’s sister could not tell them apart from some photographs she saw. The prosecution said DeLuna was lying and no such man as Hernandez even existed.

Years later when Professor Liebman asked a private investigator to look for signs of this man he found the proof of his existence in less than one day. He was a man with a record of violent offences against women and he had a penchant for carrying exactly the type of knife used in the murder. He even bragged to others than another man had carried the can for what he, Hernandez had done. Hernandez died of natural causes in prison in 1999.

Shouting from the rooftops
This case is sure to unsettle many Americans who still believe in capital punishment. It may even cause disquiet to such an ardent fan as Justice Antonin Scalia of the US Supreme Court. Some years ago he stated in the course of argument in a capital appeal that there had not been a single case in which it was clear that an innocent man had been executed for a crime he did not commit. ‘If such an event had occurred,’ he said, ‘the innocent’s name would be shouted form the rooftops.’

Well now he may have to reconsider that statement because the name of Carlos DeLuna can now be clearly heard across the rooftops. His name is the nightmare that supporters of the death penalty have always feared they might have to face because they know that support for the death penalty depends on never having to confront the terrible prospect that an innocent has been murder by the state. There will be many sleepless nights ahead for those who still believe the state has the right to execute its citizens.

In reality the case for the return of the death penalty in the UK has been defunct for many years. There is already a long list of innocent people who would have been executed in the UK if we had still had the death penalty, headed by the Birmingham Six and the Guildford Four. The case of Sam Hallam has just ensured that that argument should never again he heard. All that opponents  of capital punishment need to say to those who still try to argue for its return are two words: ‘Sam Hallam.’ Game over.

And, within a few minutes, I had worked out that one anagram of ‘civil recovery demand’ is: Very evil demonic card.

Yeah, you’re right, it’s not on the same level. Not even close. Fortunately, however, I haven’t had to rely on my clearly limited cruciverbalist skills to get some nice warm feelings inside this month. Apart from Anarche in the Independent, a whole bunch of other people have been providing them for me.

Warm feelings
First up was a senior circuit judge at Oxford County Court, HHJ Charles Harris QC, who last week handed down his judgment on a county court money claim issued in May 2011 by a major high street retailer in pursuit of unpaid civil recovery demands for £137.50 sent to each of two teenage girls. Despite more than 750,000 such demands having been sent out by civil recovery agents such as Retail Loss Prevention (RLP) since they imported the practice from the United States in 1998, and despite some 500,000 of those demands having going unpaid, this was the first ever such county court claim to go to a fully contested trial before a judge. In short, it was the first ever test case in 14 years of the controversial (and quite possibly unlawful) practice.

In what could well prove to be a fatal blow to the already reeling civil recovery industry, HHJ Harris not only dismissed the retailer’s claim and refused them a right of appeal, but tore their legal arguments to shreds. The retailer’s security staff were not diverted from their normal duties by having to deal with the two girls, as the retailer asserted in court, because apprehending and ‘dealing with’ shoplifters are simply core functions of such security staff.

It is now hard to see any retailer being daft enough to try and pursue any similar court claims and, with the threat of court action (and escalating costs) removed, the agents’ civil recovery demands are now reduced to mere ‘requests’ for money that can be safely put in the recycling bin.

Then, later the same day, it was the turn of Government ministers to give me a nice warm feeling inside.  (And – believe me – that doesn’t happen very often). Thanks to a brilliant and brilliantly sustained campaign by Index on Censorship, English PEN, Sense about Science and others, the Queen’s Speech included a Libel Reform Bill to ‘protect freedom of speech and reform the law of defamation’.

At the time of writing, it remains to be seen whether the Bill will include a clear and effective public interest defence for journalists, campaign groups and third sector organisations, such as Citizens Advice, attempting to shine a spotlight on corporate practices that are unfair, detrimental to the public interest, or even unlawful. In other words, practices like civil recovery. The Oxford County Court case described above would never have reached a judge, and the law relating to civil recovery would not have been tested and clarified, had Citizens Advice been silenced – as we very nearly were – by unscrupulous threats of a libel action from the civil recovery agents Retail Loss Prevention and Drydens Lawyers.  But inclusion of the Bill in the Government’s legislative programme is a necessary and very welcome first step.

So, whilst the first two weeks of May were among the chilliest (and wettest) on record, I have been feeling warm as toast inside. So far, it’s been a very merry month of May indeed.

• You can read about the case  HERE.

‘There was a global failure in his assessment, management and access to specialist services, amounting to neglect,’
Coroner Prof Paul Marks

This was a desperately sad case. Gareth was a high-functioning autistic young man. The coroner was aware that a number of state agencies had been involved in Gareth’s care, so he decided to hold a full inquiry into the cause of death under Article 2 of the European Court of Human Rights.

A coroner’s role is limited by law to answering four factual questions:

• who the deceased was;
• where he died;
• when; and
• how he came by his death.

A coroner may not make findings of civil or criminal liability.

Gareth had a diagnosis of autism when he was very young. He had a statement of special educational needs. At 11 years, he began to express suicidal thoughts. He had considerable support at school, and managed to weather some stormy periods. In 2008, aged 16, he went to a college of further education. He found the transition difficult, because the 25-hour a week one-to-one support which he had at school was withdrawn.

Gareth experienced bullying from local youths, sometimes on his way to college and sometimes at college. In July 2009, after college had broken up, he went to some cliffs in Sheringham, Norfolk, with the intention of throwing himself off. He left his mother a voicemail to say he was committing suicide, and a suicide note. He then changed his mind. The police detained him under the Mental Health Act 1983, section 136. A hospital psychiatrist and a social worker concluded that he was not suitable for admission for hospital.

Thereafter, Gareth and his mother experienced great difficulty trying to access any services. The family was repeatedly told that there was a gap in services for people like Gareth. Unfortunately, it seems that this is an all too common problem for young people with autistic spectrum disorder. Eventually, he was able to access specialist counselling.

Early in 2010, Gareth started expressing suicidal thoughts again, and was assessed by a community mental health team. They referred him to a psychiatrist. Gareth committed suicide the day after he saw the psychiatrist, who could find no signs of mental illness.

The coroner heard evidence from mental health experts and the author of a serious case review commissioned by Suffolk County Council. He accepted evidence that there was a number of failings in Gareth’s psychiatric management amounting to ‘gross failure’. In particular, he accepted evidence that:

• Autism has a high co-morbidity rate with other mental health disorders, which can occur in 40% of cases;
• Pharmacological treatment for psychiatric co-morbidity was not pursued, when it should have been;
• ‘Talking therapies’ were inadequate;
• There were failures in communication between the agencies caring for Gareth;
• No comprehensive longitudinal assessment of his autism took place;
• No consideration was given to the possibility of him having any psychiatric co-morbidity;
• There were gaps in service provision, with no specialist service for people like Gareth, and a hiatus between child and adult services for those aged 16-18;
• There was a lamentable lack of a named expert in autism to take charge of his care and adopt a holist approach to his needs;
• There was no satisfactory transition plan to ease Gareth’s move to college.

Recording a narrative verdict of suicide, the coroner said that the failings amounted to ‘neglect’. In his view, on the balance of probabilities, either detention under the Mental Health Act or treatment with drugs would have averted Gareth’s death. He noted that the Autism Act 2009 ironically came into force in 2010. He expressed his intention to write (under the Coroners’ Rules, rule 43) to the Secretary of State for Health and to the Royal College of Psychiatrists about the gap in psychiatric services for 16-18 year olds and to Suffolk County Council for a report on its progress in implementing its obligations under the Autism Act 2009. It is to be hoped that the Coroner’s report will help to improve services for young people like Gareth nationally.

Ian Kelsey, deservedly a well-respected criminal lawyer and advocate, addressed the Law Society’s Criminal Law Conference on 8th May 2012 and propounded  that Criminal firms should make it clear to legal aid clients how their publicly funded status affects the service they get. He is quoted as saying:

‘It’s a myth that clients get the same level of service on legal aid rates as when they pay privately – that disappeared about 10 years ago.’

I am sorry, Mr Kelsey, but you do not speak for me, my firm, nor (I suspect) the majority of criminal defence practitioners who deal with legal aid cases either as solicitors or barristers.

At a previous firm I worked at, I was regularly laughed at by answering the question ‘Why are you a solicitor?’ by saying ‘To help people!’  I did not think this was the slightest bit funny. I am certainly not a criminal defence lawyer to make my fortune. I’m never going to be rich. I am, however, doing a job that has given me, and continues to give me, tremendous job satisfaction.

The overwhelming majority of work that goes through my firm is legally-aided. The same can be said for most of the criminal defence lawyers I know. Our private work comes from those that are not eligible for legal aid for a number of reasons, such as failing to pass the interests of justice test or because their means are such that they do not meet the financial criteria.  That a client is the recipient of legal aid, or is paying for our services from their own pockets, makes not one iota of difference to the service they receive.

Mr Kelsey is also quoted as saying that there is a limit to what criminal legal aid firms can be expected to do and that:

‘We can’t supply a platinum level of service with base metal rates of pay.’

With respect, Mr Kelsey, one cannot help but ask why your firm is still continuing to take on legally-aid clients?

Of course, every firm needs a steady stream of income to survive. A firm predominantly taking on publicly-funded work knows at the outset that that income source is subject to the whim of Government. We have seen the introduction of fixed fees pretty much across the board. We have seen funding for some areas of work totally removed.

We face further challenges – increasing levels of bureaucracy at the soon-to-be-defunct Legal Services Commission (a situation not likely to improve when the Ministry of Justice takes over the role); the introduction of electronic working in courts and in the preparation of cases; constant changes to the Criminal Procedure Rules

That, however, is no excuse for not doing your very best for each and every client (which I am sure Ian’s firm does), or for reducing the levels of service you offer if you intend to carry on with criminal defence work that is state-funded. No one is forced to take on a legal aid contract; it is a matter of choice for each firm.

I do not deny that economies have to be made, but that certainly does not have to be in the level of service given. I accept that the only way to make a profit from criminal defence work is by keeping overheads down and by working harder. No swanky offices and, for us, no secretaries or telephonists.  The upside of such economies, however, is that clients actually believe they are getting a better, and more user-friendly, service.

Making such comments merely perpetuates the real ‘myth’ that legally-aid clients DO get a second-rate service. I have lost count over the years of the number of times I have been asked by clients, who have been eligible for publicly-funded representation, whether it would make a difference to their case if they paid me themselves. My answer has always been the same … not one jot!

The proof, as they say, is in the pudding. We send out a client satisfaction questionnaire to all clients at the conclusion of their case asking them to rate our performance during the various stages of their case and our overall performance. We have an extremely high client satisfaction / client complaint ratio as do, I suspect, most of the other criminal defence firms I have dealings with. Anecdotally, most legally-aid criminal clients around the country are very happy with the service, advice and representation they receive.

And criminal clients can be a fickle bunch!  A firm can only retain client loyalty by consistently providing them with accurate advice and effective representation in court. A client who does not think his case is being treated as importantly as he believes it should be (which is usually of the highest importance) will soon ‘jump ship’ and seek representation elsewhere.

Mr Kelsey’s comments are sure to divide opinion amongst both professions but I think he has done a disservice to the considerable number of extremely conscientious criminal lawyers who, day in and day out and over very long hours, do give a ‘platinum’ service to each and every client they advise and represent. I also think he has unwittingly supplied ammunition to those who seek to control the provision of criminal defence services even further than they are already doing so.

• If you are worried about possession proceedings then also read Rita Jackson HERE.
• You can read an article by Ben in the Guardian HERE, responding to the LiveJustice project – see HERE.

As is so often the case in public sector advice work you don’t get any training in this. In my case a blue ring-binder folder was thrust into my hands with the instruction that I was now the point of contact for mortgage rescue scheme applications.

Then you are active. Day 1: For six months I used the folder as my bible, it was a government hand-out after all but I found I was getting nowhere fast and in no better a position than the clients who were coming to me for help. When a powerful corporate law team reject your offer you tend to believe it can’t be challenged. Headed note-paper can be intimidating.

Hoodwinked
I would ask the lender for one concession or another, and just get a refusal and didn’t know what to do next. I was also appearing in court without really knowing what I was doing and relying on sympathetic district judges to help me out, which they did.

One day I threw all my files up in the air, called some people in a neighbouring borough who had more experience than me in this field and dumped myself in their office for a few hours saying: ‘Tell me all.’ It was a master class and I quickly realised that I was being railroaded and hoodwinked along with my clients.

I found there are around ten or 11 separate things that a mortgage lender can offer their client as an alternative to repossession. Such methods are known as ‘Forbearance’, and that these forbearance methods, often known as ‘Lender Hardship tools’, aren’t usually offered up without a fight. I also learned how to use law and logic to challenge refusals and save the client’s home.

Not long after this I met a man who used to be the head of mortgage repossessions for a major high street lender. I asked him what happened the other side of the wall that me and my kind were blindly firing arrows over. He told me: ‘Ben, we know what you guys do. All this case law and legal stuff but it isn’t that complicated. The name of the game is – get the money or get the house.’

In the bin
I asked him to clear up for me a common gripe of all mortgage repossession advice workers, what happened to the signed third party authorisation letters we stapled to the letters that went missing, with every single bank we communicated with. He looked a little embarrassed and replied: ‘We just rip them off and throw them in the bin.’ So the lender won’t negotiate with you because they don’t have their client’s authority.

Everyday of the week I see clients on tranquilisers, even suicidal. Worn down by endless letters that they don’t understand and persistent phone calls that wears down their resistance. And yet, armed with three years of experience now, I sort through their piles of unopened letters and find they are a long way from dead in the water. They have loads that they can do but the lenders rarely tell them and they don’t know how to ask, or challenge a refusal.

In the past few years the Financial Services Authority have levied a number of fines on the worst offenders, which has had the strange effect of making them the easiest to negotiate with, because although the fines are paltry in finance terms, they no longer want the bad publicity.

This doesn’t mean that bad offenders aren’t still operating. They have just so far evaded FSA action so are intractable and resistant to negotiations.

Mortgage cases often drag on for a year. Court applications to suspend or adjourn are usually met with fierce and yet legally pointless defences. I have so many cases where a previously unemployed mortgagor, facing possession who, at the last minute finds full time permanent employment, applies to court to hold action, only to find an embarrassed lawyer instructed to turn up and oppose the application get balled out by the DJ. They often apologise to my client for even being there, because they see the complete unreasonableness of the mortgage lender’s position.

The Council for Mortgage Lenders estimates that there will be 45,000 repossessions in 2012, more when the lenders who are raising the SVR in May start to kick in. That means maybe (a conservative guess-timate)  200,000 people under threat of repossession? How many of those people need to lose their home? How many of them become part of the 45,000 when they don’t need to be, simply because they don’t know what to ask for or how to negotiate an alternative to repossession?

I firmly believe that if all advice workers knew about mortgage borrower’s rights, those 45,000 would be down in 4 figures. 90% of the people who turn up for advice, facing mortgage repossession don’t need to be in that position.

The same day – somewhat surprisingly, given the Sun‘s ‘exclusive’ – the Daily Mail carried an almost identical – and identically hysterical – story, wittily entitled ‘High heels to be cut down to size under new EU rules’. According to the Mail, ‘a health and safety directive [sic] orders stylists to wear “non-slip soles” when they are cutting hair, and bans wedding rings and watches as unhygienic’.

However, both newspapers were able to reassure their worried readers that the DWP employment minister, Chris Grayling MP, is already on the case. ‘This kind of stupidity has to stop,’ he growled. ‘These stupid rules just cost jobs and right now we should be creating jobs, not killing them. It makes no sense and I will do everything I can to stop it.’ Phew! Hurrah for Chris Grayling!

Except that, as you’ve probably guessed, there is no such EU Directive, and no new EU rules, now or in the pipeline. All that’s happened is that there’s been some discussion between employers and workers in the hairdressing industry, at a European level, about improving occupational health in the industry, and in particular preventing skin disorders and muscoloskeletal diseases. Nothing has gone near any EU institution, and indeed no one is even thinking of new EU rules, legislation or ‘red tape’.  And no one has mentioned high heels.

So, just some employer representatives talking to worker representatives, about improving working conditions in and the reputation of their industry, for the mutual benefit of all. You’d have thought that was just the kind of thing the DWP employment minister should be encouraging, even facilitating.

But no. One week later, Mr Grayling’s advisers and officials seemingly having failed to identify the Sun and Mail stories as yet another ‘elf and safety’ myth – the minister used a major speech to a policy think tank to announce:

‘It baffles me that at a time when we face a huge jobs challenge across Europe, that someone thinks it is sensible for the EU to be spending time legislating to ban high heeled shoes in a hairdressers. Don’t they understand that more and more red tape drives more jobs to emerging countries, and away from Europe?’

Well, call me old fashioned; but it baffles me that at a time when the UK economy faces a huge jobs challenge, the DWP employment minister thinks it is sensible for him to be spending his time peddling myths and untruths from the pages of the Sun.

Prior to Jayda’s birth the parents were charged with murder and/or causing and allowing his death. They were acquitted at the Old Bailey in December 2011. The judge withdrew the case and directed the jury to acquit them. The care proceedings continued. Islington accepted that the sole issue to be determined, in terms of  risk, was whether on the civil standard of proof (balance of probability) the injuries had been inflicted by the parents. The care case took place in February 2012 and concluded in a judgment last week ([2012] EWHC 865 (Fam)).  The judge exonerated the parents.

The judge held that all the fractures were a product of rickets. Jayden’s death was attributable to a combination of benign causes, which included severe Vitamin D deficiency which sensitized him to infection and seizures. The seizures in turn lead to raised inter cranial pressure, retinal haemorrhages, subdural haematoma which culminated in hypoxic ischemia brain injury. She specifically found that a contributory factor to his death was the suboptimal care that he received at University College Hospital, the first hospital which his parents had taken to for treatment.

Expert evidence
This article is written to underline the importance of the expert evidence in cases such as this. In both the criminal case and the family case five overseas experts were used. In the criminal case, a total of 15 experts gave evidence together with numerous clinicians and health care professionals who had seen Jayden during his life. One of the clinicians, Dr Peters, consultant paediatrician at Great Ormond Street Hospital was treated by the criminal court as an expert.

In the family case 14 of the experts gave evidence. The experts called by the Crown were instructed by the local authority and the experts called by the defence were instructed jointly by both parents. As the family case followed very soon after the criminal case no formal letters of instruction were sent to the experts as is usually the case in family cases. Instead it was agreed by all parties that the experts would be sent copies of the medical notes, the transcripts of evidence within the criminal case, including all the expert evidence (LiveNote) and the experts’ reports in electronic form. As the case went on, the judge ordered that there be a LiveNote of the expert evidence within the family case and this was disseminated to the various experts giving evidence. Despite this being an unusual methodology, for a family case, it worked well and cut down considerably on the amount of time that is usually spent in instructing an expert and then posing further questions upon receiving a response and then collating that evidence, those responses and disseminating them and exploring further issues. In my view it worked well because broadly speaking the experts were aware of what the evidence in the criminal case and we were aware of what the experts had said in the criminal case and could then focus on exploring their evidence further in the family case in the light of the totality of the evidence given, albeit on a different standard of proof, balance of probabilities.

Expert costs
The expert evidence in this case was vital to the outcome. Without that evidence it almost certain that the outcome would have been different. This case started before October 2011 and therefore the reduced hourly limits for experts did not apply; albeit the Legal Services Commission imposed a ceiling rate which all of the experts accepted. There was therefore no issue over the costs in this case and indeed the commission dealt expeditiously with the authorization of those costs which was essential to the case progressing given the short time between the criminal case and the care case.

The new hourly rates after October 2011 are significantly lower than the hourly rate that was agreed in this case. The LSC does have discretion to go above the hourly rates imposed but this will only be done in exceptional circumstances. As the changes are recent it has not yet been tested and confirmed whether cases such as this would be such exceptional circumstances. It is however clear that the extremely low hourly rates for experts’ fees that have been introduced will seriously impact upon parents being able to instruct experts of the calibre of those in this case in the majority of the cases before the court.

Timescales
The Norgrove Report has recommended that proceedings should be completed within six months, cases should be streamlined and there be less reliance on the use of experts. The thinking being that, currently, cases are taking too long to conclude, the issues in cases are being overcomplicated by the lawyers as the focus is more on the parents. The result is unacceptable delay for the very children whom these cases are being brought to help. It is not within the scope of this brief article to provide a detailed analysis of the report or its conclusions. Mr Justice Ryder has been charged with the task of investigating how the changes can be implemented and has published updating bulletins as to his progress.

Had the six month deadline been adhered to in this case I have no doubt that it would have been impossible to put forward the case that we have had the opportunity to put forward.  It was a lengthy process for the criminal team to instruct the experts that were needed to challenge the criminal case, their availability both to report and give evidence then needed to be factored in. The prosecution experts needed to be able to respond. On a practical level the medical records and health care records needed to be located, collated and disseminated. This was a lengthy task as Jayden was seen on 33 occasions before his admission to University College Hospital. Imaging, both in life and death needed to be located and samples sent to the experts, experts’ meetings needed to be arranged between the various disciplines of experts and the extensive research literature needed to be assembled and considered. These tasks could not be undertaken in the nine months leading up to the initial fixture for the criminal trial. In cases of this complexity it seems impossible that the six month deadline can reasonably be adhered to, particularly given court listings currently.  It is hoped that in practice a balance can be struck between the need to obtain a swift conclusion, thereby giving certainty to the child, and the need for there to be appropriate information available to the court, and time for the court to hear the matter, to ensure justice is served to the parents and the child. A child has a right to be brought up by his or her parents if at all possible and it is important to keep that principle in mind when undertaking this balancing exercise.

It is important that the Criminal Case Review Commission does what it feels is right, even if that runs the risk of disapproval from senior judges, reflected Henry Blaxland QC in his address to the Criminal Appeal Lawyers Association (CALA) conference last week. The troubled relationship between the two bodies was a theme of three meetings looking at miscarriages in as many weeks.

The CALA conference came shortly after the Innocence Network UK symposium and the JusticeGap debate. CALA definitely had the most apposite title: Miscarriages of Justice: Who cares?

At our Justice Gap debate, Francis FitzGibbon QC, of Doughty Street Chambers, kicked off proceedings by asking why should anyone care about the wrongly convicted. ‘The answer is most people don’t,’ replied David Jessel, who campaigned for the creation of the CCRC through programmes like Rough Justice and Trial & Error. Both series currently have ended – that latter being signed off by the head of Channel 4 with the dismissal that it was ‘all a bit 1980s’. Sadly, the subject might have gone out of fashion but (of course) never went away.

Anyhow, it was good to see ‘Wrongly Accused’ quoted from during Blaxland’s speech to the CALA conference – the silk generously called it an ‘important’ collection. Thanks. It is free – and you can download it HERE.

Following the JusticeGap debate, the Innocence UK Network’s symposium featured speakers including Chris Mullin, Bruce Kent, Prof Michael Zander QC, Laurie Elks, and Jessel as well as lawyers including Mark Newby and John Cooper QC. Sue Caddick, the sister of Eddie Gilfoyle, made a moving speech on his behalf. During the CALA conference, CCRC chairman Richard Foster referred on a number of occasions to the fact that although the symposium was concerned with the work of the CCRC, they had not been invited.

In his speech to the symposium Prof Zander rejected INUK’s analysis of the CCRC and did not support its proposals for reform. INUK has called for the ‘real possibility’ test as laid down by statute to be replaced with one of ‘innocence’. This, says INUK, would allow the CCRC to refer a conviction back to the Court of Appeal if it thinks that the applicant is, or might be, innocent.

Zander was on the Runciman Royal Commission whose report led to the creation of the watchdog. He was asked to consider whether the CCRC lived up to what was envisaged. His answer was that the Commission as established by the Criminal Appeal Act 1995 did ‘broadly live up to what the Royal Commission envisaged’.

‘If I were to suggest something that has perhaps NOT lived up to what the Royal Commission envisaged, it would be the Court of Appeal’s excessive deference to jury decisions. That is the cause of much of the problem for which INUK blames the CCRC.’
Prof Zander

Safety, not innocence
Richard Foster defended the CCRC, saying quite categorically that the CCRC ‘cares as much about innocence as anyone’. The commission receives around a thousand applications every year, most from convicted persons claiming innocence, and the starting point is that someone who protests their innocence is entitled to have that claim investigated. One of the main criticisms of the CCRC is that they do not investigate the cases before them and that claims are dealt with ‘on paper’.

Foster explained that their test is ‘safety; not likelihood of innocence, with ‘safety’ being a broader test of innocence. He said it is not necessary to prove innocence, only that the conviction may be unsafe, although of course the commission is interested in innocence. He went on to say that at the heart of justice is the right to a fair trial and that the focus of the CCRC is not just on the individual, or on the individual case, but safety, and the upholding of the safe trial process.

Foster explained that the organisation has suffered a 30% cut to its budget although its caseload remains unchanged. Even with the cuts he claimed the CCRC is 50% quicker in dealing with cases, currently taking six months for a review decision – in his mind its not a ‘failing’ organisation. Around 40 to 50% of cases referred are murder, rape, terrorism and the more serious cases of robbery. The rate of referral back to the Court of Appeal in real terms is almost 7%. Around half the applications received are from people who have not yet begun the appeal process, or which concern cases out with the commission’s jurisdiction. Foster said that ‘if the figures were higher, it would mean that the entire criminal justice system were in a parlous state’.

Foster went on to tell the conference some of the problems facing the CCRC other than the cuts to their budget. Under the Criminal Appeal Act 1995, section 17 the CCRC has sweeping powers to obtain material held by public bodies and that includes files, materials and samples. Foster said that increasingly public bodies had gone private causing difficulties with the CCRC’s s17 powers .

Some of the cases referred are 20, 30, and even 40 years old, making the tracking down of evidence, or even paperwork difficult. There is currently some debate as to whether the commission will have to look at the case of Dr Crippen, a relative is considering referring the matter – news that caused some consternation amongst lawyer-delegates with clients in prison. He said that 40% of referrals turn on matters such as non-disclosure or police corruption. A high proportion of those needing to have their cases looked at by the commission are in custody and struggling with literacy – a new ‘easy to read’ form was introduced, causing a surge in applications.

Under the radar
Finally, Foster told the conference of the case of a young girl who had been convicted in the Magistrates Court of stealing a passport, a fact she readily admitted. She had been sentenced to a four-month detention and training order. However, this child had been trafficked into the country at 15, imprisoned, beaten and raped, forced to work as a prostitute. When arrested she was at the airport trying to flee the country and seek asylum elsewhere. This illustrated that shocking miscarriages of justice can take place at all levels within the criminal justice system, not just at the higher levels. Foster is not concerned with the cases that receive the maximum publicity – they take on a momentum of their own. It’s the ones that may slip under the radar that concern him the most.

Fresh evidence
Henry Blaxland told the conference that in his view, a far greater obstacle to an applicant to the CCRC than the ‘real possibility’ test is the statutory requirement that a reference to the Court of Appeal is made on the basis of ‘fresh evidence’ – evidence or argument not raised at trial on appeal. In practical terms this means that many referrals depend on new evidence, and this in turn raises the question of how the court is likely to approach not only the decision whether to receive that new evidence, but how it affects the safety of the conviction. He continued that although the CCRC has to confine itself to new evidence, unless there are exceptional circumstances, it does not mean that the past history of the case is irrelevant. Fresh evidence, which on its own may appear to be of relatively little weight, may tip the scales. It can be the straw which breaks the camel’s back.

In conclusion Blaxland said that if the CCRC is to continue to maintain public confidence then it needs to be prepared to refer cases to the Court of Appeal in which it feels that justice may have miscarried, even where grounds of appeal are hard to identify. Such cases often involve failures by the trial lawyers (an issue referred to by Malsen Merchant in his Wrongly Accused essay, and Gareth Peirce during the JusticeGap debate), a notoriously unpopular complaint in the Appeal court, or that the court has dismissed the first appeal in a plainly unsatisfactory manner. Blaxland spoke of the ‘transparent and unremitting hostility towards the appellants and those responsible for getting the case back before the Court of Appeal’.

The likely scale of animal abuse in England and Wales is much higher. As with other forms of crime, only a percentage of the total amount of abuse is likely to be reported to official agencies while a larger amount of crime that is known to those involved will be kept secret and dealt with (which sometimes means covered up) within the family. Criminologists refer to this as the ‘dark figure’ of crime; the offending that takes place with the full knowledge of victims and witnesses but which is rarely revealed to criminal justice agencies except on those occasions when questions are directly asked through victim surveys and other crime audits.

The rising levels of both convictions and calls are significant because animal abuse has societal implications beyond the direct harm caused to the animals involved.  The reality of animal abuse is that much of its investigation and prosecution is still carried out by NGOs like the RSPCA rather than mainstream criminal justice agencies, despite the fact that animal abuse constitutes criminal behaviour.

Researchers in the US and UK have determined that there are clear links between animal abuse and other forms of interpersonal violence, to the extent that many of those who begin by abusing animals go on to commit crimes against humans. In a landmark 1963 article in the American Journal of Psychiatry, Macdonald identified three specific behavioural characteristics associated with sociopathic behaviour; animal cruelty, obsession with fire starting and bedwetting (past age five).

The ‘MacDonald Triad’ was instrumental in linking these activities to violent behaviours, particularly homicide; identifying cruelty to animals as a possible indicator of future violent behaviour. Subsequent studies have confirmed that cruelty to animals is a common behaviour in children and adolescents who grow up to become violent criminals and, in the case of adults who abuse animals, it can indicate a violent or abusive family dynamic, where harm is inflicted on weaker or more vulnerable family members who may be unable to defend themselves. In some circumstances, acts of animal abuse are used to intimidate, control or coerce women and children within an abusive relationship either to accede to a perpetrator’s demands or desires or to keep silent about the abuse they are suffering.

The neglect or harm inherent in animal abuse so frequently occurs in the abuse of other family members to the extent that where animal abuse occurs it is more likely that other forms of abuse will also be happening. For example, American research published in 1997 which sampled around 50 battered women’s shelters found that 84% of the shelters confirmed that women who came to the shelters talked about incidents of pet abuse, 63% confirmed that children who came to the shelters talked about pet abuse and 83% of the shelters confirmed the coexistence of domestic abuse and pet abuse. Other researchers have drawn similar conclusions and the American researchers also found that some women experiencing domestic abuse were reluctant to leave the family home in those cases where a shelter was unable to take a pet, as this would mean leaving a vulnerable companion animal behind to suffer further abuse.  As Mumsnet and the Women’s Alliance were reported as saying in The Guardian recently, the vast majority of women suffering domestic violence do not go into refuges and for many it is a last resort. Thus in the context of the current provisions of the Legal Aid and Sentencing Bill that would seemingly prevent women who have not sought ‘refuge’ from receiving legal aid, animal abuse is clearly a justice gap issue.

Yet despite the evidence of a growing body of research that consistently shows clear links between animal abuse and other forms of domestic abuse such as spousal or child abuse, animal abuse continues to be seen as an animal welfare problem, at least in the UK. In launching these figures, the RSPCA describes itself as stretched to ‘breaking point’ in dealing with the volume of calls and cases it receives and remains the lead prosecutor in animal welfare and abuse cases. Yet given that animal abuse serves as an indicator for criminal justice and social welfare organisations that other forms of harm may be present it is surely time for it to be seen as part of mainstream criminal justice by the courts, the police and the public.

• You can download Wrongly accused: who is responsible for investigating miscarriages of justice? HERE. It is the fourth in the JusticeGap series.

I am glad to have the opportunity of saying something on this topic as I think that there has been a serious misreading of what the Royal Commission envisaged.

In its statement issued for this conference, the Innocence Network UK (INUK) said that the main problem with the CCRC was its lack of independence from the courts. Runciman had called for the creation of a new body independent of both the Government and the courts for dealing with allegations that a miscarriage of justice had occurred. Whilst the CCRC was independent from Government, Runciman’s recommendation that it should also be independent from the courts had not materialised. Pursuant to s.13(1)(a) of the Criminal Appeal Act 1995, the CCRC could not refer applications to the appeal court unless there was a real possibility that the conviction would not be upheld.  The ‘real possibility test’, INUK said, subordinated the CCRC entirely to the appeal courts and restricted its review and decision-making processes to the appeal courts criteria for quashing convictions.

INUK’s solution?

• Replacement of the ‘real possibility test’ by a test that allows the CCRC to refer a conviction back to the Court of Appeal if it thinks that the applicant is or might be innocent, which would require the CCRC to consider all the evidence; and
• Where the Court of Appeal dismisses an appeal against conviction following a CCRC referral, the CCRC to have the power to refer the case to the Secretary of State to consider exercising the Royal Prerogative of Mercy.

As to the second of these proposals, I am puzzled as the CCRC already has that power. Section 16(2) of the Criminal Appeal Act 1995 says: ‘Where in any case the Commission are of the opinion that the Secretary of State should consider whether to recommend the exercise of Her Majesty’s prerogative of mercy in relation to the case they shall give him the reasons for their opinion’. That is an open, unqualified, invitation.

So I will focus my remarks on the first proposal  – in the context of Crown Court convictions. I regret to say that I do not share INUK’s analysis and I do not support its proposals.

The Royal Commission explained what it meant when it said that the new body should be independent of the Court of Appeal? Paragraph 15 of chapter 11 of the Report begins, ‘We believe that there are cogent arguments for the Authority to be independent of the Court of Appeal.’ The paragraph then spelled out what that entailed. There were three ingredients – namely, that the new body, rather than the Court of Appeal, should carry out investigations; that it should not come within the court structure; and that it should not take judicial decisions.

The CCRC unquestionably satisfies those three tests.

Shackled by statute
INUK says, however, that the CCRC is not independent of the Court of Appeal because it is shackled by the terms of the ‘real possibility test’ enshrined in s.13.  I do not think that the Royal Commission would have agreed.

There is not a word in the Commission’s Report regarding the grounds for referring a case. Strange as it may seem, I think that the matter was never even discussed by the Royal Commission.  (I have looked at the Secretariat’s note prepared in October 1992 for the Commission’s meeting on ‘Correcting Miscarriages of Justice after Appeal’. It consisted of nine pages of discussion of a variety of topics and concluded with a list of 20 possible recommendations for Commissioners to consider. The basis of referrals was not mentioned.) All that the Royal Commission’s Report said as to when the new body should refer a case was this: ‘When, therefore an investigation is completed whose results the Authority believes should be considered by the Court of Appeal, we recommend that it should refer the case to the court, together with a statement of its reasons for so referring it.’

Since it did not deal with the question, I am speculating, but I believe that the Royal Commission would have agreed with the basic approach of s.13 which stipulates that a referral should be based on some new argument or evidence that makes a significant difference but that exceptionally it need not be something new.

There are two elements. It must be something significant creating a real possibility that the decision would be reconsidered and generally it should be something new.

As to the first, I believe that the Royal Commission would have taken the view that it makes no sense to suggest that the CCRC should refer conviction cases where it did not think there was a real possibility that the conviction would be reconsidered.  It would have agreed with Richard Nobles and David Schiff when they wrote: ‘Sending cases that had no hope of success would raise false hopes for appellants and delay the Court of Appeal Criminal Division’s hearing of cases which were going to succeed, resulting in longer periods of imprisonment for wrongfully convicted prisoners.’

The Scottish CCRC has been given what seems to be a more open-ended remit. The statute says that it can refer a case to the appeal court on the ground that it believes that a miscarriage of justice may have occurred and that it is in the interests of justice. Some think that the difference in the statutory formula explains the higher rate of referrals by the Scottish Commission. That may or may not be so.  But it is wrong to think that the Scottish Commission makes referrals without regard to the appeal court’s likely response.  In this respect the Scottish Commission operates in much the same way as the English Commission.

There is no doubt that the main thrust of the proposal to set up the new body was that it should replace the Home Office’s C3 section – partly for constitutional reasons and partly because C3 did not undertake sufficiently energetic investigations.

Serious doubt
The Royal Commission said that it based its recommendation for the establishment of a new body on the proposition that the role assigned to the Home Secretary and his Department under the then existing legislation was incompatible with the constitutional separation of powers between the courts and the executive. ‘The scrupulous observance of constitutional principles has meant a reluctance on the part of the Home Office to enquire deeply enough into the cases put to it’.

Enquiring deeply into a case relates to investigation, the purpose of which is to see whether there is something important that is new that was not before the trial or the appeal courts. That is reflected in s.13(1).

There is nothing in chapter 11 dealing with ‘Correction of Miscarriages of Justice’ to suggest that Runciman thought that the new body should refer cases to the Court of Appeal by reference to a new principle. If anything the implication is rather to the contrary, since the Report said that once a case had been referred, ‘It would be for the Court of Appeal. . . to treat it as an appeal from the Crown Court’. That sounds as if the Royal Commission assumed that the Court of Appeal would operate according to its customary approach.  The difference would only be that the case would have benefitted from the additional in-depth investigation undertaken by the new body.

However, in the previous chapter dealing with the Court of Appeal, the Royal Commission said that, if the court  ‘has a serious doubt about the verdict’, it should be ready to quash the conviction even though there is nothing new and no irregularity at trial. It fully appreciated the reluctance felt by appeal court judges about quashing a jury’s verdict but, the Commission said, ‘we do not believe that quashing the jury’s verdict where the court believes it to be unsafe undermines the system of jury trial’.

Quashing a conviction when there is nothing new is sometimes referred to as acting on a ‘lurking doubt’, a phrase associated with the 1969 case of Cooper. Kate Malleson’s research for JUSTICE found that in the 21 years between 1968 and 1989 there were only six cases in which the lurking doubt test had been applied. But in her 1990 sample of 102 successful appeals there were six ‘lurking doubt’ cases and in her 1992 sample of 114 cases there were 14 cases in which the conviction was quashed because the court considered that the jury had reached the wrong result although there was no fresh evidence and no criticism of the trial process. In nine of these the court said that the evidence was too weak or flawed to justify a conviction; in the other five cases the court referred to having a ‘lurking doubt’. So far as I am aware there are no recent figures, but it is said that the Court of Appeal is today less ready to act on that basis.

The Royal Commission said that, whether or not the Court referred to the lurking doubt principle, these were cases where the combined experience of the three members of the court led them to conclude that there may have been an injustice in the trial and in the jury’s verdict.

The Royal Commission recommended that in the proposed redraft of section 2, ‘it should be made clear that the Court of Appeal should quash a conviction, notwithstanding that the jury reached their verdict having heard all the relevant evidence and without any error of law or material irregularity having occurred, if, after reviewing the case, the court concludes that the verdict is or may be unsafe’. If not an invitation to allow full-on challenge to jury decisions, this was at the least a suggestion that the lurking doubt test be given express statutory approval.

The recommendation was not implemented. Of course, it is one thing for the Court of Appeal occasionally to quash a conviction, with or without mention of lurking doubt, on the ground that the jury got it wrong.  It is something rather different to give that concept legislative expression. The proposition that a conviction is unsafe if the Court is of the view that, on the evidence, the jury should not have convicted would be a fundamental new principle of our criminal justice system. It is tantamount to saying that criminal convictions in Crown Court cases require the assent not only of at least ten members of a jury but, on a belt and braces principle, also of the Court of Appeal. Were it not for the resource implications, that might be an excellent reform. It would give official recognition to an uncomfortable but obvious fact – that juries sometimes do get it wrong. But the resource implications are extremely serious. Once the news got around the prisons, the number of applications for leave to appeal on the ground that the jury got it wrong would increase exponentially. How could the system cope with that likely deluge not just in terms of the sheer numbers of applications but of the resulting increased workload for judges required to consider all the evidence in all those cases?

A useless safety valve
Should at least the CCRC, however,  have the power to refer cases to the Court of Appeal where there is nothing new, simply on the ground that it thinks the jury got it wrong? Stated baldly like that the proposition would probably attract little political support – if only again because of the fear that the CCRC would quickly itself become deluged with a rising tide of requests for referrals back to the Court of Appeal. But in 1994, when developing its thinking through a Consultation Paper, the Home Office seemed to have in mind something along those lines. Normally the Authority would refer cases on the basis of something new but, the Consultation Paper said:

‘The Government does not propose, however, that the Authority’s power to refer should be limited in statute to cases where something “new” appears to have emerged. Apart from the difficulties of interpretation which this would give rise to, it would exclude the possibility of a reference being made in an exceptional case where the Authority felt real disquiet about the safety of a conviction even in the absence of new matters. The Government therefore considers that the Authority should be empowered to refer a conviction to the courts according to a test expressed in terms wide enough to encompass the variety of circumstances described above, where it appears that there may be grounds for doubting the safety of the conviction and that it would be right for the courts to be given the opportunity to reconsider the case.‘

That sounded like a quite strong endorsement of the concept. However, when one looks at the 1995 Act its only expression is subsection (2) of s.13 which says that in exceptional circumstances the CCRC can refer a case even though there is nothing new. Whatever Ministers intended, this has proved to be a useless safety valve. In the fifteen or so years since the establishment of the CCRC it has hardly ever been used.

I imagine the reason is that the Commission lacks the confidence to use the power, fearing that the Court of Appeal will not welcome referrals when there is nothing new. But if the CCRC believes that the case should be reconsidered it should exercise the power to require that it be reconsidered, even if the reference fails.

The INUK statement for this conference proposes that the CCRC should have the power to refer cases to the Court of Appeal ‘if it thinks that the applicant is or might be innocent’. I have no problem with a referral to the Court of Appeal where the CCRC has come to conclusion that the convicted person is innocent – providing that it is on the basis that in the CCRC’s view the conviction is unsafe. But I would be strongly against the CCRC referring a case on the stated basis that the defendant is or may be innocent.  There are few cases in which it would be possible to do so and to identify a few persons being referred as ‘innocent’ or ‘probably innocent’ would by definition suggest that anyone else referred was not innocent. One would not want second class referrals any more than one wants second class acquittals.

Mutual support
Does that mean that I am a critic of the Innocence Project? Absolutely not.  I am a great supporter of the whole concept and am honoured to be a patron of the organisation.

There are two main reasons.

• One is that it is an important addition to the means of providing a legal education. Students who take part in the programme will learn both about the criminal justice system and about developing lawyering skills. Moreover, by working on something of importance to a human being who is in prison they may also derive satisfaction far beyond what can normally be obtained from legal studies.
• The other main reason is that the work done by an Innocence Project can have a real impact on the case.

The relationship between Innocence Projects and the CCRC should be one of informal partnership and mutual support. After all, if an Innocence Project can establish that a convicted person is factually innocent that may be the basis of a successful referral.

What if the CCRC does not refer such a case or if, having referred it, the Court of Appeal does not quash the conviction? The answer may be to continue to argue the case. The Innocence Project does not have to drop the case. It can attempt to mobilise media or other support.

By the same token, if the Court of Appeal declines to quash the conviction, the Commission, if convinced that the case needs to be reconsidered, can refer it again.

And, if all else fails, the Commission has the power under s.16 (2) to ask the Home Secretary to exercise the Prerogative of Mercy.

My answer to the question posed therefore is that I believe that the CCRC as established by the Criminal Appeal Act 1995 does broadly live up to what the Royal Commission envisaged.

‘If I were to suggest something that has perhaps NOT lived up to what the Royal Commission envisaged, it would be the Court of Appeal’s excessive deference to jury decisions. That is the cause of much of the problem for which INUK blames the CCRC.’

But perhaps what the Royal Commission envisaged in that regard was unrealistic.