By Paul May on 13/06/14Share:
When the Birmingham Six were still in prison, the comedian, broadcaster and writer Jeremy Hardy included in his act an exchange in which sceptics would challenge his support for the men’s campaign. ‘But how do you know they’re innocent?’ he’d be asked. Jeremy would reply that he didn’t know with absolute certainty that his elderly grandmother hadn’t carried out the pub bombings either. After a short pause, he’d add ‘and I have to say, looking at the evidence as it now stands, my nan’s a far more likely suspect’.
The Birmingham Six are, of course, forever associated in the public mind with innocence but could they have proved conclusively that it was impossible for them to have carried out the bombings? The question is apposite in light of calls for the Criminal Cases Review Commission (CCRC) to apply an ‘innocence test’ in deciding whether to refer convictions to the courts. The Commission may currently only refer a conviction if it considers there’s ‘a real possibility that the conviction… would not be upheld ’(s13 Criminal Appeal Act 1995). The Court of Appeal must‘allow an appeal ‘if they think that the conviction is unsafe’ (s2 Criminal Appeal Act 1968). It’s been argued that the ‘real possibility’ test should be scrapped and the CCRC should refer a conviction to the Court of Appeal if it thinks the applicant is or might be innocent. Sounds simple doesn’t it? The only problem is that an ‘innocence test’ would result in even more genuinely innocent people remaining in prison.
At no stage of the criminal justice process is anyone required to prove their innocence. At trial, the onus is placed on the Crown to show beyond reasonable doubt that the accused person is guilty. At appeal, the court decides whether fresh admissible evidence or some significant defect at trial renders the conviction ‘unsafe’. Appellants are not obliged to produce proof of innocence but rather that the evidence which convicted them is seriously flawed. In practice, the substantial majority of truly innocent (but convicted) persons would struggle to provide proof that they couldn’t have committed the offence.
Over the past 30 years, I’ve led public campaigns on behalf of 18 wrongly convicted prisoners. Sixteen of these convictions were referred to the Court of Appeal by the Home Secretary or (since 1997) the CCRC. All but one resulted in the court quashing the convictions. Two cases (Eddie Gilfoyle and Colin Norris) are as yet unresolved. I was (and remain) convinced that all of these individuals were innocent but the nature of their cases rendered it futile to look for unquestionable confirmation that they couldn’t possibly have committed the offences. Instead, the focus was on whether the evidence used to convict them was sound.
Take, for example, the Birmingham Six whose London-based campaign I chaired. By the time the men were exonerated, the whole of the prosecution case at their trial had been comprehensively demolished. Scientific results which purported to confirm some of the men handled explosives were shown to be bogus. Extensive evidence was uncovered to corroborate the men’s accounts that alleged ‘confessions’ had been signed by four of them after extreme violence, threats and intimidation. Circumstantial evidence which even the trial judge branded as next to worthless was further undermined. The fresh evidence which helped free the men came via many sources: the excellent work of Granada TV’s World in Action team, a lengthy investigation by journalist – and later MP - Chris Mullin, the men’s redoubtable solicitor Gareth Peirce, other journalists and the campaign itself. Our collective efforts, however, could not have discovered conclusive evidence to prove the impossibility of the men planting the bombs. On the night in question, the six men were drinking in a bar at New Street station close to the bombing scenes. It was theoretically possible they could have placed bombs in the nearby pubs but exactly the same could be said for tens of thousands of other people who happened to be in Birmingham city centre at the time. It was more than enough that nothing was left of the prosecution case which had convicted the six Irishmen.
I’m baffled by those who claim it would be feasible to introduce an ‘innocence test’ for CCRC referrals without placing a similar obligation on the Court of Appeal. This would produce a situation where appellants came before the court saying in effect ‘the CCRC thinks I’m innocent’ only to have the court respond ‘where’s the evidence that your conviction is unsafe?’ Consider the following passage from a 2012 Modern Law Review article which advocates separate tests for CCRC referrals and Court of Appeal decisions:
"Such cases could, for instance, raise public awareness of the inability or unwillingness of the Court of Appeal to overturn cases of appellants thought (even by the CCRC after its impartial investigations) to be factually innocent but who do not fulfil the current real possibility test as the evidence of their innocence was available at the time of the original trial and is, thus, not considered by the CCRC to be fresh in the eyes of the Court of Appeal".
This rather lets the cat out of the bag. The Commission would be set on a collision course with the Court of Appeal with the aim of provoking public disquiet (which somewhat over-estimates the avidity with which most of the general population studies Court of Appeal judgments). The author is also mistaken in presuming the requirement that there must be a reasonable explanation why fresh evidence was not put forward at trial is some caprice on the Court of Appeal’s part (or indeed arises from the ‘real possibility’ test). This is a statutory obligation laid down by Parliament in s23 of the Criminal Appeal Act 1968. It’s also unfortunate that the same article cited the late Simon Hall as a probable beneficiary of an ‘innocence test’. After an unsuccessful appeal in 2011, he admitted in August 2013 - after more than a decade claiming innocence - that he had indeed murdered pensioner Joan Albert. He was found dead in his prison cell in March 2014.
How would an ‘innocence test’ be applied in practice? If the CCRC were to decide subjectively – in lieu of fresh evidence - whether they agreed with the jury’s verdict, this would be a truly horrifying prospect. The overwhelming majority of jurors approach their duties seriously and conscientiously. Reactionary proposals by the previous government to undermine the jury system were thankfully resisted and should not be repeated. Juries can only, of course, reach their verdicts on the basis of evidence put to them. Many innocent people have been convicted because police and prosecution withheld crucial information from the jury. When I chaired the campaign for the four men convicted of the 1978 murder of Carl Bridgewater, one of their most committed supporters was Tim O’Malley who’d been jury foreman at their trial. He was furious (and under no doubt that he and his fellow jurors had been deliberately duped) as the extent of prosecution non-disclosure emerged thanks to outstanding investigative work by one of the men’s mothers Ann Whelan, the late Paul Foot and solicitor Jim Nichol. Having the CCRC act, in effect, as a ‘second jury’ would amount to a serious erosion of the integrity of the jury system itself.
If the CCRC were instead to look for evidence of actual innocence, how would this work? Assessing whether the prosecution case can still be regarded as ‘safe’ and looking for proof that the person couldn’t have committed the offence are not identical tasks. There are a limited number of potential avenues which may be explored in pursuit of evidence of innocence.
One obvious investigative avenue is to determine whether the person was present when the offence occurred. Evidence of alibi, however, isn’t guaranteed to avoid wrongful conviction. After the Birmingham Six were freed, I was asked to head a committee in support of Judith Ward then serving 13 life sentences for the 1974 M62 coach bombing. The more I learned about her case, the more it resembled Alice in Wonderland with all logic turned on its head. In a deeply psychotic state, she ‘confessed’ to planting the coach bomb at Manchester’s Chorlton Street station. Later checks revealed she was, in fact, drinking with friends in Oxfordshire - 140 miles away - when the bomb was planted. Undaunted, West Yorkshire Police then charged her with having conceived and planned the bombing instead thus defeating any further attempts to identify evidence of alibi.
More recently, I represented Sam Hallam in his application to the CCRC following his conviction for the murder of trainee chef Essayas Kassahun during a confrontation in East London. Sam’s defence can be easily summarised. He wasn’t there. His conviction was overturned by the Court of Appeal in 2012.
When I first visited him at Aylesbury Young Offenders Institution, he told me he believed his mobile phone which police seized from him contained images showing he was elsewhere on the night of the murder. He’d mentioned this to his original defence team but had apparently been ignored. I stressed the importance we attached to the mobile phone to the CCRC and to Thames Valley Police officers who were called in to investigate Sam’s case. As a terrified and confused 17 year old arrested nine days after murder, Sam mistakenly thought he’d been playing football with a friend on the night in question (an account he continued to give at trial). At intensive interviews with Sam at HMP Bullingdon, Thames Valley officers showed us images from the phone. They confirmed he’d been with his friend the night after the murder. Sam was mistaken albeit honestly. For the night in question, the phone contained just one image of Sam’s late father taken in a pub two miles away 50 minutes before the murder. The image was significant when considered with a statement made at the time by a witness who’d seen Sam chatting and drinking outside the pub not long after the murder. Even though several years had elapsed, patrons of the pub recalled being with Sam on a date which was almost certainly the night of the murder.
None of this impressed the prosecution. For months after Sam’s conviction was referred, the Crown Prosecution Service insisted he could have run all the way to the murder scene immediately after photographing his father, committed the murder and run all the way back to the pub for another drink to be observed by the witness in question (all this without Sam being picked up by any of the CCTV cameras en route). It was only after a tour de force opening by Henry Blaxland QC at the appeal hearing itself that the Crown finally conceded. The exhalation of pure joy from Sam’s family, neighbours, friends and supporters packed into and outside the courtroom as they realised his nightmare was finally over is a memory which will last with me forever.
The cynicism with which some police officers approach cast-iron alibi evidence was highlighted in another case in which I was closely involved – Sam Kulasingham and Prem Sivalingham, two Tamil men known as the East Ham Two. They were convicted of a firebombing in which three people were murdered. Their convictions were quashed in 1994 after evidence emerged of wholesale beatings and intimidation of suspects. The attack occurred at 4.00 a.m. – a time when most people would have difficulty providing independent corroboration of their whereabouts. Among those initially charged with the murders was their housemate Mark Joseph. Dozens of independent witnesses came forward to confirm they’d seen Mark working at an all-night garage many miles away at the time of the murder. After he was freed, police twice re-arrested him and accused him of murder before they finally gave up.
Who did it?
Convicted persons might prove their innocence if the real offenders are identified. This wasn’t of any help to the innocent Guildford Four however. In 1975, IRA members known as the Balcombe Street unit were apprehended. At their 1977 trial, they took the highly unusual step of admitting to the Guildford and Woolwich pub bombings for which the Guildford Four had been wrongly convicted. Despite providing a mass of detail which could only have been known to the real bombers, the men’s admissions were ignored and the Guildford Four spent a further 12 years in prison for crimes they didn’t commit.
Conclusive evidence of innocence may also exist in cases where no offence actually occurred. Included in this unusual category is the case of the Maguire family convicted in 1974 of conspiracy to cause explosions. Despite their convictions being quashed in 1991, the Court of Appeal could not bring itself to pronounce no crimes had been committed since this would have entailed admitting the police consciously concocted the whole case against an innocent family. I still see Anne Maguire and her son Patrick regularly. Suffice it to say that they’re even less likely terrorists than Jeremy Hardy’s granny.
There’s much wrong with the Court of Appeal’s approach to determining whether convictions are ‘unsafe’. The criteria applied by the court are inconsistent both from case to case and between individual judges. At times, the court displays a similar level of irrational obduracy to that which I witnessed on the bleak January day in 1988 when the then Lord Chief Justice, Geoffrey Lane flatly rejected the Birmingham Six’s appeal.
There are, moreover, worrying signs that the court has recently been moving away from the ‘jury impact test’ set down by the House of Lords in Pendleton. This case required the Court of Appeal in most instances to consider the effect new evidence might have had on the trial jury if it had been available to them rather than imposing its own view. The reforms needed to improve the Court of Appeal’s performance are outside the scope of this article but would include placing the requirement for a ‘jury impact test’ on a statutory footing.
We should beware, nevertheless, of seeking a more prescriptive catalogue of the circumstances in which convictions might be deemed ‘unsafe’. No matter how extensive the criteria laid down, it could almost be guaranteed that deserving cases would soon emerge which fell outside their parameters.
The Court of Appeal and innocence
Some idea of the likely consequences of the Court of Appeal applying an ‘innocence test’ can be gathered from the appeal judgment in the case of Danny McNamee convicted of manufacturing an IRA bomb which killed eleven soldiers in London’s Hyde Park. His conviction was quashed in 1998 after it emerged the Crown at his trial failed to disclose evidence pointing to a more plausible suspect and a fingerprint allegedly Danny’s was found not to be his. In this latter respect, I can claim some minor credit having discovered a long-suppressed study commissioned by the Home Office which found the method used by police to identify fingerprints (known as the sixteen point standard) had no scientific basis. In quashing the conviction, the court said its task
'is to resolve the question as to whether the conviction of this Appellant is safe in the light of the fresh evidence. We test that question by asking whether the jury, if they had knowledge of the fresh evidence, would necessarily have come to the conclusion that they did… it does not at all follow that this Appellant is innocent of the charge brought against him or that he has served 11 years imprisonment for a crime which it has been found that he did not commit’
There can be little doubt that the Court of Appeal would have upheld the conviction if an ‘innocence test’ had applied. As chair of the Danny McNamee Campaign, it was my firm belief he hadn’t committed the crime. However, the nature of the case made it impossible to find material which could conclusively prove his innocence. Danny’s conviction was the first to be referred by the newly-established CCRC. The fresh material was so strong that the Commission took less than four months to reach its decision. Had the CCRC been required to ask itself whether Danny was innocent, it’s questionable whether his conviction would have been referred at all.
It can be assumed the Court of Appeal would set the bar for establishing innocence at an elusively high evidential level so that few - or even no - convictions would ever be quashed.
Innocence and compensation
Since 2006, the likely effect of an ‘innocence test’ has been demonstrated by the government’s revised policies in relation to compensation payments for wrongful convictions. Previously, a discretionary scheme allowed for payments where such convictions ‘resulted from serious default on the part of the police or some other public authority’. Former Home Secretary Charles Clarke reverted to a statutory scheme where compensation is only paid if a ‘newly discovered fact shows beyond reasonable doubt that there has been a miscarriage of justice’ i.e. the applicant was found to be clearly innocent. Recent government legislation has narrowed the definition of miscarriages of justice to those where it can be shown ‘beyond reasonable doubt that the person did not commit the offence’. As a consequence, the number of exonerated persons agreed for compensation has plummeted with just one such application being approved in 2012-13. We could expect a similar catastrophic reduction if the ‘innocence test’ were extended to CCRC decisions and to the Court of Appeal itself.
By all means continue to press for an ‘innocence test’ but don’t expect truly innocent prisoners to thank you for it.