It would take a whole day of the conference to explain just how complicated the current arguments are over the New Scheme, the meaning of Innocence and whether the new section breaches article 6 (2) of the European Convention of Human Rights.
The essence of the argument is that:
1 – We say the new section is unlawful
2 – The new wording of commit is the same as asking someone to prove innocence
3 – We can prove Innocence in any event
4 – We dispute whether the Court in Adams really did declare that the test was a “lex special is” or that 6 ( 2 ) would not apply. The SSJ arguing the Court has previously declared the law on this issue to be a special category to which normal judicial review principles do not apply – ” lex special is”
5 – We are satisfied that if this case goes to Europe that unlike in Allen the Court is very likely to conclude the Governments new scheme is a breach of the convention and should not stand.
6 – The Govt cannot escape in this litigation simply because at the end of every refusal letter they record a hollow sentiment that just because they have refused compensation doesn’t mean that the applicant tis not innocent.
What is clear is that all these legal challenges eat up time during which Victor Nealon will not achieve any just settlement for what has happened to him.
Not only that but the Government will use the current position to refuse everyone the prospect of any miscarriage compensation.
So there we have it the sorry tale in the Victor Nealon Case of a system unable to accept responsibility. The Police who misused their powers to secure a wrongful conviction, his defence lawyers who incompetently let him down, the CCRC who made serious mistakes in reviewing his case and the ministry of justice who are financially seeking to avoid a just settlement at all costs.
If only the efforts all of these organisations have now put in to defend themselves had been put into dealing with the case in the first place Victor Nealon would never have had to endure what has befallen him.
Perhaps one of the greatest issues that challenge appellants today is that of delay. Another couple of cases illustrate the point. Firstly an unsuccessful CCRC Referral – Dent. Mr Dent applied to the CCRC many years ago and was given a provisional statement not to refer. Representations were made as to why that was wrong – that was in 2006/7 – it was not until 2012 that his case was finally referred. By then of course the tide had turned once again over sexual offences and the net result was that his appeal was refused.
Another person for whom time ran against them was Susan May. I am pleased to have been asked to help Susan’s application having had the honour to meet her at such conferences several times.
Susan’s family and supporters worked tirelessly to get a fresh application to the CCRC It has been a long fight one which Susan was not to see the end of having sadly passed away in October 2013. If you want to know more about Susan’s case then I would urge you to visit her website and watch the documentary which has been made over the case.
For a considerable amount of time the Commission have had this latest submission based upon some excellent work from Arie Zellerman who you will hear from later. Sadly this is another example of a case which seems lost in the CCRC with the latest update referring to scoping work between forensic scientists.
If the Commission agree with the Family’s Expert then it is likely that this case will call for referral on the basis that key evidence the Crown relied upon was wrongly attributed to Susan.
Of course it may be to the applicant’s considerable advantage that this detailed work is being done but it seems a repetitive theme that cases nonetheless get lost in the very structure of the CCRC and its endless committees and deliberations rather than action and feedback.
Let us then consider some of the other worries to which I have alluded to. The Savile Scandal and the issue of historical allegations.
Of course the fallout from the scandal is not all bad and if some genuine victims do get justice as a result then that this outcome must be respected.
The unpalatable truth however is that such investigations lead to many false allegations and this is particularly so when officers charged with conducting an independent investigation start an enquiry by making public statements indicating that they “believe the victims”. I am sure some of you saw the recent Panorama programme and this is indicative of the problems that are now faced.
It is clear that some allegations have been given far too much support rather than a sceptical eye. It does not mean that some should not have been prosecuted or that the police had placed in the past too much store in support from the establishment but that does not provide an excuse for a lurch to a threshold for testing allegations pre charge which is now non-existent.
We are involved in a number of these enquiries across the country and whilst the last outcome shouldn’t affect future trials it is perhaps disturbing that for example in North Wales we have secured 3 consecutive acquittals.
Where cases collapse or proceed to acquittal with regularity this raises serious questions over whether the pendulum has swung too far. Not only does bringing false allegations or flimsy prosecutions ruin the lives of those accused but it also acts as a positive disincentive to these who are genuine victims.
What then of the Court of Appeal? This is an institution which was almost universally criticised during the recent Justice Committee Enquiry to which I was one of those who had the pleasure giving evidence. This had led to a strongly critical report by the Committee calling for a review of the test for quashing convictions and in turn if required a review of the CCRC test for referral.
Ultimately the Court of Appeal is not considering cases in the way that was envisaged following the Criminal Appeal Act 1995 and the suggestion in its defence from the former Lord Chief Justice that it was open to consider general safety of what might often be referred to as “lurking doubt” is unsustainable.
The problem is that the evidence is that the Court is now pursuing a strategy of narrowing the opportunity to appeal at every turn. From the outside it seems like it is seeking to plug every gap for an appeal in the hope that this will somehow protect the integrity of the system when in fact the converse is true.
Some examples have been:
Requiring a Single Judge to no longer grant permission to appeal on the papers in a case long out of time but to refer it to the full court for consideration.
Blocking the availability of Good Character directions in any case where the Crown might rely on bad character
Requiring appeal lawyers to confirm the factual basis and obtain comments on any grounds of appeal
On bad appeals reporting Solicitors and Counsel to their regulatory bodies Reducing to an almost non -existent level the availability of rep orders in the Court of Appeal for Solciitors .
Plugging the gap rulings – where there is an appeal granted subsequently targeting that new point and over turning it in subsequent cases
The CCRC – I have said something about the CCRC already and I probably don’t need to say too much more. Too slow, still too secretive and not referring nearly enough cases. Yet it is still a vital organisation and one with many good commissioners and lawyers such as those who have supported this conference today. The inconsistency and lack of transparency remain the vital issues which the commission still have to address.
We don’t want to see headlines about Professional Footballers applying to the CCRC we want to see headlines about the increased numbers of referrals and quashed convictions of ordinary applicants.
Finally perhaps the gravest challenge to the future is the systematic attack on Legal Aid. We now have a system that has sustained:
17.5% cuts on fixed fees
Those fees had already been reduced year on year for the last 15 years Payments incentivised towards securing guilty pleas
A dramatic reduction already in the number of providers
Proposals to reduce the number of duty solicitors contracts from 1200 to 525 A systematic attack on criminal appeal firms with aggressive auditing practices
Limits on when firms can grant funding
Reductions in the fees that can be paid to expert witnesses
The removal of defence cost orders to anyone who has not been refused legal aid and then only paid at legal aid rates
The consequences of which are large numbers of firms can no longer operate financially and are leaving. The pool of good miscarriage of justice lawyers is rapidly diminishing at a time when conversely the amount of miscarriages are increasing.
Ultimately there is a common thread to all of this
.it is easy to attack legal aid, to
restrict appeals and fail to refer or to investigate or prosecute flimsy cases when the system has nothing to worry about because it does not answer for its mistakes .where error can be swept under the carpet.
However .. 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 be no longer sustainable. Where scandal has fatally damaged the police, where prosecutions are collapsing with too much regularity and where our appellate system is being criticised by the establishment itself.
The next few years will determine what sort of society we want to be in the end, if we truly believe in justice we shall have to learn how to say sorry and put right our errors.
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. Let me remind you what Michael Jordan one of the most successful basketball players the world has even seen said:
“I’ve missed more than 9000 shots in my career. I’ve lost almost 300 games. 26 times, I’ve been trusted to take the game winning shot and missed. I’ve failed over and over and over again in my life. And that is why I succeed”
Thank you all for listening,
http://bfms.org.uk/challenging-miscarriages-of-justice/
