Why Does It Take So Long?
By Paul May on 02/06/14Share:
In April 1992, together with solicitor Gareth Peirce I sat in London’s Hammersmith Hospital at the bedside of Sam Kulasingham an inmate of HMP Wormwood Scrubs. He’d been convicted with another Tamil man Prem Sivalingham for a 1986 East London triple murder in which they’d had no involvement whatsoever. When their appeal against conviction was lost rather than face a lifetime in prison as an innocent man Sam began a hunger strike. By his 56th day without food, he was very weak and emaciated. His weight had fallen below five stones and doctors were advising he could slip into a fatal coma at any moment. I tried desperately to persuade him to end his hunger strike by pointing to the successful outcome the year before of the case of the Birmingham Six whose London-based campaign I’d chaired. Sam’s whispered riposte was that it had taken more than 16 years for the convictions of the six innocent Irishmen to be overturned. He’d prefer to die than wait that long for justice. It would have been crass if I’d observed that the campaign I’d led had existed for ‘only’ six of those years. Gareth had worked on the men's case from 1980 onwards. In the event, her arguments proved more persuasive and Sam agreed to end his protest. A little over two years later, Sam and Prem walked free and exonerated from the Court of Appeal after vigorous campaigning by their supporters and a huge amount of hard work by Gareth and other lawyers.
As it turned out, the injustice inflicted on the East Ham Two (as Sam and Prem were subsequently dubbed) was corrected in considerably less time than the cases of twenty or so other innocent prisoners in which I’ve been involved over the past three decades. This article outlines factors which contribute to protracted delays at almost every stage of the process by which miscarriages of justice have been overturned. Those innocent prisoners who see their convictions quashed after many years may even be considered ‘lucky’. It’s a sad fact that most wrongful convictions are never corrected. Unless adequate resources are devoted to investigating and assessing alleged wrongful convictions and various agencies within the criminal justice system radically change their approach, lengthy delays in resolving miscarriages of justice will persist and increase.
The criminal justice system aims to achieve certainty and finality. Any challenge to a criminal conviction inevitably casts doubt on both those objectives. The English judiciary traditionally displayed antipathy towards anyone disputing their conviction. It wasn’t until the early part of the 20th century that a Court of Criminal Appeals was established in the teeth of fierce judicial opposition. Until 1968, no mechanism existed for sending dubious convictions back to the courts once an appeal had been dismissed. In the wake of the Birmingham Six case, the Criminal Cases Review Commission was established in 1997 to investigate and – where appropriate – refer convictions back to the courts. The creation of such a body had been advocated as long ago as 1980 by the Select Committee on Home Affairs. Those querying wrongful convictions face an uphill task in overcoming resistance from key agencies within the criminal justice system.
Persons charged with more serious criminal offences stand trial before a jury in the Crown Court. In 2012-13, there were almost 100,000 Crown Court convictions. A third of accused persons pleaded not guilty. Two thirds of these pleas resulted in acquittal. Those found guilty have 28 days from the date of sentencing to lodge application to appeal. In 2012-13, 358 persons were granted full leave to appeal against their conviction of which 122 resulted in the convictions being quashed.
The Court of Appeal’s function in reviewing the safety of convictions is often misunderstood. The court doesn’t set out to re-try issues aired at the person’s trial nor will it re-consider evidence which was presented (or could have been presented) at the trial. When hearing appeals against conviction, the court is under a statutory duty to consider whether there’s a reasonable explanation for any failure to put forward evidence at the person’s trial. In practice, this means the court often refuses to admit material which was capable of being discovered at the time the person was tried even though it wasn’t put before the jury. For example, the fact that witnesses were potentially available when the trial took place but were not called by the defence for whatever reason often persuades the court to refuse to hear such witnesses at appeal.
In the overwhelming majority of cases, it’s impossible for convicted persons and their representatives to uncover within 28 days new evidence which could not have been presented at trial. The grounds of most appeals consequently focus upon alleged defects in the trial process itself such as errors in the judge’s summing up and/or other legal argument. In many cases, defence lawyers may advise that no such grounds exist and the person does not lodge an application to appeal.
A relatively small proportion of convicted persons maintain their innocence after conviction and appeal. There are powerful disincentives against doing so. Prisoners are expected to progress through the prison system by admitting their guilt and participating in measures to address their offending behaviour. In the jargon of the prison authorities, inmates who continue to protest their innocence are ‘deniers’. Such prisoners are routinely refused release after they’ve served their minimum term because of their failure to ‘progress’. For example, the innocent Frank Johnson whose murder conviction was quashed by the Court of Appeal in 2002 spent 26 years in prison while his two manifestly guilty co-convicted were released many years before him.
Innocent prisoners and those close to them almost invariably undergo a period of debilitating trauma following conviction and dismissal of any appeal. In some instances, it may take years before they recover enough psychological strength to challenge their conviction. Even at this stage, they face a daunting task. In most instances, prisoners, their families and supporters lack the resources, access and expertise to identify fresh admissible case evidence. Prison staff may irrationally discriminate against those protesting their innocence. For example, Sam Hallam whose murder conviction was quashed by the Court of Appeal in 2012 was refused permission to attend GCSE courses during his 7 ½ year incarceration. In a few cases, lawyers who represented the person at trial may adopt an uncooperative and even hostile attitude towards those subsequently investigating the conviction (presumably because they fear such inquiries constitute implicit criticism of the manner in which they conducted the person’s defence). I’ve encountered this phenomenon in at least four of the cases in which I’ve been personally involved.
Investigating Wrongful Convictions
Once an innocent person’s first appeal has been dismissed, the only means by which their case may be reviewed by the Court of Appeal is through referral by the Criminal Cases Review Commission (CCRC). The CCRC has extensive powers to investigate convictions including seizure of material held by police and other public authorities, unrestricted access to computer systems such as the HOLMES (Home Office Large and Major Enquiries System) and the Police National Computer database and authority to order the preservation of case material and exhibits. The Commission may also task an outside police force to conduct inquiries on its behalf in more complex cases.
A significant anomaly, however, arises in respect of applications to the CCRC. From its inception, the Commission has been inundated with cases while (until very recently) its annual budget and staffing have been progressively cut back by central government. In 2012-13, the CCRC received 1625 applications claiming wrongful conviction. The sheer volume of applications has obliged the Commission to operate a two stage procedure. At ‘Stage One‘, the CCRC examines the application together with relevant case documents such as the trial judge’s summing up and appeal judgment to determine whether any new points arise which might merit investigation and – if appropriate - referral to the Court of Appeal. If the application and/or case documents contain no such grounds, the application is refused without any investigation being carried out.
Innocent prisoners and their families are often in no position to unearth admissible new evidence without external investigative assistance from organisations such as Inside Justice, lawyers, experienced campaigners, journalists or university innocence groups. Two thirds of applicants to the CCRC have no legal representation. Savage cuts to legal aid funding mean that the already small pool of solicitors able and willing to take on – for no payment - cases of wrongly convicted prisoners will diminish even further. The interest of the mainstream media in miscarriage of justice cases has waned as evidenced by the BBC axing its Rough Justice unit and Channel 4 cancelling the Trial and Error series.
Even where external investigative expertise is available, it can take many months and years before sufficient material is gathered to warrant an application to the CCRC which is likely to reach Stage Two (investigation phase). Unlike the Commission, external investigators lack access to police documentation and systems. Some police forces adopt an obstructive approach to releasing case exhibits after conviction for fresh analysis as typified by the flat refusal of Suffolk Police to allow access to samples and other material in light of advanced DNA techniques in the case of Kevin Nunn which is currently the subject of an appeal to the Supreme Court. Crucial forensic tests which might establish a person’s innocence can be costly and hard to fund. Relevant material may have been destroyed or lost. New witnesses may need to be tracked down, carefully interviewed and statements taken.
Applications to the CCRC must include points not previously considered at trial or appeal which might form the basis of arguable grounds before the Court of Appeal. Within four months of receiving the application, the Commission decides whether the case will be allocated for further review (Stage Two investigation). At Stage Two, the case awaits allocation to a Case Review Manager (CRM). Applications are divided into persons currently in prison and those at liberty. In 2012-13, the average waiting time from application to CRM allocation was 6.4 months for ‘in custody’ cases and nine months for ‘at liberty’ cases. Thus, it can take a year before the Commission begins to look at the application in any detail.
At Stage Two, the CRM reviews the conviction under the guidance of a Commissioner who may make key investigative decisions. In a small number of instances, the CCRC appoint an investigating officer from an outside police force to conduct inquiries. Since 1997, the Commission has ordered outside police inquiries in less than 50 cases out of more than 17,000 applications received.
On completion of the investigative phase the case progresses to ‘decision-making phase’. The case reviewer may recommend whether the conviction should be referred to the Court of Appeal or s/he may make no recommendation. If the recommendation is that the conviction not be referred, a single Commissioner makes an initial decision to uphold the recommendation or s/he sends the case to a panel of three Commissioners.
Where there is an initial decision not to refer the conviction, a Provisional Statement of Reasons (PSOR) is issued setting out the grounds on which the CCRC is inclined to reject the application. Applicants are given 20 working days (or longer in more complex cases) in which to make written representations challenging the PSOR. Decisions to refer convictions must be made by a panel of three Commissioners.
The Commission has been criticised in many quarters for the time it takes to make decisions. Some delays may be explained by the limited staffing and budgetary resources and/or the extreme complexity of some cases. The CCRC may also face considerable prevarication in receiving important case material from the police, prosecution and even applicants’ former solicitors. However, in other cases the Commission’s lengthy processes are inexplicable. For example, I chair a support group for Eddie Gilfoyle convicted of the 1992 murder of his wife. Extensive material pointing to his innocence was presented to the Commission as long ago as July 2010. At the time of writing (June 2014), the CCRC has still not made a decision in his case after four years nor have Eddie and his lawyers received any indication when such decision will be made. Other cases have taken even longer with one case reported in Inside Time newspaper in 2009 having been with the CCRC for eleven years.
Out of Time appeals
Unless there are exceptional circumstances, the CCRC is prohibited from investigating cases where there has been no previous application to appeal. In such cases, application may be made to the court for leave to hear an appeal ‘out of time’. Full reasons why the application is out of time must be explained and justified. Such applications are initially examined by a single judge without a hearing. The court has traditionally exhibited extreme reluctance to grant leave in out of time cases. If leave is refused by the single judge, application may be lodged for consideration by the full court of three judges who will decide whether the appeal will be heard. Such appellants are at a disadvantage as without the investigative access of the CCRC, they may be unable to identify and submit sufficient grounds to persuade the court that their conviction is unsafe.
The Court of Appeal
In recent years, the Court of Appeal has made strenuous efforts to reduce the waiting time between appeal applications (including CCRC referrals) and appeal hearings taking place. Formerly, appellants waited years before an appeal date was set (this still happens in individual cases). In 2012-13, the average waiting time between application/referral and appeals being heard was 9.3 months. This improvement has not, however, been a wholly unmixed blessing. The court’s zeal to minimise delay means that appellants legal representatives can be ‘rushed’ to agree appeal dates before sufficient prosecution disclosure of case material has taken place and/or relevant issues arising from such disclosure have been properly examined and explored.
Case Study – Sam Hallam
In May 2012, the Court of Appeal quashed the murder conviction of Hoxton man Sam Hallam after he’d spent 7½ years in prison. I represented Sam in his application to the CCRC and worked closely with his legal team after his conviction was referred to the Court of Appeal. While no miscarriage of justice is ‘typical’, Sam’s case highlights the difficulties and delays faced by innocent prisoners.
Sam was arrested and detained in October 2004. He was convicted in October 2005 for the murder of trainee chef Essayas Kassahun. He received a life sentence with a recommended minimum term of 12 years in prison. The evidence which convicted Sam was flimsy from the outset principally comprising inconsistent and contradictory testimony from a single prosecution witness who claimed she saw him at the murder scene.
I first met with Sam’s mother and uncle in April 2006 six months after his conviction. I advised them that while I’d familiarise myself with the case not much could be done in terms of campaigning until his appeal had been heard. A few days later, Sam’s uncle visited my home with a bin liner filled with voluminous case documents he’d had the presence of mind to ‘scoop up’ when Sam was convicted including extensive witness statements, police interview transcripts, the trial judge’s summing up, appeal grounds and CCTV stills.
In March 2007, Sam’s appeal against conviction was dismissed by the Court of Appeal. A public campaign on his behalf was launched with the support of many of Sam’s Hoxton neighbours, family and friends. We made it a priority to gather new evidence which might form the basis of an application to the CCRC. Witnesses who’d been among the large crowd at the confused and fast-moving murder scene were interviewed. Statements were taken by two solicitors acting in a voluntary capacity and two persons employed as fraud investigators by Hackney Council (and therefore experienced in following Police and Criminal Evidence Act procedures). We were also greatly assisted by a team from ITV’s Tonight programme who’d been persuaded to make a film (broadcast in September 2007) about Sam’s case. The Tonight team were instrumental in locating and interviewing several key witnesses.
The process of approaching, interviewing and taking statements from witnesses took several months. Once we judged that sufficient statements and other material had been gathered, I began drafting a detailed submission to the Commission which ran to 50 pages. This task took me several weeks while consulting with Sam via prison visits, correspondence and telephone conversations with his mother. Eventually, in February 2008 (almost a year after his appeal was dismissed), we presented Sam’s application and submission to the CCRC in Birmingham. I was very aware that the evidence we’d amassed would be highly unlikely to convince the Court of Appeal (the most that any witness could say was that they hadn’t seen Sam at the murder scene which was not the same as establishing conclusively that he wasn’t there). I was nevertheless hopeful that the material would be enough to persuade the Commission that further investigation was warranted.
Seven more months elapsed before Sam’s application was allocated to a Case Review Manager in September 2008. I had an extensive initial conversation with Sam’s CRM and was satisfied that he understood the issues in the case (which was more than the Court of Appeal had done at his 2007 hearing). At subsequent meetings with the CRM and the Commission’s Investigations Adviser, Sam’s mother and I raised the importance we attached to a mobile phone police had seized from Sam which he believed contained images that would help establish his whereabouts on the night of the murder.
CCRC staff interviewed Sam for the first time at HMP Bullingdon in June 2009. In November 2009, I was advised the CCRC had decided to appoint an outside police force to investigate the case. In January 2010, officers of Thames Valley Police began a lengthy inquiry into the conviction which lasted eighteen months. Over 100 witnesses were interviewed and a large amount of case material examined and analysed. The inquiry included two lengthy police interviews with Sam in prison which I attended. Thames Valley Police presented the results of their inquiry to the CCRC in June 2011. Their report detailed extensive non-disclosure of evidence by the Metropolitan Police and Crown Prosecution Service at the time of Sam’s trial. Crucially, the evidence uncovered included an image from Sam’s mobile phone which indicated he’d been in a Hoxton public house some two miles away shortly before the murder. In July 2011, the CCRC announced that Sam’s conviction would be referred to the Court of Appeal.
In the run-up to the appeal, Sam’s excellent legal team were determined that every possible aspect of his case be fully explored and covered in order to avoid another unsuccessful hearing. This meant resisting pressure from the prosecution – who on occasion were very slow to disclose relevant material in their possession - for an early hearing date. As widely reported, Sam’s appeal hearing finally took place in May 2012 and he regained his freedom amid scenes of jubilation from his supporters.
It didn’t seem that way to me at the time but in hindsight Sam Hallam’s case was relatively simple and straightforward. The prosecution case was ridiculously weak from the outset. Evidence and exhibits pointing to his innocence remained stored in Metropolitan Police archives and hadn’t been destroyed or lost. Despite these ‘advantages’, it took more than six years from my first meeting with Sam’s mother and uncle for his conviction to be overturned.
I’m currently involved together with Louise Shorter of Inside Justice in the case of former nurse Colin Norris convicted in 2008 of the murder and attempted murder of five Leeds hospital patients by injection of insulin. His application has been with the CCRC since December 2011. The case supporting Colin’s innocence comprises complex scientific and medical issues which even some clinicians might struggle to comprehend. While satisfactory progress has been made in the investigation into Colin’s case, I fear that it will still be some considerable time before the CCRC is in a position to decide whether to refer his conviction back to the Court of Appeal.
The task of challenging wrongful convictions is not suited to those who expect instant results from their endeavours. Even the simplest and most obvious miscarriage of justice can take many years to resolve. Progress can be infuriatingly slow while innocent inmates watch their lives waste away in prison. It’s necessary, therefore, for those of us involved in this difficult area of activity to acknowledge ‘milestones’ along the road to eventual justice. It’s an achievement to identify sufficient fresh evidence to submit to the CCRC and/or Court of Appeal. It’s a further achievement if the Commission is consequently persuaded to proceed to a ‘Stage Two’ investigation. Further evidence may be discovered which encourages the Commission to open additional lines of inquiry (as has happened in the case of Colin Norris following a submission from Inside Justice).
Enhanced resources and changed official attitudes could do much to reduce the time wrongly convicted people are obliged to spend in prison. Until that happy time arrives, we’re stuck with the present unsatisfactory system. One alternative to working to overturn miscarriages of justice would be to do nothing in which case even more innocent men and women will continue to rot without hope in our jails.