1. My interest in miscarriages of justice arises from a long-standing concern with the Birmingham, Guildford and Woolwich and Maguire cases, both as a Member of Parliament and in my previous incarnation as a journalist. My attention was first drawn to these cases in 1976 and 1977 by Peter Chippindale, who was at that time a journalist on 'The Guardian'.
In that capacity he covered the Birmingham trial, the trial of the IRA unit captured at Balcombe Street and the appeal of the Guildford and Woolwich defendants. Mr. Chippindale told me at the time that he thought the wrong people had been convicted of the Birmingham, Guildford and Woolwich bombings. He said this on the basis of his attendance at court.
2. I first publicly discussed the possibility that the Birmingham defendants were innocent in an article in 'Tribune' on 14th October, 1977. Subsequently, along with Charles Tremayne and Ian McBride of Granada Television, I carried out a detailed investigation into the Birmingham case which resulted in a series of television programmes between October, 1985, and July, 1990, and my book, "Error of Judgement" in July, 1986.
3. I first expressed the view that the Guildford Four and the Maguires were innocent in an article in 'The New Statesman' on 1st January, 1982. Subsequently the same view was expressed in much more detail in a book, "Timebomb" by Grant McKee and Ros Franey in 1988, and in a Yorkshire Television programme.
4. For some years I have also taken an interest in the case of Judith Ward, who at the time of writing is in the seventeenth year of a thirty year sentence for the M62 coach bombing. It is my considered view that she is also innocent.
5. Since the release of the Birmingham Six I have been contacted by a large number of people, many serving long prison sentences, who say that they have been wrongly convicted. Although I am in no position to evaluate such claims, many make what seems to me a prima facie case for being taken seriously. Unfortunately, I lack both the time and resources to give these cases the attention they deserve and, beyond making a few obvious suggestions, I am unable to help. Most of these people do not qualify for legal aid and some have lost confidence in the ability of the legal profession to assist them. Many are desperate, having written to anyone who might conceivably help (Paddy Hill, one of the Birmingham Six, wrote several hundred letters to people who he hoped might be able to assist before he succeeded in attracting sustained interest in his case). I am troubled by the fact that there exists no organisation which both enjoys public confidence and has the resources necessary to investigate claims of innocence. I know that my concern is shared by others such as Ludovic Kennedy and Gareth Peirce who, like me, are also inundated with people claiming innocence, but who also lack the resources to cope with such claims. I am in the process of preparing a dossier of some of the cases that have come to my attention which I propose to submit to the Home Secretary, the Lord Chancellor and as an Appendix to my evidence to the Royal Commission (1).
6. Although, as the Prime Minister said in April, 1990, we do not have trial by television in this country, it remains an unhappy fact that a victim of a miscarriage of justice is far more likely to successfully overturn a conviction if he or she can first attract the attention of a television company, rather than a lawyer. That this is so is a matter of record in the Birmingham, Guildford and Woolwich and Maguire cases. While it is entirely proper in a democracy for journalists to be able to pursue cases of alleged miscarriages of justice, it ought not to be a matter of satisfaction for those whose job it is to dispense justice.
7. During the last six years, principally in connection with the Birmingham case, I have had formal and informal personal contact with people at every level of the criminal justice system. These include police officers ranging in rank from Detective Constable to Chief Constable; prison officers up to Assistant Governor grade; Home Office civil servants; Government Ministers, including two Home Secretaries; the Solicitor General; the Attorney General; the Lord Chancellor and a number of senior judges. I also sat through most of the 1987 and 1991 Birmingham appeals and attended the judgements that led to the quashing of the Guildford and Woolwich and Maguire convictions. In addition, I traced and interviewed the four persons responsible for the Birmingham pub bombings, all of whom are in Ireland. This experience is the basis for the opinions set out below.
8. I make one final preliminary observation. It is my view that, with certain honourable exceptions, most of those who preside over our criminal justice system are congenitally incapable of owning up to mistakes, let alone taking the steps necessary to prevent a recurrence. I have had the opportunity of studying at close quarters the demeanour of many of those responsible for the administration of justice and, despite what has happened, I detect little evidence of the humility that will be necessary if the tragedies of the last two decades are not to be repeated. On the contrary, despite all that has happened, there exists within the legal profession a degree of complacency and self-satisfaction that is not in my experience to be found in any other walk of life, with the possible exception of the police force.
9. There is a view that the only errors in the Birmingham and Guildford cases were of a technical or procedural nature and that those whose convictions have been quashed were in fact guilty. This view can be heard wherever two or three senior lawyers or police officers are gathered. In the Guildford case, it has been expressed publicly - and hastily retracted - by Lord Denning and the former Recorder of London, Sir James Miskin. In the final Birmingham appeal Crown counsel, Graham Boal, was entirely preoccupied with attempting to demonstrate that the Six were in fact guilty, while simultaneously conceding that the case against them was fatally flawed.
10. There is another, more cynical, view held by some people in authority: that whatever fraud and perjury may have taken place in the Guildford and Birmingham cases - and obviously a great deal did - it should be swept under the carpet in order not to undermine public confidence in the police and the judicial system. This will account for the open hostility in senior legal circles towards Sir John May's inquiry into the Guildford, Woolwich and Maguire case. It may also explain why no public inquiry is to be held into what went wrong in the Birmingham case.
11. This being so, there is likely to be considerable resistance to any serious reform of the criminal justice system. I, therefore, respectfully suggest that the Commission will need to state its conclusions robustly, ever mindful that the slightest ambiguity or hint of qualification will be seized upon as an excuse for doing nothing.
12. With this in mind I will now set out what is in my view the responsibility of each of the main areas of the criminal justice system for proven miscarriages of justice and suggest appropriate reforms.
13. The seeds of almost all miscarriages of justice are sown within a few days, and sometimes hours, of the suspect's arrest. If, as we claim, a suspect is innocent until proved guilty in a court of law, then he or she should be treated accordingly, subject only to the demands of security. It is a matter of record that many prisoners, during their first hours or days in custody, are subject to a systematic programme of degradation designed to induce them to make damaging admissions. Their clothes are removed and sometimes not replaced. Interviews take place at all hours of the day and night, sometimes with suspects clad only in blankets. Prisoners are left alone in unheated cells. Lights are kept on and doors banged to deprive them of sleep. (In the Birmingham case it is alleged that dogs and shotguns were introduced into the cells and the prisoners were made to sit and stand at regular intervals throughout successive nights).
14. Access to solicitors is often denied, sometimes for days. Although codes of practice exist these are often ignored. The more serious the alleged offence, the more likely it is that the rules will be bent. Custody records are routinely fabricated. Much of this is condoned at the highest level. In the Birmingham case Sgt. Dennis Holt, who was in charge of the cell block at Queen's Road police station, says he protested to Chief Superintendent Harry Robinson about the comings and goings to the cell block and the absence of custody records. Robinson replied, "Me and Mr. Buck will take care of that". Mr. Buck was an Assistant Chief Constable (2).
15. If the Commission is in the slightest doubt about the scale of malpractice and its relevance to miscarriages of justice, I invite members to read the graphic accounts given by the Birmingham and Guildford defendants of their treatment in police custody (3). In these circumstances it is hardly surprising that uncorroborated confessions in police custody are the feature most common to proven and alleged miscarriages of justice.
16. Uncorroborated confessions are wholly or partly responsible for the convictions of Timothy Evans, the Guildford Four, the Birmingham Six, Judith Ward, the Carl Bridgewater defendants, the Broadwater Farm defendants and many others. Alleged methods of extraction vary from the mere threat of violence to sleep deprivation and systematic torture. A number of people from the West Midlands are serving or have served long prison sentences solely on the basis of confessions which, they say, were extracted by plastic bags held over their heads (4).
17. The extraction of confessions in these circumstances often requires not only the fabrication of custody records and a denial of access to a solicitor, but the willingness of doctors, prison staff and even the courts to overlook or explain inconvenient injuries. All of this happened in the Birmingham case. As long as the courts are willing to convict on the basis of uncorroborated confessions, serious miscarriages of justice will continue to occur.
18. It will, of course, be argued that there is no longer any problem since the 1984 Police and Criminal Evidence Act provides for the tape recording of interviews. This is undoubtedly a big step forward, but there are several obvious difficulties. Firstly, the tape recording of interviews has not yet been introduced in many police stations. Secondly, the Act does not apply to cases involving terrorist offences - and is, therefore, irrelevant to some of the most contentious cases. Thirdly, it is possible to intimidate suspects in ways which would not necessarily be apparent in a recorded or even a video-taped interview - Gerry Conlon, one of the Guildford Four, for example, says that he was prompted to confess by threats made regarding his mother and sister (5). Another of the Guildford Four, Paul Hill, says he confessed in return for the police agreeing to release his pregnant girlfriend (6). Finally, since the 1984 Act, there have been an increase in incriminating statements alleged to have been made by suspects in the backs of police cars on the way to police stations (7).
19. What constitutes corroboration? It is a matter of record that police officers have been known to manufacture corroboration by, for example, planting evidence or persuading another prisoner to give evidence in return for favourable treatment. In Cooper and McMahon, for example, the police appear even to have shared the reward money with the armed robber who may have been involved in the murder in return for his giving evidence against innocent men (8). In the Carl Bridgewater case the Appeal Court accepted the evidence of a man who, the court conceded, was a pathological liar (9).
20. Obviously there is a case for reviewing the regulations that govern the treatment of suspects in police custody and their enforcement. I am sure the Commission will wish to give consideration to this. However, given the ingenuity with which existing regulations have been subverted, it has to be recognised that there is no practical possibility of improving the treatment of suspects in police custody as long as the courts are willing to convict on the basis of uncorroborated confessions.
21. This being so, I invite the Commission to RECOMMEND:
(a) That convictions on the basis of uncorroborated confessions inPolice custody be outlawed.
(b) That only tape recorded or, preferably, video taped statementsbe admissible.
(c) That only statements recorded in the presence of a solicitor beadmissible.
(d) That all other forms of corroboration shall be inadmissible.
(e) That suspects in terrorist cases should be treated identically tosuspects in non-terrorist cases and that the Prevention ofTerrorism Act be either abolished or amended accordingly.
(f) That the courts ought to allow for the possibility that aconfession which meets the above criteria may still have beenobtained by threats, inducements or a deal with the suspect thatoccurred prior to the recording of the statement.
(g) That the Home Secretary should immediately order a review ofexisting convictions which rely wholly or mainly on uncorroboratedconfessions.
22. It will be apparent that the Birmingham and Guildford cases have wider implications for the police which the Commission may wish to consider. In the Guildford trial the judge Mr. (now Lord) Donaldson intervened during the evidence of the Assistant Chief Constable of Surrey, Christopher Rowe. Lord Donaldson asked how many police officers had been involved in the investigation as this would indicate the degree of collaboration needed for a conspiracy? More than 100, replied Mr. Rowe. Crown counsel, Sir Michael (now Lord) Havers said later that, if the allegations of the defendants were true, then there must have been "a really gigantic conspiracy" between two police forces involving officers of all ranks (10).
23. In the Birmingham case the trial judge, Mr. Justice (now Lord) Bridge said that, if the defendants were telling the truth, the police had been involved in a conspiracy "unprecedented in the annals of criminal history". It involved, he said, innumerable assaults and the fabrication of false evidence. "It involved giving perjured evidence in which the police must have spent many hours … trying to ensure that their various lies would accord with each other … Consider the scale of the conspiracy in terms of those involved, it ranges does it not, from detective constables and police constables right up through the police hierarchy … If there had been one office … who said to himself 'I cannot stomach this', if he had reported the matter to some very senior officer or even to some independent force. If he had gone to the press and said, 'This is what is happening', the gaffe would have been well and truly blown would it not? … Consider, lastly, the subtle artistry that has gone into the preparation of these statements, if indeed they are works of fiction. If the evidence of the defendants is true, it shows the police not only to be masters of the vile techniques of cruelty and brutality to suspects. It shows them to have a lively and inventive imagination". (11)
24. At the Court of Appeal in 1980, Lord Denning spoke of the "appalling vista" that would arise were it ever to be demonstrated that the defendants in the Birmingham case were telling the truth about their treatment in police custody (12).
25. Since the appalling vista has now arrived, I respectfully suggest that the Commission should devote a little time to considering the implications of the Birmingham and Guildford cases for the police and the criminal justice system in the light of the above remarks by Lords Havers, Bridge and Denning.
I realise that it may be argued that the reform of the police does not come within your remit, but I put it to you that the present state of the police force has obvious implications for the criminal justice system. I further submit that, in the light of what has happened, it is no longer possible to pretend that the difficulties with police evidence arise only from malpractice by the odd rotten apple. There is not the slightest hope of successfully overhauling our criminal justice system without a dramatic change in the culture of our police, particularly in the elite detective squads. If public confidence is to be restored there will have to be a thorough review of police recruitment, training and disciplinary procedures and the introduction of a genuinely independent complaints procedure. It may be that these are matters for another inquiry, but since no other inquiry is in prospect I invite the Commission to remark upon the wider implications of the Birmingham and Guildford cases for the police, at least in so far as they are relevant to the perpetuation of injustice, and to make recommendations accordingly.
THE FORENSIC SCIENTISTS:
26. It has been a feature of the Birmingham pub bombings case that, on each occasion it came to court, a Home Office forensic scientist came forward to repudiate the evidence of the Home Office forensic scientist at the previous hearing. On each occasions he or she did so with total confidence and on each occasions the court accepted the new evidence.
27. In the Guildford case the forensic scientists worked for the MoD at the Royal Arsenal at Woolwich. It is a matter of record that two of them - Messrs. Higgs and Lidstone - made significant alterations to their statements, apparently at the suggestion of the police (see paras 19-24 of my evidence to Sir John May - Appendix 1). It is not easy to think of an innocent explanation for this and no doubt this will be a matter on which Sir John's inquiry will want in due course to comment.
28. In the Birmingham case, it appears to have been widely known among Home Office scientists that the Griess test, upon which the Crown relied, was not reliable and yet for years no one came forward to say so.
29. It has since emerged that, on the very night that five of the Birmingham six were arrested, a man boarding the ferry at Liverpool was subject to the Griess test. A test on a swab taken from his hands also proved positive, but he was released after he was found to have been innocently contaminated. The test was carried out by a colleague of Dr. Skuse, the scientist who conducted the tests on the Birmingham defendants. Both scientists were based at the Home Office laboratories in Chorley. Both had been called out on the same night to test the hands of suspects in the same bombing. Yet at the trial six months later, Dr. Skuse was permitted to claim - and his evidence was widely publicised - that there was no innocent explanation for a positive Griess test. Even when, in 1987, the other scientist finally came forward, his statement was no made available to the Appeal Court and only emerged at the 1991 appeal (13).
30. The Aldermaston scientist, Dr. Janet Drayton, whose evidence was crucial to upholding the Birmingham convictions in 1987, later told Ludovic Kennedy that the Lord Chief Justice had misrepresented her evidence in his judgement, yet she only spoke up when confronted three years later (14).
31. It became apparent during the Birmingham case that proper records had not been kept of tests which were crucial to the Crown case. Pages had been torn from Dr. Drayton's notebook and no one could provide an explanation. No print out existed of the oscilloscope reading in a crucial GCMS test carried out by Drs. Drayton and Skuse at Aldermaston. Another scientist remembered having seen one, but no one could discover what had become of it. Instead the Court of Appeal chose to rely - on a matter of utmost importance - on Dr. Drayton's recollection of the result (a blip on a screen which had lasted only a fraction of a second) fifteen years later (15).
32. It became apparent during the course of the Birmingham case that a close friendship had developed between Dr. Skuse and Superintendent George Reade, the officer in charge of the investigation. Telephone records from the hotel in which Dr. Skuse stayed during the 1987 appeal, at which he and Mr. Reade were among the principal Crown witnesses, show that shortly after leaving the witness box Dr. Skuse made several calls to Mr. Reade's home number. A few days after Skuse left the witness box, but before the appeal was complete, an ITN camera crew called at Mr. Reade's home at Rugeley in Staffordshire and were surprised to find the door opened by Dr. Skuse, who live 80 miles away in Wigan. I have set out elsewhere what I believe to be the implications of the relationship between Sr. Skuse and Mr. Reade (16).
33. The moral of all this seems to be, 'Put not thy faith in experts' - particularly forensic scientists in the employ of the Home Office or the Ministry of Defence.
34. I invite the Commission to RECOMMEND:
(a) That a forensic science service be established, to which both theCrown and the defence has access, which is independent ofboth.
(b) That firm guidelines be laid down, with appropriate penaltiesshould they be breached, regulating the relationship betweenforensic scientists and the police or any other interested party.
(c) That proper procedures be established for the documentation offorensic evidence and that such evidence should be inadmissibleif these are not adhered to.
(d) That judges adopt a more cautious attitude towards forensicevidence.
THE DIRECTOR OF PUBLIC PROSECUTIONS:
35. It has been a feature of the Birmingham and Guildford cases that crucial evidence was not disclosed to the defendants. In some cases it simply disappeared without trace. In others it was consigned to official archives and only extracted with extreme difficulty. It some cases material disappeared from the custody of the police before reaching the DPP, but in a number of extremely serious instances responsibility for non-availability rests with the DPP and those who acted for him. No doubt Sir John May will be addressing this issue in so far as it is relevant to the Guildford case. In the Birmingham case where there is to be no public inquiry, we may never know how much has been suppressed and by whom. I list below some of the material not disclosed in the Birmingham and Guildford cases.
36. About two-thousand statements judged by the West Midlands police to be non-material disappeared. The police say they made copies available to solicitors for the defence. The solicitors say they have no recollection of this and the police are unable to say what has become of their copies.
37. In November, 1975 - four months after the Birmingham defendants were sentto prison for life and while their appeal was pending - a number of genuine members of the Birmingham IRA were arrested. At least one of these gave the police a detailed account of the Birmingham IRA including several of the names which have recently been mentioned in connection with the bombings. In particular he names one man who, he says, he last saw in the Sportsman's Arms public house, Birmingham, at Christmas 1974 - six weeks after the bombings - who said, 'that he actually placed the bomb in one of the pubs'. This document was suppressed. A précis of the statement surfaced only in 1990 because someone with access to police archives felt sufficiently strongly to make a copy available to Granada Television (17)
38. Among the documents disclosed for the 1991 Birmingham appeal was a statement from the colleague of Dr. Skuse's who had obtained a positive test on a swab from the hand of a passenger on the Liverpool to Belfast ferry on the same evening as five of the Birmingham six were tested by Dr. Skuse at Chorley (see para 29 above). The Liverpool passenger had subsequently been released after he was found to have been innocently contaminated. Had this statement been available at the 1987 appeal it would have had a significant impact on the Crown case. It was obtained in time, but it was not disclosed to the defence. The Attorney General, in a letter to me dated 17th May, 1991, said: "It is most probable that an oversight or administrative error was responsible for what was undoubtedly a most unfortunate error".
39. On 12th December, 1975, after a six day siege, four members of an IRA unit were captured at Balcombe Street in central London. Two of them, Eddie Butler and Joe O'Connell, were interviewed the following day by Commander Jim Nevill and Det. Supt. (now Sir) Peter Imbert. During this interview they admitted to bombing the King's Arms at Woolwich - one of the offences for which the Guildford Four had just been convicted. In a further interview on 30th December, O'Connell told Nevill and Imbert that four members of the Balcombe Street unit had been responsible for the Woolwich explosion. Nevill and Imbert, according to their notes of the interview, both expressed concern at the possibility that innocent people had been convicted and an anxiety to get at the truth. Nevertheless, no further interviews took place. No charges or further investigation followed. Solicitors acting for the four persons already convicted were not informed. The DPP was informed, but took no action. When the Balcombe Street IRA unit came to trial, not only were O'Connell and Butler not charged with the Woolwich bombing, but steps had been taken to excise from the statements of the forensic scientists, Higgs and Lidstone, all reference to connections between Woolwich, Guildford and the other offences for which the Balcombe Street unit were obviously responsible. At the Balcombe Street trial Commander Nevill told the court that he had instructed Mr. Higgs to remove the references to Woolwich from his statement at the instigation of the DPP. Det. Chief Supt. Hucklesby was asked at what stage he had been asked to omit from his list of offences the Woolwich bombing and four others that appeared to be linked. He replied, "This was discussed following the submission of my first major report to the DPP at a conference with counsel." (18)
40. Documents disclosed to the defendants in preparation for the 1989 appeal, at which their convictions were quashed, showed that Gerry Conlon, one of the four, had had a cast iron alibi all along. A statement from the alibi witness, who had seen Mr. Conlon asleep in the hostel at Quex Road, Kilburn, at the time when he was supposed to have been carrying out one of the bombings, was very properly passed by the police to the DPP, but did not become available to the defendants for a further fifteen years.
41. No transcript exists of the Guildford and Woolwich trial and most of the shorthand notes which would enable a transcript to be compiled have been lost. The absence of this material has seriously hampered subsequent inquiries.
42. The appointment of Allan Green seemed at first to signal a new broom at the DPP. In October, 1989, material was discovered by the Avon and Somerset police which suggested that the Guildford confessions were fabricated. He took the case immediately to the appeal court and asked for the convictions to be quashed in a statement that left the Appeal Court judges absolutely no room for manoeuvre. Regrettably, however, this refreshingly honest approach was not sustained. Following the Home Secretary's decision in the summer of 1990 to refer the Birmingham case back to the Appeal Court, the DPP reverted to past form. At the four preliminary hearings which were necessary before the DPP was ready to present its case, Crown counsel Graham Boal tried the patience of the court with weeks of prevarication over disclosure. There was nothing in Mr. Boal's demeanour which suggested the DPP had learned any lessons from the Guildford case. On the contrary, he repeatedly argued that the DPP would disclose to the defendants only what he considered to be relevant and only when he was ready to do so.
43. There is reason to suppose that the attitude of both the police and the DPP towards disclosure in the Birmingham and Guildford cases is symptomatic of a wider problem. Others more experienced than I may wish to suggest specific remedies. For my part I say only that the problem does not necessarily require new regulations, but rather integrity in enforcing existing ones. In the light of what is now known, it will not surprise anyone that the police routinely suppress inconvenient evidence, but it may come as more of a surprise to learn that the DPP is capable of similar behaviour. In the absence of the necessary integrity on the part of those whose job it is to enforce disclosure, miscarriages of justice are bound to occur.
44. I RECOMMEND that deliberate non-disclosure should be made a criminal offence and that accidental non-disclosure should be made a serious disciplinary offence.
45. Following the events of the last twelve months there have been a series of speeches and statements by senior judicial figures absolving the judges of any responsibility for the recent series of disasters. Lord Ackner, for example, said in a House of Lords debate on 12th December, 1990: "Certain notorious miscarriages of justice have been laid at the door of the judges … A judge does not try an accused: the jury does that".
46. This is obviously nonsense. In the Birmingham case the trial judge Lord Bridge alone took the crucial decision to admit the confessions in evidence. Lord Denning and two colleagues decided in 1980, in a remarkable and much criticized judgement, to allow the appeal of the West Midlands and Lancashire police against the application by the Birmingham defendants for legal aid to sue the police for injuries which, they said, had been inflicted in police custody. In 1987, Lord Lane, sitting with Lord Justices O'Connor and Stephen Brown, arrogated to themselves the right to review and reject the mass of new evidence before the court. An application for a jury trial was rejected.
47. In the Guildford case, Lord Justices Roskill, Lawton and Mr. Justice Boreham, presided over the appeal which was also effectively a re-trial in the light of the detailed confessions by the IRA unit captured at Balcombe Street. Once again, a jury trial was ruled out even though it could not on this occasion be argued that too much time had elapsed for witnesses to have accurate recall.
48. It is not easy for a layman to see how responsibility for any of the disastrous decisions taken at these hearings can be off-loaded onto a jury. In his House of Lords speech Lord Ackner said: "The judge's function is that of an umpire …".
49. Not according to Lord Bridge. "I am of the opinion," he told the jury at the Birmingham trial, "not shared by all my brothers on the bench, that if a judge has formed a clear view, it is much better to let a jury see that and not to pretend to be a kind of Olympian detached observer". Lord Bridge certainly made no secret of his views. The transcript of the trial is peppered with his interventions, some displaying outrageous bias (19). Like many of his colleagues, however, he took care to cover himself by inserting at regular intervals during his summing up the phrase, "Of course, members of the jury, it is entirely a matter for you".
50. Although it is said to be a cardinal principle to our legal system that the judiciary is independent of the State, a study of the many judicial pronouncements in the Birmingham, Guildford and Maguire cases would show that throughout they bear a remarkable resemblance to the position of the Crown. Even when those convictions were quashed, at the request of the DPP, the Appeal Court did not stray beyond the limits of the Crown case, even at the risk of inviting public ridicule. In the final Maguire appeal, for example, the Crown asked that the convictions be quashed solely on the grounds of the possibility that one of the seven - they did not say who - had been involved with explosives and that the other six had been innocently contaminated. The Appeal Court duly obliged, even going to the extent of inventing the so-called magic towel on which, the judges speculated, all seven may have washed their hands, some becoming contaminated to the extent that nitroglycerine had been found under their fingernails. As for the contaminated towel, there is no evidence that it ever existed.
51. What is one to make of the judgement of Lord Roskill and his colleagues at the Guildford appeal in 1976? It has been remarked upon elsewhere and I will not dwell upon it (20). The most generous interpretation is that it displayed extreme gullibility, not to say stupidity - and I have never heard it suggested that Lord Roskill is stupid. Even stupidity would not account for the ingenuity employed by Roskill and his colleagues to explain away what many would regard as the inexplicable.
52. The judgements of the Appeal Court are bringing our judicial system into disrepute. In Cooper and McMahon the court rejected four successive references by the Home Secretary and persisted in upholding convictions in the face of the clearest evidence of a miscarriage of justice. By 1980 the Home Secretary, William Whitelaw, had become so exasperated that he simply ordered the gates of the prison to be opened, gave the men a railway ticket each and sent them home.
53. I invite the Commission to RECOMMEND:
(a) A system of judicial appointments which results in a judiciarycomposed, particularly at the highest level, of a far greatercross-section of the legal profession and society as a wholethan is currently the case:
(b) That the criteria for selecting judges be made public:
(c) That all judges retire at 65:
(d) That a Parliamentary Select Committee be established toreview senior judicial appointments:
(e) That newly appointed judges undergo some form of training:
(f) That judges be permitted only to sum up on the facts and thatopinions about the credibility of witnesses be left to juries:
(g) That judges who are freemasons should declare that they areand that the record should be publicly available:
(h) That judges be more rigorous in enforcing disclosure of allrelevant documents and penalizing failure to do so:
(i) That the rules on disclosure should cover relevant materialwhich becomes available even after conviction or appeal:
(j) That the composition of the Court of Appeal be immediatelyreviewed with a view to appointing judges better able to copewith the possibility that the system over which they presidecan be mistaken:
(k) That cases which have already exhausted the normal appealprocedure and in which, in the judgement of the HomeSecretary, there is sufficient cause for concern, should bereferred to a Court of Last Resort, along the linesrecommended by the House of Commons Home AffairsSelect Committee in 1982 (21). I will discuss this below infurther detail.
THE HOME OFFICE
54. Until recently, despite rhetoric to the contrary, miscarriages of justice have not been taken seriously by Home Office Ministers. Ministers have traditionally been reluctant to refer cases to the Court of Appeal due to the legendary reluctance of that court to admit to mistakes. Until now Home Secretaries have tended to take refuge in Section 17 of the 1968 Criminal Appeal Act which allows the Home Secretary to refer any case in which there is a new consideration of substance.
55. Within the Home Office there is a department, C3, which has responsibility for advising the Home Secretary on alleged miscarriages of justice. In my experience C3 does not engage in any original research, but sees its role as merely confined in commenting, usually adversely, on representations made by others. Sir David Napley told the Home Affairs Select Committee that he was not aware of any miscarriages of justice that had been corrected as a result of an initiative by the C3 department (22). I do not know if much has changed in the ten years since Sir David made that remark. The House of Commons library contains a long memorandum presumably drafted by C3, explaining why the Maguire convictions are safe. It was written not long before the Maguire convictions were quashed. I commend this to anyone who believes the present arrangements are satisfactory.
56. At present, if he is persuaded that further investigation is required, the Home Secretary asks either the police force responsible for the original convictions or an outside force. Although both the Guildford and Birmingham cases were ultimately brought to an end by thorough and professional investigations by the Avon and Somerset and Devon and Cornwall police, there are obvious problems where one police force investigates the alleged misdeed of another. There were two earlier police investigations into the Birmingham case, one of which was also conducted by the Devon and Cornwall police, which were seriously deficient.
57. I therefore invite the commission to RECOMMEND: That responsibility for dealing with miscarriages of justice be removed from the Home Secretary and passed to a Court of Last Resort along the lines recommended by the Home Affairs Select Committee in 1982. I have dealt with this in more detail at paragraph 65 below.
THE PRISON SERVICE
58. It became apparent during the course of my researches in the Birmingham case that the relatively small number of people who have been unjustly convicted are well known within the prison system and in most cases treated with respect both by other prisoners and by staff. On several occasions I was told by prison staff up to and including assistant governor grade that they had been concerned for years that there was something seriously wrong in the Birmingham case. On the day the Six were released I met, at the Old Bailey, an assistant governor who told me he had known several of them in prison and had had doubts about their guilt since the late 1970s. Another former assistant governor told me that prison staff had been recording comments to this effect in their security reports for many years. To see whether this is so, the Commission may wish to ask the Home Office for access to the security reports on the Six.
59. Necessarily, the opinion of prison staff is subjective. Since, however, they are likely to have daily contact over a period of years with the prisoners concerned, such opinions ought to be taken seriously. At present there exists no mechanism for doubts expressed by prison staff about the guilty of inmates to be acted upon.
60. I RECOMMEND: That once an independent body for investigating miscarriages of justice has been established, prison staff be encouraged to draw the attention of such a body to cases that cause them concern.
61. It became apparent during the course of my researches that a significant number of the police officers and legal personnel connected with the case are freemasons. It also became apparent that one senior police officer involved in the case had been in contact with fellow freemasons in the local media, first with a view to publicizing the official version of events, and later to obstruct efforts to have the case re-opened. A great deal of paranoia surrounds freemasonry and I have no wish to add to it. I have no way of knowing whether, if at all, it is a relevant factor in the perpetuation of miscarriages of justice. One would have to be blind, however, not to notice that there are an uncommonly large number of freemasons in the higher levels of the legal profession and at all levels in the police force. I am also aware that it is deeply resented by police officers and those in the legal profession who are not freemasons and by the public at large.
62. The high incidence of freemasonry in the police and legal profession has been documented elsewhere and I will not dwell upon it (23). I merely invite the Commission to say that membership of a secret society is damaging to public confidence in the fair admission of justice.
63. I RECOMMEND: That police officers, magistrates, officials of the DPP and the Lord Chancellor's department who are freemasons should be obliged to declare, and that their declaration should be available publicly.
A COURT OF LAST RESORT
64. The case for a Court of Last Resort to deal with alleged miscarriages of justice was made cogently in the report of the Home Affairs Select Committee on miscarriages of justice (24). The arguments in favour of such a court have been well rehearsed and have only grown stronger in the last decade. There is no need for me to elaborate. I invite the Commission to RECOMMEND:
(a) That a Court of Last Resort should be established;
(b) That it should be accountable to Parliament;
(c) That members should be appointed by Parliament and that it should contain a clear majority of non-lawyers, drawn from a wide range of backgrounds;
(d) That it should have the power and resources to commission its own investigations and to subpoena documents and summon witnesses;
(e) That to be eligible for consideration an appellant must have exhausted the normal appeals process;
(f) That, subject to (d) above, cases may be referred to it from any source and that a decision as to whether or not to review a case is a matter for the court itself;
(g) That, although for most purposes the standard of proof should be the same as that required in a court of law it should have the discretion to admit evidence that would otherwise be inadmissible in a court of law - for example, my claim to have trace and interviewed the persons responsible for the Birmingham pub bombings.
(h) That, if it is satisfied that a conviction is unsafe, it should have the power to quash that conviction without further reference to the Court of Appeal or the Home Secretary;
(i) That legal aid should be available to an appellant whose case has been accepted for review by the Court.
65. I will now deal briefly with two issues not dealt with above:
66. It has been said by others, including the Lord Chief Justice, that the presentsystem of mandatory life sentences for murder results in injustice and thatjudges ought to be given discretion to impose a sentence on the basis of theevidence. I agree.
67. It has been suggested that a verdict of "not proven" should be madeavailable to the courts. I strongly disagree. It would simply become adevice for perpetuating miscarriages of justice and legitimising theunscrupulous whispering campaign that has accompanied the quashing ofthe Guildford, Birmingham and Maguire convictions. It could alsoprovide an excuse for denying compensation to persons unjustly convicted.