Miscarriages of Justice in the UK
My interest in miscarriages of justice in the United Kingdom arises from a long-standing concern with the Birmingham, Guildford and Woolich 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 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 capturerd at Balcombe Street, London, and the appeal of the Guildford and Woolwich defenders. Mr Chippindale told me at the time that he thought the wrong people had been convicted in both cases. For some years I also took an interest in the case of Judith Ward, who was released from prison in 1992 after serving 18 years of a 30 year sentence for a crime she did not commit.
Since the release of the Birmingham and Guildford defendants, I have been contacted by a large number of people, many serving long prison sentences, who say they have been wrongly convicted. Although I am in no position to evaluate such claims, many make what seems to be 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 defendants, 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 organisations such as Liberty and Justice and by individuals such as broadcaster Ludovic Kennedy and Gareth Pierce who, like me, are also inundated with people claiming innocence, but who also lack the resources to cope with such claims. I recently handed to the home secretary a dossier of more than 40 case of people who had contacted me claiming innocence.
Although as prime minister Margaret Thatcher said when I raised the Birmingham case with her 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 overturn a conviction successfully 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. In 1994 I attended a preview of an excellent documentary made by West Country television about the case of Brian Parsons, who is serving life imprisonment for a murder which few people who have taken a serious interest in the case believe he committed. While it is entirely proper in a democracy for journalists to pursue cases of alleged miscarriage of justice, it ought not to be a matter of satisfaction for those whose job it is to dispense justice.
I would like to be able to say that, as a result of the scandals of recent years, those responsible for the administration of justice in the United Kingdom have learned some serious lessons and are taking steps to make sure there is no repetition. I refret that, with certain honourable exceptions, this is not the case. It is true that the Court of Appeal (in England, though not in Northern Ireland) has cleaned up its act. Since the Judith Ward case there have been a series of excellent judgments resulting in a string of quashed convictions, among the more recent being the quashing of the convictions of two Sri Lankan Tamils, wrongly convicted of an arson attack in the East End of London in 1987.
It is true that many interrogations for serious offences are now tape recorded - although even this elementary reform is still stoutly resisted in Northern Ireland - and no one should imagine that tape-recorded confessions are fool proof. The West Midlands police have already demonstrated - in a remarkable case involving the death of PC Tony Salt - that it is possible to tape-record an entirely false confession. The Salt case was described by Tony Scrivener, a former chair of the Bar Council, as a landmark. I commend it to anyone who believes that tape-recorded interviews solve all our problems.
Finally it is true that, as a result of what has happened, a number of people - though not as many as one might expect - have changed their view about the death penalty. The most distinguished of these is the present home secretary, Michael Howard.
WHY LITTLE HAS CHANGED
These areas of undoubted progress apart, however, it is far from clear that most of those in charge of our criminal justice system, and particularly our police, have learned any serious long-term lessons from what has gone wrong. On the contrary, many of those at every level of our criminal justice system exhibit a steely determination to learn nothing from the mistakes of the past. Many of our most distinguished lawyers, police officers and politicians have not yet faced up to the fact that the Guildford and Birmingham defendants are innocent.
There was a whispering campaign that began on the very day Gerry Conlob, one of the 'Guildford Four', walked out of the door of the Old Bailey in October 1989. It goes something like this: 'Okay, maybe the forensic scientists did soup up the evidence a bit; maybe the police did knock them about a bit, but we know they're guilty.' There are more sophisticated variations. 'Okay maybe they weren't all guilty, but some were.' When the perpetrators of such rumours are challenged to explain the basis for their certainty, it is usually apparent that they have none. More often than not they have read none of the books and seen none of the documentary films. They have nothing more to go on than an inner certainty, derived perhaps from a conversation in a freemasons lodge or in a saloon bar in Surrey. Occasionally someone whispers the lie aloud or under the cover of privilege. The chairman of the home affairs select committee, Sir Ivan Lawrence, who is a part time judge, spoke in a parliamentary debate of the 'legally innocent'. When I challenged him to explain this interesting new concept, he declined to elaborate, except to add that everyone knew what he was talking about. The Sun and The Sunday Telegraph had to pay out enormous libel damages after foolishly carrying an article by one of the police officers responsible for the Birmingham convictions implying that they were really guilty. Sir Jqames Miskin, the former Recorder of London, said on his retirement that the Guidlford defendants were really guilty and hastily had to retract when there was talk of a libel suit. Lord Denning, a former Master of the Rolls, remarked in an interview with the Spectator that it would have been better if they had been hanged and he, too, had to put out a grovelling apology. Among police officers, even intelligent, educated men who are willing to acknowledge some of the misbehaviour that has occurred, the delusion that the Birmingham and Guildford defendants were all really guilty is almost total. Faced with this massive, and carefully cultivated, delusion there is no wonder that it is difficult to persuade those in charge of our legal system to face up to what is wrong.
There is, however, one case about which you never hear it suggested that the person released was guilty - that is Judith Ward. In 192, I visited Northern Ireland with a select committee and we met an assistant chief constable of the Royal Ulster Constabulary (RUC). I put it to him that, since the RUC's intelligence on the IRA was far better than that of police on the mainland, they must have known all along that the wrong people had been convicted of all the main terrorist offences on the mainland in the mid-1970s. He replied that he had no personal experience of the Guildford and Birmingham cases, but he did know about Judith Ward. 'She was framed' - 'framed' was his word - 'by the West Yorkshire police.' Then he added, 'The irony is that when we are alleged to have done something wrong, the West Yorkshire police are sent over to investigate'. There is considerable evidence - I have set it out in my submission to the Inquiry chaired by Sir John May - that many of those involved in the Guildford investigation must have realised from an early stage that they had got the wrong people. There is anecdotal evidence to suggest that some police officers knew within three days of the arrests and that most of those involved - and I am referring not only to police officers, but to many of the others involved up to and including the attorney general and the director of public prosecutions - must have realised that something was seriously wrong after the arrest of the IRA unit captured in the siege of Balcombe Street, three members of which were responsible for the Guildford and Woolwich bombings. This suggests the existence of another school of though. That the truth did not matter. That small lives could be thrown away in order to protect great reputations.
There is, however, a third and perhaps the most important reason why so little has changed and why so few lessons have been learned. Namely, that outside of the chattering classes the public does not care about miscarriages of justice, unless it happens to them or their friends or their relatives. There are simply no votes in it, even when you are proved right. Even now my local newspaper from time to time publishes anonymous letters and even the occasional article abusing me for my interest in miscarriages of justice. It is widely believed, and the local Conservatives and their friends peddle assiduously the falsehood that my unshakeable belief, based on careful study, that the wrong people were convicted of the Birmingham and Guidford bombings somehow implies that I am soft on terrorism.
Understandably, the tidal wave of yobbery that accompanied the Thatcher decade has caused most people to be preoccupied with removing rather than improving the safeguards against the conviction of the innocent. The politicians know this and respond accordingly. There was a cynical view that the Royal Commission established on the day that the Birmingham Six were released in March 1991 was primarily intended to reduce rather than increase pressure for serious reform by kicking the issue into the long grass until the political climate changed. I do not necessarily share that view, but one cannot help noticing a distinct lack of enthusiasm at the Home Office for implementing the safeguards against further miscarriages, but no difficulty in finding the parliamentary time for removing the suspects' right to silence even in police detention without any corresponding obligation for the tape-recording of interviews or the presence of the lawyer. How else can one explain the constant pressure from both the Home Office and the Crown Prosecution Service (CPS) for less, rather than more disclosure - despite the fact that failure, not only by the police, but also by the CPS, to disclose vital evidence was a central failure of the recent celebrated miscarriages of justice?
There is a fourth explanation for the failure to learn from the mistakes of the past. Namely, that even when those responsible for miscarriages of justice are caught red handed in the most outrageous misbehaviour, they suffer nothing more than mild inconvenience. In their summings up in the Birmingham and Guildford cases the trial judges spelled out over several pages the scale of the fraud and perjury that must have occurred in order for the defendants to be telling the truth. And yet, 20 years on, I am not aware of anyone - police officers, forensic scientists, lawyers, judges - who has been convicted, sacked or in any way disciplined for their role in securing and sustaining those convictions. True, there was a half hearted attempt to prosecute three relatively junior officers involved in the Guildford case, but their trial was a fiasco from start to finish and unsurprisingly they were acquitted. In the Birmingham case, there was an equally half hearted attempt to prosecute three police officers and the judge would not even allow the case to go to the jury. In the West Midlands, where more than 20 convictions have been quashed as a result of massive fraud and perjury over many years and where millions of pounds was spent on investigating what had gone wrong, no attempt had been made to prosecute anyone responsible. In the Judith Ward case, where the Appeal Court expressly accused a senior lawyer of serious misconduct, the Bar Council decided to take no action. Although countless lives have been ruined and millions of pounds of public money has been spent on investigations and in compensation, I am not aware of anyone in any of the many proven cases of miscarriage of justice who has been successfully prosecuted or seriously disciplined.
What is to be done? I shall deal briefly with each of the main parts of our criminal justice system and suggest appropriate reforms.
Although I acknowledge that there are decent and honest police officers at every level within the service and that some of them share our concern about what has gone wrong, I regret that the culture of perjury is still deeply ingrained. A senior official at the Police Federation said to me, of all people, a couple of years ago, 'There is nothing wrong with perjury committed by an honest police officer in support of a good cause'. A former senior female officer said to me that she had been told by a chief inspector that he did not like women officers because they were reluctant to lie in the witness box. Anyone who believes that such things no longer happen should study the remarkable case of Malcolm Kennedy, reconvicted in May 1994, after three trials and two appeals, of a killing in a cell at Hammersmith police station. Thos of us who take an interest in the case believe he is innocent. If he is, then the alternative is almost too shocking to contemplate.
The seeds of almost all miscarriages of justice are sown within days, sometimes within 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 left on and doors banged to deprive them of sleep (in the Birmingham case it was alleged that dogs and shotguns were introduced into the cells and the prisoners were made to stand and sit at regular intervals throughout successive nights). Access to solicitors is denied, often for days at a time. Although codes of practice exist they are often ignored. The more serious the alleged offence, the more likely it is that the rules will be bent. Custody records have been routinely fabricated. Much of this is condoned at the highest level. In the Birmingham case, Sargeant Dennis Holt, who was in charge of the cell block at Queen's Road Police station, says he protested to Chief Superintendant Harry Robinson, the officer in charge, 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 hat'. Mr Buck was an assistant chief constable and later became a chief constable.
On top of all this, suspects who might otherwise have maintained their right of silence, at least until the arrival of a solicitor or the switching on of a tape-recorder, may now be told that their silence will be used against them in court. 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. 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 sentences on the basis of confessions which, they say, were extracted by plastic bags being placed over their heads.
Corroboration, where it is offered, often consists of little more than an alleged admission supposedly overheard by a police officer or a fellow prisoner who can reasonably be expected to be rewarded for perjury committed in support of a good cause. In the Cooper McMahon case police officers appear to have shared the reward money with the armed robber who may have been responsible for the murder in return for his giving evidence against innocent men. In the Carl Bridgewater case the Appeal Court accepted the evidence of a man, who, the court conceded, was a pathological liar. The relevant passage of the judgment reads, 'As the judge told the jury, Ritter was a man who had devoted much of his life to deceit … He has a reputation for being what is described as a pathological liar … Bearing in mind all of the factors and the submissions which have been made to us, we have come to the conclusion that, on this occasion, Ritter can safely be relied upon as a witness of truth.'
As long as courts are willing to convict on this basis, serious miscarriages of justice are bound to occur. 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. Second, the Act does not apply to cases involving terrorist offences - and is, therefore, irrelevant to some of the most contentious cases. Third, it is possible to intimidate suspects in ways which would not necessarily be apparent in a recorded or even a taped interview. Gerry Conlon in the Guildford case, for example, claims he was prompted to confess by threats made to the safety of his mother and his sister. Paul Hill says he eventually agreed to sign what was put in front of him in return for the police agreeing to release his pregnant girlfriend.
In the long run only a complete overhaul of the recruitment, training and disciplinary codes of the police will make any difference. In the meantime it must be obvious that the single most useful reform that could be made is to outlaw convictions on the basis of uncorroborated confession. The only admissible confessions should be those recorded in the presence of a qualified solicitor. Secondly, suspects in terrorist cases should be treated equally to those in non-terrorist cases. Thirdly, this reform should extend to Northern Ireland. Although this will not put an end to gratuitous mistreatment of suspects in custody, it will put an end to systematic mistreatment since there will be nothing to be gained and everything to lose, by it.
The willingness of senior officers to overlook and in some cases condone malpractice, together with the wall of silence which greets any internal inquiry, is another feature of police life which will have to change if police wish to regain the respect of upright citizens. There was recently a case in West London where police officers gave evidence against colleagues who had assaulted a suspect as a result of which the culprits were convicted. This is a rare and very welcome development. I hope it is a sign of things to come.
THE CROWN PROSECUTION SERVICE
No one should run away with the idea that the deliberate suppression of inconvenient evidence is always the fault of the police. When several members of the IRA unit captured at Balcombe Street in 1975 confessed to being responsible for the Guildford and Woolwich bombings - for which innocent people had just been put away - the police, very properly passed the details to the director of public prosecutions (DPP). What did the DPP do? The DDP arranged for the charges against the Balcombe Street men to be carefully edited to remove all references to Guildford and Woolwich. The DPP even went as far as to persuade the forensic scientists to re-write their statements. Above all, no word of the Balcombe Street unit's admissions were passed on to solicitors acting for the four people who had just been sentenced and who had an appeal pending. The DPP might have got away with this, but for the work of an assiduous defence solicitor called Alastair Logan. What happened to those who suppressed this vital evidence? Nothing. To the best of my knowledge no Crown lawyer caught suppressing evidence has ever suffered more than mild embarrassment - and these are people not easily embarrassed.
One might have expected that, since the CPS [or the DPP as it was previously known) has been caught on a number of occasions suppressing evidence which not to have been suppressed, they would by now have cleaned up their act. Not a bit of it. In the recent case of Malcolm Kennedy, for example, the Court of Appeal, in quashing the conviction and ordering a retrial, expressed the view that all the new evidence should be put before a jury. The CPS, however (and they were upheld by Mr Justice Swinton Thomas) went to some lengths to ensure that the retrial went ahead without an appearance in the witness box by a former police officer who had done so badly on a previous occasion that he might seriously have jeopardised the crown case.
In the Birmingham case it took no less than four preliminary hearings to extract from the Crown all the documents vital to the preparation of the appellants' case. During the course of these hearings Crown counsel, Mr Graham Boal, tried the patience of the court with weeks of prevarication over the disclosure of vital documents.
What has the Bar Council, which is supposed to uphold the integrity of the profession ever done in such cases? In their excellent judgment in the Judith Ward case, the Appeal Court named the lawyer responsible for suppressing crucial evidence. I wrote to the then chairman of the Bar Council, enclosing the relevant passage of the judgment, and asking what action had been taken against the individual concerned. The answer was none. He is now a prominent QC.
There is reason to suppose that the attitude of the DPP towards disclosure in the Birmingham, Guildford and Judith Ward 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 require new regulations, rather it requires integrity in enforcing existing ones. I suggest that deliberate non disclosure should be a criminal offence and that negligent non-disclosure should be a serious disciplinary offence.
THE HOME OFFICE
Section 17 of the 1968 Criminal Appeal Act allows the home secretary to refer back to the Court of Appeal any case in which there is a new consideration of substance. Home secretaries have traditionally been reluctant to use this power due to the legendary stubbornness of the Court of Appeal. The Guildford and Birmingham cases, however, led to a change of attitude by the Court of Appeal and, for a period, this in turn made the home office more willing to refer more cases. There are signs, however, that the tide is now turning. The most prominent of the alleged miscarriages of justice still outstanding is the conviction of the four men, one of them now dead, for the murder of the newspaper delivery boy, Carl Bridgewater. It is evident to those of use who have taken a close interest in this case that it has now comprehensively collapsed. All we are awaiting is for the new s to reach the home secretary, Over the last year a series of submissions have been made by the lawyers acting for the surviving defendants. The last was on 1 February 1994. The home office response has been to refer the matter to the police for yet further investigation. The police investigation, which is the seventh into aspects of the case, is proceeding at a snail's pace and there are signs, as so often in the past, that their heart is not entirely in it. Meanwhile the years are passing. The convicted men have now been in prison for 17 years, which in the case of two of them is more than half their lives.
Once again we are faced with a flat refusal to learn any lessons from the past. One lesson is clear, the sooner responsibility for referring back alleged miscarriages of justice us got out of the hands of the home secretary, the better.
The Royal Commission on Criminal Justice recommended - indeed it was suggested as long ago as 1982 0 that an Independent Review Tribunal be established to deal with alleged miscarriages of justice. The government has reluctantly accepted this recommendation and a Criminal Cases Review Authority is in the process of being established. Much will depend on how robustly the Authority uses its powers. Above all it is essential that it is not solely dependent on the police for the conduct of investigations.
It was a feature of the Birmingham case that, on each occasion it came to court, a home office forensic scientist came forward to refute the evidence of the home office forensic scientist at the previous hearing. On each occasion he or she did so with total confidence and on each occasion the court unhesitatingly accepted the new evidence.
In the Guildford case the forensic scientists worked for the ministry of defence. 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.
These are just two examples - there are others - of recent cases where forensic scientists employed by the state have failed to live up to the highest standards of the profession. The moral of all this seems to be, 'Put not thy faith in experts - especially if they are employed by the home office or the ministry of defence'. In fairness it must be said that it was the work of competent and honest home office forensic scientists that finally bought the Birmingham case to an end.
If full confidence to the impartiality of forensic scientists is to be restored, however, certain obvious steps are necessary. First, a forensic science service has to be established, to which both the Crown and the defence has access, but which is independent of both. Second, firm guidelines need to be laid down, and enforced, regulating the relationship between forensic scientists and the police or any other interested party. Third, proper procedures need to be established for the documentation of forensic evidence and, if these are not adhered to, such evidence should be inadmissible. Finally, in the light of experience, judges need to adopt a more cautious attitude towards forensic evidence.
After the recent miscarriages of justice, there were a series of speeches and statements by senior judicial figures absolving the judges of any responsibility for what had happened. Lord Ackner, for example, said in the House of Lords, 'Certain notorious miscarriages of justice have been laid at the door of judges … A judge does not try an accused: the jury does that'. This is obviously nonsense. In the Birmingham case the trial judge, Lord Bridge alone - in the absence of a jury - took the crucial decision to admit the confessions in evidence. Lord Denning and two colleagues decided in a remarkable and much criticised judgment to allow the appeal by the West Midlands and Lancashire police against the application by the Birmingham defendants 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 of review and reject the mass of new evidence before the court. An application for trial by jury was rejected.
In the Guildford case, Lord Justices Roskill, Lawton and Mr Justice Boreham presided over the appeal which was also effectively a retrial. Once again, a jury trial was ruled out even though it could not on that occasion be argued that too much time had elapsed for witnesses to have accurate recall.
Although it is said to be a cardinal principle of our legal system that the judiciary is independent of the state, a study of judicial pronouncement in many controversial cases shows that they bear a remarkable resemblance to the position of the Crown. Indeed, on occasion they exceed in ingenuity the arguments deployed by the Crown when called upon to explain away the apparently inexplicable.
One of the problems is that our judges, particularly our most senior judges, come from a very narrow sector of society. They are mainly middle to upper-class males who have been educated at the same handful of public schools and universities and who as a result tend to move in circles where prejudices are reinforced rather than challenged. Mystery surrounds the process by which they are selected. At the moment it is done by some mumbo jumbo in the Lord Chancellor's department, although there are plans to advertise at least the junior appointments. I welcome this as a first small step along the road to a modern judiciary in which all our citizens can have confidence.
There are some obvious reforms, none of which amounts to a bloody revolution, although I have no doubt that is how they will be perceived in some circles. First, retirement at 65. Second, the pool from which judges are drawn needs to be widened to include all members of the legal profession, including women. Third, responsibility for recruitment needs to put in the hands of a judicial appoints commission. All vacancies should be advertised and the criteria for selection made public. Fourth, instead of being a repository for older lawyers who, having made a lot of money at the Bar, are in search of a quieter life or a knighthood, the judiciary should become a branch of the legal profession for which young lawyers can opt at an early stage in their careers and be trained accordingly.
A great deal of paranoia surrounds freemasonry and I have no wish to add to it. One would have to be blind, however, not to notice that there are an uncommonly high number of freemasons in the legal profession and the police force. I am also aware that they are deeply resented by police officers and those in the legal profession who are not freemasons and by the public at large. Indeed, it is hard to think of anything more corrosive of public confidence in our judicial system than the knowledge that a significant number of lawyers, magistrates, judges, coroners and police officers of every rank are members of a secret society one of the aims of which is mutual self-advancement.
The solution is a simple one. It requires no bans or proscriptions. All that is needed is a requirement that public servants - in any profession - who are members of a secret society ought to be obliged publicly to disclose. When that is done the problem will melt away. In 1992, I moved a Private Member's Bill in the House of Commons for this purpose. Regrettably the government could not find time for it. There is no need, however, to wait for parliament. There is nothing to stop the Bar Council, the Law Society, the Association of Chief Police Officers or the Police Federation from taking the initiative, if they value the esteem in which their member are held by the public.
It would be wrong to pretend that nothing has changed for the better since the great scandals of the early 1990s and I do not do so. It must be said, however, that progress has been painfully slow. Every time there is a particularly terrible murder or terrorist atrocity the police and the legal profession come under pressure, much of it fanned by the tabloid press, to cut corners in order to get results. We must construct institutions strong enough to resist such pressures. It is in all our interests to do so. For it follows, as night follows day, that for every person wrongly convicted, a guilty person has gone free. It is a matter of record that the perpetrators of all the major terrorist atrocities of the mid-1970s went free. Some were later convicted of other crimes, but not before they had committed other atrocities.
Locking up the wrong people is also very expensive. Tens of millions of pounds of public money has been wasted on apprehending, imprisoning and in due course compensating innocent people. Even those who do not care about the ruin of innocent lives, might at least reflect in these other aspects of a miscarriage of justice. Above all, however, wrongful convictions rot public confidence in our system of justice and that ought to concern all of us who care about upholding it.