Not the only one: delivering justice for the wrongly convicted

 

The Criminal Appeal Lawyers Association’s annual conference: Not the only one: delivering justice for the wrongly convicted, took place on 9 November 2024 at Linklaters LLP, London and was hosted by Steven Bird, CALA’s Chair. The Conference brought together speakers and panellists from different disciplines, including journalism, who spoke about their contributions to the delivery of justice for the wrongly convicted.

Opening talk – Master Alix Beldam KC

The Registrar at the Court of Appeal, Criminal Division (CACD), Master Alix Beldam KC, gave the opening talk reflecting on the Court’s work dealing with miscarriages of justice. It was fitting that she began by considering what is a miscarriage of justice defining it as: “any failure by a court or judicial system to come to a just conclusion”. The Registrar went on to state that in criminal proceedings, a miscarriage is generally considered to be when “an individual is tried, convicted and punished for a crime they did not commit”, but she also reminded us, with a reference to the Stephen Lawrence case, that it can also mean “the wrongful acquittal of the guilty”.

The Registrar set the current appeal system, including the creation of the Court of Appeal in 1907 and modern CACD in 1968, in its historical context noting its development during the 1900s following the appalling miscarriage of justice that befell Adolf Beck, a notorious case involving a wrongful conviction by mistaken identity and subsequently George Edalji, a solicitor who was wrongfully convicted of a charge of injuring a pony and who spent three years in prison.

With respect to wrongful acquittals, Master Beldam KC took us through the CACD’s role in quashing the acquittals of the guilty pursuant to the statutory procedure established under the Criminal Justice Act 2003 referring to the William Dunlop case and, as noted above, Stephen Lawrence case.

With respect to wrongful convictions, noting that the Court of Appeal Act (CAA) 1968 confers one right of appeal even in the face of compelling evidence, the Registrar looked at the  role of the CCRC and its establishment in 1995. Prior to the establishment of this independent public body tasked with rectifying miscarriage of justice by referring them back to the Court of Appeal when the “real possibility” test is met (see below), an individual who had exhausted the appeal process depended on the exercise of the Royal Prerogative of Mercy, as it was known, and, then, following the enactment of section 17 of the CAA 1968, the discretion of the Home Secretary to refer a case back to the Court of Appeal. Neither was satisfactory hence the need for an independent public body

Alix Beldam KC then took us through her pivotal role as the Registrar at the CACD in the Post Office appeals. These appeals were unprecedented by virtue of their number and the volume of work required. She had to ensure an effective working relationship with all parties, and she explained how this was achieved. She touched on the vital and collective role of her team and the role of the judiciary, including the role of the then Vice President of the CACD (VPCACD), Lord Fulford, who nominated Lord Justice Holroyde, now current VPCACD, as the presiding judge to ensure consistent judicial oversight in the appeals. Case work clearly presented a challenge at the Court, as did finalising and management of hearings which resulted in the 92-page judgment: Hamilton & Others v Post Office [2021] EWCA Crim 577 in which the Court concluded that the prosecutions amounted to an abuse of process.

Again, it was fitting that the Registrar ended her talk noting that “all those involved in the criminal justice system are fallible and that as in all things we can always do better and should strive to do so at every stage in the process that could lead to a miscarriage of justice”.

The Role of journalism and the media in highlighting miscarriages of justice

At the first panel event of the day, which was chaired by Henry Blaxland KC widely known and respected for his appellate practice and acting for those who are considered to be on the margins of society, we heard from three journalists, who shared their different experiences.

Margaret Renn, both a journalist and a writer, spoke about her experiences investigating miscarriages of justice in the 1980s and beyond, particularly in relation to the Birmingham Six and the Guildford Four and her collaboration with Paul Foot, a tireless campaigner for justice. The Birmingham Six were six Northern Irishmen who were sentenced to life imprisonment in 1975 following their false convictions for the 1974 Birmingham pub bombings. Their convictions were declared “unsafe” and “unsatisfactory” by the Court of Appeal on 14 March 1991. It was the role of journalists, including Margaret, who kept this “unpopular” case in the public eye via newspaper articles, television documentaries and books during the long fight for justice. The Guilford Four again were four Northern Irishmen who were wrongly convicted of the Guilford pub bombing on 7 November 1974. Their convictions were overturned in 1989 after campaigns for justice once again spearheaded by journalists.

Private Eye’s Richard Brooks, a British investigative journalist and previous tax inspector and joint winner in 2008 and 2014 of two Paul Foot Awards, an annual award for investigative or campaigning journalism, told us about his journalistic experiences, particularly those related to the Post Office scandal the most widespread miscarriage of justice in the UK. In 2019, a High Court case helped expose how nearly 1000 Post Office branch managers were convicted between 1999 and 2015 for offences including theft and false accounting, based on flawed evidence from Fujitsu’s Horizon system. Richard’s ability to “dig and cause trouble niggling away at difficult subjects in a meticulous, punchy and highly effective way” helped contribute to the exposure of the scandal and in 2024, alongside fellow journalist Nick Wallis, he co-authored Private Eye’s extensive report on the scandal: “Justice Lost in the Post – How the Post office wrecked the lives of its workers”.

Emily Dugan a journalist at the Guardian, Legal Affairs Journalist of the Year and a Paul Foot Award winner with a reputation for exclusives and powerful reportage spoke about her experiences as an investigative journalist including those connected to the Andrew Malkinson case. She noted that this type of work is hard, demanding and time consuming, but that it can be extremely rewarding. She explained she had started working on the Andrew Malkinson case before his exoneration, and how she continued this work reporting when his conviction was actually quashed by the CACD in 2023 and subsequently including work related to in Mr Malkinson’s fight for compensation.

The collective message from the journalists’ panel was that when confronted with a miscarriage of justice, don’t give up, keep going and when able join forces with others to help correct it.

Update on the Law Commission’s Appeals Project – Professor Penny Lewis 

Although restrained to a large extent on the basis that the Law Commission has not yet published its consultation paper on criminal appeals (this is expected in early 2025), Professor Lewis, the Law Commissioner for Criminal Law, did provide some fascinating insight into the Commission’s potential direction of travel following their initial scoping exercise earlier this year which received 158 responses – including 89 responses from prisoners.

The “real possibility” test which is applied by the CCRC when considering whether to refer a conviction or sentence back to the CACD, which critics including CALA and APPEAL have argued for years acts as a “straight jacket” to rectifying miscarriages of justice, looks set to be the subject matter of proposed reform. Professor Lewis no doubt will have taken into account the responses received in relation to the test, its problematic wording and predictive nature, but also its application by the CCRC. It is noteworthy – Professor Lewis did not raise this – that Chris Henley KC, in his independent review of the CCRC’s handling of the Andrew Malkinson case, criticised the CCRC’s approach to and the application of the test. In Mr Malkinson’s case, the CCRC refused to refer Andrew Malkinson’s conviction back to the Court of Appeal  twice before they eventually referred notwithstanding that on both occasions the test was met. Professor Lewis very clearly has ruled out the “opening of the flood gates argument” which has always been cited as the reason not to revisit the statutory test.

Another area of proposed reform appears to include the 28-day time limit to appeal which APPEAL has always argued adversely impacts upon female applicants and who, as a consequence, set out a case for its abolishment for women in their response to the Law Commission’s scoping exercise. There was also a hint from Professor Lewis that the singular right of appeal may be the subject of reform with respect to women applicants – critics including APPEAL argue that the law has not kept up with modern developments relating to women who find themselves as perpetrators in the criminal justice system when in fact they are victims. Separately, in this context, it should be noted that the Law Commission is also reviewing domestic homicide defences which as is widely acknowledged are not working when relied upon by women defendants who commit homicide as a consequence of being subjected to domestic abuse and coercive and controlling behaviour resulting in miscarriages of justice.

Professor Lewis touched on other areas of proposed reform which respondents to the scoping exercise addressed including: the admission of fresh evidence under section 23 of the CAA 1968 as in some cases when reviewing whether it is in the “interests of justice” to admit the evidence the Court of Appeal considers the listed factors under the section as “criteria” as opposed to “considerations”; the awarding of compensation following a miscarriage of justice and the requirement relating to “a newly discovered fact” which the applicant must prove beyond reasonable doubt which is unfair; the retention of evidence and the process of disclosure both of which were exposed as woefully inadequate in the Andrew Malkinson case.

Practitioners’ insight into the hidden hurdles including funding, delay and access to legal representation

In the practitioners panel, the CALA Chair, Steven Bird, Birds Solicitors and committee members Tom Wainwright, Garden Court Chambers and Emma Torr, APPEAL looked at the hidden hurdles applicants/appellants face including funding and finding legal representation.

The audience appeared shocked to learn, from Steven Bird, with respect to the funding of appeal cases under the so called “Advice and Assistance Scheme”, that as the fees which are paid to solicitors are so low and only payable by the LAA at the very end of a case which can take years and years to progress largely due to complexity and other reasons including practitioners work loads, and with no interim payment system in place preventing law firms settling disbursements including transcript fees, counsels’ fee and experts’ fees during the life of an appeal case, solicitors cannot afford to do this work. Even more shocking – we learned that a fraction, namely 0.2% of the criminal legal aid budget goes towards funding appeal cases, a fall which corresponds with a decrease in the numbers of practitioners doing this work notwithstanding that apparent rise in the number of miscarriages of justices as is evident from the Post Office cases. As a consequence, the CACD is receiving an increase in the amount of cases in which applicants self-represent and with respect to applications to the CCRC only 5% are legally represented. The additional problem applicant’s face relating to funding is eligibility as the threshold criteria are low and the rules complex and not well understood.

Tom Wainwright touched on his work as a Barrister at the Criminal Bar and an appellate specialist noting that when a single judge (SJ) refuses permission to appeal  this can be challenged, however, practitioners are not paid if they do this work. As  a consequence renewed permission applications are not renewed, or they are renewed and practitioners act pro bono, or the renewed application is privately funded by the applicant who may be vulnerable and without means relying on borrowed money from third parties. Of real concern in this context is that Tom referred to evidence which demonstrates that a notable number of renewed permission applications to the full Court are successful, and that in some of these cases, convictions and/or sentences are quashed.

Emma Torr, APPEAL’s Co-director talked about APPEAL’s work, noting that as there are now so few practitioners undertaking appeal work in private practice enquiries at APPEAL have increased, but that APPEAL is not able to help everyone due to limited resources and capacity. APPEAL as a charity and law practice is funded by charitable donations and to a much lesser extent legal aid and Emma touched on pro bono work noting how APPEAL relies heavily on this which is vital to their work. In this context, Emma highlighted the volume of pro bono work undertaken by APPEAL in the Andrew Malkinson case concluding that whilst practitioners should be funded for the work they do, and pro bono work is no substitute for the role of the State who is obliged to fund the correcting of justice when it has miscarried, the reality is that practitioners do a vast amount of unfunded work in these cases. Emma called for immediate reform with respect to four matters:

1. Funding;
2. Representation orders for solicitors in the Court of Appeal – shockingly solicitors unlike barristers are not automatically granted representation orders by the CACD once permission to appeal is granted and are they are expected to undertake – for free – a time consuming form filling exercise and request a representation order which they only complete in exceptional cases as the process is burdensome on busy practitioners;
3. Interim payments;
4. Court transcripts – due to the high cost they should be free.

It was obvious after the practitioners panel just how pressing the need for reform in this area of work is and that many in the room shared these views.

The Exoneration of Andy Malkinson

Edward Henry KC who acted for Andrew Malkinson in his appeal summarised the grounds of appeal that were put forward in the appeal. He noted that he was limited as regards what he could say as two inquiries are currently being conducted in the case: a Public Inquiry and an Inquiry into the conduct of Greater Manchester Police. (A third inquiry commissioned by the CCRC and conducted by Chris Henley KC has been published – see above.) Mr Henry KC highlighted that there were several grounds of appeal which undermined the safety of the conviction to include: fresh DNA evidence which APPEAL had obtained and which demonstrated Mr Malkinson’s innocence; evidence from the complainant that she had scratched her attackers face and yet Mr Malkinson’s face was not scratched; various breaches of the Police and Criminal Evidence Act 1984 during the ID procedures; non-disclosure of evidence undermining the evidence of witnesses.

James Burley talked about his role in the case as the lead investigator. The role of investigator is unusual in our jurisdiction. James referred to the role of investigation in US capital cases and how APPEAL when it was founded, by Emily Bolton, Solicitor, drew upon this practice. James talked about his experiences and how he used his skills as an investigator with the team at APPEAL to gather evidence which was critical to the exoneration of Mr Malkinson. Most notable in this context were the challenges that the team faced who had to resort to judicial review to obtain post-trial evidence pursuant to Nunn.  James told us that ‘curiosity” is needed when looking at these cases, an approach that he adopts as an investigator.

Legal update on criminal appeal cases – Farrhat Arshad KC 

The final talk came from Farrhat Arshad KC, Barrister at Doughty Street Chambers, Head of the Doughty Street Appeals Unit and CALA Committee member, galloped through a case update in relation to the Court of Appeal’s recent conviction and sentence appeals (her own words). Farrhat highlighted the most recent authorities in relation to criminal appeals,  observing that some outcomes were welcome and others not so welcome. Her slides with all the case references can be accessed via the CALA website.

Final reflections

The CALA annual conference: Not the only one: delivering justice for the wrongly convicted, saw the largest number of attendees in CALA’s 22-year history of hosting such events. Whilst the numbers were encouraging, they were equally troubling reflecting the fact that miscarriages of justice continue to blight our legal landscape. If the conference is to be judged on numbers alone, and most notably the very large number of young attendees, it is evident that there is a collective force to fight against injustice, as has always been the position both historically and in the very recent past. There is much work to do in order to correct miscarriages of justice and introduce reforms so that the risk of justice miscarrying in the future is reduced and to achieve this collective force is needed.

Written by Claire Bostock Solicitor at APPEAL