How long is it acceptable for a person to have to remain in prison for a crime they did not commit?
By Emily Bolton
That is the question at the heart of the report issued by the Justice Select Committee today on the performance of the Criminal Cases Review Commission.
Thanks to cuts to the funding of the Commission, the answer appears to be “two and a half years” — minimum.
Human beings make mistakes and no system has more human parts than the criminal justice system. Imagine you have been sent to prison for a crime you did not commit. How does the system deal with this? How quickly can it correct its mistakes? How long should it take to set things right?
Convictions can only be overturned on the basis of “fresh evidence”. This means someone is going to have to go out and find it. That won’t be the police, as their job is done once the case comes to court. Your trial solicitor can file a form for you asking for an appeal. However, the funding regime for such appeals does not envisage any street level investigation being done. Instead it allows for a trial barrister to highlight any errors in the judge’s conduct of the trial. As “fresh evidence” is typically an ‘unknown unknown,’ the trial barrister is unlikely to find it in the record. So, a first appeal will probably fail. That will take place six months to a year after conviction. In practice, this means that anyone wrongfully convicted in this country will definitely spend 6 months to year in prison before the system can even begin to address the mistake.
The long and uncertain road to the Court of Appeal
In 1997, the Criminal Cases Review Commission was established to step in at this stage, review the case, look for fresh evidence and, where it deemed it appropriate, send the case back to the Court of Appeal. This will start at the earliest, six months after conviction.
But the Commission’s funding has been drastically cut over the last decade (from £8.1 million to £5.1 million), while the number of prisoners complaining of mistakes has increased by 60%. This means that the wrongfully convicted prisoner will wait a further 18 months for a decision from the Commission. That brings the prison time served to two years. Then the case must come back to the Court of Appeal — which, with scheduling and preparation for a hearing at the court, may add another 6 months.
This means that anyone wrongfully convicted in this country must serve, under the current system, at the very least two and a half years of their sentence before it can be rectified. That is two and a half years in prison, away from your family, your work, your business, your life. What can you lose in that time?
Sophie Walker and Emily Bolton are two lawyers who specialise in appeal cases. In the last twelve months they have seen the toll this delay can take on a family. One prisoner client lost the chance to see his mother again alive. He was not permitted to attend her funeral. A second prisoner has been waiting over 115 weeks for the Commission to take a view on his case, and risks his life by hunger striking. A third prisoner was about to propose to the love of his life when he was arrested — now he fears he will never get that chance. A fourth prisoner had worked for years building up a small business at considerable personal sacrifice of labour and comfort for his family — that business has now dissolved and his wife and children struggle to hang on in the family home.
We firmly believe that these prisoners’ cases will ultimately be exposed as miscarriages of justice. They will be freed. Their experience will leave them with all the scars of a kidnap victim, but little of the recognition. If they are able to win compensation for their ordeal, it will be capped at £500,000. They will be suffering from post-traumatic stress disorder, depression, anxiety, for which they will need life-long treatment. Nothing can compensate a person for the losses that these prisoners will have experienced by the time they are set free.
But the system can and must attempt to prevent them from occurring in the first place and the simplest way of doing this is to fund the CCRC properly. The Justice Select Committee recommended an increase of £1 million to the budget of the CCRC. That doesn’t even begin to address the problem. The Commission needs to be funded to a level that it can refer miscarriages of justice to the Court of Appeal within three months of receiving an application, maximum. The Commission keeps good data on its performance costs and so this figure should not be difficult to work out. Funded at this level a wrongfully convicted prisoner has a small chance of seeing freedom within a year. Even that is too long, but it’s a start. All the prisoners represented by Emily and Sophie would have been out by now under such a funding regime. They would not be able to stave off the mortality of their loved ones, but at least they would be there with them at the end, rather than waiting behind bars for the dreaded phone call.
The case of Jamie Green and the Freshwater Five
Jamie Green and his four co-defendants (collectively known as the Freshwater Five) have been waiting for justice since they were arrested in May 2010. Their proceedings were riddled with late disclosure, presentation of misleading evidence and even jury tampering according to a whistle-blower on the jury. The five men are now serving a total of 104 years in prison.
They were convicted of using Jamie’s fishing boat to collect drugs from a container ship mid-Channel and transporting them to Freshwater Bay off the Isle of Wight. Evidence suggests that the five men were just in the wrong place at the wrong time — in their search for lobster and crab, they had unwittingly sailed straight into the middle of a failed drug surveillance operation and got tagged and arrested seemingly for want of better suspects.
When £52 million worth of cocaine was found in Freshwater Bay the next day the police became convinced that they must have the right people in jail after all and apparently retrofitted the case against them — including bending evidence regarding the positioning of the container ship and observations made of Jamie’s fishing vessel. The case of the Freshwater Five is now before the Criminal Cases Review Commission for further investigation.
The case of Roger Khan
Roger Khan has been waiting for justice since he was arrested in November 2010. He was accused, along with his nephew, of the attempted murder of his nephew’s brother-in-law, when his DNA and fingerprints were found in a car he had ridden in alongside his nephew. Roger maintains he had no knowledge of what his nephew went on to do that day after dropping him off.
Roger ended up without a lawyer to represent him at trial, as those he was assigned did not act promptly enough to secure CCTV footage of his alibi. When he complained of this to the judge, he was left with the choice of these lawyers or no lawyers. Papers he had never had the chance to read piled up beside his desk in court in bin liners.
He was convicted despite DNA evidence pointing to someone else being responsible for the beating. He has been trying to get the evidence before the court of appeal for over three and a half years, but has been stymied by the system. His case has been before the CCRC now for more than 115 weeks.
Utterly frustrated by the lack of progress, Roger says “I don’t want sympathy, I just want a chance to present the evidence. Just look at the DNA. I wasn’t there, so why am I here?”
Emily Bolton is founder of the UK charity the Centre for Criminal Appeals, soon to be launched as a not-profit law practice to address the shortfall in access to justice for wrongfully convicted prisoners in England and Wales. In 2000, Emily established Innocence Project New Orleans (IPNO), a non-profit law office providing legal representation to the wrongfully convicted in the Deep Southern United States. IPNO has so far freed 25 innocent prisoners.
Please note the Centre for Criminal Appeals is not currently engaged in the provision of legal services, is not regulated by the Solicitors Regulation authority, and the UK cases referred to in this blog relate to the casework pilot being conducted by the writers through their practice with a separate fully regulated law firm, Scott-Moncrieff and Associates, Ltd.