APPENDIX 3
Memorandum submitted by Edward Northcote
1. When I retired, I decided to do something
about wrongful convictions. I appealed in Inside Time (the
prison newspaper) and received about 200 letters. The cynical
will ask, "What did you expect?" but the good people
who run the New Bridge were very surprised. A great many complained
about their sentences and many others had not appealed. Many did
not persist, but a disturbing residuum seem clearly to be victims
of miscarriage of justice.
2. I only deal with questions of fact. If
a correspondent has a point of law I tell him to consult a lawyer.
My point is that when the lawyers have exhausted their procedures,
the case is fair game for anyone.
3. I hope to persuade the Committee that
the CCRC should be seen in the context of correcting wrongful
convictions overall and so:
3.1 Four distinguished lay people (Privy
Counsellors or equivalent) should be commissioned as judges (two
as Lords Justice) and they should constitute the Court of Criminal
Appeals when the only question to be determined is one of fact.
3.2 The Chairman of the CCRC should be a
very senior judge, holding the office for one year. He should
have responsibility for identifying faults in the criminal justice
system and trying to get them put right.
3.3 The CCRC should be much more user friendly,
particularly to the unassisted applicant. They should identify
his plausible claims to be a victim of miscarriage and investigate
them until either they fall down or the case should be referred.
They should exercise initiative and develop a culture of wanting
to make referrals. They should be willing to see at least the
representatives of applicants, and they should be willing to visit
the applicants themselves.
3.4 The CCRC should take steps to see that
effective help is available to all applicants. They should not
advertise the services of solicitors unless they are confident
that they are competent and they should actively help and engage
with lay volunteers. The latter may well be able to do the job
better than professionals as, being unpaid, they can afford to
give a long as may be needed to the work. This would improve efficiency.
3.5 The Crown Prosecution Service should
be brought into the picture at an early stage. If the CCRC are
to look to making referrals, someone should be defending the convictions.
3.6 The Court of Criminal Appeal should be
invited to up their game more than somewhat.
DISCUSSION
4. With hindsight, it seems that setting
up the CCRC was not an appropriate response to the Birmingham
Six case; they had had their case referred but the appeals were
rejected. The Court was failing to do its job; the Home Secretary
was not.
5. The first question for the Committee
must be how many wrong convictions are there? I understand that
criminals accept being convicted wrongly as an occupational hazard—if
this is right, it may well be that as many as one conviction in
10 is wrong, but most of these will not cause great concern. Sir
Robin Auld's recommendations about the jury recognise the seriousness
of the problem. Wrongful conviction for murder, drug offences
and paedophile offences, however are very serious.
5.1 I seriously think there are at least
100 people in prison for murders with which they were not associated
in any way, and in addition a great many ought rather to have
been convicted of manslaughter. One of my correspondents was so
amazingly convicted of a murder that I think he can only have
been the victim of institutional racism. In two other cases, previous
"one man crime waves" were fitted up by the police with
cell confessions.
I have been very shocked by a
corroding effect which a long time in prison can (but does not
always) have on a man who sincerely thinks he is the victim of
a miscarriage. Inflicting psychological injury to a convicted
person should be no more acceptable than maiming him.
5.2 Wrongful drug convictions cause great
concern because they take the flak away from the truly guilty
and, no doubt, give great satisfaction to the "Mr Bigs"
of this world.
5.3 It is unusually hard on a man in his
40s who is convicted of a very old paedophile offence and goes
to prison for the first time under Rule 43. What is more, the
young person who has accused him wrongly (perhaps because he was
motivated by the prospect of compensation) is not in an enviable
position. Both these last two are worrying because public opinion
can be so strongly affected by the perceived awful consequences
of the offences that jurors may not be too nice about fairness.
"Say `guilty' to be on the safe side." One of my correspondents
thinks he was wrongly convicted for importing Ecstasy at least
partly because his trial was held at the time of Leah Betts. Prejudice
against paedophiles is not confined to the less advantaged. I
asked a friend, the widow of a doctor, to visit a correspondent
(of whose innocence I am convinced) but she would not as he is
convicted of an offence against children.
6. Some convictions are truly amazing. In
one case, a man was convicted of stealing a lot of money which
had not been stolen at all. It had been applied quite correctly
to the object the subscriber intended and the reason why the intended
beneficiaries did not enjoy the fruit of it was that it was taken
from them quite lawfully by Order of the Court. That case went
through a trial, a Newton hearing and an appeal. Even the victim
did not understand what had gone wrong until I explained it to
him.
7. The wrongfully convicted have virtually
no chance with the CCRC unless they have help. The CCRC admits
no obligation to show any initiative and appears to have a culture
of not referring doubtful convictions. They say that one of the
reasons for this is their statutory obligation to have a proper
chance of success. I think this obligation to second guess the
Court limits their independence. And it is surprising. I understand
that the Court never told the Home Secretary that he should not
refer certain types of case.
7.1 In one case, there had been a lot of
PIIs. My correspondent had not realised that he could ask for
investigations into whether all had been disclosed that should
have been.
7.2 Another had not realised that he could
ask for the cell confession to be investigated.
7.3 In another case. I could not persuade
the CCRC even to write a letter enquiring if evidence might be
available. My correspondent has since consulted a solicitor at
much greater expense to the public purse.
7.4 One's defence was so defective that I
was convinced that his QC must actually have been corrupt, but
I was totally unable to persuade them to make any enquiries at
all. They said that they did not think his case matched the very
tight standards of the Court for accepting inadequate representation
as a ground. I cannot understand how there can be such rules—any
defect of the defence may jeopardise the safety of the conviction.
(that surely is the reason for having rules), even though most
do not.
8. Blackstone wrote in his Commentaries
(1765):
"It is better that 10 guilty persons
escape than that one innocent suffer"
Then the suffering of the innocent was often
hanging. If the "10" was meant to be taken literally,
(and there must be some number) then abolition will have reduced
it. I hope the Committee will please press on the lawyers that
the public are not satisfied with the way the police fail to bring
offenders to justice, and that justice demands that their attitude
to wrongful convictions changes to match reforms needed to increase
the conviction rate.
9. I hope that the Committee will agree
that the CCRC should have a role in the criminal justice system
similar to that which the National Audit Office has in the management
of the money. The Court of Criminal Appeals should be quashing
most wrongful convictions conveniently after they have occurred—it
is not doing so because:
9.1 The facts on which they rely are often
wrong or misunderstood. A misinformed Court is wasting its time.
9.2 The resource of the Prosecution is totally
ignored.
9.3 A man who says he has been convicted
wrongly should have a fair chance to say so himself to someone
who can do something about it. He should always have an oral hearing
by the Single Judge. (I think guilty people would make fewer applications
the Single Judge if they had to speak themselves.)
9.4 The Single Judge should have power to
order the CCRC to investigate any aspect of the original trial
that he thinks may be suspect.
10. But the central problem seems to be
the defensive attitude of the senior judges. While the Birmingham
Six were in prison, even the great Lord Denning said that it was
better not to make a fuss because it might damage confidence in
the system.
March 2002
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