SAFARI, c/o 170 Poplar Road South, London, SW19 3JY (Letters are forwarded to us from here) Issue 103 eMail: [email protected] (April 2015) Website: http://safari-uk.org ☆ STOP PRESS: SAFARI Special Report with this newsletter NOW’S THE TIME TO GET INVOLVED. This is our last newsletter before the 7th May 2015 General Election. Polls suggest that the resulting new Government will be another coalition although which parties will agree to work together is unclear. Even parties with small numbers of seats may well have a part in the new Government in order to achieve the necessary majority. No matter who wins, this is your chance to help mould that new Government into something that supports the falsely accused. In the coming weeks, candidates will be sending out leaflets, knocking on doors, making phone calls, and generally doing all they can to get your support for them at the Election. Leaflets should include their address. Find out who your local candidates are for all parties who are likely to win at least one seat anywhere in the UK. Then write to all of them (no matter who you personally support) along the following lines but feel free to personalise your own letter: “Dear <name>. I see that you are standing in the upcoming General Election. My family and I are looking to back a candidate who will specifically support changes in the law designed to protect the victims of miscarriages of justice. Would you be willing to lend your support by backing such changes? Many people are falsely accused and wrongfully convicted mainly because an accusation – especially if it’s of a sexual nature – is often enough to convince a jury to convict. Victims only have a right to apply for leave to appeal, there is no right to have an appeal, and this is often refused as they can’t provide ‘new evidence’ that wasn’t available at trial. It’s extremely difficult to find evidence to prove that you didn’t commit an offence. For example, could you, personally, prove you didn’t indecently assault someone one evening between Tuesday 24th April 2012 and Thursday 3rd May 2012; if the only ‘evidence’ against you was the word of the person making the allegation? Even those who are arrested and possibly charged, and then go on to win their trial (or just have charges dropped) can have their lives ruined by newspaper articles that appear about them. It’s vital to convict the guilty but it should be equally vital (if not more so) to ensure that innocent people are not convicted along with the guilty. I hope I can rely on your support and look forward to your reply.” If you receive replies, SAFARI would be very grateful if you could forward copies to us either online via [email protected] or via SAFARI, c/o: 170 Poplar Road South, Merton Park, London, SW19 3JY. WINNING AN APPEAL AGAINST CONVICTION almost always requires there to be “new evidence” which was not available at the time of trial. New evidence however, can often be extremely difficult to find, especially if your conviction was based almost entirely on false allegations made by others. This can be particularly hard in the case of ‘historic’ allegations. Proving where you were (and, more importantly, where you weren’t!) can seem very hard. It’s even harder where the charge is made to cover a period of two or more years, or unofficially altered by, for example, a judge or prosecutor commenting that the accuser “may have been confused about dates or places” saying that “it might have been the following year instead.” Although many old employment records have long since been lost, making alibi evidence hard to come by, your own medical records will show which practice you attended, and where you lived / worked at various times in your life. If, for example, you were alleged to have committed an offence while working in a care home in Cornwall, but your medical records show that you were resident in Yorkshire and having outpatient visits to a Yorkshire hospital during the relevant time, that could take the place of employment records in proving that you were not employed at a place where the complainant was resident at the time of the alleged offences. There may well be other avenues of enquiry that could be followed up. The tax office (HMRC) is likely to have details of your previous employment history. If you were unemployed, this will also be on their records (with dates). You may have old paperwork for your car (or previous cars) showing, for example, where your car was MOT tested or sent in for repairs. You may have old utility or council tax bills, or bank statements that showed your address at that time. You may have purchase paperwork for a house you bought, or copies of old tenancy agreements. Even letters written by members of your family in the past might show where you were living, or make reference to where you were working at the time. If you have a computer, you may have copies of letters on there that you posted out to others, with the date and your address (or theirs, if an employer, for example). Old credit card statements may show that you bought something in Manchester while you were allegedly committing an offence in Kent. Receipts for household goods may show where you were living, and will show where and when they were bought. Think what may be available, and where it might be found. ☆ NICOLE RICHESS (20) HAS BEEN CONVICTED of perverting the course of justice after admitting she falsely accused two soldiers of attempting to rape her, just before her trial was to begin. Ms Richess – who was 18 at the time - had gone on a bar crawl with some servicemen and invited them back to her house, where she later had sex with two of them. She was too ashamed to tell her boyfriend she had cheated on him, so she lied and said they had forced themselves on her. Her boyfriend then made her go to the police. We see stories like this often. People make up an allegation to hide the fact they had cheated on a partner but are then pressurized by their partner to make an official complaint. As a result, the case spirals out of control. We feel sure that Ms Richess would not have initially intended to cause any harm to the people she falsely accused, but must now take responsibility for her actions. SEAN FRAYNE (48) HAS BEEN CLEARED of raping a woman at a pub. His lawyer criticised the decision to prosecute Frayne instead of launching a blackmail inquiry after it emerged that a friend of the alleged victim wrote to him suggesting that publicity could be avoided for a substantial out-of-court payment. The Crown said the woman, who we cannot legally name, knew nothing of her friend’s attempts to “achieve some form of informal justice” on her behalf by sending the letter. In his closing speech, prosecutor Martin Hurst submitted that the jury should “disregard” the letter if they concluded that the woman did not know it had been sent. But defence barrister Laura Pitman questioned why the letter and a second note sent to Frayne had not been the focus of a police blackmail inquiry. In her closing submission, Miss Pitman said: “They (the police) have investigated one side of the story and they have not investigated the other. “If this is nothing to do with money why is there even mention of an out-of-court payment?” KATE SAINT (58) HAS HAD HER CONVICTION for common assault overturned at appeal. Ms Saint was accused of driving her car at Ms Gilligan, who claimed she was knocked backwards on to the bonnet of the car. However, Ms Saint said that at one point Ms Gilligan opened the passenger side door, got into her car and screamed abuse in her face before getting out again. As the door shut and Ms Saint moved forward, Ms Gilligan tried to run in front of the car and her hand touched the bonnet, to which she told Ms Saint: “Ha, I have got you.” The judge said he was appalled that this had even gone to magistrates and that there were more serious cases to be heard. (We strive to ensure the accuracy of all articles, but accept no responsibility for errors) All our earlier newsletters are available (and printable) online at http://safari-‐uk.org LAURA TILT OF THE UNIVERSITY OF OXFORD will be conducting doctorate research later this year into the post-release experience of the wrongfully convicted as part of the university’s Doctor of Philosophy (DPhil) in Criminology and Criminal Justice. Academia has so far identified the causes of wrongful conviction, and the effects suffered by its victims upon release from prison. Adrian Grounds, for example, found in his 2005 study that the psychological experience could be equivalent to post traumatic stress disorder suffered by war veterans. However, little research has considered how the exonerated cope with these effects, and the strategies adopted to try to overcome them, particularly in jurisdictions outside the United States. The project, to be produced in conjunction with the Miscarriages of Justice Organisation (MoJO), will use interviews and documentary analysis to investigate how those who have had convictions overturned and been released from prison cope with their experience, bounce back from criminal stigma and re-build their social identity. This will include investigation of the support that is provided to help cope. Whilst the research is directed at the experience after a conviction is overturned, information from the families and accused who maintain innocence but have not yet had their convictions quashed are welcome, to give a holistic perspective to the project. The project will seek answers to a number of questions: how are victims of wrongful conviction supported or assisted upon their release from prison in the United Kingdom? What kind of additional support or assistance do people feel should be provided to allow them to rebuild a life and reputation that has been spoiled by processes and people in the criminal justice system beyond their control? Does receiving government compensation or claiming civil law damages actually help in reducing stigma and coping with their situation? Do apologies from those involved in the criminal process, or others, help to repair the harms? Does the individual seek assistance themselves, and how do they feel they are coping with their post-release experience? Interviews with those who have suffered miscarriages of justice will be complemented with similar interviews with family and friends, lawyers, investigative journalists and other media representatives, Innocence projects and similar organisations, and government bodies responsible for providing compensation or involved in civil law suits for wrongful conviction. Victims of wrongful conviction have suffered enough; it is imperative that they are afforded substantial, accessible, effective support to enable them to reform their social identity, rebuild social bonds, engage in useful employment, and ultimately resume a normal life. The only way to propel these issues into the public agenda is through the voices of those at its heart. Your help is therefore essential to the success of this project and its contribution to policy reform. If you are willing to participate – as one who has suffered wrongful conviction yourself or through family or friends, Laura invites you to contact her before the end of September 2015, via post at Laura Tilt, Wolfson College, Linton Road, Oxford, OX2 6UD or email to [email protected]. There is no obligation to be locked into an official interview; any input is welcome. IN OUR LAST NEWSLETTER, we said that Victor Nealon was to take the Justice Secretary, Chris Grayling, to court over changes in the law stopping them from receiving compensation for wrongful conviction and imprisonment. The court of appeal has now reversed a previous decision to refuse a Judicial Review and the review should now take place later this year. This case is basically about a simple question: should someone whose conviction is quashed qualify for compensation even if they can’t prove their innocence? We say ‘yes’ because in the cases of false accusations, the victim is usually convicted based solely on someone’s say-so rather than real proof, and it’s generally impossible to prove that you didn’t commit a crime. So if you win an appeal, it means you shouldn’t have been convicted in the first place, so compensation should be paid. We wish Mr Nealon well in his judicial review. DID YOU HAVE AN INCOMPETENT DEFENCE team at trial? When appealing, remember to concentrate your arguments on how that incompetence resulted in unsafe convictions and not on the incompetence itself. In R v Mark Darren Day [2003] EWCA Crim 1060 (Case No2001/5795/Z2) it was said: “While incompetent representation is always to be deplored; is an understandable source of justified complaint by litigants and their families; and may expose the lawyers concerned to professional sanctions; it cannot in itself form a ground of appeal or a reason why a conviction should be found unsafe. We accept that, following the decision of this court in Thakrar 2001, the test is indeed the single test of safety, and that the court no longer has to concern itself with intermediate questions such as whether the advocacy has been flagrantly incompetent. But in order to establish lack of safety in an incompetence case Adams has to go beyond the incompetence and show that the incompetence led to identifiable errors or irregularities in the trial, which themselves rendered the process unfair or unsafe.” ALEXANDER MCGUFFIE (38) has had his conviction for being involved in a conspiracy to import cocaine quashed at appeal because the prosecution failed to disclose information clearly relevant to his case. The contents of the observation log concerning him was in question, and it was the defence’s case that it was unreliable. There were a number of anomalies as regards the observation evidence in the case: the alterations to the log were extensive; the evidence of the officers was inconsistent; and notable detail, relied on by the officers in evidence, was lacking in the original section of the log. Importantly, these same officers (DC Breen and DC Parry) had been involved in observations in a different case, on the Isle of Wight (“Green and others”), in which the accuracy of the log and the reliability and trustworthiness of these officers had been brought into question for much the same issues. In the Isle of Wight case, it had been alleged that the members of the squad had lied and created false entries, and the existence of the complaints against them should have been disclosed to the defence. The Appeal Court stated: “Evidence which tends to indicate that police officers have fabricated observations in an overlapping case is not evidence simply going to credibility if a sustainable line of defence for an accused is that the same officers (or some of them) fabricated evidence of a similar nature to that relied on in the current proceedings. As set out above, under section 100 Criminal Justice Act 2003, evidence of the bad character of a person other than the defendant is admissible, with the leave of the court if, and only if, it has substantial probative value in relation to a matter which is in issue in the proceedings and is of substantial importance in the context of the case as a whole. The fact that a complaint had been made in Green and others was, of itself, of little value, but it should have acted as a trigger to alert the officers that there was material that was relevant in the present trial as bad character evidence as to whether the officers (or some of them) had provided unreliable observation evidence.” This, therefore, is yet another case in which information which clearly could have undermined the prosecution’s case and aided the defence was withheld from the defence at trial. If that information had been made available to the defence, and presented to the jury, their verdict may very well have been different. (R v Alexander McGuffie & Adrian Weekes [2015] EWCA Crim 307 - Case: C0/201200173 C1 AND CO/201200221 C1) IF YOU’RE THE VICTIM of a miscarriage of justice, you’re not alone. Despite being innocent, you’re still told you are ‘in denial’, that you should ‘admit your guilt’, or ‘address your offending behaviour’. No matter what you do, reports will state you ‘did not make productive use’ of your time if your innocence meant that you weren’t eligible for a course they ‘required’ you to do. You feel helpless and lost. There are hundreds in the same situation, and by working together (by sharing little successes with support groups like SAFARI so we can spread that information around) you will find the process much easier to get through. Furthermore, many readers have told us that articles in our newsletter have been of immense help in their appeals. Stay strong. We’re with you. THE NEXT SAFARI NEWSLETTER is due online on 1st June 2015. Postal copies are expected to arrive by 15th June 2015. The deadline for arrival of submissions for consideration is 6th May 2015. It will be the first newsletter after the 2015 General Election and we should know better what kind of Government has been put into place. New Governments bring new policies and we hope to work with all of you, other support groups, the Criminal Cases Review Commission and Members of Parliament to get legislation put into place finally to give victims of miscarriages of justice the chance to get their lives back into order and overturn wrongful convictions, and to make it harder for the innocent to be convicted from false accusations. SAFARI IS SOLELY RELIANT on regular donations to survive, and every little helps, so if you’ve not already set up a Standing Order with your bank to send us £1 (or more) per month, we would be very grateful if you could do so. Simply ask your bank (by letter or in person) to credit whatever you can afford to account “SAFARI”, account number: 02702360, sort code: 30-92-02 or, if you prefer, just ask us to send you a Standing Order form to complete and return to us. Thank you. MAJOR CHANGES RECOMMENDED TO ASSIST VICTIMS OF FALSE ACCUSATIONS Since SAFARI was founded over a decade ago, our goals have always been (a) to achieve changes in legislation which protect people properly from being wrongly convicted as a result of false accusations, and (b) to ensure that those whose lives have already been damaged by this can win appeals against their convictions and obtain adequate compensation for the damage done to them. It helps nobody if the innocent are wrongly convicted and imprisoned; it does nothing to protect victims; it costs vast amounts of time and money; and it brings the entire criminal justice system into disrepute. Part (b) of this goal took a major step forward in March 2015 when the Conclusions and Recommendations of the House of Commons Justice Committee Report were published. In short, the Justice committee have recommended major changes that are likely to make successful appeals significantly more achievable. You can view the entire report at http://tinyurl.com/safari27. Here are the basic recommendations: Conclusions and Recommendations of the House of Commons Justice Committee Report on the Criminal Cases Review Commission (Twelfth Report of Session 2014–15) The ‘real possibility’ test 1. There was a strong difference of views amongst our witnesses on changing the ‘real possibility’ test [which requires that for a referral to be made there must be a real possibility that the conviction or sentence would not be upheld on appeal]. Any change would have to be undertaken in light of a change to the Court of Appeal’s grounds for allowing appeals, and would have to take account of the need to avoid a waste of resources or a detrimental effect on applicants and victims alike. While an alternative test might allow the CCRC more scope to display its independence of the Court of Appeal, by definition the only additional referrals which a change to the test alone would allow would be those with less than a real possibility of success. 2. We have seen no conclusive evidence that the CCRC is failing to apply the ‘real possibility’ test correctly in the majority of cases. We accept that application of the test is a difficult task and is by no means a precise science, but where potential miscarriages of justice are concerned we consider that the CCRC should be willing to err on the side of making a referral. The Commission should definitely never fear disagreeing with, or being rebuked by, the Court of Appeal. If a bolder approach leads to 5 more failed appeals but one additional miscarriage being corrected, then that is of clear benefit. 3. We recommend that the CCRC be less cautious in its approach to the ‘real possibility’ test, and reduce the targeted success rate in its Key Performance Indicators accordingly. 4. We are concerned that there may be some miscarriages of justice which are going uncorrected because of the difficulty the CCRC faces in getting some such cases past the threshold of ‘real possibility’, as a result of the Court of Appeal’s approach. While it is important that the jury system is not undermined, properly-directed juries which have seen all of the evidence may occasionally make incorrect decisions. The Court’s jurisprudence in this area, including on ‘lurking doubt’, is difficult to interpret and it is concerning that there is no clear or formal mechanism to consider quashing convictions arising from decisions which have a strong appearance of being incorrect. Any change in this area would require a change to the Court of Appeal’s approach, which would itself require a statutory amendment to the Court’s grounds for allowing appeals. We are aware that this would constitute a significant change to the system of criminal appeals in this country and that it would qualify to a limited extent the longstanding constitutional doctrine of the primacy of the jury. Neither of these things should be allowed to stand in the way of ensuring that innocent people are not falsely imprisoned. 5. We recommend that the Law Commission review the Court of Appeal’s grounds for allowing appeals. This review should include consideration of the benefits and dangers of a statutory change to allow and encourage the Court of Appeal to quash a conviction where it has a serious doubt about the verdict, even without fresh evidence or fresh legal argument. If any such change is made, it should be accompanied by a review of its effects on the CCRC and of the continuing appropriateness of the ‘real possibility’ test. 6. We do not think that the CCRC should change its approach to the Royal Prerogative [of Mercy]. Greater use of the power under section 16 of the 1995 Act [Criminal Appeal Act 1995] would bring the executive back into the process in precisely the manner that the creation of the CCRC was intended to avoid. In our view, increased use of the Royal Prerogative would be a wholly inadequate and inappropriate answer to the problems that have been raised, given that it does not lead to the quashing of the conviction or the correction of the miscarriage of justice but only commutes the sentence, and so does not provide complete justice for a falsely convicted person. (We strive to ensure the accuracy of all articles, but accept no responsibility for errors) All our earlier newsletters are available (and printable) online at http://safari-‐uk.org Resources, investigatory powers, and practices 7. If the CCRC is to function effectively it must be funded properly. We accept that the Ministry has had to find savings across the board and that it could not have predicted the sharp rise in the CCRC’s workload. However it is now clear that the CCRC is struggling to cope with these additional applications at its post-austerity resource levels and, with the increased workload, is unable to deliver an improved service for less. The current level of delays is unacceptable and must be brought down, and this will inevitably require further funding. As so many of the CCRC’s other issues are also blamed on funding, an increase should also make identifying areas for further improvement an easier task. 8. We recommend that the CCRC should, as a matter of urgency, be granted the additional £1 million of annual funding that it has requested until it has reduced its backlog. Furthermore, the Ministry should engage with the CCRC in longer term budgetary planning so that the Commission can properly plan ahead and recruit efficiently, with a view to restoring it to a level of funding which enables it to eliminate lengthy delays in handling cases. 9. We acknowledge the serious consequences of every miscarriage of justice for the person convicted, no matter how minor the offence. Despite this, we also think that the effect of overturning a miscarriage in more serious cases is much greater and that the CCRC was originally envisaged as an organisation to deal with such serious cases. Given the serious funding constraints that we have identified, we are persuaded that the CCRC should have greater control over its caseload in order to better focus its resources where they would have the greatest effect. 10. We recommend that the Ministry make statutory provision to allow the CCRC a discretion to refuse to investigate cases dealt with summarily [in the Magistrates’ Courts], if they deem it not to be in the public interest to investigate, and a discretion to refuse to investigate sentence-only cases. 11. In order to be effective and to reduce delays the CCRC’s existing section 17 [of the Criminal Appeal Act 1995] powers to require public bodies to disclose materials need to be supplemented by enforcement measures or sanctions for failure to comply in an appropriate amount of time. 12. We recommend that the Government bring forward legislation to add a time limit for public bodies to comply with a section 17 request, unless there are extenuating circumstances, and an appropriate sanction in case of non-compliance. 13. The extension of the CCRC’s section 17 powers to cover private bodies is urgently necessary and commands universal support. Successive Governments have no excuse for failing to do this and any further continuing failure is not acceptable. 14. It should be a matter of great urgency and priority for the next Government to bring forward legislation to implement the extension of the CCRC’s powers so that it can compel material necessary for it to carry out investigations from private bodies through an application to the courts. No new Criminal Justice Bill should be introduced without the inclusion of such a clause. Our successor Committee should monitor the progress of this to ensure that it happens promptly, and should continue to put pressure on the Government if necessary. 15. We are concerned with the evidence that we have received on the variation between Case Review Managers, both in approach and in terms of expertise. While this does not suggest that there are serious systemic shortcomings in the CCRC’s investigative work, there remains room for improvement even within its resource constraints. 16. We recommend that the Commission take steps to ensure that Case Review Managers consistently engage fully with applicants throughout the investigation in cases which progress past Stage 1 screening. As a matter of course this should include meeting with the applicant in all cases being given a type 3 or type 4 review, unless there are compelling reasons not to. We also recommend that variations in the experience and expertise of Case Review Managers be dealt with by assigning them to investigations more intelligently, so as to utilise fully their differing areas of proficiency and knowledge. 17. The Criminal Cases Review Commission, because it is the only body which investigates and refers to the Court of Appeal miscarriages of justice, is in a unique position to identify issues across the criminal justice system which lead to such miscarriages. We welcome the CCRC’s willingness to allow academics to perform research alongside it and the steps it is currently taking to build upon that. We acknowledge that the CCRC is in a difficult position with regard to resources, but we think that there is a great benefit in preventing miscarriages of justice from occurring in the first place. Greater understanding within the criminal justice system of the causes of miscarriages of justice would benefit the falsely accused, victims, public safety and the interests of justice, and could produce a saving in time and in money which would otherwise be spent by the courts and the CCRC in subsequently overturning false convictions. 18. We recommend that the CCRC should develop a formal system for regularly feeding back into all areas of the criminal justice system, from the police and Crown Prosecution Service through to the courts and the Ministry of Justice, on its understanding of the issues which are continuing to cause miscarriages of justice. Conclusion on the CCRC’s effectiveness 19. We conclude that the CCRC is performing its functions reasonably well, and we have identified areas for improvement, but we were struck by the disparity between what critics believe it to be doing and what it claims that it is doing. At times there was complete disagreement, even on objective and factual matters. This indicates that at the very least the CCRC has a problem with public perception, including with the awareness of applicants as to what it can do for them and of all stakeholders, including applicants, their representatives, and others, as to how it operates. The CCRC will never convince its most vociferous detractors, but it could be doing more to ensure that its work and processes are well understood. 20. The level of successful referrals from the CCRC shows that it remains as necessary a body now as when it was set up. We received very little evidence advocating its abolition, and even its strongest critics have said that they simply want it to improve. The existence of the CCRC is not enough in and of itself; it must be given the resources and powers it requires to perform its job effectively. The fundamental constitutional principle on which our criminal justice system rests and which the Commission exists to uphold is that the guilty are convicted and the innocent go free.. List of contributors who provided written evidence to the Justice Committee: AF (CCR0039); Bob Woffinden (CCR0033); British False Memory Society (CCR0018); C/O Cardiff University Law School (CCR0030); Cardiff University Law School Innocence Project (CCR0029); Centre For Criminal Appeals (CCR0027); Clifford Chance LLP (CCR0036); Court of Appeal Criminal Division (CCR0022); Criminal Cases Review Commission (CCR0041); and (CCR0055); Des Thomas (CCR0010); Dr Peter Freeman (CCR0001); Eifion Edwards (CCR0045); False Allegations Support Organisation (CCR0042); Friends of Susan May (CCR0049); George Skelly (CCR0050); Glyn Maddocks (CCR0013); (CCR0054) and (CCR0056); Holly Greenwood (CCR0035); Horatio Goodden (CCR0008); JENGbA (CCR0040); Lord Chief Justice of England and Wales (CCR0047) and (CCR0052); Lord Judge (CCR0057); Mark Newby (CCR0021); Maxine Mcevoy (CCR0005); Ministry of Justice (CCR0011) and (CCR0053); Neil Jackson (CCR0046); Nick Johnson (CCR0032); Northumbria University School of Law (CCR0012); Paul May (CCR0003); Prison Reform Trust (CCR0034); Professor Carolyn Hoyle (CCR0024); Professor Michael Zander QC (CCR0002), (CCR0048), and (CCR0051); SAFARI (CCR0037); Scottish Criminal Cases Review Commission (CCR0043); Stanley Welsh (CCR0031); Stephen Heaton (CCR0015); Steven Jonas (CCR0028); The General Council of the Bar of Northern Ireland (CCR0006); University of Warwick School of Law (CCR0026), Victims' Commissioner for England and Wales (CCR0009); Victor Nealon (CCR0017)
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