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Necessary Reform to Prevent and Recognise Miscarriages of Justice

This page outlines some ideas that in my opinion will reduce the incidence of miscarriages of justice and enable the Court of Appeal to quash convictions. These might sound like impractical suggestions at times but if you consider them fully then you will see that they will help resolve this very real problem.

Already I have the support of campaigners for the victims of miscarriages of justice, the support of an MP who wants to ask a question in Parliament, the Shadow Government who want to pursue change in the appeals process, to amend the Criminal Appeals Act in accordance with my suggestions, and a former cabinet minister who is writing to the Attorney General. Downing Street have passed my suggestions to the Department for Constitutional Affairs, which I hope will take the time to read them as it in the public interest that reforms should be made.

PREVENTING THE MEDIA FROM PREJUDICING A SUSPECT/DEFENDANT
This issue is best illustrated by looking at the case of Barry George, the man convicted of murdering Jill Dando. Before George was charged with Dando's murder the BBC revealed that Barry Bulsara (the name George was known by), a man who had served with the Territorial Army, a disabled, unemployed, divorced man who lived half a mile from Dando's home and who claimed to be the cousin of Freddie Mercury, was being questioned and the police had been granted extensions to detail him for four days. The implication of this disclosure by the BBC was that the public were able to assume that the man being held had a fascination with celebrities and he had experience with guns. As it happened this was not strictly true but the public could hardly fail to recognise the importance of this information when Jill Dando was arguably a 'celebrity' who had been shot dead. The disclosures made before George was charged were only minor compared to those made later, prior to and during the trial. As a result of the frequently inaccurate information being presented how could Barry George have a fair trial? Tougher rules should be used to govern the information the media can provide to the public. Newspapers, television, radio and new media companies mainly only care about increasing readers, viewers and listeners. As a consequence justice is affected and this needs to change.


A FULL APPRECIATION THAT PEOPLE ARE INNOCENT UNTIL PROVEN GUILTY
It is a maxim of the British justice system that all are innocent until proven guilty. However, the reality of police investigations is that all are considered to be guilty until they are proven innocent and the first person who is considered to be most guilty is arrested and, unless they can prove their innocence, frequently charged with the crime in question.

We live in a world where governments and police forces are obsessed with crime figures and conviction rates. The consequential pressure results in the need for someone to be held to account. Justice must be seen to be done, regardless of whether innocent people go to prison in the process or the guilty truly pay. It is indisputable, when one considers the fact that miscarriages of justice do happen, that large numbers of people have been convicted and executed for crimes they did not commit simply because the police refused to investigate crimes with the concept of justice in mind.

When investigating a suspect the police look for clues to prove the person did commit the crime and not evidence showing they did not. Even if there is evidence suggesting a person is innocent, their friends, neighbours, colleagues and other such individuals are often questioned to try and find some comment or piece of information that could be used against the suspect. The suspect’s home can be raided to see whether there is anything which could be interpreted as indicating a possible involvement in the crime and if enough possible indicators are found the investigation will intensify. If the suspect cannot remember where they were at the time, or if they give incorrect information because a large amount of time has elapsed, then the police will be down on them like a hawk believing that they must be hiding something. They are always on the look out for something that can be used against you regardless of whether you are innocent.

A classic example of this issue comes from a genuine case I know of. A man was being interviewed in connection with a murder he certainly did not commit. He did not match the description of the killer. Indeed he was half the age of the man described by the victim and witnesses and he could not drive when it was known for certain the killer drove his victim to the scene of the crime. The man did not have access to a car and did not even know the area in which the crime took place as he had no links with the area.

During routine questioning (thousands of males in and around the area were routinely questioned) the detectives asked him a series of questions to which he responded truthfully but despite the twenty years age gap between the killer and himself the man found himself being treated as a serious suspect. He believes this was because of his body language in that being questioned in connection with the crime he did not commit was a cause of stress and panic and so he was shaking and looked very nervous and worried, which might have been interpreted as suspicious.

When he informed them that he could not drive, and had no interest in learning to drive, he was accused of being a liar by one of the detectives who assumed everyone aged 17 or over liked to drive. A similar accusation was made when the man informed the detectives that he had never carried out any work on a motor vehicle and had no interest in doing so (the killer presumably had oil and grease on his clothing). He was told he looked very much like the murderer even though he was of slim build with thick, dark hair whilst the killer was described as medium build with light brown, receding hair. Yet despite the huge differences in appearance the police spent an hour questioning him in a bid to find something that they could use against him, asking the same questions over and over again in the hope that he would slip up. The detectives even implied they intended to interview people he knew in order to find information.

Taking this into consideration do you believe the police respect the maxim ‘innocent until proven guilty’? The situation needs to change because if the police treat innocent people as suspects, with the intention of finding evidence against them, then it is inevitably the case that innocent people will stand trial and in many cases they will be convicted.


AN INDIVIDUAL'S RIGHTS SHOULD BE MADE CLEAR BEFORE AN ARREST IS MADE, DURING EVEN ROUTINE QUESTIONING
Many criminal investigations into a suspect begin with routine questioning. For example, if a sex killer strikes in a given area those who have been convicted of rape or other similar offences, who live in that area, will be routinely questioned. To use another example, if a witness observes that the criminal drove a certain model of car all of those who own that model of car in the country will be routinely questioned. Obviously most will not be the criminal in question. However, evidence that could later be used in court could be acquired at this early stage. In Barry George's case he was not cautioned and did not have legal representation when he was first questioned about his possible involvement in Jill Dando's murder. He gave information that was referred to and indeed used against him in court. Barry George's information was vague and one cannot be expected to accurately recall what they did on a specific date one year previously. Consequently his account of his whereabouts at this early stage was slightly different to that provided in court resulting in the prosecution arguing that Barry changed his alibi.

In many cases an innocent person will give information that might not be accurate, due to the passage of time or that they are in a state of shock, without realising that information could later form a part of a prosecution counsel's case. This is clearly wrong. If a person is convicted of a murder or serious offence and it emerges the police never cautioned the individual upon arresting that person then the Court of Appeal will often quash the conviction because it is a grave irregularity and abuse of process. This happened in the case of Stephen Downing who served twenty-seven years in prison for the murder of Wendy Sewell. Yet the police can acquire as much information as they like without informing a suspect of their rights before an arrest is made. In most cases people are intelligent to know that they can have a solicitor present (though I know of cases where the police will discourage a solicitor from being present) but if someone who is not clever enough to understand what is happening then they are unaware they are able to obtain legal representation when they really do need it, whether they are guilty or not.

It is imperative that suspects are informed that they have the right to consult with a solicitor and that information they give can be used in court. For the sake of a few moments the police should say this during routine questioning because even routine questioning can be an intimidating experience and for someone who does not understand the legal process it can be extremely frightening because the nature of questioning, as has been previously discussed, can lead to the belief that an arrest could be made and this can lead to misleading information being provided simply because, in a state of shock, the suspect cannot accurately recall what is being discussed.


THE CONTINUATION OF A POLICE INVESTIGATION AFTER CHARGES ARE BROUGHT AGAINST A SUSPECT
One factor in ensuring innocent people stand trial for crimes they have not committed is that the police often arrest and charge the first person who meets the criteria they believe describe the criminal they are seeking. The question is, how many others in the list of suspects would, if investigated, be found to match the criteria more strongly? In many cases a defendant has stood trial and been acquitted, with their innocence actually proven. Therefore if the police had continued their search for the offender they might have found the real culprit. Numerous people are in prison, convicted of crimes, because the police have not eliminated all of the suspects. At the time of the conviction many suspects would have not even been spoken to so how can it be said the defendant was the most likely person to have been responsible? In the case of the murder of Rachel Nickell, Colin Stagg could quite easily have been convicted of Nickell’s murder. If he were then this would have been a miscarriage of justice because the real killer has now been identified. If the police had not charged Stagg and let him stand trial then they might have caught the real killer before he was able to strike again the following year when he sexually assaulted and murdered a mother and child. They did not find the true killer, even though they briefly questioned him whilst Stagg was on remand, because they were so confident in their belief Stagg was the murderer that they did not want to consider the possibility they had made a mistake. Stagg was lucky in that he was acquitted; others have been convicted just because the police stopped looking for the criminal.

There is a simple solution to this problem; the police should continue to trace, interview and (if there are sufficient grounds) eliminate suspects even when someone is on remand pending their trial unless there is absolute proof that they have caught the right person/people. Whilst this might be a resource consuming process it will reduce the likelihood of innocents facing conviction whilst the real culprits pose a continued danger to society. As Sherlock Holmes so frequently said, “Once you have eliminated the impossible whatever remains, no matter how improbable, must be the truth.” If the police do not eliminate all of the impossible suspects how can they realistically be expected to be sure they have found the truth?


STRICTER RULES GOVERNING THE SELECTION OF WITNESSES
In a criminal trial witnesses often provide irrelevant, emotive testimony that really the jury does not need to hear and will undoubtedly affect their verdict, often to the detriment of the defendant(s).

A classic example of this is the Barry George case. At the beginning of George’s trial, Jill Dando’s fiancé Alan Farthing gave evidence. Farthing could not shed any light on the crime because he was not in the Gowan Avenue area at all that day. He could only provide some minimal details that were not particularly relevant, such as at what time he left for work on the day of Jill’s murder, what time he believed she left home, etc. Whilst this might be of interest to some it did not help the jury at all because such trivial matters were not issues they needed to consider. What angers me is that Farthing was asked to describe how he met Jill, how they got engaged, their plans for getting married and other such details which, whilst they would naturally have caused upset for Farthing, had no relevance at all to whether George was responsible for the murder. Discussions of how the couple planned to marry and how they had discussed their plans on the morning on which Jill died would have affected the jury insomuch as their emotions were being played with. By discussing Jill’s intended future the feeling of hatred towards the killer was increased because the gunman had robbed Jill of her life at a happy time in her life. So inevitably any man who the police said killed her would have been viewed with increasing disfavour. Alan Farthing’s information (it is by no means evidence) should never have been discussed because the jury did not need to know it and it could very well have had an impact on how they would view the defendant during the trial.

A jury should only hear information of direct relevance to the central issue in the case and so partners of the victim should not be allowed to testify unless they have evidence the jury needs to hear and even then their testimony should be strictly controlled.


THE ABOLITION OR ALTERATION OF THE JURY SYSTEM
The present system of trial by jury is flawed in that it allows anyone who is eighteen years of age or older to sit on a jury. This inevitably means that people who are not particularly intelligent to put it kindly can decide upon a person’s guilt. As yourself this: if you stood trial for a crime you had not committed would you want a jury composed of twelve intelligent people with good judgment or would you be happy with a jury composed of some fairly clever people with one or more people who cannot understand basic concepts? Everyone knows someone who would not be able to understand complex issues of forensic science even if they were explained clearly. A good example comes from the case of Jeremy Bamber. During Bamber’s trial the foreman of the jury sent a note to the trial judge asking who stood to benefit financially if Bamber was convicted. He asked whether this would provide a ‘mottiff’ [sic] for a certain witness to provide damning testimony. One is forced to question how someone who cannot spell the word motive is able to fully understand what was a complex case involving discussion of the possibility of blood mixtures forming certain blood groups.

Expert witnesses in trials rarely explain issues in very good detail and the jury is not offered the opportunity to ask questions when evidence is being heard. Therefore some members of the jury will not be able to understand the case for or against a defendant and so how can they be expected to reach the correct verdict? If experts cannot agree over the significance of forensic evidence then how can a jury, the members of which are most usually uneducated in forensic science, be expected to agree?

At the very least, in cases where the evidence is complex, a jury should be composed of a jury which is known to be intelligent enough to understand forensic science and the limitations of forensic science. We live in a television culture whereby people who watch crime dramas will often believe that forensic science equals the truth when in reality it is always open to interpretation.

I personally believe we need to see an end to the jury system. A jury’s verdict is only an expressed opinion regarding a prosecution’s theory and it is a known fact people can be wrong in their opinions. Therefore what is needed in criminal cases is for the fate of a defendant to be determined by someone who understands all of the issues involved in a case.


THE INTRODUCTION OF A THIRD POSSIBLE VERDICT
A jury is asked, after the judge’s summing up, to reach a verdict of ‘guilty’ or ‘not guilty.’ At first they are asked to reach the verdict unanimously. However, if they are unable to do so the judge can suggest they should reach a majority verdict whereby at least ten of the twelve must agree one way or the other. This puts immeasurable pressure on a jury because ten of them have to agree. If, for example, six people are convinced the defendant is guilty whilst six do not believe the defendant to have committed the offence in question then how can a verdict be reached? Of course, a trial can end without a verdict being reached, and a new trial commenced, but these cases are rare.

A jury will feel pressured to reach a verdict, particularly in high profile cases where the media and the public are awaiting their decision. There is frequently too much expectation on the jury. Having spoken to some who have been members of a jury I know that bullying does take place. During deliberations there will often be one or more individuals who believe they are right over whether a defendant is guilty and so they will try to impose their view on others. If all are expected to agree, but they cannot agree, then bullying will occasionally take place because a jury will have to spend time away from their family if they cannot reach a verdict. In the case of Barry George the jury had to spend a weekend in a hotel, unable to speak with their families, and when deliberations commenced they very soon returned a guilty verdict, much to the upset of one of the members who claimed something had gone wrong.

If a jury can agree unanimously, or even if ten of the twelve can agree, that is fine. However, if nine believe a defendant to be guilty whilst three do not then, with the media watching them, and the desire of some to return to their families, what are they going to do? With bullying taking place and the pressure juries face it is inevitable that occasionally someone will go with the majority so that a verdict can be reached more quickly. It does happen, believe me.

This is why a third verdict of 'Not Proven' is needed. When a jury cannot agree, and a second trial cannot take place because of the media spotlight and the judge not wanting a second trial to take place because of the implications of a new trial beginning (often it is unrealistic to allow a new trial to begin because of the media attention which would cause embarrassment and criticism to the system and also it would enable the defendant and witnesses to know what they are going to be asked so they can be prepared for cross examination), then a jury should not be forced into finding someone guilty or not guilty. They should be allowed to say that they are undecided in their view. The necessary legislation could be introduced to allow someone who has been found neither guilty nor not guilty to stand trial again if new evidence comes forward.


THE FALLACY OF THE COURT OF APPEAL
The Court of Appeal, the institution created to recognise miscarriages of justice, is flawed in that it does not care about guilt or innocence. The only issue that the Court of Appeal is interested in is whether legal proceedings were carried out correctly during the investigation period and during the trial. This is all very well if the person who is appealing was unfairly treated by the system. However, as So what if the jury made a mistake, which it is inevitable they will occasionally do given that a jury is a group of twelve people randomly selected from the ordinary members of society who, by their very nature, are prone to human error? What if the mistake meant that an innocent person went to prison? The truth is that the Court of Appeal does not care about the mistakes a jury might have made. The Court of Appeal will always respect the jury’s decision unless they did something ‘manifestly wrong.’ It matters little if the jury were right or wrong because, even if they were wrong, the Court of Appeal believes a jury is always entitled to reach the verdict they reached.

The Criminal Appeals Act is the legislation which determines what can be heard in the Court of Appeal. Basically it states that only evidence which was unavailable to the defence at the time of the trial is admissible. This is hugely problematic because it means that if there is absolute proof of a person’s innocence then the Court of Appeal can do nothing about it if the defence counsel could have used that evidence at the time of the trial. So if, for example, there is a document or a witness who could have helped prove innocence at the trial but, because the defence team did not do their job properly, the evidence was not used then the convict will not be released even if it is known they are innocent. This is clearly a major problem that needs to be changed. An amendment in the Criminal Appeals Act is required. Is it not in the interests of justice that if evidence proving a person’s innocence, or evidence which questions their guilt, is obtained then that evidence should be allowed to be used to call for the individual’s release? The Court of Appeal should be able to overturn a conviction if that person is innocent. The innocent individual should not be forced to suffer because they put faith in a defence team, which got something wrong.


VIDEO RECORDING TRIALS
The Court of Appeal respects a jury's decision partly because members of the jury were present at the trial, and therefore were able to assess how convincing a witness was when giving evidence, whereas appeal judges were not present and only have transcripts of what was said. In an age where video cameras are very cheap, why are we still relying on people writing transcripts of everything that is said and people painting pictures of those in the court? It would, in my opinion, be wrong to televise trials as is often done in high-profile cases in the USA. However, a video record of court procedings could be invaluable when there are disputes over evidence and testimony.


Of course miscarriages of justice will continue to take place even if these suggestions are implemented. However, these reforms would reduce the terrible problem that wrongly robs many people of their freedom.

If you agree with any of the views on this page I would urge you contact your Member of Parliament. Inform your MP of the problems that exist and ask them what their views are. Ask your MP to consider calling for change in the system and the implementation of the recommendations on this page, particularly the amendment of the Criminal Appeals Act. If you need to know who your MP is, and how they can be contacted, please get in touch with me and I shall pass on the details to you. I will, in due course, be contacting each and every MP in this country as well as the miscarriage of justice organisations and the British media to call for this necessary reform so that the incidence of miscarriages of justice can be reduced and the recognition of injustices be easier.

What are your thoughts on these suggested measures? I would appreciate any comments from you.

Who Killed Jill Dando?

The Case of Barry George