Innocence is not enough
Date: 09 May 2008
Authors: Michael Zander QC
Issue: Vol 158, Issue 7320
Categories: Features, Human rights, Procedure & practice, Public
I was slow on the uptake. The Innocence Network UK (INUK) was established in 2004. It took four years before I took any notice.
I knew about such projects in the US where DNA had repeatedly shown people on Death Row to be innocent. But we don't have the death penalty. Moreover, we don't do innocence. A verdict of not guilty is not a declaration of innocence. It only shows that the case was not proved beyond a reasonable doubt. For a conviction to be quashed on appeal the court has to be satisfied that the verdict is unsafe not that the appellant is innocent. The Criminal Cases Review Commission (CCRC) was working reasonably well, referring cases back to the Court of Appeal when new evidence indicated a serious possibility that the conviction might be overturned. In view of all this, what need for an innocence project?
Last month I attended INUK's spring meeting which ended with the formal signing of the attorney general's Pro Bono Protocols in the presence of Baroness Scotland. The fact that the attorney general attended was evidence of how this tiny new organisation has put itself on the map.
INUK was the creation essentially of one imaginative and persistent individual, Dr Michal Naughton, lecturer in the school of law and the department of sociology, University of Bristol. His vision was a simple one—there are people in prison who may be innocent whose cases are no longer getting attention. Further investigation might produce the basis for a report to the CCRC which might lead to a reference back to the Court of Appeal. Students will be interested in working on such cases. Teachers and practising lawyers will be found to help and to supervise them.
The stated objective, however, is not merely, or even mainly, to identify miscarriage of justice cases—though that no doubt is what draws in the students. It is to educate students in the problems of the criminal justice system through involvement in real and difficult cases, to conduct research into the causes of some kinds of wrongful convictions and to inform public debate. INUK states that it is neither a campaigning organisation nor a victim support group. Nor does it provide legal advice to prisoners.
The website (www.innocencenetwork.org.uk) currently lists 16 university membership innocence project. Some are well established, others are just starting. Most, but not all, are located in law schools. The typical set-up seems to be something between 15 and 50 or so students, from different years, divided into teams, led by a teacher, under the overall supervision of a practising barrister or solicitor.
Prisoners claiming to be innocent write to the national organisation at Cardiff law school asking for assistance. The national INUK student administration team sends the prisoner an introductory letter explaining the project together with an introductory questionnaire posing a great number of questions about the case, the purpose of which is to discover whether this is a case of true innocence and as to how an innocence project could help to prove it.
If the case is deemed to be “eligible” it is put on file to be allocated to a casework team from an affiliated innocence project. They include numbers of murder, rape and other extremely serious cases. Investigating such cases is a lengthy business. Only one case (from the Bristol project) has so far reached the stage of a report to the CCRC.
When a case is allocated to an affiliated innocence project the students explore the case further with the prisoner, testing whether it is indeed a genuine case of innocence. If they and the supervising lawyer are satisfied that it is such a case, the prisoner is asked to sign an authority-to-release letter so that the files can be obtained from the previous solicitors.
Organising these files can be a daunting task. At the spring meeting, LexisNexis announced that it is making its new CaseMap electronic system for handling the facts of complex cases available to innocence projects, without charge.
Signing the attorney general's Pro Bono Protocols was acknowledgment that the work must be done to a proper standard, with proper records, and due attention to ethical principles. (At the meeting one group told of how it was grappling with the ethical problem created when the murder victim's family furiously objected to the project seeking evidence that might overturn the conviction of the person convicted of the killing).
There appears to be no shortage of student recruits. Office space and equipment is provided by the universities. Some are also providing small-scale support funds. Attempts are being made to tap student union funds. Solicitors' firms and barristers' chambers are being approached to provide assistance in the form of financial support as well as supervision of casework.
INUK is keen not to build false hopes:
“We believe it is of paramount importance to avoid giving prisoners and the general public the naïve impression that innocence projects are the answer to all their problems …There are complex evidential issues and huge, sometimes insurmountable, hurdles stand in the way of persuading the CCRC to refer a case back to the Court of Appeal. The statistics are against us, and the timescales are long. But where innocence projects are involved with a person maintaining innocence, we consider that we can offer hope and keen critical student minds where otherwise someone may have little hope.”
Amen to that.
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