The Secret Barrister

by The Secret Barrister

  They could be wrong, of course, and possibly speak louder to my own prejudices than anything else. But something about the evidence, about him, about them, made the acquittal feel, if not wrong, at least not right. As we watched the victorious Jay drag a glazed Farah out through the front revolving door of the court precinct and back to their cursed normality, George turned to me.

  ‘He did it, didn’t he?’

  I nodded. ‘I think so.’

  George grimaced.

  ‘Those poor fucking girls.’

  George’s practice was these cases. He did little else. When he spoke of them normally in chambers, it was with the learned indifference and gallows humour that sex barristers adopt out of self-preservation. He, like so many of his call, was impervious to cloudy emotion. He was just a player of the game. But as we dragged our suitcases in tandem over the cobbles towards the station, he was oddly withdrawn. His jolly, polished, public-school charm had slipped, replaced with a grimace of pursed reflection.

  ‘Have you ever before . . . ?’ I began.

  He shook his head. And we walked on in silence. As we did, the questions that we rarely confront, whether through training or simply lack of time to give them proper thought, started percolating through my mind, melding together in a sticky ball of inseparable, unanswerable interrogations. Can we say that justice has been done in this case? What will happen to those vulnerable, broken girls, disbelieved by their family and now formally disbelieved by the state? What happens to the thousands like them? The many genuine victims of abuse, punished repeatedly in a vicious circle of institutional torture. Those children who are failed by the state, are abused and damaged, and who act like children who are abused and damaged, only to grow up and find that the justice system will use that damaged behaviour as reason to disbelieve them. The agony of their cross-examination, the final nails hammered into their remaining vestiges of dignity – is this the way to establish the truth? Is any of this, any of what we tacitly accept as Our Way of Justice, justifiable in the modern era, when other countries find ways to dispense criminal justice without so much overt public pain?

  And today, as I look back over the arguments that speak for themselves, if I were to ask myself whether I agree with the caustic observations of one academic who scorns the notion of truth emerging through adversarialism – opining that:

  The adversary dynamic invited distortion and suppression of the evidence, by permitting abusive and misleading cross-examination, the coaching of witnesses, and the concealment of unfavourable evidence . . .5

  – I would have to say yes. Professional ethics of course prohibit abusive cross-examination and witness coaching, and concealment of evidence is a bit value-laden for my taste, but the distortion and suppression of evidence is undeniable. It is integral to the process. And, to me, it is impossible to say, with a straight face, that our method is the best truth-seeker, or the best guarantor of the dignity of witnesses. It isn’t. We prize a system that often deliberately frustrates primary enlightenment principles and accepts the obliteration of human dignity as its market price, with the consequence that people who are probably guilty get away with it.

  But does it follow that I would entertain replacing it with something akin to inquisitorialism? Pulling down the scaffolding and starting construction anew, with a collective focus on neutral and objective state truth-seeking?

  My answer to those latter questions is, on balance, no. And the next chapter sets out why.

  9. Trial on Trial: Part II – The Case for the Defence

  ‘It is of more importance . . . that innocence should be protected, than it is, that guilt should be punished; for guilt and crimes are so frequent in the world, that all of them cannot be punished . . . But when innocence itself, is brought to the bar and condemned, especially to die, the subject will exclaim, “It is immaterial to me whether I behave well or ill, for virtue itself is no security.” And if such a sentiment as this were to take hold in the mind of the subject, that would be the end of all security whatsoever.’

  Defence counsel John Adams’ closing address to the jury in the murder trial of British soldiers following the Boston Massacre, 17701

  The police officer’s eyes switched from me, to the Crown Prosecution Service caseworker, and then back to me. He shot a glance to the door, possibly measuring whether he could avoid answering my question with a well-timed dart for freedom out of the police room, down the spiral staircase and through the court lobby to the exit. I repeated the question: ‘You knew the defendant was mentally vulnerable, yet you interviewed her, with no solicitor or appropriate adult, with no caution, in her own living room, for three hours, before writing out a full confession, which you told her she had to sign?’

  Still nothing. Shaz, my caseworker, coughed awkwardly.

  ‘Well,’ I nodded slowly, ‘unless you tell me that I’m wrong in that assessment, I’m going to have to make a call to the CPS lawyer and we’re binning this case today. And it’s something that I expect will be raised higher up, as well.’

  The officer stared back, and silently nodded. For a breach of PACE – shorthand for the Police and Criminal Evidence Act 1984, which, with its codes of practice, sets out strict rules for police investigations – this was almost impressive in its scope. My officer, it had become apparent when I picked up the brief for trial the night before and spoke to defence counsel on the phone, had breached almost every rule in the book. The sole evidence against Mary, a psychiatrically unwell young woman who was well known to the police, was a confession that she had given to our officer. Further enquiries revealed that the ‘confession’ amounted to Mary’s signature at the bottom of a two-page monologue drafted by our officer, who had attended Mary’s home and, instead of arresting her and taking her to the police station for a recorded interview, had harangued Mary until she agreed to sign the offending document. She was not cautioned, she was not told of her right to legal advice, there was no appropriate adult present (a requirement in all interviews with a mentally vulnerable defendant) and no record was made of what Mary had said during the three-hour ‘interview’.

  As the enormity of his conduct was repeated back to him for a final time, the officer looked ready to cry. He couldn’t have been more than twenty-five. His first Crown Court trial, he’d proudly told me when I entered the police room. And it was a sure-fire winner. Before the trial was even due to be called on at 10.30 a.m., I had authorization to bring the prosecution to an abrupt end.

  Any system of criminal justice which in the name of truth-seeking entrusts investigation, presentation of evidence, witness interrogation, adjudication and sentence exclusively to the state does so on two principal assumptions: that the state is competent to find the truth, and that its neutrality in seeking it is unimpeachable. These are the twin assumptions that underlie inquisitorialism. And both are dangerously untenable.

  Mary stands as an example which was thankfully caught before serious harm was done. Warren Blackwell was not so lucky.2 On 31 December 1998, he was seeing in the New Year at a social club in his local village in Northamptonshire, with his wife of six years. Over the course of the evening, he was introduced to a woman, Susan, and as alcohol flowed they played a game of pool. After the clock chimed midnight, Susan took a break from the revelry and wandered outside to catch some fresh air. As she stepped outside, she heard a familiar male voice behind her. ‘Happy New Year,’ the man said.

  Susan recognized the voice, but before she could turn around, the man took hold of her. She felt the metallic sting of a knife pressed against her left thigh, and froze in fear as she was grabbed roughly by the arm and dragged down an alleyway, away from the club and towards a grassy area. Although dark, Susan could see in the amber glare of the streetlight that this was the man from the club; the man she had played pool with. It was Warren.

  He grabbed her breast and tried to kiss her. When she didn’t respond, he became angry and punched her in the face four times. He then pushed her to the ground, sat
on her legs and placed something cold and metallic on her bare stomach. Looking down, Susan saw that it was a blunt object that looked a bit like a file, approximately nine inches long and an inch wide. The man tugged her trousers down to her knees. He took the metal object and pushed it between her legs, into her vagina, causing agonizing pain. When he had finished, he punched her once more to the face, hard enough to knock her unconscious.

  When Susan awoke, she was surrounded by concerned locals, who had found her outside on the ground. The assault was reported to the police. There was no forensic scientific evidence – such as DNA – to link any specific individual to the attack, but when inspected by doctors, Susan was found to have bruising on her arm, scratches to her thigh and lacerations on her genitals, which appeared consistent with her account. She attended an identification procedure on 19 January 1999, and picked out Warren Blackwell as her attacker.

  This was how the prosecution opened its case at Warren Blackwell’s trial for indecent assault at Northampton Crown Court in October 1999. Warren Blackwell denied that he had done any such thing. He told police when arrested, and the jury at trial, that he had been at the club that night and had played pool with Susan, but knew nothing of what had happened to her outside. This, it was said on his behalf, was a terrible case of mistaken identity. She had seen him that night at the club and must have confused him for her attacker.

  And that was how the judge summed up the case to the jury. It was never suggested for a moment, by anyone at trial, that the attack had not happened. Nothing had been disclosed to the defence by the prosecution to suggest that Susan might not be truthful.

  The jury returned on 7 October 1999 with the majority verdict of guilty that precipitated the imposition of a three-year sentence of imprisonment, and the state entered on its official records the indisputable finding of fact that Susan had been violently and sexually assaulted, and that the man responsible was Warren Blackwell.

  Except, it transpired, he wasn’t. The entire story, the Court of Appeal later heard, was a fiction. And what was more, the police had suspected as much the entire time.

  The truth did not emerge, however, until after Warren Blackwell had served his prison sentence. And not just the three-year sentence imposed by the trial judge; the sentence was referred to the Court of Appeal by the Attorney General as ‘unduly lenient’ given the viciousness of the assault. The Court of Appeal agreed that three years was insufficient, and on 22 March 2001, the same day that it refused his renewed application for leave to appeal against his conviction, the Court increased his sentence to five years. He served two thirds of that sentence – three years and four months – before being released.

  Innocent, wrongly convicted and then kicked one final time by the Court of Appeal, Warren Blackwell sought help in the last refuge available to him – the Criminal Cases Review Commission. The CCRC is a statutory body established in 1995 to investigate alleged miscarriages of justice. Once an appeal has been refused by the Court of Appeal, the only route to having a conviction reconsidered is if the CCRC investigates and concludes that, due to some new evidence or new legal argument, there is a real possibility that the Court of Appeal will quash the conviction. In that scenario, the CCRC will refer the case to the Court of Appeal, which will consider the new grounds of appeal and decide whether the conviction is unsafe.

  Warren Blackwell applied to the CCRC on 14 October 2002. The Commission investigated, drawing in part on enquiries conducted by a private investigator hired by the Blackwell family while Warren was in prison. Due to the number of applications received and its limited resources, it can take some time for the CCRC to investigate. But by the time it had finished, its findings were astounding.

  Susan was well known to the police. Not only did she have a record of previous convictions for offences of dishonesty, which were not disclosed to the defence at trial, but she had developed a reputation as something of a serial complainant. Between October 1998 and June 2001, Susan made a succession of allegations, some involving her being grabbed at night, from behind, by strange men who led her to secluded areas, forced her to lie down, pulled her trousers down to her knees and brutalized her. Many complaints were accompanied with apparently corroborative injuries. But medical and other evidence showed that the injuries had been self-inflicted, or pre-existed the alleged incident.

  In each instance, the relevant police force investigated and concluded that Susan’s allegations were fabrications, and the injuries self-inflicted. This interpretation was supported by psychiatric and medical records obtained by the CCRC, which were in the possession of the CPS during Warren Blackwell’s trial but not disclosed to the defence.

  The CCRC gathered evidence from numerous other witnesses who knew Susan well – including Susan’s former husband, mother, daughter and former boyfriends (including her fiancé at the time of the New Year’s Day incident) – all of whom confirmed that Susan was a prolific and convincing liar. Susan’s daughter referred to a specific incident in 1999 in which she had witnessed her mother harming herself and then claiming that she had been attacked.

  Putting this all together, the CCRC referred the case to the Court of Appeal: ‘There is evidence that was not adduced at trial that, when considered as a whole, provides a strong case to support the conclusion that [the complainant] was NOT the victim of any assault and that her injuries were self-inflicted.’

  The prosecution could not sensibly and did not oppose the appeal, conceding the above ground of appeal, and expressly invited the Court of Appeal to find that the conviction was unsafe. On 12 September 2006, nearly seven years after his trial, Warren Blackwell’s conviction was quashed, with the Court of Appeal expressing its grave concerns over the prospect of further Warren Blackwells being snared by Susan and her lies.

  The matter didn’t end there though. There was a second ground of appeal, which in the end was not determined by the Court of Appeal (as the appeal was successful on the first ground). This related to averred disclosure failings by the prosecution during the trial. We’ve already considered disclosure – the prosecution’s legal obligation to provide the defence with material that might reasonably assist the defence or undermine the prosecution case – earlier. Here, while some of the fresh evidence arose out of events post-dating the 1999 trial, Susan’s previous convictions and psychiatric and medical records were known to the prosecution but consciously not disclosed. Furthermore, there was a wealth of information that Northamptonshire Police were given about Susan before, during and shortly after the trial, which, had it been disclosed, may well have resulted in the wrongful conviction being overturned early enough for it to have spared the innocent appellant from serving his full prison sentence. Warren Blackwell therefore complained to the Independent Police Complaints Commission. The report concluded that this case had been riddled with serious disclosure failings throughout.

  Publishing its investigative findings in June 2010, the IPCC announced:

  Warren Blackwell was subject to a terrible miscarriage of justice . . . On top of weaknesses in the original police investigation, a detective failed to disclose to senior officers, the CPS or the defence, crucial information about the credibility of the complainant, all factors which contributed to the wrongful conviction.3

  The investigation found that an officer from another force had expressed concerns to a Northamptonshire detective over Susan’s reliability, both before and after Warren Blackwell was charged. This officer, who knew Susan from her participation as a witness in another trial, said that she ‘appeared to enjoy police attention’, and that there were concerns over her honesty. The Northamptonshire detective, agreeing that Susan appeared ‘unreliable’ and ‘unstable’, did not think to pass this vital information to his colleagues or to the CPS. The IPCC further found that there were numerous discrepancies in Susan’s account that were not properly challenged during the police investigation. There were also two eyewitnesses who told police that they had walked past the scene of the alleged at
tack at the time that Susan claimed she was being assaulted, and had seen nothing of the sort; two eyewitnesses from whom no witness statements were ever taken. Post-conviction, while Warren Blackwell was locked in a prison cell, a Northamptonshire detective received information of the false complaints made by Susan in 2000 and 2001, which bore striking similarities to the 1999 case. The detective did not bring this information to the attention of senior officers or the CPS.

  To top off its numerous findings of misconduct, the IPCC expressed its ‘dismay’ at the unexplained delay in Northamptonshire Police issuing a formal apology to Warren Blackwell; noted with disgust that a culpable detective constable whom the IPCC determined should have faced a full misconduct hearing had avoided it by swiftly retiring, and observed that, in a final jaw-dropping exhibition of institutional chutzpah, the Chief Constable of Northamptonshire had not withdrawn the commendation given to the detective constable for his fine work in the original investigation.

  I make no apology for the level of detail, because this case demonstrates, in glorious, terrifying technicolour, the danger of assuming, as inquisitorialism does, that if you are falsely accused of a crime, the state is capable of pulling together all the relevant information that you will need to secure your acquittal. And while it may be argued that Warren Blackwell’s is an extreme example, it only stands as such because its failings were ultimately exposed on the grandest stage of all.