The Secret Barrister

by The Secret Barrister

  What I want to talk about in this chapter is what happens when the state admits that it was wrong to wreak this devastation in the lives of one of its citizens. Where a miscarriage of justice is identified by the Court of Appeal, an unsafe conviction is quashed and a wrongly imprisoned parent, sibling, spouse, child or friend walks out of the prison gate, what amends does our society make? How do we begin to put things right for one among us who has been so grievously wronged?

  If Dostoevsky was right, and the degree of civilization in a society can by judged by how it treats its prisoners – those who have been justly convicted – an equally valid test is surely how it treats those who are wrongly convicted, and have suffered manifest injustice at the hands of the state.

  On this count, I fear, we do not acquit ourselves well.

  On 13 December 2013, seventeen years after his prison cell door slammed shut for the first time, Victor Nealon watched over a video link from HMP Wakefield as the Court of Appeal considered his appeal against his conviction.

  This was not his first appeal. Having been convicted on 22 January 1997, he had unsuccessfully appeared at the Court of Appeal in 1998. His conviction was on that occasion deemed safe and upheld, as was the life sentence imposed for the offence of attempted rape. He had now spent 6,169 nights sleeping in Wakefield prison, serving far longer than his seven-year minimum term, his refusal to admit the offence scuppering any chance of parole. Today, after his case had been picked up and referred by the Criminal Cases Review Commission, was his very last chance.

  The offence itself took place in August 1996. There was no doubt that an offence was committed; the victim, Miss E, was attacked outside a nightclub by a stranger, who had knocked her unconscious, unbuttoned her blouse and groped her bra, and tugged at her knickers and tights, before she fortuitously regained consciousness and fought him off. She had recognized the attacker as a man she had noticed staring at her earlier in the night. She recalled that he had a lump on his forehead and was wearing a distinctive paisley shirt. Other witnesses had also seen this suspicious male. An e-fit was created by the police based on Miss E’s description, and Mr Nealon was arrested.

  He told police that he had never been to the nightclub, and immediately offered to undergo a DNA test. No test was carried out by the police. Instead, the prosecution case at his trial relied largely upon the purported identifications of those other eyewitnesses. Only one among many picked out Mr Nealon during the identification procedure. Others were only able to give descriptions of the man with a lump on his forehead and the paisley shirt. Another was sure that the attacker had a strong Scottish accent. At trial, there was no evidence that Mr Nealon had a lump on his forehead. Neither, his partner confirmed, did he own a paisley shirt.2 And, it was clear to the listening jurors, Mr Nealon was unmistakably Irish.

  The jury nevertheless had accepted the somewhat vague and inconsistent identification evidence, and found Victor Nealon guilty. The dismissal of his first appeal in 1998 looked to have shut the door on any prospect of challenge.

  Then, in 2010, following a development in the law, Mr Nealon’s solicitors were able to apply for scientific tests to be carried out on the victim’s clothing. And the findings were significant. DNA testing indicated the presence of saliva on her blouse and bra cups, where her attacker had groped her. Critically, this saliva was not Mr Nealon’s. The clothes that the victim had worn that night were new, and the DNA testing excluded the possibility that the saliva had been deposited by her boyfriend, any of the eight police officers involved in the investigation, any of the four men who came to her aid at the scene of the attack and the scientists. In other words, ‘Every sensible inquiry that could be made to identify an innocent source of the DNA [had] been made.’ The only reasonable explanation was that it had been left by the attacker.3 Who could not have been Victor Nealon.

  The three judges of the Court of Appeal, having heard this evidence, did not take long to hand down their decision. The effect of this fresh evidence upon the safety of the conviction was, they said, ‘substantial’. The conviction was quashed. Later that day, Victor Nealon was released, a free man. Seventeen years behind bars, wrongly branded a violent, dangerous sex offender, were over.

  The esoteric workings of the Court of Appeal (Criminal Division) rarely flicker onto the public radar. To the media, appellate proceedings are a confusing, befuddling addendum to Crown Court trials – even more impenetrable and with even more loquacious judgments – and newsworthy only in a minority of high-profile cases. For junior practitioners like me, trips to the CACD are an exercise in regressing to the terror of a year seven pupil on their first day at big school, desperate to simply make it out alive and without anyone’s head being shoved down a U-bend. Even seasoned hacks, such as my pupilmaster who prowled the Crown Courts for years with a fearless territorialism that fell just short of marking the perimeters of his favourite courtroom, admit that when they are beckoned through the archway of the Royal Courts of Justice and into the lair of the Lord and Lady Justices of Appeal, they’re not entirely sure what they’re doing.

  But to the Victor Nealons stuck in our prisons, the Court of Appeal is everything. It is the last vestige of hope. When the jury verdict has been returned and the judge has sentenced, the only people who can unlock your cell door and quash a wrongful conviction or reduce an excessive sentence are the three4 monochrome figures towering over the benches in the first-floor courtrooms at the Royal Courts of Justice on London’s Strand.

  Between October 2015 and September 2016, ninety-four appellants successfully appealed their convictions as ‘unsafe’, and 924 successfully appealed their sentence as ‘manifestly excessive’ or ‘wrong in law or principle’, the respective tests that apply. They are the fortunate few. You can only appeal to the Court of Appeal with permission (or leave), either of the Crown Court judge (which is, unsurprisingly, rare) or of the Court of Appeal itself. If permission to appeal is refused, or if permission is granted but your substantive appeal is dismissed, that is the end of the line (save for the exceptional circumstances, such as with Warren Blackwell and Victor Nealon, where something new emerges and the Criminal Cases Review Commission agrees to refer a conviction back to the Court of Appeal).5

  The statistics are not in your corner. Putting the numbers above into perspective is a sobering exercise. Those ninety-four successful conviction appeals in 2016 were drawn from a pool of 1,417 applications, giving a success rate of 6.6 per cent. And that’s only applications lodged. Most defendants do not even try to appeal their convictions, and if you consider that roughly 70,000 Crown Court convictions were recorded over a similar period,6 you can arrive at a (very unscientific) overall ‘quashing rate’ of 0.13 per cent.7 Put another way, 99.87 per cent of all convictions are upheld. Which looks a little insurmountable.

  Of course, in reality the raw data tells you very little. An ‘ideal’ appeal rate is about as easily identifiable as an ‘ideal’ conviction rate. Short of the facile observation that an appeal success rate of either zero per cent or 100 per cent suggests that something is seriously amiss, it is very difficult to draw meaningful conclusions on whether our first instance or appellate systems are working. 99.87 per cent of convictions remaining undisturbed may be a sign of many things. It could be a reflection of a trial method that reliably returns safe convictions in the overwhelming majority of cases. Or it could be that there is a wave of miscarriages of justice being excluded by unduly strict principles of appeal. Likewise, that only 6.6 per cent of applications for leave to appeal result in successful appeals may appear startlingly low, but there are possible explanations. Roughly 10 per cent of applications will be lodged by unrepresented applicants who have been advised by their trial lawyers that there is no merit in an appeal, and have decided to chance their arm with a speculative appeal.8 Some counsel may positively advise over-optimistically, with an eye on placating a difficult client or generating further work. Frequently, errors in the trial process will have been correctly id
entified by the lawyers, or fresh, relevant evidence will have been found, but the Court will disagree that these are so serious as to justify interfering with the conviction.

  Academic criticism abounds over the operation of the Court of Appeal, and the extent to which the Lord and Lady Justices of Appeal contrive to justify upholding convictions in the face of what is said to be plain error and injustice. In too many cases, the argument goes, do the Justices and Lord and Lady Justices of Appeal find a way to minimize failings in the trial process or explain away obvious flaws in the conviction with a judicial, ‘Yes, but . . .’. And certainly there are instances from history which rather embarrass the Court of Appeal in this respect. Criminal law commentators McConville and Marsh offer this unappealing summary:

  There has been an official determination to uphold convictions in the face of abundant contrary evidence . . . For example, in the Bridgewater case, three of the defendants (the fourth had died in prison) wrongfully convicted in 1979 were not exonerated until 1997 after six separate police inquiries and two earlier failed appeals; the Guildford Four, convicted in 1975, were not exonerated until 1989, one of their number (Giuseppe Conlon) having died in prison; in the related case of the Maguire Seven, their appeals did not finally succeed until 1991; Stefan Kiszco, convicted in 1976 of a murder he could not have committed, had his appeal dismissed in 1978, with Bridge (the trial judge at the Birmingham Six) stating that there were ‘no grounds whatever’ to allow the appeal with the result that Kiszco was not cleared until 1992 . . . and the Cardiff Three convictions for murder in 1988 were not overturned until 1992 and the defendants not exonerated until the real killer was convicted in 2003.9

  However, not knowing personally the senior judiciary Class of 2018, I am not going to assume their politics, least of all pin upon them the sins of their predecessors, nor enter the debate over whether the Court of Appeal is or is not inherently small-c conservative. Others have the space and intellectual ability to do that issue far greater justice than I could hope to. Instead, I want to focus on what takes place once an innocent victim of a miscarriage of justice finally succeeds in persuading the Court of Appeal to quash his conviction. After that judgment is handed down, how does the state begin to make amends?

  The tone is set by the conspicuous absence of fanfare that accompanies the correction of state error. Save for the exceptional cases that catch the eye of the press, the public hears nothing about unsafe convictions. Of the 625 unsafe convictions quashed by the Court of Appeal between October 2011 and September 2016,10 you can probably count on one hand the number that received attention outside the law reports.

  Of course, not every quashed conviction represents a finding of innocence. Some of those successful appellants will have had retrials ordered and gone on to be reconvicted. Some will be cases in which prosecutorial or police misconduct, rather than insufficiency of evidence, lie behind the quashing. But nevertheless, those 625 wrongful convictions – roughly 100 a year – are remedied in the dark. While the Crown Prosecution Service calls a press conference upon merely charging a defendant in a high-profile case, no corresponding public acknowledgement of failure comes forth from the system when it fouls up. No apology escapes official mouths.

  When in August 2016, the Attorney General’s office proudly boasted that ‘more than 100 offenders had their prison sentences lengthened’ by the Court of Appeal under the Unduly Lenient Sentence scheme in 2015,11 the government found no space to mention, for balance, that over roughly the same period nearly ten times as many sentences (997) were reduced by the Court of Appeal as manifestly excessive or unlawful.12

  Perhaps this issue of presentation is a reflection of public attitudes. No one wants to think that the system fails. We trust that the man behind bars deserves to be there. It is far more comforting to focus on celebrating the police rounding up the bad guys than to dwell on the occasions where the wrong person suffers.

  But the problem goes deeper than PR. How we substantively treat those people – ordinary men and women – who have been fed into the justice machine, mangled, battered, confined and, years later, spat back out onto the streets, is inexcusable.

  When justice is eventually restored, and the Court of Appeal clerk faxes the order to the prison to confirm your release, you stand in the prison car park, with the prison-standard £46 travel money in your pocket, a free man, but one frozen in time. Ready to pick up where you left off, only to find that your life has fast-forwarded without you in it. If years have passed, joblessness, friendlessness and mental trauma may be the least of your worries; finding somewhere to sleep on that first night of freedom is the immediate battle.

  In many respects, the released innocent is worse off than the released convict, the latter of whom will at least have a measure of institutional assistance with their reintegration. A probation officer will help those on licence to access services for accommodation, or mental health support. Not so for the wrongly imprisoned, awkwardly shuffled out of the building with the minimum of fuss. Good luck rebuilding your life from scratch.

  Victor Nealon knows the feeling. Upon his conviction being quashed, he was taken from HMP Wakefield and dumped at a railway station with £46 in his pocket. He relied on the kindness of strangers, including a journalist and his MP, to put him up while he tried to piece together his life.13

  The final insult came when he tried to apply for compensation. Money cannot possibly restitute seventeen years lost from a human life nor the perennial mark of the wrongly convicted sex offender, but it would be something. A gesture of goodwill by the state, to apologize for a plain miscarriage of justice, is the least that should be offered. Unfortunately for Mr Nealon, he became one of many victims of the government’s crushingly tight grip on the reins of compensation for the wrongly convicted.

  We are required by international law – article 14(6) of the International Covenant on Civil and Political Rights 1966 – to provide a compensation scheme for victims of miscarriages of justice. From 1976, when the ICCPR entered into force, the UK operated a discretionary compensation system for this purpose. In 1988, following pressure exerted on the UK to put the compensation scheme on a statutory footing, Parliament enacted section 133 of the Criminal Justice Act 1988, which provided for payment of compensation where a person’s ‘conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows beyond reasonable doubt that there has been a miscarriage of justice.’

  The term ‘miscarriage of justice’ was not initially defined. Therefore the courts, in a series of cases, were forced to step into the breach and offer some guidance. After all, not all quashings of convictions necessarily represent miscarriages of justice. But many will. To cut a long common law story short, the position as of 2011 was that the courts had identified four possible categories of quashed conviction:

  (1) Where the fresh evidence shows clearly that the defendant is innocent of the crime of which he has been convicted

  (2) Where the fresh evidence so undermines the evidence against the defendant that no conviction could possibly be based upon it

  (3) Where the fresh evidence renders the conviction unsafe in that, had it been available at the time of the trial, a reasonable jury might or might not have convicted the defendant

  (4) Where something has gone seriously wrong in the investigation of the offence or the conduct of the trial, resulting in the conviction of someone who should not have been convicted

  The statutory scheme, the Supreme Court ruled by a majority in 2011, should cover (1) and (2), but not (3) or (4).14 A narrow interpretation, one might feel, but one which would offer compensation to those such as Victor Nealon.

  Not narrow enough though, for the Ministry of Justice presided over by Chris Grayling. Despite the fact that payments under the compensation scheme were already scant – out of forty to fifty applications each year, around two or three are deemed eligible for compensation, and the maximum payments have been restricted (no more than �
�500,000 for up to ten years in prison, and no more than £1 million where over ten years) – it was decided to make it tougher.15

  ‘Miscarriage of justice’ was redefined. A new subsection (1ZA) was inserted into the legislation, which provided: ‘. . . there has been a miscarriage of justice . . . if and only if the new or newly discovered fact shows beyond reasonable doubt that the person did not commit the offence.’

  Going back to our list of four, this restricts eligibility to Category 1. Unless the ‘newly discovered fact’ proves beyond reasonable doubt that you did not commit the offence, you will be excluded from the scheme. Which is a frankly impossible standard to meet. You are asking people to prove a negative. The DNA evidence in Mr Nealon’s case cannot prove conclusively that he is innocent; theoretically he could have committed the offence without depositing any DNA, and the unknown male’s DNA could have been innocently deposited in highly suspicious places by some convoluted method of third-party transfer. The DNA finding alone cannot positively exclude anyone. It can’t exclude me. Or you. Either of us could have attacked Miss E and been fortunate enough not to have left traceable DNA. We didn’t, of course; but in the absence of an alibi we couldn’t prove that. So if we were mistakenly identified, tried and convicted, and wanted compensation for seventeen years of our lives wrongly spent in prison, we would be left swinging in the breeze. Just like Victor Nealon was when the MoJ refused to pay him a penny. And when, in 2016, the Court of Appeal refused his challenge to the lawfulness of this nasty, spiteful non-compensation scheme.16

  In his legal challenge, Victor Nealon argued that the operation of the scheme amounted to a perversion of the presumption of innocence guaranteed by Article 6(2) of the European Convention on Human Rights. The Court of Appeal disagreed, using (in my view) highly tenuous reasoning, and Mr Nealon has since been granted permission to appeal to the Supreme Court; but whether lawful or not, this state of affairs is morally repugnant.