Yet, another bad week for ‘the best criminal justice system in the World’

The non-disclosure scandal rumbled on this week with charges dropped in two further alleged rape cases.

Connor Fitzgerald had spent three months in custody because police failed to disclosure text messages in which the complainant (who has anonymity for life) fundamentally undermined her allegation against him. One of particular note read: “I’m not just going to mess up his life, I’m going to ruin it lol.”

In the other alleged rape case, a seventeen-year-old male who cannot be named for legal reasons was also cleared of rape after his defence team uncovered key evidence that proved his innocence. It was claimed to have been “missed” by the police and prosecution. Attempting to distance itself from culpability, the CPS publicly blamed the police for not discovering thousands of social media messages that proved the accused was not guilty.

But, the problem of non-disclosure is not restricted to alleged rape cases.

In an alleged bribery case that was reported this week, hundreds of emails that proved that Clive Steer was innocent failed to be disclosed by Surrey police and the CPS even though they were contained on his laptop, which he handed over to the police when the raided his house to prove his innocence. Most unusually, when issuing the acquittal the Judge ordered the CPS to write to the court and Mr Steer providing a full explanation of its failings in the case.

It was also reported this week that Petruta-Cristina Bosoanca, accused of people trafficking and prostitution, who was held in custody for more than 13 months before her trial collapsed, gave birth whilst in prison on remand.  The case was thrown out by the Judge on the grounds of a “wholesale failure” of disclosure of evidence that undermined the allegations against Bosaonca.

Finally, non-disclosure was also involved in a major drugs trial this week when a judge threatened to drop the charges against the two defendants when the police refused to disclose evidence to his defence, arguing that they could not afford a £14 memory stick to put it on.

It is uncertain how many other cases this might have a bearing on, but judging from the comments of legal practitioners on twitter it is unlikely that this case is a one off incident.

This signals the importance of collecting any and all information that may have a bearing on alleged criminal offences.

Indeed, if police officers fail to collect all potential evidence on memory sticks then potentially exculpatory evidence may not officially exist to be disclosed to the defence team at all.

It works the other way, too, when evidence of the guilt of an accused does not officially exist, either, when it is not collected and retained, and the primary source of the information is lost or destroyed.

These cases add to my blog last week about the current disarray of the (non)disclosure regime. It called for the immediate replacement of the DPP, Alison Saunders, on the grounds that she is not fit for purpose, and the setting up of a royal commission to get to the root of the problem and find solutions so that trust and confidence in the criminal justice system can start to be restored.

It has long been known that non-disclosure cases are a routine feature of an adversarial criminal justice process that is biased against the accused from the outset.

It is, equally, clear that the police and CPS cannot be trusted with the control of what is and what is not disclosed.

This calls for the urgent setting up of a new independent disclosure system that does not have an interest in the conviction or acquittal of an accused, which provides full open file disclosure of everything collected in criminal investigations to both sides in the interests of fairness and justice.

Why the current DPP must be replaced with immediate effect and a royal commission on disclosure is urgently needed

Last Thursday, (18 January 2018), the Director of Public Prosecutors (DDP), Alison Saunders, made the remarkable statement on BBC Radio 4’s Today Programme that ‘no innocent people are in prison because of failures to disclose vital evidence, despite admitting there is a “systemic issue”.

Whatever her precise intentions, there is little doubt that the most senior prosecutor in England and Wales’s willful refusal to acknowledge the reality of miscarriages of justice and that innocent people can be and are wrongly convicted and imprisoned only stoked the burgeoning crisis in the existing disclosure regime that governs alleged criminal investigations and prosecutions.

Variously described as ‘ill informed’, ‘complacent’  and ‘part of the current problem’, in this blog I critically evaluate the DPP’s statement in the context of her duties under the terms of the Code for Crown Prosecutors and the perennial problem of miscarriages of justice and wrongful imprisonment in England and Wales.

Moreover, in the context of a growing lack of confidence in the DPP and the disclosure regime in alleged criminal investigations and prosecutions, I will make the case that the DPP should be immediately replaced and for governmental intervention in the form of a royal commission to get to the heart of the apparent problems and devise solutions to fix a system that is clearly broken and in urgent need of repair.

The remainder of this analysis will be in the form of seven broad points.

1. The DPP’s stance is simply illogical and can be conceptualised as epitomising an extreme form of Orwellian ‘doublespeak’. If she accepts that there are ‘systemic issues’ with the existing disclosure system then, at the very least, she has to concede that there may be an innocent person in prison because of those issues. Her failure to do so is unlikely to stem the rising tide of discontent with the CPS, nor distract from concerns with (non) disclosure.

2. An outright denial of the reality of innocent individuals in prison because of disclosure errors, whether by design or intent, is flummoxing in the face of a string of recent near miss wrongful conviction cases, where the defendants would most certainly have been imprisoned had they been convicted, and which were the context for the interview in which she made her remarks. This includes the cases of Liam Allan and Isaac Itiary , whose trials collapsed within days each other last month (December 2017) when digital evidence that had not been disclosed undermined the evidence. There is also the case of the Samson Makele , which, too, was halted at trial a few days prior (15 January 2018) to when the DPP was being interviewed

3. In sharp contrast with the DPP’s statement on Today, the Metropolitan Police response to Allan and Itiary was much more honest, and, at least to my mind, much more likely to quell the unease and even start to restore the loss of public confidence caused by its failings. It acknowledged its part in the failures to provide evidence that might be favourable to the defence and announced that it was going to conduct a wholesale review into how it investigates rape cases as a way of restoring public confidence that had been dented. When compared with the response by the Met police, the DPP’s remarks are, arguably, even more bizarre. In a clear attempt at damage limitation, justice, or rather injustice, for those alleged to have committed criminal offences who may be innocent was not, apparently, something that she was at all concerned with.

4. This calls into question the fitness of the current DPP for her role as outlined in the Code for Crown Prosecutors. Most crucially, the Code emphasises that the prevailing duty on the DPP (and all prosecutors for that matter) is to ‘make sure that the right person is prosecuted for the right offence’ and take ‘decisions…fairly, impartially and with integrity’ to ‘help to secure justice for victims, witnesses, defendants and the public. Prosecutors must ensure that the law is properly applied; that relevant evidence is put before the court; and that obligations of disclosure are complied with’ (Code for Crown Prosecutors, 2.2). Overall, ‘prosecutors must be fair, independent and objective’ and ‘must always act in the interests of justice and not solely for the purpose of obtaining a conviction’ (Code for Crown Prosecutors, 2.4). This dictates that the DPP/all Crown prosecutors must be alive to the possibility/reality of the wrongful conviction and imprisonment of the innocent so that they are appropriately informed of how it is caused and be well placed to take steps to avoid such occurrences. To deny that wrongful imprisonment can happen when confronted with incontrovertible evidence that it has almost happened and the CPS is implicated as the source is a perversion of the letter and the spirit of the Code that guides prosecutors/prosecutions, serving to frustrate genuine and legitimate concerns and deepen the current crisis still further.

5. The DPP’s denial of the link between non-disclosure and miscarriages of justice/wrongful imprisonment shows a profound historical ignorance of the reason why the CPS was established and its intrinsic link with high profile miscarriages of justice/wrongful imprisonment cases, which had diminished trust and public confidence to the point of the need for the urgent reform of the existing arrangements at the time. Established just over 30 years ago under the Prosecution of Offenders Act 1985,the CPS was a key reform to come out of the Royal Commission on Criminal Procedure (RCCP), which, in turn, was established in response to the Confait Affair in which three youths had been wrongly convicted and imprisoned for the murder of Maxwell Confait. Moreover, the current statutory guidelines on disclosure under the Criminal Procedure and Investigations Act 1996  that govern how the CPS/prosecutors handle cases are also a product of an attempt to restore public confidence in the wake of the apparent failings of the previous disclosure system. Those failings were exemplified in the case of Judith Ward, which also involved the kind of ‘systemic’ non-disclosure by the prosecution, the police and by government forensic science and medical experts acting in concert to secure her conviction, which the CPIA was introduced to resolve.

6. The DPP’s remark that she ‘doesn’t think’ that there are innocent people in prison shows ignorance about, and moral indifference towards, the harm caused to victims of miscarriages of justice caused by non-disclosure who do not receive a custodial sentence. It is as though victims of non-disclosure wrongful convictions that are not given a custodial sentence do not matter when in reality non-custodial successful appeals make up the greatest number of miscarriages of justice victims and also involve the greatest amount of harm.

7. The DPP’s remark show a total disregard of a letter sent to her (and the Attorney General) by the Criminal Cases Review Commission in July 2016 which expressed concern that ‘many of the Commission’s referrals are the result of a failure…to disclose relevant information at some point.’ The CCRC sent the letter to draw attention to CPS non-disclosure ‘in the hope that [it] would be addressed to the betterment of the wider criminal justice system.’

Against this background, the DPP is clearly in dereliction of her statutory duties to protect the innocent from wrongful conviction and has shown a callous disregard of the harm caused to innocent victims of wrongful convictions and their families in non-disclosure cases when justice goes wrong, whether they are imprisoned or not.

Alison Saunders simply has not shown the leadership, nor the integrity, required of the head of the CPS. She fails to appreciate that the burden on the prosecution is by necessity a heavy one so that wrongful convictions and the harm that they cause are avoided at all costs. Contrary to this, she sends out the wrong message to prosecutors, and one which is contrary to their statutory duties too, that wrongful convictions either do not happen or do not matter. The worry is that this may well be attractive to those prosecutors who may also not understand their role, nor wish to shoulder the burden of responsibility for causing the wrongful conviction and imprisonment of an innocent that inevitably accompanies failures of disclosure.

It is little wonder that there are calls for the DPP to ‘stand down or be sacked’, which I support fully with immediate effect, as she has shown herself to not be fit for purpose.

Yet, I do not think that the mere replacement of the current DPP with a new incumbent will, in itself, be enough to resolve the current crisis in confidence in the disclosure system.

Indeed, as I write this blog, another case involving non-disclosure is in the headlines. This time it is the case against an Oxford University student, Oliver Mears, who had an alleged rape charge ‘hanging over his head’ for two years that was dropped by the CPS on the eve of his trial.

The disclosure system is clearly in disarray with problems of systemic non-disclosure that were thought to have long been resolved still present. Such problems are unlikely to dissipate without a major governmental inquiry that gets to grips with the nature and scale of the crisis of disclosure and how it might be addressed and rectified.

It is for these reasons that a double pronged approach is required that includes both the immediate replacement of the current DPP and the establishment of a royal commission with clear terms of reference formulated on past and present failures of disclosure if trust and confidence is to start to be restored.

An earlier version of this blog was published on the University of Bristol Law School Blog at: https://legalresearch.blogs.bris.ac.uk/2018/01/why-the-current-dpp-must-be-replaced-with-immediate-effect-and-a-royal-commission-on-disclosure-is-urgently-needed

The need for due diligence on Twitter to avoid getting involved with people who you might not want to if you knew who they really were

Earlier this month (August 2017), a row erupted on my Twitter timeline of the like I have not previously witnessed amongst what might loosely be called the ‘prison reform community’, comprised of former prisoners, family members of currently serving and former prisoners, prison lawyers, students and academics. It wasn’t the usual handbags at dawn kind of spat that frequently occur on Twitter. This was of a different order, culminating in Alex Cavendish, who went by the handle @PrisonUK, deleting his account altogether and retreating into obscurity.

Over the last two or three years, Alex Cavendish had become a prominent source of information on prison matters, you might say the go-to “twit” on all things prisons. He had upwards of 10K followers, which is huge in this area, with influencing marketing platform Klear deeming him the ‘Top 7% Twitter Influencer in the Prisons community.’

Alex, supplemented his Twitter activity with a very informative prison blog, which has not been deleted, and had also written a series of interesting and insightful articles for The Metro on prison issues, covering such things as votes for prisoners, prison letters, prison riots and rape and sexual assault in prison.

Things came abruptly to a head for Alex, however, when he was outed as a convicted child sex offender whose real name is Mark Standish. The revelation had a polarising effect, with competing perspectives available here and here.

Critics of Standish, the most vocal of which are themselves former prisoners, were adamant that it was not the fact that he was a convicted offender or even sex offender that was the problem. Rather, using a pseudonym was felt to be a deceit, amongst other things, that when discovered raised questions about the veracity of the information that he disseminated.

His refusal to engage or answer questions from his followers when his real identity was exposed and to delete his account entirely, making verification now impossible, only seemed to compound matters for critics by increasing suspicions and feelings of betrayal of trust.

This highlights the need for due diligence on Twitter (and other social media for that matter) to avoid getting involved with (or hurt by) people who you might not want to if you knew who they really were.

Due diligence was not possible with Alex Cavendish because it was not his real name. If you did search his name, which I did, you went round in circles from his Twitter account to his blog to his Metro articles and back again – everything seemed to validate each other but there was no external validation at all.

So, real names are vital so that you can do due diligence and make an informed choice about who you are getting involved with, promoting their agenda, liking their tweets, possibly making friendships and sharing personal information via direct messages, and so forth.

I am uncertain of the law in this area so will not provide the name of the person in this next example, which is the principal motivation for this blog post.

I was recently contacted by a (then) Twitter follower with an invite to contribute to a project that he was involved with.

In terms of due diligence, I looked up the website of the project and saw someone who I recognised and whose work I respect was involved with it so I agreed to meet him at a café across from my office to learn more about it and the part, if any, that I might play.

On my way to meet him, however, I realised that I didn’t know his name – he has a Twitter account in the name of the project – and I didn’t know what he looked like – his picture on the Twitter account is rather abstract and you cannot make out what he looks like.

As I approached the café, a man was already standing outside. I noticed straightaway that the obscure picture on Twitter is not of him but of someone who looks altogether different. I asked him if he was waiting for me and he said he was as he recognised me from my photo on my webpage on the University of Bristol website.

I asked him his name but he declined saying that he didn’t feel comfortable giving me his name, but assuring me that he had good reason not to. I told him that I wasn’t prepared to have a meeting with him unless he told me his name and after some back and forth rather prised his name out of him.

I immediately put his name into Google on my phone to very quickly find that he was convicted of a highly publicised and most pernicious and disturbing gendered crime against a young woman, the like of which would certainly make most (particularly women) want to steer clear of him altogether.

He protested all the time that I was searching and reading what I found, saying such things as he was a miscarriage of justice, that I shouldn’t believe the media on him and his case as it was all biased, that his solicitor was rubbish, etc. Things that I have heard or read hundreds of times as part of my work on alleged wrongful conviction cases.

I have learned, though, that the truly innocent (and I accept that there are always exceptions to every rule but, generally speaking) tend to be very public about their alleged wrongful convictions and happy for any opportunity to tell their version of events to anyone who will listen so that the truth can come out and their names can be cleared.

Think about high profile victims of wrongful convictions such as Gerry Conlon, Paddy Joe Hill, Mike O’Brien and Paul Blackburn, for instance. All convicted for most serious criminal offences – terrorism, murder and child sexual abuse, respectively. They were truly vilified in the media but were never silent or deterred from putting their side of things whenever an opportunity arose.

By comparison, the man that I met with was convicted of a relatively minor offence in a magistrates’ court and did not go to prison. I mentioned the foregoing victims of wrongful convictions to him and suggested that if he truly was an innocent victim of a wrongful conviction that he might want to go public and give his side of the story and let people make their own minds up what they think and who they want to believe. I asked him if was fighting his conviction. He said he was not.

I can report that I will not be contributing to his project, that he did not act upon my suggestions and that he is still entirely anonymous on Twitter. I am somewhat concerned, however, that those already signed up to his project and others engaging with him on Twitter (mainly young women from what I can tell) have no idea who he is or what he was convicted of and might not (I think would not!) want to be involved with him in any way if they did know who he was.

Go careful in the murky world of Twitter and social media, folks – things and people are not always what they might seem.

Panorama: Behind Bars: Prison Undercover

The BBC Panorama programme, Behind Bars: Prison Undercover, aired on Monday (13 February 2017). Culled from footage from an undercover reporter in HMP Northumberland, it claimed to “reveal the reality of life behind bars in Britain’s crisis-hit prison system.”

Leaving aside the obvious methodological issues with such a claim, i.e. that such a generalisation cannot be made from a few insights in a single, adult, male, category C, private prison, what we got, instead, was an entirely biased, one-sided view. On this occasion, it was the fears of clearly overworked and overwhelmed prison staff that was the central focus of concern. The narrative depicted was simplistic: prisoners are both out of control and in control of the day to day running of prisons, supported by images of drug taking, drunken and abusive prisoners. A strong case was being made for more prison officers, which is totally justified in the context of overcrowded prisons and savage cuts to prison staff.

A major problem was that this was at the expense of a more balanced programme that took account, also, of the prisoner side of the story – the desolation, monotony and periods of sheer terror of everyday life behind prison bars. This is well documented in the research and it might, also, go some way, at least, to contextualising and/or explaining the images of the relatively small handful of misbehaving prisoners that were selected to persuade viewers to accept the underpinning narrative without question.

Indeed, this was a missed opportunity to present a more honest and socially responsible account of the current challenges confronting imprisonment so that the problems might be better addressed. Yes, there are profound and potentially even dangerous levels of staff shortages in prisons, with a knock-on effect of low morale amongst demoralised staff: more staff are urgently needed. Just as importantly, the existing regime is experiencing regular prison disturbances and riots amid record levels of prisoner self-harm and suicide amongst vulnerable prisoners, which, equally, needs urgent attention.

Advocates for progressive prison reform along lines of social justice might easily see through the bias of the programme and be able to make sense of the behaviour of the prisoners that was featured. David Scott’s analysis, for instance, situates the evident prison chaos and the enormous demand for drugs as an attempt by prisoners to “anaesthetise the pain” of imprisonment: “It is well documented that prison life is both highly regulated yet filled with emptiness. Drugs distort time and prisons are all about the wasting and loss of time. Many prisoners attempt to suspend time and find ways to manage life on the edge of this meaningless and dehumanising penal abyss.”

I fear, however, that the “moral majority”, lacking the intellectual sophistication and/or ability for empathy to make such connections, will lap the programme up in the way intended and wouldn’t be surprised if attitudes hardened further towards prisoners and conditions get even worse, if that is even possible to conceive.

Was it a mere coincidence that the programme was aired on the day that Ms Truss, Secretary of State for Justice, rejected calls to cut sentences to reduce the record prison population to address the current prison crisis by making more use of such things as community sentences and tagging?

Emphasising the “increasing volatility and violence” in prisons in England and Wales, a discourse strengthened by the Panorama programme, Ms Truss argued on the contrary that criminals are where they “belong” “behind bars” with longer sentences.

In this context, I think that it is likely that Behind Bars: Prison Undercover will serve to deflect opposition from, even garner support for, Ms Truss’s line of thinking and that prisoner numbers may continue to increase and the problems in our prisons may well deepen.

Also published on the University of Bristol Law School Blog at: http://legalresearch.blogs.bris.ac.uk/2017/03/panorama-behind-bars-prison-undercover

Academia – where working to contract is apparently a problem

The standard employment relationship is very straightforward: an employee is expected to fulfil their contractual duties, no more no less. However, to do so in the academic sphere is, apparently, a problem. This became very evident in the recent union action in support of the demand for fairer pay.

It was calculated in the summer of 2016 that academic pay should be increased by 14.9% to get back to the level that it should be had it kept up with inflation since 2009. The employer offered 1%. In response, all manner of initiatives flowed from union members within the confines of a general “work to contract”, including marking boycotts, non-attendance at open and visit days and external examiners refusing to validate courses.

As intended, this caused much disruption and anxiety to university managers who simply could not deliver on expected targets, which require working over contract and a plethora of extra-curricula activities as norms to ensure the smooth running of university departments these days.

It was telling, however, when the pay award of 1.1 % for 2016 was imposed by the employer that the union instructed members that restrictions had been lifted and that normal working could be resumed, meaning that employees had the union’s blessing/instruction to resume working many hours over and above their contracts in the overall interests of, and benefit to, the employer.

Am I missing something? Should a union really be advocating that members work over and above that which is contracted, and work that is unpaid at that? If universities need employees to work over their contracts as a norm might it not indicate that more employees might be needed? Might this even be linked to wider issues such as precarious casualised contracts and the employment uncertainty that this carries, prevailing gender disparities and unprecedented levels of workplace stress and depression within the university sector?

There is clearly much lurking under this particular stone to be further explored.

Will Wullie Beck ever overturn his wrongful conviction?

The case of Wullie Beck has stuck in my craw since his appeal was rejected in 2013, for an armed robbery that occurred in 1981. It will continue to do so until his case is overturned and justice is done, both for Mr Beck and his family and for the victims of the attack in the armed robbery and their families too.

Please note that I do not use the customary “alleged” to premise wrongful conviction here as I feel confident that if readers take the time to read the Scottish Criminal Cases Review Commission’s Statement of Reasons for referring his conviction back to the High Court of Justiciary (Scotland’s court of appeal) that they, too, will be left in no doubt that an innocent man was wrongly convicted and imprisoned for a crime that he did not commit.

The refusal of the appeal by the High Court raises a pertinent and important question about justice in Scotland: What is the value of the Scottish CCRC if the cases that it refers, after extensive and impartial investigations, can simply be dismissed by the High Court and those that the Scottish CCRC believe may be innocent victims of miscarriages of justice have no alternative avenue to seek justice and clear their names?

What now for Wullie Beck? Will he (and others like him) ever overturn his wrongful conviction?