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INUK: Setting the record straight

Various sources have wrongly reported that Dr Carole McCartney was a co-founder of Innocence Network UK (INUK).

This is not correct.

INUK was founded by Dr Michael Naughton alone who also directed the project for the whole of its life time at the University of Bristol.

It is true, however, that Dr Naughton did work with Dr McCartney (and other interested parties) in 2003/04 on exploring the desirability and feasibility of innocence projects in UK universities as they do in the United States and other jurisdictions.

It is also true that Dr Naughton explored working in collaboration with Dr McCartney and Leeds University to develop INUK, which was expressed in various public meetings and articles.

However, that potential collaboration did not materialise and whilst Dr McCartney is correctly credited with setting up one of the early innocence projects in a UK university (with significant input from Dr Naughton), she did not help in the founding of INUK or with its development in any way.

Finally, and in fairness to Dr McCartney, it is instructive that her university biogs over the years at whichever university she has been at have never claimed that she is a co-founder of Innocence Network UK (INUK) or that she was associated with INUK in any way.

INUK as an umbrella for member innocence projects

When Dr Naughton established the University of Bristol Innocence Project, the first innocence project pro bono law clinic in the UK, he was literally inundated with requests by colleagues and students in other universities to help them to set up innocence project in their universities.

In response to this need, and because there were so many applications and so many eligible cases that needed to be worked on, from January 2005-September 2014, he used INUK as an umbrella organisation for facilitating the establishment of, and supporting the subsequent running of, member innocence projects in the UK . His thinking was simple: the more innocence projects, the more likely it would be for innocent victims of wrongful convictions to overturn their convictions.

During that time, INUK actively assisted in setting up 36 innocence projects – 35 in UK universities and one in a corporate law firm. 20 national training events and conferences were organised under the auspices of INUK to train staff and students in member innocence projects. Dr Naughton also devised a methodology for assessing applications/claims of innocence which was used to assess over 1,500 applications for members, of which over 100 cases were referred to member innocence projects for further investigation.

In that time, the University of Bristol Innocence Project, for instance,  made submissions and full applications on behalf of ‘clients’ to the CCRC (R v Hall, 2011) and Scottish CCRC (Beck v Her Majesty’s Advocate, 2013)  who had their convictions successfully referred back to the appeal courts and successful assisted two clients in Parole Board oral hearings to progress to open prisons.

The overturning of Dwaine George’s murder conviction in December 2014, a case assessed and referred by Dr Naughton/INUK to Cardiff innocence project, provided further evidence of INUK’s success in identifying victims of wrongful convictions who have been failed by the existing criminal appeals system and the CCRC and cemented the evidence for the necessity and potential of innocence projects in the UK under the existing arrangements.

Overall, then, we celebrate the contribution that Dr Naughton/INUK made in establishing a new form of legal education in UK universities and beyond. Cases referred by INUK to member innocence projects have been shown to have been meritorious and to have fallen through the existing criminal appeals and CCRC systems.

We will keep a watchful eye on the 100 or so other cases that we assessed as eligible and referred to universities. We hope that those who took on those cases of alleged innocent victims of wrongful conviction and imprisonment who may be innocent will pursue all leads and explore all available forensic science techniques and possibilities in attempts to settle the claims of factual innocence one way or the other in the quest for justice for the wrongly convicted and the victims of crime at the heart of those cases.

The ball is now firmly in the court of the individual innocence projects and other criminal appeal and miscarriage of justice schemes that were set up to rival INUK just as they wanted. It’s now over to them………

Click here for more information about why INUK stopped acting as a coordinating organisation for member innocence projects.

Click here for a list of the 36 innocence projects that were established under the auspices of INUK between January 2005 and September 2014.

INUK – New beginnings

At the end of this year’s membership (September 2014), INUK will no longer be renewing or taking memberships from universities and/or law firms.

We believe that with more than 30 INUK innocence projects around the country, that this aspect of INUK’s aims has been successfully achieved and that it is now timely for innocence projects to step up as independent enterprises in their own right and with full responsibility for any successes or failures.

This decision is supported by the following:

1. General funding constraints and a growing number of requests on the communications and policy side means that Dr Naughton simply does not have the capacity to continue to operate INUK as a support service for member innocence projects in other universities – assessing all applications, organising national training conferences, etc.

2. INUK has been spending a disproportionate amount of time acting as a support service for member innocence projects and/or other universities who are either not working to the protocols that they signed up to or not doing much at all (evident for several years in annual reports) and/or dealing with complaints from prisoners and others about member innocence projects not operating to the protocols or as they think they should. INUK did not foresee or ever intend to “police” member innocence projects. It does not have the capacity or resources to do so and it can longer take responsibility or be held responsible when members fail to work to the protocols – the terms and conditions – that they signed up to.

3. Tied to this, there is an urgent need to start to work on issues around quality of assistance to alleged victims of wrongful convictions by innocence projects. It ​is just no longer acceptable that hundreds of students around the country can say on their CVs that they are working with an INUK innocence project when they know next to nothing about INUK or how to work on an alleged wrongful conviction case and/or have never attended a single INUK conference or training event, nor have many of their directors.

4. After 10 years of assessing applications from alleged innocent victims of wrongful convictions the eligible cases are drying up. In the last year only a few of the couple of hundred applications that we have assessed have been deemed eligible: the applicant may be innocent and there is something that we can do to prove or disprove the claim.

 

CELEBRATING INUK’S ACHIEVEMENTS IN THE AREA OF INVESTIGATING ALLEGED WRONGFUL CONVICTIONS OF THE INNOCENT

We do not see this in negative terms but, rather, celebrate INUK’s achievements in this area over its first decade, which include:

1. Acting as a focal point that has resurrected an interest and concern for alleged victims of wrongful convictions. This interest/concern was lost with the setting up of the CCRC when JUSTICE and Liberty ceased working on alleged miscarriages of justice on the mistaken belief that the CCRC was the panacea to the problem of wrongful convictions.

2. Perhaps most crucially, Dr Naughton used INUK as a means to facilitate a vibrant environment of pro bono casework assistance for alleged victims of wrongful convictions offered by innocence projects in 35 universities and a corporate law firm, and inspired other initiatives, which did not exist when INUK was established and which was a key reason for its establishment: to raise awareness of the need for innocence-focused organisations from our research on the causes of wrongful convictions and the limits of the criminal appeals system and especially the CCRC in assisting the innocent to overturn their convictions.

3. On the casework side, as of January 2014, INUK had received 1,348 requests for assistance and assessed 827 full applications. Of these, 129 cases have been deemed eligible, i.e. with further investigation by a member innocence project may fulfil the CCRC’s or the SCCRC’s referral criteria. Of these, 114 have been referred by INUK to innocence projects for further investigation following a review. Around half of the applications referred to innocence projects for further investigation have had previous unsuccessful applications to the CCRC or SCCRC prior to contacting INUK. 11 cases referred by INUK to its member innocence projects have been submitted to the CCRC and 1 case has been submitted to the SCCRC. Of these 12 cases, 2 cases have been referred to the Court of Appeal by the CCRC and 1 to the Scottish High Court of Justiciary by the SCCRC.

4. To support this work, Dr Naughton devised rigorous and robust systems for dealing, centrally, with a high volume of enquiries and applications and to assess whether they are eligible for further investigation. We have shared our knowledge and experiences by creating starter packs and first steps documents with templates to guide new innocence projects though the early stages. We have created a set of governing casework protocols which have been validated by the Attorney General’s Pro Bono Protocols and CLEO’s model standards for live client work. We have organised over 20 conferences and many other local and national events, which have been a vital source of training and education for both staff and students who undertake the case investigations. We produced the Claims of Innocence book to transfer our knowledge and experiences on working on alleged wrongful convictions to assist others who investigate alleged wrongful convictions.

5. We have been consulted by MPs and provided invited submission to inquiries at home and abroad. Perhaps most crucially, INUK played a significant part in the intervention in the recent case of Nunn at the Supreme Court, which ensures the viability of innocence project investigations at the pre-CCRC stage. It places a duty on the police and prosecution to comply with reasonable requests for access to exhibits and samples if there is a ‘real prospect’ of finding something that might undermine the safety of the conviction. This provides better opportunities for innocent victims of wrongful conviction and imprisonment to overturn their convictions and clear their names.

6. For some, the ‘elephant in the room’ is that we are yet to ‘prove’ the innocence project model by overturning a wrongful conviction. There are always naysayers and without wishing to trivialise the enormous challenges that alleged wrongful convictions present and which all face on a daily basis, the history of miscarriages of justice in the UK and the statistics from the innocence projects in the US show that the overturning of wrongful convictions takes many years of careful and painstaking investigation – and a good dose of luck! From a standing start with little or no experience and little or no support we have, indeed, struggled, but we have learnt much as a network and the organisational knowledge and experience is vastly better to when we started. Moreover, with on-going reviews of applications by innocence projects by the CCRC and a case referred by INUK to a former member that will soon be heard in the Court of Appeal, Dwaine George, we remain hopeful that we are moving ever closer to an innocence project playing a major part in overturning a major wrongful conviction in the UK.

N.B.: INUK referral case of Dwaine George’s murder conviction was overturned in December 2014.

 

THE WAY AHEAD

Going forward we believe that it makes sense to have some kind of “Memorandum of Understanding” between providers of pro bono assistance to alleged victims of wrongful convictions, whether in universities or not and whether members, ex-members and/or non-members of INUK.

On a basic level, all working in this area need to know who is working on what case to prevent duplication of effort, although that does not mean that there cannot be partnering on cases between projects and other organisations.

To this end, we are happy to maintain an e-mail list if colleagues in innocence projects and/or other similar organisations that provide pro bono assistance to alleged victims of wrongful convictions want us to for the sharing of information and best practice.

Please let us know if this applies to you and you want to be aded to the INUK pro bono casework list.

We could also use this list as a forum to discuss issues of mutual interest (in the way that we have always wanted this list to develop) and to publicise publications and events of general interest.

 

MEMBERSHIP OF THE INNOCENCE NETWORK IN THE US

We also encourage all innocence projects in the UK to become members of the Innocence Network in their own right, the international network of innocence projects around the globe.

The name ‘innocence project’ is trademarked by The Innocence Project.

If innocence projects that are not members of the Innocence Network in the US then The Innocence Project will likely take aggressive steps to stop such projects from using the innocence project name; from misusing its brand, etc.

In the circumstances, we recommend all innocence projects who wish to continue using the name to become members of the Innocence Network.

The membership criteria can be found on the Innocence Network’s website: http://www.innocencenetwork.org/resources/membership-materials

If you have any queries or questions about membership of the Innocence Network, please contact Rachel Schwartz at: rschwartz@innocencenetwork.org

 

FINALLY

We have known for some time that without the necessary resources and support that INUK could not continue to operate.

As already said, INUK was never intended to be a support service for member innocence projects.

It has never had the resources and it was never financially viable for it to be so, even from the start.

However, we felt ethically obliged to support the fledgling innocence projects that we had facilitated in any way that we could until they were able to stand on their own feet.

We feel now that that time has come with many of the innocence projects that were facilitated by INUK being 6, 7 or even 8 years old and with much internal experience and knowledge.

This makes them equipped to operate as truly independent projects in their own right and to form new forms of association and collaboration to support and further their work on alleged wrongful convictions, as many of them have been doing over the years.

In parting, we want to emphasise that all of those running or who work with innocence projects (or similar wrongful conviction or miscarriage of justice projects in universities) should always keep at the forefront of their minds and the work that they do that “the main thing is to keep the main thing the main thing” – i.e. that innocent prisoners are the reason for such work; that student education is, indeed, valuable and important; but, that striving to overturn wrongful convictions so that factually innocent victims of wrongful convictions and/or imprisonment can achieve their freedom and clear their names should always be the first priority.

 

Supreme Court affirms a positive role for innocence project investigations into alleged wrongful convictions

http://www.bristol.ac.uk/law/news/2014/443.html

In a judgment handed down by the Supreme Court on Wednesday 18th June 2014, a positive role for investigations into alleged miscarriages of justice by innocence projects was affirmed and the existing rules for access to evidence post-failed appeal were improved to enable such investigations to occur.

The Supreme Court considered whether there was an obligation upon the Police and the Crown Prosecution Service (CPS) to provide access to evidential material to alleged victims of wrongful convictions on appeal or by way of application to the Criminal Cases Review Commission (CCRC). The CCRC is the statutory, public body that is mandated to review alleged miscarriages of justice and refer them back to the appeal courts if it is felt that there is a real possibility that the conviction will be overturned.

The instant case concerned Kevin Nunn who was convicted of the murder of Dawn Walker in 2006. He has always maintained his innocence of any involvement in this crime. His application for leave to appeal was refused in 2007.

Access to reports and items from the crime scene, among other things, were sought so that they could be tested, re-tested or reviewed by DNA experts. This request was refused by the Chief Constable of Suffolk Police on the basis that the duty of disclosure on the police and the Crown Prosecution Service (CPS) under the terms of the Criminal Procedure and Investigations Act (1996) (CPIA) apply only to the pre-trial and appeal stages and does not apply to cases that have failed on appeal.

Instead, it was argued that such cases were required to satisfy the Attorney-General’s Guidelines which instruct decision makers to consider disclosure:

“Where material comes to light after the conclusion of the proceedings, which might cast doubt upon the safety of the conviction.”

The decision was challenged by judicial review in 2012. The police’s decision was upheld.

Divisional Court Judge Sir Brian Leveson was of the view that Mr Nunn should have sought remedy through an application to the CCRC.

“As we have said, an important consideration to our decision as to the ambit of the duty of the police and the CPS is the establishment and funding of the CCRC by the Executive Branch of the State…the availability of the CCRC as a remedy is a very powerful consideration in limiting the duty of the police and CPS.”

This had a major impact on subsequent requests to the police and/or CPS for access to evidence by innocence projects and solicitors investigating alleged wrongful convictions in the process of making applications to the CCRC. It created an environment in which there was a general reliance on the Nunn judgment in the Divisional Court to refuse such requests, impeding investigations into alleged miscarriages of justice.

The judicial review judgment is at:

http://www.bailii.org/ew/cases/EWHC/Admin/2012/1186.html

The Divisional Court’s ruling was referred to the Supreme Court.

In its judgment the Divisional Court had stated that for the test in the Attorney-General’s Guidelines to be satisfied, “it is necessary to show something that materially may cast doubt upon the safety of the conviction.”

The Divisional Court then illustrated the application of this test by reference to the need for the appellant to establish that there had been scientific advances, which might reasonably be anticipated to provide a result which might affect the safety of the conviction.

Innocence Network UK (INUK) JUSTICE and The Criminal Appeals Lawyers’ Association (CALA) were granted permission to intervene in the case as a third party by the Supreme Court. They were represented by White & Case LLP (London) and Henry Blaxland QC, and David Emmanuel of Garden Court Chambers, all working on a pro bono basis.

The case for the intervening parties argued that expressed in this way the burden is cast on the appellant to satisfy the test of materiality before s/he has been supplied with the very material that may itself provide the basis for undermining the prosecution case or supporting her/his defence.

The interveners shared a concern that the earlier judgment of the Divisional Court would have made it extremely difficult to obtain the evidence necessary to demonstrate a potential wrongful conviction. Recent examples where applications for access to evidential materials to the police or CPS had been refused in reliance on the Divisional Court’s judgment were cited.

John Reynolds, Partner and Head of the London Litigation Department, White & Case LLP, emphasised the importance of the intervention in the following terms:

“Access to evidence is at the heart of the principle of access to justice, whether in civil or criminal law, and at all stages of the legal process. It is essential in the effective representation of alleged victims of wrongful convictions.”

Innocence Network UK (INUK) was expressly established at the University of Bristol because the creation of the Criminal Cases Review Commission (CCRC) was not the final remedy to the problem of miscarriages of justice that was hoped for and that is widely held to be: factually innocent victims of wrongful convictions still find it difficult, sometimes impossible, to have their cases referred back to the appeal courts and overturned because of how the CCRC is structured and how it operates.

INUK’s individual third party submission was underpinned by an extensive body of research by its founder and director Dr Michael Naughton, Reader in Sociology and Law at the University of Bristol and an academic expert on miscarriages of justice, who has considered the limitations of the CCRC in a number of academic books and peer-reviewed academic articles. These publications provide an insight into the deficiencies of the CCRC’s case review approach and the continuing investigative burden placed upon alleged miscarriages of justice victims despite the establishment of the CCRC.

More specifically INUK’s submission emphasised that as a review body with limited resources, the CCRC is generally unable to proactively identify lines of enquiry and undertake detailed investigations in every single application.

As noted by Dr Naughton in a chapter on the limits of the CCRC to assist alleged innocent applicants in his most recent book, The Innocent and the Criminal Justice System

The CCRC…reviews for the most part [are] mere ‘desktop reviews’ of applications.”

As such, alleged miscarriage of justice victims continue to rely on the investigatory assistance provided by innocence projects and lawyers who need to find fresh evidence or arguments that could persuade the CCRC to use its investigatory powers and/or refer a conviction back to the Court of Appeal.

To perform this investigative function adequately, lawyers and innocence projects must be able to obtain disclosure and access to evidence from the police or the CPS of vital materials that could assist in its investigation, such as laboratory records for forensic reviews and exhibits for forensic testing.

In INUK’s experience, the CCRC’s review process is not fool proof and innocence projects frequently have to raise issues and possible referral grounds missed by the CCRC in previous reviews. In order to fulfil this function, innocence projects will need to get disclosure from the police or the CPS post failed appeal, particularly in cases where the original defence team had failed to undertake a thorough review of all documentary evidence and comprehensively challenge the prosecution’s case.

Indeed, as an independent body, the CCRC does not represent applicants. Innocence projects and solicitors therefore play a vital role in advocating for applicants and attempting to persuade the CCRC to use its investigatory powers to follow up lines of enquiry that could potentially benefit the applicant’s case.

The deficiencies in the CCRC’s investigatory process are illustrated by the case of Victor Nealon. Mr Nealon was convicted of attempted rape in 1997 on the basis of disputed identification evidence. In 1997, Mr Nealon applied to the CCRC to ask for a review of the forensic evidence in his case. The CCRC declined on the basis that it had been dealt with at trial. This was not the case and a more thorough investigation by the CCRC would have discovered that no forensic examination had in fact been undertaken.

In 2002, Mr Nealon made a second application to the CCRC and requested again for forensic testing. The request was once again denied on the grounds that the CCRC “do[es] not undertake speculative DNA tests.” In 2009, Mr Nealon finally managed to commission the DNA testing privately and DNA was found in intimate areas of the clothing, which was not his, but belonged to an unknown male.

On the basis of this new DNA evidence, a third application was made to the CCRC. After its review, Mr Nealon’s conviction was referred by the CCRC and quashed by the Court of Appeal on the 14 December 2013. He had served 17 years in prison, all of which could have been avoided had the CCRC been willing to investigate the case properly, or the police and CPS been prepared to permit testing of the DNA evidence earlier. Crucially, if the Nunn decision by the Divisional Court had been applied to Mr Nealon’s case, there is a real chance that Victor Nealon would never have been able to access the DNA evidence for his ‘speculative’ testing, and would still be behind bars.

In stark contrast to the judgment by the Divisional Court, the Supreme Court openly acknowledged the role that solicitors and others such as innocence projects can play in investigating alleged miscarriages of justice prior to applications to the CCRC.

The Supreme Court tacitly accepted INUK’s submission that the CCRC is not the panacea to the perennial and on-going problem of wrongful convictions that the Divisional Court wrongly assumed it to be:

“There is no doubt that the CCRC is much assisted by informed legal analysis and presentation if an application for review is made to it…The police and prosecutors ought to exercise sensible judgment when representations of this kind are made on behalf of convicted persons.”

Improving upon the existing Attorney-General’s Guidelines on disclosure and access to evidentiary materials post-failed appeal, the Supreme Court ruled:

“If there appears to be a real prospect that further enquiry will uncover something that may affect the safety of the conviction, then there should be co-operation in making it. It is in nobody’s interest to resist all enquiry unless and until the CCRC directs it.”

Commenting on the Supreme Court judgement Dr Michael Naughton, Founder and Director of the Innocence Network UK (INUK) stated:

“The importance of this judgment cannot be overstated as it would have been catastrophic had the Divisional Court judgment been upheld. This ruling, however, ensures the continued viability of the work of solicitors and innocence projects in assisting alleged innocent victims of wrongful conviction and imprisonment. The new revision of the Attorney-General’s Guidelines will enable solicitors and innocence projects to continue to undertake investigations to strengthen their applications to the CCRC. It will facilitate solicitors and innocence projects to give their clients a better chance of having their cases referred back to the Court of Appeal and, ultimately, of achieving justice.”

The Supreme Court judgment is at:

http://supremecourt.uk/decided-cases/docs/UKSC_2012_0175_Judgment.pdf

Notes to editors

For further information, please contact Philippa Walker, University of Bristol Press Office. Tel: +44 (0)117 928 8086 or 07776 170238 Email: Philippa.Walker@Bristol.ac.uk

  1. Innocence Network UK (INUK) is an umbrella organisation that facilitates and supports pro bono investigations into alleged wrongful convictions by member innocence projects for applicants who have exhausted the available legal aid and the normal criminal appeals system. It was established in the University of Bristol Law School in September 2004 by Dr Michael Naughton. INUK currently has 26 member innocence projects in UK universities and one in a corporate law firm. INUK communicates the findings of its work and research on wrongful convictions to policy makers, criminal justice system agencies, the legal community and wider members of the public. INUK’s overall aim is to improve the criminal justice system by learning lessons from wrongful convictions and to effect reforms to prevent them from occurring in the future. For more information, see http://www.innocencenetwork.org.uk

  2. Dr Michael Naughton is a Reader in Sociology and Law in the Law School and School of Sociology, Politics and International Studies (SPAIS), University of Bristol. He has specialised in the area of wrongful convictions for over a decade and has written extensively on the subject. He is the Founder and Director of the Innocence Network UK (INUK) and the University of Bristol Innocence Project (UoBIP), the first innocence project in the UK and the founding member of the Innocence Network UK. Email: M.Naughton@bristol.ac.uk

  3. Copies of INUK’s third party submission to the Supreme Court can be supplied on request.

Dr Michael Naughton elected to the Innocence Network Board

http://www.bristol.ac.uk/law/news/2014/433.html

Dr Michael Naughton, Reader in Sociology and Law, has been elected to the Innocence Network Board. The Innocence Network is an affiliation of organizations dedicated to providing pro bono legal and investigative services to individuals seeking to prove innocence of crimes for which they have been convicted and working to redress the causes of wrongful convictions.

The Network Board oversees the work of the Innocence Network. It is composed of 21 members, with two seats reserved for non-US members. Each Board member is elected by a vote of the project directors of member organizations for staggered three-year terms, with no limit on the number of terms served. Based in the United States, the Innocence Network has 49 members in almost all US States and has members in Australia, Canada, New Zealand, France, Ireland, Italy, The Netherlands, South Africa and the UK.

Dr Naughton is Founder and Director of the Innocence Network UK (INUK), an umbrella organisation that facilitates pro bono investigations into claims of innocence by alleged victims of wrongful convictions. INUK’s overall aim is to improve the criminal justice system by overturning convictions given to factually innocent people, to learn lessons from such wrongful convictions and to effect reforms to prevent such wrongful convictions from occurring in the future. INUK currently 26 member innocence projects in the UK universities and one in a corporate law firm.

Innocence Network UK at the Supreme Court 13 March 2014

http://www.bristol.ac.uk/law/news/2014/425.html

On Thursday 13 March staff and student volunteers with the University of Bristol based Innocence Network UK (INUK) attended the Supreme Court hearing of Nunn v Suffolk Constabulary and Others.

INUK was granted leave to intervene in the matter because of the experience of its member innocence projects in assisting alleged victims of wrongful convictions to make applications to the Criminal Cases Review Commission (CCRC). The CCRC is the body that reviews alleged miscarriages of justice and refers cases back to the appeal courts if it is felt that there is a real possibility that the conviction or sentence will not be upheld.

Fellow interveners were JUSTICE, the human rights organisation, and the Criminal Appeal Lawyers Association (CALA). White & Case LLP, London, acted as solicitors for the intervening parties and the barristers were Henry Blaxland QC and David Emanuel, Garden Court Chambers. All provided their services on a pro bono basis.

The case concerns Kevin Nunn who was convicted of the murder of Dawn Walker in 2006. He has always maintained his innocence of any involvement in this crime. His application for leave to appeal was refused in 2007.

Nunn then applied to INUK for assistance by a member innocence project. His case was deemed eligible and two University of Bristol Innocence Project students, Rupert Wheeler and Jen Harris, worked on his case for a year with his then solicitor, Jane Hickman, of Hickman and Rose.

Access to items from the crime scene was sought so that they could be further tested by an expert for possible DNA traces left by the murderer. This request was refused by Suffolk police on the basis that the duty of disclosure on the police of Crown Prosecution Service (CPS) under the terms of the Criminal Procedure and Investigations Act (1996) (CPIA) apply only to the pre-trial and appeal stages and does not apply to cases that have failed in appeal.

Instead, such cases must satisfy the Attorney-General’s Guidelines which require decision makers to consider disclosure ‘where material comes to light after the conclusion of the proceedings, which might cast doubt upon the safety of the conviction’ (emphasis added).

The decision was challenged by judicial review in 2012. The police’s decision was upheld. High Court Judge Sir Brian Leveson was of the view that Nunn should have sought remedy through an application to the CCRC. The judicial review judgment is at:

http://www.bailii.org/ew/cases/EWHC/Admin/2012/1186.html

The High Court’s ruling was referred to the Supreme Court.

In its judgment the Divisional Court stated that for the test in the Attorney-General’s guidelines to be satisfied, ‘it is necessary to show something that materially may cast doubt upon the safety of the conviction.’ The Court then illustrated the application of this test by reference to the need for the convicted defendant to establish that there had been scientific advances, which might reasonably be anticipated to provide a result which might affect the safety of the conviction.

The case for the intervening parties argued that expressed in this way the burden is cast on the defendant to satisfy the test of materiality before he has been supplied with the very material that may itself provide the basis for undermining the prosecution case or supporting his defence.

INUK submitted further that as a review body with limited resources, the CCRC is generally unable to proactively identify lines of enquiry and undertake detailed investigations in every single application. As such, alleged miscarriage of justice victims continue to rely on the investigatory assistance provided by innocence projects and lawyers who have to find fresh evidence or arguments that could persuade the CCRC to refer a conviction back to the Court of Appeal. To perform this investigative function adequately, lawyers and innocence projects must be able to obtain disclosure from the police or the CPS of vital materials that could assist in its investigation, such as laboratory records for forensic reviews and exhibits for forensic testing.

In INUK’s experience, the CCRC’s review process is not foolproof and innocence projects frequently have to raise issues and possible referral grounds missed by the CCRC in previous reviews. In order to fulfil this function, innocence projects will need to get disclosure from the police or the CPS post failed appeal, particularly in cases where the original defence team had failed to undertake a thorough review of all documentary evidence and comprehensively challenge the prosecution’s case.

Indeed, as an independent body, the CCRC does not represent applicants. Innocence projects therefore play a role in advocating for applicants and attempting to persuade the CCRC to use its investigatory powers to follow up lines of enquiry that could potentially benefit the applicant’s case.

The deficiencies in the CCRC’s investigatory process are illustrated by the case of Victor Nealon. Nealon was convicted of attempted rape in 1997 on the basis of disputed identification evidence. In 1997, Nealon applied to the CCRC to ask for a review of the forensic evidence in his case. The CCRC declined on the basis that it had been dealt with at trial. This was not the case and a more thorough investigation by the CCRC would have discovered that no forensic examination had in fact been undertaken.

In 2002, Nealon made a second application to the CCRC and requested again for forensic testing. The request was once again denied on the grounds that the CCRC ‘do[es] not undertake speculative DNA tests’. In 2009, Nealon finally managed to commission the DNA testing privately and DNA was found in intimate areas of the clothing, which was not his, but belonged to an unknown male.

On the basis of this new DNA evidence, a third application was made to the CCRC. After its review, Nealon’s conviction was referred by the CCRC and quashed by the Court of Appeal on the 14 December 2013. He had served 17 years in prison, all of which could have been avoided had the CCRC been willing to investigate the case properly, or the police and CPS been prepared to permit testing of the DNA evidence earlier. Crucially, if the Nunn decision had been applied to Nealon’s case, there is a real chance that Victor Nealon would never have been able to access the DNA evidence for his ‘speculative’ testing, and would still be behind bars.

The Supreme Court judgment will be handed down in due course.

An article on the case of Nunn v Suffolk Constabulary and Others is in INQUIRY: The Newsletter of the Innocence Network UK, 8, at:

http://www.innocencenetwork.org.uk/wp-content/uploads/2013/11/INQUIRY-Issue-8-Summer-2013.pdf

Another article of interest by Michael Naughton and Gabe Tan on the right under international law to access exhibits for DNA testing post-conviction is at:

http://www.innocencenetwork.org.uk/wp-content/uploads/2011/11/Naughton-and-Tan-IJEP-Nov-2010.pdf

Review of Criminal Cases Review Commission to reveal how innocent victims of wrongful convictions can still be failed

Click here to download INUK’s Report on the Reform of the CCRC.

Click here for University of Bristol Press Release

A review of the Criminal Cases Review Commission’s (CCRC) effectiveness as the only gateway back to the Court of Appeal for convicted persons who have failed in their first appeal is published today [01 Feb].

Findings from the Innocence Network UK (INUK)-led report has revealed how innocent victims of wrongful convictions can be failed and calls for urgent reforms to ensure innocent victims of wrongful convictions are better assisted.

The Report, comprising a series of recommendations from some of the UK’s leading academic experts, criminal appeal practitioners and former CCRC Commissioners, was collated at a recent INUK symposium to mark the CCRC’s 15th anniversary.

Contributions from victims of wrongful convictions and alleged innocent victims of wrongful conviction who are struggling to achieve a referral by the CCRC back to the Court of Appeal (Paddy Joe Hill of the Birmingham Six, Susan May and Eddie Gilfolye), and representatives of organisations that campaign for, and provide much needed support to, alleged victims of wrongful conviction and their families, were also included.

The review sought to address concerns from individuals working on cases of alleged wrongful convictions that the CCRC is not the extra safety net for innocent victims of wrongful convictions, and the growing list of cases refused referral despite serious doubts about the evidence which led to conviction.

Members at the event were asked for their thoughts as to how they think the CCRC could be reformed to give the innocent a better chance of overturning their convictions, while accepting that the criminal justice system is not perfect, and that innocent victims of wrongful conviction may be failed by the CCRC.

Although differing views are expressed in the report there is a broad consensus on the following issues, these are:

  1. The existing relationship between the CCRC and the Court of Appeal is unsatisfactory and requires, at the very least, a re-examination.
  2. In particular, the ‘real possibility’ test under s.13 of the Criminal Appeal Act 1995 enshrines a relationship of deference to the Court of Appeal. It prevents the CCRC from referring      potentially genuine wrongful convictions of applicants who may be innocent if it is thought that the Court of Appeal may conclude that the case lacks legal merit. This severely compromises the CCRC’s independence and hinders its ability to assist applicants who may be innocent.
  3. The ‘real possibility’ test under s.13 of the Criminal Appeal Act 1995 needs to be replaced with a different test that allows the CCRC more independence both in its review of alleged wrongful      convictions, and in its consideration on whether to refer a case back to the Court of Appeal.
  4. The wording of the fresh evidence criteria under s.23 of the Criminal Appeal Act 1968, which defines fresh evidence as evidence not adduced at trial, is generally unproblematic. However, both the CCRC and the Court of Appeal tend to adopt an overtly strict interpretation of the test. In particular, evidence that was, or could have been, available at the time of the trial is generally not considered as fresh evidence. A looser interpretation of the fresh evidence criteria needs to be adopted so that victims of wrongful conviction are not procedurally barred from having their convictions overturned.
  5. The CCRC’s case review approach is generally limited to a desktop review of the case papers. It needs to undertake more fieldwork investigations, such as crime scene visits and re-interviewing of witnesses, particularly in complex, serious cases. While it is accepted that this would require a significant increase in the CCRC’s resources, the resource implications could be addressed by refining the CCRC’s intake to sharpen its focus. For instance, cases based on points of law or legal technicalities that have no bearing on the applicant’s possible innocence could be excluded from the CCRC’s remit. Such a refinement can contribute to more rigorous investigations on potentially genuine innocence cases.

The INUK report on the need to reform the CCRC coincides with the Ministry of Justice’s triennial review to examine the key functions of the CCRC and whether the functions are still required.  A pre-publication copy of the INUK report was sent to the Ministry of Justice on the 13 December 2012 to be considered in its review.

 

Click here to download INUK’s Report on the Reform of the CCRC.

 

Further information

The Criminal Cases Review Commission

Set up under the Criminal Appeal Act 1995, the CCRC took over responsibility of reviewing alleged miscarriages of justice from the Home Secretary on the 31 March 1997.

Innocence Network UK

Innocence Network UK (INUK) is a pro bono organisation established in the University of Bristol Law School in September 2004. Its aim is to facilitate casework and communications in the area of wrongful conviction. INUK has 26 member innocence projects, 25 based in universities across England, Wales and Scotland and one in a corporate law firm. As a network, INUK is collectively working on 104 cases of alleged wrongful convictions. For more information, see www.innocencenetwork.org.uk.

Dr Michael Naughton

Dr Michael Naughton is a Reader in Sociology and Law in the Law School and School of Sociology, Politics and International Studies (SPAIS), University of Bristol. He has specialised in the area of wrongful convictions for over a decade and has written extensively on the subject. He is the Founder and Director of the Innocence Network UK (INUK) and the University of Bristol Innocence Project (UoBIP).

Ms Gabe Tan

Ms Gabe Tan is a Research Assistant at the School of Law, University of Bristol. She is the Executive Director of the Innocence Network UK (INUK) and the University of Bristol Innocence Project (UoBIP).

 

Notes to editors

For further information, please contact Caroline Clancy, INUK, University of Bristol, Tel. +44 (0)117 928 8086 or Tel mobile. 07776 170238, Email. Caroline.Clancy@bristol.ac.uk

 

Issued by the Innocence Network UK, University of Bristol.

No CCRC for South Australia but new statutory right of appeal for certain qualifying offences

On the 18th July 2012 the South Australian Legislative Review Committee on the CCRC Bill Reported that it would not be recommending that a CCRC-style body be established in South Australia. Instead, of the seven recomendations, Recommendation 3 was for a new statutory right for certain qualifying offences to provide that a person may be allowed at any time to appeal against a conviction for serious offences if the court is satisfied that:

 the conviction is tainted;

 where there is fresh and compelling evidence in relation to the offence which may cast reasonable doubt on the guilt of the convicted person.

Recommendation 5 was that the Attorney-General considers establishing a Forensic Science Review Panel to enable the testing or re-testing of forensic evidence which may cast reasonable doubt on the guilt of a convicted person, and for these results to be referred to the Court of Criminal Appeal.

Dr Michael Naughton consulted to the review.

Click here for the Full Report.

Potential Wrongful Convictions: Failed by the Criminal Cases Review Commission

The Innocence Network UK (INUK) today, publishes a dossier of 44 cases of alleged innocent victims of wrongful conviction. All of these cases have been refused a referral back to the Court of Appeal at least once by the Criminal Cases Review Commission despite continuing doubts about the evidence that led to their convictions.

The cases included in the dossier comprise mainly of prisoners who are serving life or long-term sentences for serious offences, ranging from gangland murders, armed robbery, rape and other sexual offences. All of them continue to maintain that they have no involvement at all in the offences they were convicted of despite having failed in their appeal and refused a referral by the Criminal Cases Review Commission. They assert that they were wrongly convicted due to reasons including fabricated confessions, eyewitness misidentification, police misconduct, flawed expert evidence, false allegations and false witness testimonies.

INUK believes that there are continuing doubts and inconsistencies about each conviction. However, the Criminal Cases Review Commission, established to review alleged miscarriages of justice is unable to assist them because their cases are deemed to not fulfil the ‘real possibility test’. Under the current statute, the Criminal Cases Review Commission can only refer cases back to the Court of Appeal if there is a ‘real possibility’ that the conviction would be overturned. The Criminal Cases Review Commission is also generally confined to reviewing fresh evidence not available at the time of trial.

Because evidence suggesting innocence in these cases is not fresh or the jury has decided to convict despite hearing conflicting evidence, the Criminal Cases Review Commission is unable to refer these cases back to the Court of Appeal.

The dossier underlines the urgent need for reforms to the Criminal Cases Review Commission to ensure that such cases can be more adequately dealt with.

Dr Michael Naughton, Founder and Director of INUK, said today, “The crimes that these men and women are convicted of are appalling but in every single case there are questions, conflicts and problems in the evidence that led to their conviction. If they are genuinely innocent, it means that the dangerous criminals who committed these crimes remain at liberty with the potential to commit further serious crimes.”

In several cases, prisoners were convicted mainly on the testimonies of prosecution witnesses who were either known criminals or suffer from serious mental or personality disorders. In other cases, convictions were obtained mainly on the basis of highly conflicting identity parade evidence. Many were also convicted despite evidence suggesting innocence such as alibi witnesses outweighing the alleged evidence of guilt.

David Jessel a former CCRC Commissioner now argues that rather than being tied to the ‘real possibility test’ ‘the CCRC could refer because of its own independent concerns that justice has miscarried, while the Court of Appeal would have to answer that case and, if necessary, justify its conclusions that the conviction was safe.’

Gabe Tan is the Executive Director of INUK and deals with prisoners seeking assistance on a daily basis. “Many of the prisoners in the dossier have served two or even three decades in prison. They would have been released on parole much earlier had they admitted guilt to the crimes that they were convicted of. The Criminal Cases Review Commission is unable to help them despite strengths in their claims of innocence. Unless the existing arrangements are reformed, these cases are never going away.”

A number of these cases will be highlighted at a Joseph Rowntree Reform Trust Limited (JRRT) funded symposium which will be held at Norton Rose LLP this Friday, 30 March 2012. Speaking at the symposium are alleged victims of wrongful conviction Susan May and Eddie Gilfoyle, both of whom are widely believed to be innocent of the murders that they were convicted of. Paddy Hill of the Birmingham Six case that led to the setting up of the Criminal Cases Review Commission will speak of his dismay with how the organisation is failing innocent victims of wrongful conviction. They will be joined by criminal appeal barristers and solicitors, investigative journalists, academics and former Commissioners of the Criminal Cases Review Commission.

CLICK HERE FOR DOSSIER OF CASES

INUK Issues Public Statement on the Limitations of the Criminal Cases Review Commission

Press Release (15/12/2011): INUK Issues Public Statement on the Limitations of the Criminal Cases Review Commission

Innocent people are still languishing in prison despite a publicly funded body that was set up to assist them to overturn their wrongful convictions. The Innocence Network UK (INUK) calls today for the reform of the Criminal Cases Review Commission (CCRC) — the last resort for innocent victims of wrongful conviction.

Fifteen years on since the Criminal Cases Review Commission was established following a recommendation of the Royal Commission on Criminal Justice in the wake of notorious cases such as the Birmingham Six and the Guildford Four, a growing mountain of cases is emerging that reveal the CCRC is not fit for the purpose of helping the innocent to overturn their wrongful convictions.

Since its establishment in September 2004, the Innocence Network UK (INUK) has received over 1,000 requests for assistance from alleged innocent victims of wrongful conviction. It has deemed 200 (20 per cent) to have a plausible claim of innocence, over half of whom have already been refused a referral back to the Court of Appeal by the CCRC at least once.

The CCRC has referred less than 4 per cent of the 13,000 plus applications that it has received from alleged victims of wrongful convictions.

The CCRC was meant to ensure that victims of miscarriages of justice have their cases investigated and referred back to the appeal courts if it is thought that the applicant is or might be innocent. However, the law that established the CCRC requires it to only refer cases if it believes that there is a real possibility that the conviction will be quashed.

As a result, only very few applicants fortunate enough to have fresh evidence that was not available at the time of the original trial or first appeal that is thought to undermine the safety if their convictions will have their cases referred. This leaves the vast majority of applicants unable to obtain a referral back to the courts even though the circumstances that led to their convictions are dubious and they might well be innocent.

A Public Statement issued by the Innocence Network UK (INUK) as part of the Joseph Rowntree Reform Trust-funded project details the key failings of the Criminal Cases Review Commission and its recommendations for reforms so that it can better assist the innocent.

This includes the immediate repeal of the ‘real possibility test’ under s.13 of the Criminal Appeal Act 1995 to be replaced with a test that allows the Criminal Cases Review Commission to refer a conviction back to the Court of Appeal if, after considering all the evidence, it thinks that the applicant is or might be innocent.

Dr Michael Naughton, Founder and Director of the Innocence Network UK (INUK) and Senior Lecturer in the University of Bristol Law School and School of Sociology, Politics and International Studies (SPAIS), said: “Unless the operations of the Criminal Cases Review Commission are drastically reformed innocent people will continue to be let down by the body that Parliament set up to assist them.”

The reforms proposed, aimed at making the CCRC a more adequate body to assist the innocent, would also potentially save millions of pounds from the public purse by shortening the length of time that those wrongly incarcerated might otherwise spend in prison. The average costs to taxpayers for each year a male prisoner spends wrongly incarcerated are as follows, Category A (dispersal prison): £64, 597, Category B: £34, 359, Category C: £32,109.

INUK Public Statement – 15 December 2011