Issues

LONG WALK TO JUSTICE

A number of high-profile cases have again raised questions about how often our justice system may be convicting innocent people. As calls increase to establish an independent commission to investigate wrongful convictions in New Zealand, Mike White travels to the UK to gauge the success of similar bodies there.

“I think of the criminal justice system as a dreary casino where the quest for justice is a roll of the die that comes up craps as often as not.” Bob Herbert, New York Times columnist

n March 14, 1991, a group of men emerged from London’s OOld Bailey and faced a pha- lanx of reporters. Their mood was a mix of jubilation and rage. They were the so-called , Irishmen arrested in November 1974 for planting two bombs that went off minutes apart in Birmingham pubs, killing 21 people and injuring 182. After they were con- victed, evidence emerged of faulty sci- entific testimony, mock executions being used to extort confessions, and police

corruption, which eventually resulted in CORBIS their release that spring afternoon.­ One ABOVE: Paddy Hill speaks to the crowd after the Birmingham Six were freed in 1991. of them, Paddy Hill, grabbed the micro- phone. He was a short man and gave a OPPOSITE PAGE: Gerry Conlon, one of the Four, leaves London’s short speech that now sits in history as Old Bailey with his sisters in 1989. Conlon was convicted of IRA bombings and spent 15 years in jail before it was revealed police had fabricated one of the most cogent and scathing con- evidence. His story was made into the movie In the Name of the Father, demnations of the justice system. and the case led to major changes in the British justice system. “For 16 and a half years we have been

GETTY MIKE WHITE IS A NORTH & SOUTH SENIOR WRITER. PHOTOGRAPHS BY MIKE WHITE AND GETTY.

62 | NORTH & SOUTH | MARCH 2015 NORTH & SOUTH | MARCH 2015 | 63 admit the system they are responsible for bungled things? Thus, it’s under- standable if prisoners have little confi- dence their case will be reconsidered objectively and don’t even apply. Critics of the current system argue an independent body with wide powers to reinvestigate cases would offer a much better chance of uncovering miscarriag- es of justice. More important, it would give the public far greater confidence that the justice system is working. Ever since the Arthur Thomas case in the 1970s, where police planted evi- dence to convict an innocent man, it has been clear our justice system doesn’t always get it right. In 2006, retired judge Sir Thomas Thorp suggested up to 20 innocent people were in New

GETTY Zealand jails. He later suggested this was an understatement. BEFORE AND AFTER: The Birmingham Six after their arrest (above) BROKEN MAN: Paddy Hill as he is today. He wipes a tear as the coffin and (right) ) after being beaten by police to extract false of Gerry Conlon is carried into St Peter’s Cathedral for a requiem The cases of David Dougherty, Aaron confessions. Paddy Hill is in the middle of the top row above. mass last year in . Conlon died, aged 60, of cancer in June. Farmer, Jaden Knight and Phillip Johnston – all wrongly imprisoned – are proof police and courts do get it wrong. The high-profile cases of David Bain and there is a “real possibility” the convic- then sends it back to the Governor- Rex Haig, whose convictions for murder tion will be quashed, which effectively General, who rubber stamps the bu- were quashed, have further reinforced sees the CCRC second-guessing how reaucrats’ recommendations. While the concerns about flaws in our justice the Court of Appeal will act. Governor-General can issue a pardon system. used as political scapegoats, by people sion believed a mistake had been made, convictions have been overturned. Two years after England implement- (such as for Arthur Thomas) or refer Over the past decade, legal bodies, in there at the highest,” he shouted, it could refer the case back to the Court There are many reasons why people ed its CCRC, Scotland followed suit. the case back to the courts, most ap- MPs of all parties and even Parliament’s pointing to the court behind him. “The of Appeal. are wrongly convicted: faulty eyewit- Its test for referring cases is simply if plications are declined. justice select committee have called for police told us from the start that they The prayers of hundreds of prisoners ness identification; coerced or false it believes “there may have been a mis- There are many criticisms of the Royal a more open and independent system, knew we hadn’t done it. They told us and justice campaigners seemed to confessions; non-disclosure of evi- carriage of justice”, and its powers are prerogative of mercy process: it doesn’t such as a CCRC, to look at possible they didn’t care who done it. They told have been answered. Finally now, jus- dence by police; incorrect scientific or even wider – it can interview anyone investigate cases; it isn’t a dedicated unit wrongful convictions. us that we were selected and they were tice for so many might truly be done. expert testimony; police malpractice and recover documents from anybody, with specific expertise in these cases; Despite this, the current government going to frame us just to keep the peo- or blunders; poor representation by public or private. its operation isn’t transparent; it runs has shown no interest in making any ple in there happy. That’s what it’s all defence lawyers. The final opportunity to review suspect the risk of public pressure and political changes. Former Justice Minister Judith about,” he spat, every word laden with “It is better that 10 guilty persons Each year the CCRC receives about convictions in New Zealand is similar to interference because of the Justice Collins swatted aside suggestions of a bitterness and frustration. “Justice – I escape, than that one innocent suffer.” 1500 applications. Forty investigators, what England and Scotland had before Minister’s involvement; that political CCRC, insisting the current system was don’t think them people in there have Sir William Blackstone mostly lawyers, examine these cases they implemented CCRCs. It’s called the involvement contravenes the traditional sound. This position has been adopted got the intelligence, nor the honesty, and make recommendations to a board Royal prerogative of mercy and is the separation of powers between judiciary by current Justice Minister Amy Adams. to spell the word, never mind dispense he English CCRC was set up whose members have backgrounds in only course open to prisoners who have and executive; crucial decisions are left It’s also the position of the Justice it. They’re rotten.” in Birmingham, partly to ac- areas such as law, forensics, the pro- lost their appeals in the courts. (Prison- in the hands of a few bureaucrats; the Ministry, which has clung to its powers Shaken by this case and many others T knowledge the events that led bation service and journalism. Former ers whose cases were heard before New referral rate is very low, with a sense it in this area. In 2003, it conducted a re- where innocent people had been jailed to its establishment. What happened detectives are also employed to help Zealand’s Supreme Court was created favours finality over justice; only a few view of the Royal prerogative of mercy for years, the British Home Secretary 40 years ago isn’t easily forgotten in with investigations and the CCRC can in 2004 can still appeal to the Privy QCs are used to review cases; and cases system and recommended an independ- that afternoon announced a Royal Com­ Birmingham, and in a grassy park just compel public bodies to hand over in- Council – as John Barlow, Mark Lundy take too long to be reviewed – Scott ent board consider miscarriages of jus- mission into the justice system. That a few hundred metres from the CCRC’s formation and give evidence. and Teina Pora have done.) Watson, convicted of murdering Ben tice cases. However, by 2006 it had cu- commission recommended that instead office is a memorial to the victims of Only about one in every 30 cases is The system works like this. A pris- Smart and Olivia Hope, waited four riously changed its view, saying its work of the government handling miscarriage the bombings at the Mulberry Bush and referred back to the courts to be recon- oner applies to the Governor-General, years for a decision. was of a high standard and the ministry of justice appeals, a new and independ- Tavern in the Town pubs. sidered, but there are several reasons who hands the case on to the Justice Threaded through this is considerable was the appropriate body to consider ent body should be established. Any The CCRC was a world first – an of- this figure is so low, including that ap- Minister, who hands it on to the Justice concern that the system lacks true in- wrongful convictions. But not only was person who believed they’d been wrong- ficial body looking at miscarriages of plications must be based on new argu- Ministry, where officials consider dependence – what you have is one part this a subjective assessment of its own ly convicted of a crime could apply to justice – and since 1997 it’s received ment or evidence that wasn’t heard at whether a mistake has been made. In of the justice system reviewing another performance, it came despite admitting this Criminal Cases Review Commission more than 18,000 applications from the original trial or appeal – no matter high-profile cases, they may co-opt a part. How likely is it that a Ministry of there was “a modest knowledge base (CCRC), which would reconsider their people asking for their cases or sentenc- whether it was interpreted wrongly. senior lawyer or retired judge to help Justice functionary will say that police about the occurrence of miscarriages of case. There was no cost to the prisoner, es to be reviewed. It has referred 570 of Moreover, the CCRC can send cases review the case. Their recommenda- or senior judges have got it completely justice in New Zealand and the operation no need for a lawyer, and if the commis- them to the Court of Appeal, and 370 back to the courts only where it believes tion is sent to the Justice Minister, who wrong? Or that a Justice Minister will of the Royal prerogative of mercy”.

64 | NORTH & SOUTH | MARCH 2015 NORTH & SOUTH | MARCH 2015 | 65 McLaughlin. “It was just that there were more people than he thought.” MOJO’s office in Glasgow is a small room with two staff, desks cluttered with files and a poster of Martin Luther King on one wall. On another is a mon- tage of photos of the wrongly convicted prisoners they’ve freed. Paddy Hill is now in his 70s, tired, unwell and still an angry man, says McLaughlin. Sixteen years in prison broke him and nobody’s worked out how to put Paddy back together. The system, says McLaughlin, is still rotten. Despite scores of injustices being high- lighted, authorities remain reluctant to accept how often wrongful convic- tions occur, fearing it will undermine public confidence in the system. “But the system’s already undermined. The MIKE WHITEMIKE fact these people went to jail under- MOJO caseworker Paul McLaughlin. mined the system – get a grip.” McLaughlin points to the case of Victor Nealon, sentenced to life in prison in 1997 for attempted rape. Despite police The worry that patch protection and claiming no DNA evidence existed, it was

“If I’m sitting in a WHITEMIKE political concerns may be taking priority eventually discovered the victim’s over finding the truth and delivering jail cell saying, ‘I’m clothes had never been tested. When Gerard Sinclair, the Scottish CCRC’s chief executive, supports calls for changes to New Zealand’s review system. justice is compounded by statements innocent, I’m innocent, they were, they showed DNA from an- such as this, found in ministry docu- I’m innocent,’ for other man, not Nealon. The English ments: “It is important not to under- 17 years - who’s CCRC twice rejected Nealon’s applica- mine the credibility of the criminal tions and only after a third approach did justice process; the prerogative should listening?” they refer it to the Court of Appeal, lawyers and judges – can all make mis- therefore be exercised sufficiently rarely PAUL McLAUGHLIN which quashed his conviction. takes. Nor is the appeal system, including to ensure that in most cases, trial and After 17 years in prison, Nealon was the CCRC, perfect. appellate decisions are upheld, and care freed two weeks before Christmas with “Are all miscarriages corrected? I’m must also be taken not to impugn the £46, a train ticket to Shrewsbury and sure they’re not. But the question I pose jury’s fact-finding role.” and the whole community would be nowhere to stay. He has been refused when challenged by critics is, ‘What’s Critics argue that the credibility of satisfied… It is better that some inno- compensation. McLaughlin says Nealon’s your alternative?’” the criminal justice process would be cent men remain in jail than that the case shows how hard it is to achieve jus- The right of a final appeal to the better maintained not by manipulating integrity of the English judicial system tice, despite the CCRC, and how the Scottish Secretary was created in 1926. the present system, but by having an be impugned.” system brushes cases like Nealon’s under In the following 73 years, only 20 cases independent body overseeing it. Fortunately, Paddy Hill and the others the carpet. “If I’m sitting in a jail cell were sent back to the High Court. In the wrongly convicted of the Birmingham saying, ‘I’m innocent, I’m innocent, I’m 15 years since the Scottish CCRC took bombings weren’t hanged. Fortunately, innocent,’ for 17 years – who’s listening? over this role, more than 100 cases have “The law is, strictly speaking, English decisionmakers looked beyond If he’d been kidnapped and held hostage been sent back, and over 70 quashed. unconcerned with guilt or innocence. Denning’s brutal simplicity for answers overseas he’d have got intensive psycho- Under the old system, about 20 to 30 Its concern is conviction or acquittal.” and sought to establish a body that logical treatment. But if you’re kid- claims of wrongful conviction were GETTY Louis Blom-Cooper, QC would correct miscarriages of justice napped by your own government – lodged each year. Now the Scottish rather than bury them. oooh, that’s embarrassing. We don’t CCRC receives 150 applications annually “I’d certainly like to see the [CCRC] mod- Above: London, 2005. Gerry Conlon his concern with how the jus- It would be wrong to say the CCRCs want to talk about it.” which are investigated by eight lawyers. el taken up. I’ve yet to see what the bar- holds the hand of his sister, Ann, after British Prime Minister tice system is perceived, rath- in England and Scotland have been pan- In an office on the other side of the Its total cost is just £1 million ($NZ1.94 riers are and what’s stopping it. I assume Tony Blair apologised for the T er than correctness of ver- aceas, however. Many who campaigned River Clyde, the picture on the wall is million) a year and Sinclair says justice it must be political. But my advice to wrongful jailing of the Guildford dicts, was expressed more baldly by for their establishment are disillusioned a serene loch rather than Martin Luther in Scotland has improved dramatically. those who object to it is – dip your toe Four. Blair also apologised for English judge Lord Denning when rev- with the results. When Paddy Hill was King, but the aim of correcting injustice “Is it the perfect model? Well, I don’t in the water. You have nothing to fear by the imprisonment of the Maguire Seven, which included Conlon’s elations of wrongful convictions were freed, he established the Miscarriages is the same. think there is a perfect model. But I think the creation of an independent commis- aunt, uncle, cousins and father, rocking English society. “We shouldn’t of Justice Organisation (MOJO) to help Gerard Sinclair, the Scottish CCRC’s it’s a far better model than the models sion. I suspect they will probably only Giuseppe, who died in jail in 1980. have all these campaigns to get the the plight of others wrongly imprisoned. chief executive, says there’ll always be that presently exist in other countries.” be persuaded of that, not by speaking to Birmingham Six released if they’d been “He thought it would only take a wrongful convictions because everyone Sinclair is well aware of New Zealand’s us, but by speaking to the senior judiciary hanged. They’d have been forgotten year,” says MOJO caseworker Paul involved – police, witnesses, experts, situation and supports calls for change. and politicians in Scotland. We’ve never

66 | NORTH & SOUTH | MARCH 2015 NORTH & SOUTH | MARCH 2015 | 67 The requirement to “You have to be some special type of find “fresh evidence” character to allow innocent people to warrant an appeal or to go to prison knowingly... I think retrial is nonsensical. that’s a good definition of evil.” Gerry Conlon BOB WOFFINDEN ut many more people see the rather than simply review files. CCRCs in England and Scot- “The CCRC is a symbol that we’ve B land as having huge value, done something about miscarriages of despite their imperfections. justice. But the system is still broken “I’ve practised in the United States, – the criminal justice system is not without a CCRC,” says lawyer Emily looking for truth. It doesn’t matter Bolton, “and I think you have to be very what you’ve done, it’s what they can bloody careful about who you criticise prove you’ve done.” here, because the CCRC is a frigging London journalist Bob Woffinden miracle.”

also agrees that concentrating on a Bolton established an Innocence HOPKINS/GETTY HAGEN CCRC is wrongheaded. Project in New Orleans before returning Mark Lundy is welcomed to his bail address after being released from “My fundamental argument is, why to the UK and founding the Centre for prison in October 2013. Lundy served 12 years for murdering his wife and MIKE WHITEMIKE the hell can’t we make sure we get the Criminal Appeals which investigates daughter, before his conviction was quashed by the Privy Council, which London journalist Bob Woffinden thinks that concentrating on a ordered a new trial be held. Lundy’s retrial was due to begin in February. CCRC is wrongheaded. “My fundamental argument is, why the hell trial right the first time? Why don’t we wrongful convictions. She stresses in- can’t we make sure we get the trial right the first time?” concentrate our energies there? Why vestigation is the crucial part of uncov- are we concentrating on how we get ering such cases, and the CCRC’s pow- as it is in New Zealand will rely on me up all this spilt milk? It seems to me er to obtain documents and compel “For such a small begging, stealing and borrowing what- utterly ridiculous that we have a flawed witness statements was what got most amount of expenditure, ever professional assistance I can get to system and we’re focusing not on the innocent people out of jail. get people to pull together a case, and main bit of the flawed system, but on While the CCRC has specialised in- having a commission then hope the Ministry of Justice, given what comes afterwards.” vestigators, New Zealand’s current would seem to me to their very tightly circumscribed consti- He thinks the justice system’s reluc- system doesn’t reinvestigate cases and be money well spent.” tutional position, can do something tance to consider mistakes might have relies on any new evidence a prisoner about it. And to suggest that’s better than MALCOLM BIRDLING been made by police, lawyers, judges or their supporters can somehow man- having a body that’s actually funded to and juries is ludicrous. “Imagine taking age to come up with by themselves. go and do these investigations and find something back to Marks & Spencer and “It’s a classic irony, isn’t it,” says Bolton. Jon Robins of legal forum The Justice the problem – it isn’t credible.” being told, ‘Oh, I’m sorry, there can’t “The most important cases that ask the Gap says the CCRC was never going to Birdling says no matter what the truth have been a flaw, our staff don’t make hardest questions of the criminal justice be a magic panacea, nor was it going to is in cases such as Pora’s, the fact there mistakes.’ Not only would that be totally system are being done by a pack of im- stop innocent people being wrongly con- have been doubts about them for so long absurd, but it would be illegal. And yet poverished journalists off their own bat; victed. “But the C3 was a complete joke. saps public confidence in the justice sys- that’s exactly what happens at trial.” are at the bottom of the list for lawyers And to hark back to the days of the C3 tem. If there was an independent inves- Equally, the requirement to find to get to when they’ve done their paid would be completely fucking bonkers, tigative body, such as a CCRC, the cases “fresh evidence” to warrant an appeal work; and by a bunch of keen but possi- you can quote me on that.” could have been resolved much more

MIKE WHITEMIKE or retrial was nonsensical. “If the orig- bly over-enthusiastic students with no But perhaps the person with the best quickly. Michael Naughton from Bristol University established the UK’s Innocence Network. inal trial evidence was a load of cob- experience whatsoever. If your life was understanding of the UK and New Zea- “For such a small amount of expend- blers, why does there need to be new on the line, would you want to be helped land systems is a Kiwi lawyer now iture, having a commission that could evidence? Why can’t we just say, all this by that assortment?” practising in London. After training in actually assuage those doubts would was a load of cobblers. There are loads While many spoken to by North & New Zealand, Malcolm Birdling did a seem to me to be money well spent.” felt we were anything but a welcome “The CCRC is just another sticking of cases where, logically, you can’t get South argued the English CCRC had PhD at Oxford University comparing Birdling notes that while change will addition to the justice system. plaster. But a very worthy one.” new evidence.” problems – mainly to do with a lack of the CCRC with the Royal prerogative ultimately be a political decision, it “Our role is to investigate cases with- Peter Hill, journalist Woffinden has been involved with funding and the extremely high thresh- of mercy, and has recently appeared at shouldn’t be party political. “Because out fear or favour. We’re not acting for wrongful conviction cases for 30 years old cases had to surmount to be sent the Privy Council in both the Mark there have been politicians from all the Crown, nor are we acting for the outh of the border, however, and says having a CCRC simply insti- back to the Court of Appeal – there was Lundy and Teina Pora cases. He says sides of the House who’ve expressed applicant. We are acting on behalf of the there is greater concern about tutionalised miscarriages of justice. almost universal agreement it was an without doubt there are prisoners cur- a desire to change the current system interests of the public to make sure if S the CCRC model. Michael “Once it was set up it appeared not only improvement on the old system where rently in New Zealand jails who are and have understood the reasons why there is a possibility of a miscarriage of Naughton from Bristol University, who as if the country was expecting a reg- cases were considered by the Home innocent but won’t get justice under it ought to be changed and I’d hope that justice that we provide a route back to established the UK’s network of ular flow of miscarriages of justice but Office’s C3 division, similar to what -oc the present system. would coalesce around a movement to the appeal court to be reconsidered. Innocence Projects, where students in- that it was prepared to tolerate this. curs in New Zealand. “The CCRC will go out and get to the change the system. I’d also hope it “I think it’s very cost effective, it as- vestigate wrongful conviction cases, has My view remains that it would be As Louise Shorter, an investigative bottom of things and, if it’s warranted, wouldn’t take 20 years.” + suages public concern, and those work- been one of its strongest critics. He ar- hugely beneficial to abolish the CCRC journalist who established the Inside conduct investigations and then deter- ing in the justice system see it as a very gues the CCRC is too cautious in sending now, today, because then, to quote the Justice lobby group, put it: “Anything mine if there’s something that requires • Mike White researched this story useful tool – so I don’t understand cases back to the courts and says it needs Van Morrison song, we’d get down to has got to be better than having a gov- the attention of the appeal court. Where- during a Wolfson Press Fellowship what the issues are.” to reinvestigate cases more thoroughly what is really wrong.” ernment department doing it.” as the Royal prerogative of mercy system to Cambridge University.

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