How to save the innocent from prison Evan Whitton* writes: In terms of human rights and civil liberties, legal functionaries, including lawyer- politicians, must have an obligation to try to minimise the risk of citizens going to prison for crimes they did not commit. It appears that functionaries in the lawyer-run adversary system in England and its former colonies feel no such obligation. At least 1% of people in prisons are innocent; in the US, 5% of prisoners, some on Death Row, are innocent, i.e. 50 in every thousand. For example: Timothy Evans, Mahmood Mattan, Derek Bentley (all hanged in England), the Birmingham Six, Max Stuart (who got within nine hours of the Adelaide gallows), Lindy Chamberlain, John Button, Andrew Mallard, etc, etc. Part of the problem is that functionaries Tind it hard to admit that the adversary system can get it wrong. That suggests they are in denial caused by self-deception. Bibi Sangha, Kent Roach and Robert Moles noted in Forensic Investigations and Miscarriages of Justice (Federation Press, 2010) that Australian High Court judges have endorsed the view that a convicted person who lost an appeal “has no legal right to a further appeal” even if new evidence is found. The functionaries have had no excuse since 1992, when oficial research generated by the Birmingham Six debacle showed how to protect the innocent. The Six were wrongly convicted of murder in 1975, partly on false confessions obtained by torture, partly on wrong forensic evidence, partly because the untrained judge, Nigel Cyprian Bridge, told the jurors the Six were guilty, and partly because the rule of law at the time was that suspects were presumed innocent until proved Irish. In 1986, reporter Chris Mullin’s Error of Judgement: The Truth about the Birmingham Pub Bombings demonstrated that the Six were victims of a perversion of justice. In 1987, Lord (as he now is) Charlie Falconer QC came across Justice Igor Judge brandishing a copy of Mullin's book. Judge said Mullin is “a communist engaged in an assault on the criminal justice system.” Falconer said: “But supposing he is right?” Judge’s answer was incoherent. In 2008, Justice Judge became Lord Chief Justice. ‘Better some innocent remain in gaol…’ In 1989, Lord (Alf) Denning, who had been head of the appeal court, said: “It is better that some innocent men remain in gaol than that the integrity of the English judicial system be impugned … Hanging ought to be retained for murder most foul. We shouldn't have all these campaigns to get the Birmingham Six released if they'd been hanged. They'd have been forgotten, and the whole community would be satisTied.” Two years later, the appeal court quashed the Six’s convictions; a Royal Commission into the criminal system followed. The inquiry ordered research by Professor Leonard Leigh and Lucia Zedner into how suspects are treated in inquisitorial (truth-seeking) systems. They produced A Report on the Administration of Criminal Justice in the Pre- Trial phase in France and Germany (Her Majesty's Stationery OfTice, 1992.) Unlike our system, the French and German systems do their best not to charge the innocent. In major cases in the French version, a trained investigating magistrate (juge d’instruction) supervises detectives and assembles a dossier of evidence against and for the suspect. Leigh and Zedner reported: “The low acquittal rates in France and Germany and the apparent paucity of cases of unjust convictions are the product of the care taken in the initial stages of the criminal process. A series of pre-trial Tilters also ensures that the innocent are rarely charged, let alone convicted (emphasis added) … “At the end of the instruction [investigation] the accused’s lawyer will be given an opportunity to examine the dossier and to make representations before the prosecutor decides whether or not the matter should proceed further. “If the prosecutor, on receipt of the dossier from the examining magistrate, believes that the case should proceed, he will transfer the ile to the chambre d’accusation. This court then assesses the correctness of the decision and thus serves as a further ilter in the system. It may order that the case proceed, that it be dropped, that the charges be re-assessed … “This court also sits in appeal on refusals of pre-trial liberty and on refusals by the examining magistrate to order investigations into matters suggested by the defence.” Inquisitorial system should lead the way Michael MansTield QC, who represented Tive of the Birmingham Six, published Presumed Guilty: The British Legal System Exposed in 1993, before the inquiry reported. He recommended that all the apparatus of the French inquisitorial system, including the juge d’instruction, be used in the pre-trial investigation, but that the adversary system be used for the trial. The inquiry rejected the inquisitorial system even for the pre-trial investigation. The reason given was: “Every system is the product of a distinct history and culture, and the more different the history and culture from our own, the greater must be the danger that an attempted transplant must fail.” A number of points can be made about that assertion: • It is a nonsense. The inquisitorial system was used by the Royal Commission itself, and is also used for inquests in England and Australia, and in Australia for standing commissions on corruption. • The race card – Wogs begin at Calais – is always a winner in England. Professor Richard Jackson said “an insular dislike of things foreign” was a reason that a few [corrupt] judges Tirst rejected the inquisitorial system in 1219. • Racism can mask something else. In 1219, bribe-taking judges no doubt preferred not to have to seek the truth. The inquisitorial system is much less proTitable for lawyers than the adversary system. In lieu of real reform, the inquiry recommended a Criminal Cases Review Commission (CCRC), which also uses the inquisitorial system. Despite resistance from legal functionaries, Australia obviously needs a CCRC, but even that could only cure perversions years after the event when, as Leigh, Zedner and MansTield showed, prevention is possible. Unfortunately, lawyer-politicians have effectively been an oligarchy in Parliament since the 14th century. There can be no real reform until their percentage of the legislature reTlects their percentage of the population: one-ifth of one per cent. Until that happens, the innocent will continue to rot in prison. ENDS * Evan Whitton is now a legal historian. He has won Jive WalKley Awards for Journalism, and been Australian Journalist of the Year. Miscarriage of Justice expert, Dr Bob Moles, said Whitton’s booK, Our Corrupt Legal System, “should be required reading on Introduction to Law courses in all law schools”. Starving law students and other victims of the system can download it free from a section of Dr Moles’s website: netk.net.au/ whittonhome.asp CLA Civil Liberties Australia Inc. A04043 Box 7438 Fisher ACT Australia Email: secretary [at] cla.asn.au Web: www.cla.asn.au.