In response to the BBC’s findings of a 70% increase in cases collapsing due to failings by police and prosecutors to adequately disclose evidence

Today (24th January 2018), the BBC carried a front-page story under the headline, “Hundreds of cases dropped over evidence disclosure failings”.

In response, the Centre for Criminal Appeals said:

“The recent BBC findings of a systematic failure of the police and the CPS to appropriately handle disclosures of evidence resonate with our experience investigating miscarriages of justice in England and Wales. The BBC findings underscore what we have been saying for the past two years – poor disclosure protocols lead to miscarriages of justice and innocent people being sent to prison. We have seen time and again in the cases of the clients we represent, how a mishandling and incompetent analysis of evidence has led to wrongful convictions. And these mistakes only become more difficult to rectify post-conviction.

It is for precisely this reason we launched the Open Justice Charter in partnership with other lawyers, academics and journalists, calling for greater transparency and openness in our justice system. How can the public place trust in our justice system when these failings are exposed? We call on the new Justice Secretary David Gauke to urgently overhaul the system to ensure disclosures are properly handled by the police and the CPS, so that people accused of crimes can properly defend themselves with the evidence available.”

Life after 14 years in prison maintaining innocence

Here, one of the people we represent – who has always maintained innocence – describes the experience of leaving prison without having had the conviction overturned by the Court of Appeal.

I have been out of prison for almost 2 weeks and I can tell you that things are more difficult than imagined.

The journey away from the prison was a curious experience. Having spent 14 years inside, constantly maintaining my innocence, the process of release was traumatic. Even to the last minute inside I was assumed guilty, and I had staff telling me to use the skills I had learned during offending behaviour work to ensure I don’t “reoffend”.

On the train, it felt almost as if I was entering a new world. In prison people were used to me continually maintaining innocence and now I was moving to a world where I would just be considered an ex-offender, with no recognition of innocence or maintained innocence. With each mile along the train tracks, I was moving away from my recognised stance.

Now I am feeling like I am devoid of energy. I had let myself believe that once I left prison I would be able to focus more on clearing my name, but if I am honest I have very little time at present. Simple things like sorting our benefits are difficult. A lack of ID makes the free world so much harder to engage with. I have also been advised to change my name –that in itself is a difficult thing. The lack of ID in my current name makes it complicated but, more than that, it feels as though by changing name I am saying that my name is a criminal name which I don’t want to be associated with.

And I suppose I should admit that I am, for the first time allowing myself to feel. I feel resentment now. I never allowed myself negative feelings about my situation whilst I was incarcerated as I didn’t want to waste energy. Now though, I cannot help but feel. I am having to rebuild a life, in extremely difficult circumstances, when I should never have lost the life I had. Normally, after a great trauma, a person can lean on family and/or friends for support. But having been inside for so long I have lost all of these. I have lost everything, through no fault of my own, and the idea and reality of having to try to rebuild some form of normality is a daunting task.

Judge admits that up to 18% of council tax imprisonments a year may be ‘unlawful’

A judgement handed down today by the High Court in Cardiff outlines that individual errors in council tax non-payment cases may mean that between 9.5 and 18% of committals to prison for debt are unlawfully handed down each year.

Lord Justice Hickinbottom’s analysis of 95 individuals sent to prison between April 2016 and July 2017 found that between 9 and 17 individuals will have been sent there unlawfully because the court ordered repayment over an excessive window of time.

The judgement relates to a legal challenge, launched with the help of the Centre for Criminal Appeals, alleging that systematic failings have led to high rates of unlawful imprisonment for council tax debts.

The Claimant, Melanie Woolcock, is a single mother from Wales who was unlawfully sentenced to 81 days in prison for falling behind on her council tax payments after becoming unemployed. Ms. Woolcock successfully challenged her sentence in January 2017, and brought judicial review proceedings to prevent people in council tax debt losing their liberty unlawfully.

Barrister Cathryn McGahey QC arguing on behalf of the Claimant places the number of unlawful committals to prison a year at a much higher figure of 52%. She alleges that incorrect means assessments, or an erroneous judgement that failure to pay was because of ‘culpable neglect’ or ‘willful refusal’ are additional reasons why such imprisonments may be unlawful.

The judgement finds that individual errors are to blame for the high number of mistakes and states that oversights made by a proportion of magistrates in council tax cases does not amount to a systematic deficiency. It acknowledges that “Ms McGahey appears to be right to condemn the relevant magistrates (and their legal advisers) as being ignorant of well-established law”. The judgement suggests that further training and guidance may be issued to legal advisors and solicitors to address these problems.

Naima Sakande, Women’s Justice Advocate at the Centre for Criminal Appeals said:

“The price of ignorance in these cases is simply too high. The judgement has exposed some deep failings in the council tax system. The toll of being sent to prison unlawfully cannot be overstated and more must be done to protect society’s most vulnerable from needlessly losing their liberty. Poverty is not a crime and our judicial system needs to do more to acknowledge this.”

Open Justice Initiative: MP raises lack of trial transcript access in Commons debate

Lucy Powell MP has raised in the House of Commons the issue of the lack of access to trial transcripts, which currently inhibits miscarriage of justice enquiries.

Powell asked Justice Secretary David Lidington to "look at making the courts more transparent" and "particularly allowing defendants and those that have been sentenced to get transcripts and copies of the judge's direction to the jury".

Powell told the Commons "in potential miscarriage of justice cases this can be incredibly difficult to get".

All Crown Court proceedings in England and Wales are digitally audio recorded, however accessing these recordings often proves difficult. At present, obtaining trial transcripts can be prohibitively expensive, running in tens of thousands of pounds which legal aid is unlikely to cover the cost of. Moreover, current retention policies mean that the digital audio recordings on which transcripts are based are destroyed after just 7 years. 

This hampers investigations into potential miscarriages of justice as without a full transcript, it is not possible to work out exactly what happened at a trial - including what precisely witnesses said and whether the trial was fair.

More freely available transcript access was one of the reforms called for by the Centre for Criminal Appeals in the Open Justice Charter, which it developed in conjunction with academics and journalists.

Lidington said he would be providing a written response to Powell's question.

Disclosure failings outlined in new report raise miscarriage of justice concerns

Police and Crown Prosecution Service disclosure failings outlined in a new report increase the risks of miscarriages of justice occurring in criminal cases, according to the Centre for Criminal Appeals.

The CPS Inspectorate report’s findings also underpin the need for greater access to police files following a conviction in order to ensure unsafe convictions can be corrected, according to the Centre.

The report, published yesterday, found that in 40.7% cases, police did not fully meeting their disclosure obligations – up from 38.5% in 2015.

In criminal cases, the law requires that the CPS to hand over to the defence any material that may undermine the prosecution case or assist the defence case.  The study found that in only 56.9% of cases prosecutors fully complied with this ongoing duty. Where sufficient disclosure does not happen, miscarriages of justice can result. 

The main police disclosure failings uncovered by the report included the police failing to reveal the previous convictions of witnesses, an issue discovered in 10.1% of cases.

Other disclosure failings including the police listing items gathered during the course of their investigation wrongly, providing poor descriptions of them, or failing to provide a list of such material altogether.

Commenting on the report, the Centre’s Managing Director Suzanne Gower said:

“The disclosure failings exposed by this report are deeply concerning to anyone who rightly expects our justice system to ensure innocent people aren’t wrongly imprisoned.

“The report also shows the need for greater transparency from the police and CPS. We frequently find our ability to investigate miscarriage of justice cases is hampered by not being able to access their documents even after conviction.

“In much of the United States, police files and prosecutor files on a case become a matter of public record once a conviction is made. In England and Wales we are far less transparent – and it is miscarriage of justice victims who lose out as they are prevented from being able to prove their innocence.”

No longer in prison: Melanie's sentence is quashed

by Rona Epstein, Research Assistant, Coventry Law School, Coventry University

Well done Sam Genen and Rose Grogan for taking this case on and getting such a good result! This is an important decision.

How did it all start? Usually people sent to prison for not paying council tax get no help. They receive no advice about bail. They do their time. They never imagine that it is an error in law that has put them in a prison cell.  Owing money is not a crime.

This is what happened in this case. A few months ago I wrote an article on council tax debt for the magazine Ready, Steady, Go! which is published by Women in Prison and sent to all the women's prisons. It explained the law about owing council tax and what should happen if someone has difficulty in paying the tax they owe.

Melanie, a single mother in poor health and in financial difficulties, read the article while she was in prison.  She was serving a sentence of 81 days imprisonment for owing council tax. She wrote to Women in Prison asking for advice. Women in Prison contacted me and I then spoke to staff at the Centre for Criminal Appeals who asked Sam Genen and Rose Grogan to act for Melanie. They got Melanie out of prison on bail, and later there was a court hearing. The judge declared that sending Melanie to prison because she owed council tax was an unlawful decision. The magistrates had made a number of serious mistakes.

We are all working now to get this unjust law changed. No one should serve time in prison because of a civil debt. The law is set out here.

Imprisonment of single mother over council tax debt unlawful – High Court

A High Court judge this morning ruled that a committal to prison for 81 days of a single mother who was unable to pay her council tax debt was unlawful.

In his judgment, the Hon. Mr Justice Lewis made clear that magistrates had failed to assess Melanie Woolcock’s financial means and had no basis for concluding her failure to pay was because of ‘culpable neglect’.

Ms. Woolcock of Porthcawl, Wales had been unemployed after working part-time in addition to caring for her school-age child and assisting with the care of an elderly neighbour when she fell behind on her council tax payments.

Ms. Woolcock was then arrested by bailiffs on 8 August 2016 despite days earlier making a payment towards her outstanding debt. She served 40 days of her prison term before the Centre for Criminal Appeals assisted with successful efforts to secure her release on bail.

The Centre is now preparing to intervene in a judicial review of the legality of the current system by which people are committed to prison for non-payment of council tax.

Such a challenge would focus on whether the present system violates Article 6 of the European Convention of Human Rights, the right to a fair trial.

Each year around 100 people are imprisoned for non-payment of council tax, according to figures supplied by the Ministry of Justice.

Extensive research by the Centre for Criminal Appeals indicates that such prison committals have almost always been found to have been unlawful when reviewed by the High Court.

Helen Ball, a volunteer researcher at the Centre, has identified and reviewed 145 cases since 1980 where a person’s committal to prison for non-payment of dues such as fines, council tax and the community charge has been ruled unlawful in the High Court.

She said: “In these cases, magistrates have often incorrectly concluded that there’s been culpable neglect or a wilful refusal to pay. Moreover, magistrates have regularly failed to properly assess a person’s ability to pay and to consider reasonable alternatives to prison.”

Suzanne Gower, Managing Director of the Centre, commented: “I’m pleased that the High Court has ruled that sending this single mother to prison because of her inability to pay council tax was unlawful. It is truly shocking that in the 21st Century over 100 vulnerable people are being imprisoned each year for being poor.

“I hope the Government will work with us to put an end to similar cases. The current system is Dickensian and benefits no one.”

NB: Sam Genen, consultant at law firm Ahmed Rahmann Carr and now head of the Centre’s Women Sentencing Project, acted as Ms. Woolcock’s solicitor in this case. Barrister Rose Grogan of 39 Essex Chambers appeared on behalf of Ms. Woolcock at the judicial review hearing held on 9 November 2016 in Cardiff.

Open Justice Charter launched

Today has seen the launch of the Open Justice Charter, a set of transparency demands that would increase accountability in England and Wales' criminal justice system and make it easier to correct miscarriages of justice.

The Charter was developed by the Centre in conjunction with Marika Henneberg at the University of Portsmouth, Dr Dennis Eady at the University of Cardiff School of Law, and Louise Shorter at Inside Justice and others.

The Charter was published in the second issue of the Justice Gap's Proof magazine. You can order a copy here.

An article on the Justice Gap website announcing the launch of the Charter, which includes a Q & A with Emily Bolton, the Centre's Legal Director, can be read here.

Click here to view the Open Justice Charter itself.

Lawyer behind successful prison book ban challenge to lead women sentencing project

The lawyer who overturned the ban on prisoners receiving books from their loved ones is to lead a project challenging the imprisonment of women for minor, non-violent crimes.

Sam Genen, who has an impressive track record of fighting for the rights of women prisoners, including by challenging the invasive strip searching of women in several prisons, joins legal charity the Centre for Criminal Appeals this week.

A former Times lawyer of the week, Sam will lead the Centre’s Women Sentencing Project, which aims to cut the destructive use of prison terms to punish women for minor, non-violent offences, such as nonpayment of council tax.

Nearly 10 years after the landmark Corston Report exposed the failings surrounding the imprisonment of women, it remains the case that single mothers, victims of abuse and individuals suffering from addictions are all too frequently being given stints in jail instead of the support they need.

Suzanne Gower, Managing Director of the Centre, commented: “Throughout his career Sam has proven himself to be an innovative and creative lawyer and a committed and fearless advocate for the rights of women prisoners. I have no doubt he will excel in this new role, challenging the senseless and unjust practices that currently see so many women locked up instead of given the help they need.”

Sam, commenting on his appointment, said: “I am flattered to be taking over the already impressive women’s sentencing project.  The Centre for Criminal Appeals is an amazing charity and I hope to have a tangible impact.” 

Top Hillsborough lawyer joins Centre as new Managing Director

A solicitor who represented the Hillsborough families is now turning her efforts to overturning wrongful convictions as our new Managing Director here at the Centre for Criminal Appeals.

Suzanne Gower, who has spent the last three years as Senior Case Officer on the legal team that represented 22 families of the Hillsborough Disaster during the historic inquests which found the 96 victims had been unlawfully killed, begins her new role this week.

A skilled and experienced criminal defence solicitor who also has experience investigating death penalty cases in the US, Ms Gower aims to bring the intensity of focus deployed by the lawyers and investigators in the Hillsborough case to the Centre’s miscarriage of justice work.

Ms Gower replaces Sophie Walker, who has been the Centre’s director since February 2014 and is leaving next month to start a pupillage at 1 Pump Court Chambers. Since joining the Centre, Ms Walker has overseen its establishment as both a charity and a legal aid law practice, and filed applications to the Criminal Cases Review Commission on behalf of several wrongly convicted prisoners.

"I am really excited to be starting work in an organisation so committed to fighting for justice for those who should never have been sent to prison in the first place," Ms Gower said.

"As it was a scandal that the Hillsborough families had to wait so long for justice, so we should be outraged that our current legal system leaves people who have been wrongfully convicted waiting years for the courts to correct their mistakes.

"I plan to build on Sophie’s achievements and ensure the Centre acts as a mechanism for achieving much needed improvements in how we hold our police and courts accountable."

Outgoing director Sophie Walker commented: "Suzanne’s wealth of experience tenaciously advocating for justice on behalf of her clients – from the Hillsborough families to those facing execution in the States – means she is ideally suited for this role.

"Sustained underfunding of our justice system means that talented lawyers like her are needed more than ever to ensure our courts are handing down accurate verdicts."

Is that still all you’ve got, Mr Cameron?

A response to David Cameron's prison speech

It was refreshing to hear a Prime Minister, and a Conservative one at that, promising to introduce some of the reforms that prison campaigners have been calling for since records began. It is also surprising to find so many areas of agreement with David Cameron.

It is true, for example, that reoffending rates are too high and that the experience of many within prison walls is inadequate and shameful.

However, Cameron opened his speech with a strange claim to fame – that he was the first Prime Minister in 20 years to do a speech just about prisons. Putting aside the fact that for more than a quarter of that, he’s been the PM, and the more recent deluded contribution to the debate by Mr Gove, there are good reasons not to consider prisons in isolation.

Prison is only the tip of the criminal justice iceberg.

It is the place of last resort and the worst-case scenario.

Discussing prison in isolation from the rest of the criminal justice system is deeply unhelpful. What happens in the police station, the court and the community are significant, essential elements of the solution.

Every one of the principles of reform that Cameron laid out applies just as much, if not more, to those professionals engaging with vulnerable people outside, but at risk of going into, the prison system.

It is absolutely right to explore more effective ways to help people who are in prison improve their literacy and kick their drug habit. But it is far more effective to do this before they are incarcerated. To see these two as distinct from each other is to miss valuable opportunities to have a far greater impact.

Structural imbalances are exacerbating disadvantage

For some the inadequacy of the current system is even more potent.

Women are being imprisoned more often than men, further from home and in inappropriate institutions – nearly all of the women’s prisons are the highest category, which only a tiny proportion of the female prison population has been sentenced to. 70% of women in prison are on remand, and never receive a custodial sentence. It is not because they need to be there, but because resources are not being invested in the alternatives.

Although 71% of them will be in prison for 12 months or less, while they are there, many, many of them are losing their children, their homes, their jobs and any stability they had. They are experiencing extremely high rates of mental illness and self-harm. There is ample evidence that prison for women, particularly those who serve short sentences for minor, non-violent crimes, exacerbates the problem.

This is not a new realisation. The evidence was highlighted 10 years ago by Baroness Corston. She concluded at that time that “Custody as it exists today is disproportionately harsher for women than men,” and still far too little has changed.

Cameron’s speech, and Gove’s subsequent offerings, are incredibly thin on the ground in terms of any concrete suggestions about what, other than the current arrangements, might work. The eggs seem to be mostly in the electronic tagging basket.

By focusing so much attention on the concern for where an individual is, Cameron is treading the old path that Gove is a such a keen proponent of, and which has led to the inadequate prison situation. Restricting someone’s movements does nothing to address the elements of their life that led to their conviction. It is unclear what “chances for change” Cameron has in mind.

There is potential within the existing system

We talk about a criminal justice system for good reason – people move through its various elements, often circling in and out due to re-offending, or breaches. Changes at various points have implications elsewhere. Understanding what works means looking at the whole system.

It might be that there are solutions that exist in other unexpected corners of it that can contribute to the outcomes desired further down the line. There are potentially powerful provisions within the legal system that are not yet being used to their greatest advantage. For example, Cameron may not wish to make changes to the sentencing powers of judges, but what about looking at how magistrates, judges and juries get their information? Perhaps better use of pre-sentencing reports, for example, would ensure that courts are getting a rounded view of an individual, and so allow them to make an informed decision about what the most appropriate sentence might be.

For this to work we need to connect lawyers, jurors, the judiciary and all those working in alternatives to custody with those in the prison system.

There are many aspects of what Cameron is proposing that do have promise, but it is not enough. Not only are there signs that there is little meaningful intention behind the rhetoric, particularly from the Minister who will be responsible for implementation. For us to see the real change that we need, it is essential to think more co-operatively, more boldly, and more openly. Only then we will see the turn around that will make a difference.

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How long is it acceptable for a person to have to remain in prison for a crime they did not commit?

By Emily Bolton

That is the question at the heart of the report issued by the Justice Select Committee today on the performance of the Criminal Cases Review Commission.

Thanks to cuts to the funding of the Commission, the answer appears to be “two and a half years” — minimum.

Human beings make mistakes and no system has more human parts than the criminal justice system. Imagine you have been sent to prison for a crime you did not commit. How does the system deal with this? How quickly can it correct its mistakes? How long should it take to set things right?

Convictions can only be overturned on the basis of “fresh evidence”. This means someone is going to have to go out and find it. That won’t be the police, as their job is done once the case comes to court. Your trial solicitor can file a form for you asking for an appeal. However, the funding regime for such appeals does not envisage any street level investigation being done. Instead it allows for a trial barrister to highlight any errors in the judge’s conduct of the trial. As “fresh evidence” is typically an ‘unknown unknown,’ the trial barrister is unlikely to find it in the record. So, a first appeal will probably fail. That will take place six months to a year after conviction. In practice, this means that anyone wrongfully convicted in this country will definitely spend 6 months to year in prison before the system can even begin to address the mistake.

The long and uncertain road to the Court of Appeal

In 1997, the Criminal Cases Review Commission was established to step in at this stage, review the case, look for fresh evidence and, where it deemed it appropriate, send the case back to the Court of Appeal. This will start at the earliest, six months after conviction.

But the Commission’s funding has been drastically cut over the last decade (from £8.1 million to £5.1 million), while the number of prisoners complaining of mistakes has increased by 60%. This means that the wrongfully convicted prisoner will wait a further 18 months for a decision from the Commission. That brings the prison time served to two years. Then the case must come back to the Court of Appeal — which, with scheduling and preparation for a hearing at the court, may add another 6 months.

This means that anyone wrongfully convicted in this country must serve, under the current system, at the very least two and a half years of their sentence before it can be rectified. That is two and a half years in prison, away from your family, your work, your business, your life. What can you lose in that time?

Sophie Walker and Emily Bolton are two lawyers who specialise in appeal cases. In the last twelve months they have seen the toll this delay can take on a family. One prisoner client lost the chance to see his mother again alive. He was not permitted to attend her funeral. A second prisoner has been waiting over 115 weeks for the Commission to take a view on his case, and risks his life by hunger striking. A third prisoner was about to propose to the love of his life when he was arrested — now he fears he will never get that chance. A fourth prisoner had worked for years building up a small business at considerable personal sacrifice of labour and comfort for his family — that business has now dissolved and his wife and children struggle to hang on in the family home.

We firmly believe that these prisoners’ cases will ultimately be exposed as miscarriages of justice. They will be freed. Their experience will leave them with all the scars of a kidnap victim, but little of the recognition. If they are able to win compensation for their ordeal, it will be capped at £500,000. They will be suffering from post-traumatic stress disorder, depression, anxiety, for which they will need life-long treatment. Nothing can compensate a person for the losses that these prisoners will have experienced by the time they are set free.

But the system can and must attempt to prevent them from occurring in the first place and the simplest way of doing this is to fund the CCRC properly. The Justice Select Committee recommended an increase of £1 million to the budget of the CCRC. That doesn’t even begin to address the problem. The Commission needs to be funded to a level that it can refer miscarriages of justice to the Court of Appeal within three months of receiving an application, maximum. The Commission keeps good data on its performance costs and so this figure should not be difficult to work out. Funded at this level a wrongfully convicted prisoner has a small chance of seeing freedom within a year. Even that is too long, but it’s a start. All the prisoners represented by Emily and Sophie would have been out by now under such a funding regime. They would not be able to stave off the mortality of their loved ones, but at least they would be there with them at the end, rather than waiting behind bars for the dreaded phone call.

The case of Jamie Green and the Freshwater Five

Jamie Green and his four co-defendants (collectively known as the Freshwater Five) have been waiting for justice since they were arrested in May 2010. Their proceedings were riddled with late disclosure, presentation of misleading evidence and even jury tampering according to a whistle-blower on the jury. The five men are now serving a total of 104 years in prison.

They were convicted of using Jamie’s fishing boat to collect drugs from a container ship mid-Channel and transporting them to Freshwater Bay off the Isle of Wight. Evidence suggests that the five men were just in the wrong place at the wrong time — in their search for lobster and crab, they had unwittingly sailed straight into the middle of a failed drug surveillance operation and got tagged and arrested seemingly for want of better suspects.

When £52 million worth of cocaine was found in Freshwater Bay the next day the police became convinced that they must have the right people in jail after all and apparently retrofitted the case against them — including bending evidence regarding the positioning of the container ship and observations made of Jamie’s fishing vessel. The case of the Freshwater Five is now before the Criminal Cases Review Commission for further investigation.

The case of Roger Khan

Roger Khan has been waiting for justice since he was arrested in November 2010. He was accused, along with his nephew, of the attempted murder of his nephew’s brother-in-law, when his DNA and fingerprints were found in a car he had ridden in alongside his nephew. Roger maintains he had no knowledge of what his nephew went on to do that day after dropping him off.

Roger ended up without a lawyer to represent him at trial, as those he was assigned did not act promptly enough to secure CCTV footage of his alibi. When he complained of this to the judge, he was left with the choice of these lawyers or no lawyers. Papers he had never had the chance to read piled up beside his desk in court in bin liners.

He was convicted despite DNA evidence pointing to someone else being responsible for the beating. He has been trying to get the evidence before the court of appeal for over three and a half years, but has been stymied by the system. His case has been before the CCRC now for more than 115 weeks.

Utterly frustrated by the lack of progress, Roger says “I don’t want sympathy, I just want a chance to present the evidence. Just look at the DNA. I wasn’t there, so why am I here?”

Sometimes pleading guilty’s the only option an innocent man has

By Emily Bolton

Tonight, “Chicken” George Toca can have a bath if he likes, for the first time since 1984.

At the age of 17, he was sent to prison for life, for a crime he did not commit. They do not have baths at Louisiana State Penitentiary.

While Chicken George maintained his innocence, the system would not let him out. Only now that he has entered an entirely fictional plea of guilty to a lesser offence, is he free.

For the 9 years I worked such cases in the United States, I was told by visiting English volunteers that such atrocities would not occur in the English system.

In one sense they were right — in England, because the sentencing regime is different, you might only serve five or ten years. Unless you were sentenced indeterminately for public protection. Or you insisted on maintaining your innocence, which would mean not getting parole as you had not taken responsibility for your “offending behavior.” What an expression. If my son had been murdered, I would not call what had happened “offending behavior.”

Jeanetta Batiste’s son, Eric, Chicken’s best friend, was murdered in 1984, shot inadvertently by Edison Learson, who was acting as his partner in an armed robbery.

The Rt Hon. Lord Justice Sedley has observed that nothing has more influence over who you believe than who you are. The people who decided on what to believe about who killed Eric Batiste picked on Chicken George, simply because Chicken and Eric were best friends and assumed best friends do everything together, including armed robbery. No further details were required.

Jeanetta Batiste knew it wasn’t Chicken George who killed her son. For 31 years she asked for justice for George and for Eric. But because of who the decision makers were, they decided not to believe her, or the other witnesses, to whom Edison had confessed. Imagine losing your son and then knowing that his death had been made the pretext for a travesty of justice for another young man, for 31 years.

Chicken George’s freedom was won by Innocence Project New Orleans, a non-profit law practice that I once worked for, dedicated to fighting appeal cases for wrongfully convicted prisoners in the deep Southern United States. Chicken’s case was one of the very first we began to investigate, back in 2000. His freedom was ultimately won by persuading an innocent man to plead guilty. The racism built into the American criminal justice system meant that he could never be sure that the people who decide who to believe would ever change their minds and believe the black witnesses who said that Edison Learson shot Eric Batiste. Therefore this plea was unquestionably the right thing to do. Had Chicken George kept fighting, he would most likely have spent the next 31 years in prison as well, if he lasted that long.

But that couldn’t happen here in England, right?

Since starting work on a similar project here in this country, it has become very clear that it not only could happen here, but is happening here. We have heard from English prisoners who cannot get parole because they won’t admit the crime. Prisoners whose legal aid lawyers failed to investigate their alibis. Prisoners whose prosecutions were a “Hail Mary” by a police force that had failed to find evidence necessary to be able to prosecute the real perpetrator. Prisoners just like Chicken George Toca.

The state has stolen 31 years of Chicken George’s life. He is going to need more than a bath to restore him. And the prisoners we represent on appeal are a long way from being home and hosed — they need a whole lot of lawyering before we get them back on the right side of the bars, and in doing so persuade this country’s criminal justice system to clean up its own act.

Serial: A British Criminal Lawyer’s Perspective

By Sophie Walker

I have started using the Serial podcast as my motivational soundtrack.

I play it as I am driving up to a witness’s house to prepare myself for the interview. Or when I have a tricky phone call to make to a prisoner or their mum. Like Serial’s presenter, Sarah Koenig, my job is to investigate old murder cases that bear the hallmarks of a miscarriage of justice.

However, my job differs fundamentally from Koenig’s because, as a criminal appeals lawyer, I represent the Adnans of this world. I identify and interview new witnesses and gather records that the trial lawyers can’t find in order to test the Crown’s case against the defendant. If the Crown’s case crumbles, I use this fresh evidence to challenge prisoners’ conviction and sentence in the Court of Appeal.

As the media-savvy amongst will know, the Serial podcast centres on Adnan Syed, a young man currently serving a life sentence for strangling his ex-girlfriend, Hae Min Lee, when they were both still at high school. From prison Adnan maintains his innocence, and each week Sarah Koenig investigates a different strand of the case. The last podcast of the series airs today.

Despite the fact that Adnan was convicted in Baltimore, and I work on cases from Birmingham to Bolton, there are many parallels between his case and the miscarriage of justice cases here in the UK.

The first episode of Serial ends on a cliff-hanger as Koenig finally traces a witness who says she saw Adnan in the local library at the time the prosecution said he was killing Lee. This information didn’t come out at trial because Adnan’s defence attorney never interviewed this witness.

The failure to develop alibi evidence is also a theme in miscarriages of justice cases in the UK. One of my clients (I will call him John) gave up on his cash-strapped Legal Aid lawyers after they failed to take the time to investigate his alibi, leaving him to represent himself at a three-week Crown Court trial in which he was convicted and sentenced to thirty years in prison. Recent fresh investigation has uncovered not only evidence of John’s alibi but also an alternate suspect with a far stronger motive to commit the offence, providing the material to challenge his conviction at the Criminal Case Review Commission.

Under-resourced criminal defence lawyers often struggle to find the time to speak to witnesses or request CCTV footage before memories fade and data evaporates. Some UK solicitors even assume this is not their job, and that investigation is solely a province for the police.

In the absence of physical evidence connecting the defendant to the crime scene, the prosecution in Adnan’s Syed’s case resorted to tracking his movements using data gathered from his mobile phone, and specifically cell site evidence. By identifying the phone mast closest to the phone at the time each call was made, it was possible to map the location of his phone. On both sides of the pond, this type of evidence has received sustained criticism. Mobile phone signals do not always use the tower closest to it, tower signals overlap and the range of a tower constantly shifts.

In another recent case the Crown relied on cell site evidence to convict a young man who I will refer to as Liam of a murder, despite there being no physical or eye-witness evidence connecting him to the crime. The cell site evidence put him in the vicinity of the crime scene. It also put him in either his parents’ or his sisters’ homes, both of which were round the corner from crime scene.

So, I listen to Serial for inspiration, but another emotion has crept in too — envy.

I’m jealous of Sarah Koenig and her team, as they have so many more tools at their disposal when investigating this case than I do as an English lawyer.

In order to understand the case against Adnan, Koenig examines not only the transcript of the trial, but she also listens to audio clips taken from a video of the trial. In England, getting hold of trial transcripts is prohibitively expensive. I was recently quoted £21,000 for the cost of transcripts for a 19-day trial. Without it, I am left piecing together what happened at trial from the judge’s summing up and the defendant and lawyers’ recollections.

Second, Koenig describes hiring at least two private investigators, including one who speaks Korean, who work for months to help her trace witnesses. She also uses an array of experts to support her work. She speaks to Adnan for hours by phone and interviews witnesses on multiple occasions. As she develops a rapport with witnesses, you hear them open up to her and share more information.

This sort of work is becoming harder and harder to do in the UK, for one simple reason. The legal aid cuts.

Criminal appeals have long been a loss leader for criminal law firms. Firms must pay for the cost of the case up front (including both expert fees and the solicitor’s time) as the Legal Aid Agency only pay up once a case is over, which can take years. As profit margins become razor thin, fewer firms are willing to undertake this work and consequently only one in three prisoners can find a lawyer to challenge their conviction and sentence.

While the lucky few may have their cases picked up by an university-based Innocence Project, like Dwaine George who was released from prison last week after serving 12 years for a crime he did not commit, or by campaigning journalists like Louise Shorter at Inside Justice, it is often the family of the prisoners who are left to fight alone for freedom in a highly technical legal system.

For this reason, over the next 12 months we are launching the Centre for Criminal Appeals, a new non profit law practice that will champion the cases of the wrongfully convicted and fight for the resources to get the criminal justice system’s mistakes rectified both promptly and systematically.

No system can be said to be working when innocent prisoners have to rely on serendipity, students or investigative journalists to get their convictions overturned.

The Tendrils of Truth

By Sophie Walker

Despite the fact it is something of a busman’s holiday, like so many others, I am enthralled by the Serial podcast. For the uninitiated, a young man, Adnan Syed, is currently serving a life sentence for strangling his ex-girlfriend, Hae Min Lee, one day after high school let out. From prison Adnan maintains his innocence, and each week we hear the journalist investigate a different strand of the case. She interviews witnesses, re-constructs the alleged route, chats to the defendant on the phone and, most interesting, struggles to work out whether or not she believes him.

In the second episode, she captures beautifully one of the difficulties of working on miscarriages of justice:

“All of this information, every scrap, for whatever side you are on — it’s spin. And the trouble with spin is that you can’t disregard it. Because swirling around somewhere inside, some tendril is true.”

By the time a case file lands on my desk, it often runs to thousands of pages. With the help of some powerful IT software and a small army of volunteers, we try and strip the case back to its bare bones, to the hard facts, to find those tendrils of truth.

It is not as easy as it sounds. Take this scenario — the victim was shot on a residential street. In living rooms around the area Coronation Street was almost over when the residents report hearing the gunshot. The first 999 call was made at 10:49 am. How many minutes before the call did the gun go off? How long did it take the first caller to run down three flights of stairs and cross the street to find the victim? Is the caller in good shape? Are we sure he didn’t take the lift?

Perhaps the shot was fired at 10:45 — ish? In that case, the defendant couldn’t have done it because his car was caught on CCTV a few blocks away at 10:49, and he couldn’t have got there so quickly. Unless there was a green light and no traffic, and there is always traffic on that street, right?

We are talking about a handful of minutes. One car, two men, an area with 100m radius dotted with CCTV cameras, cell site masts and half a dozen eye witnesses all of which need to be combed through to find those elusive tendrils.

This is both the best and the most frustrating job in the world.

If you like Serial and are enjoying playing detective, or perhaps you are a criminal law nut, or maybe you want to read about the impact of the legal aid cuts on the justice system, then you should bookmark this page.

Inspired by our work at the Centre for Criminal Appeals investigating and litigating miscarriages of justice cases, we will make regular posts about our experiences working alongside prisoners and their families fighting for their liberty, reaching out for those tendrils of truth that will clear their names.