You may recall my recent post “What Price Justice? Part 1” when I looked at the potential consequences of cutting legal aid funding.
The Government are trying to avoid having to pay to allow you to have a proper defence if facing a criminal prosecution. Even if you can afford to defend yourself, the Government have change the rules to make it so that you will almost certainly recover only a small percentage of you legal costs despite being wrongly prosecuted.
The risk to your liberty is enormous. I know that most of you think it won’t happen to you, but anyone of us can find ourselves under arrest and facing charges.
Don’t make the mistake of thinking if you are innocent, you will never find yourself facing court on criminal charges. Remember its innocent until proven guilty, not innocent until charged with an offence. Being charged with a criminal offence is only the start of the legal process and means nothing at all. A person charged with an offence has not been proven guilty and many people are charged with an offence and later acquitted.
Figures from the Crown Prosecution Service (CPS) are eye opening. In 2011/12, a total of 95930 cases did not result in the conviction of the defendant. That means nearly 100,000 people who were not guilty of the offence alleged were brought before the courts in a single year. That figure should make you realise how easily you could find yourself before a court despite having done nothing wrong.
Let me refer you to a couple of cases where the outcome was even worse. In these cases an innocent person was convicted by a court and spent many years in prison for a crime they did not commit. There are many such cases, and the cases I mention are selected as examples.
Convicted of the (sexual) murder of a young girl in 1976, Stefan Kiszko spent 16 years in prison until he was released in 1992. He died of a heart attack the following year at his mother’s home aged 44; his mother, who had waged a long campaign to prove her son’s innocence, died six months later.
Stefan Kiszko suffered from XYY syndrome, a condition in which the human male has an extra Y chromosome. Such males are normal except for – sometimes slight – growth abnormalities and minor behavioural abnormalities. (Another victim of a miscarriage of justice supported by Innocent also has this condition – Howard Hughes). One of Stefan Kiszko’s “behavioural abnormalities” was jotting down the registration numbers of a car if he had been annoyed by the driver. This led, in part, to his wrongful conviction – he had at some point prior to the murder unwittingly jotted down the number of a car seen near the scene of the crime. It was argued that only someone at the scene could have known the number of this car… As part of his condition Stefan Kiszko would have been physically incapable of the sex crime of which he was convicted. Something which was never disclosed to his defence…
Thanks to www.innocent.org.uk for this summary
Murder of Lynette White
This case you may know as the Cardiff Three case.
Lynette White was murdered on 14 February 1988 in Cardiff, Wales. White, a 20 year old prostitute, was stabbed and slashed 69 times in a flat above a bookmaker‘s at 7 James Street, Butetown. South Wales Police issued a photo fit image of a white male seen in the vicinity at the time of the murder but were unable to trace the man. In November 1988 the police charged five mixed-race men (the ‘Cardiff Five’) with White’s murder, although none of the scientific evidence discovered at the crime scene could be linked to them. On conclusion of the longest murder trial in British history, in November 1990 three of the men were found guilty and sentenced to life imprisonment.
In early 1991 a number of journalists began to question the safety of the convictions and public-service television broadcaster Channel 4 transmitted their own investigation of the case in Butetown: The Bridge And The Boys, part of their Black Bag magazine and documentary series aimed at Black and Asian viewers. In May 1991 two of the convicted men were granted leave to appeal their convictions, but the third, Stephen Miller, was refused. Satish Sekar, an investigative journalist specialising in crime and justice issues, had tracked down two witnesses not called at the trial who could provide an alibi for Miller’s whereabouts at the time of the murder. Miller asked him if he would organise a new legal team to prepare his appeal. Sekar persuaded renowned solicitor Gareth Peirce to take on the case and handle the renewed application to appeal, and Pierce instructed Michael Mansfield QC to represent Miller in court. A public campaign to overturn the convictions, started by families and friends of the three men, began to receive high-profile support, including that of American community leader Reverend Al Sharpton and recently-exonerated member of the “Guildford Four”, Gerry Conlon. Further television documentaries followed in 1992, including Unsafe Convictions as part of the BBC documentary series Panorama.
In December 1992 the convictions were ruled unsafe and quashed by the Court of Appeal after it was decided that the police investigating the murder had acted improperly. The wrongful conviction of the three men has been called one of the most egregious miscarriages of justice in recent times. The police claimed that they had done nothing wrong, that the men had been released purely on a technicality of law, and resisted all calls for the case to be reopened.
In 2003 the DNA testing allowed the police to identify the real killer as Jeffrey Gafoor, who confessed to White’s murder and was sentenced to life imprisonment.
[There is so much more to this case, involving police misconduct trials, evidence disappearing and reappearing – at present there are currently several investigations into the handling of the whole case.]
So in just two cases we have four people wrongly convicted of murder and who between them served nearly 30 years in prison for crimes they did not commit.
Try to think of what those wrongly convicted people have suffered as a result of their incarceration by the state. They will have probably had to endure: loss of employment, loss of homes, loss of family life, perhaps even losing contact with their offspring. Not to mention the pecuniary loss, both past and future. Imagine the effect that losing 16 years of pension contributions would make to your final pension?
Now, given that the European Convention on Human Rights provides in Article Five for the right to Liberty & Security and
Right to liberty and security
1. Everyone has the right to liberty and security of person. No
one shall be deprived of his liberty save in the following cases and
in accordance with a procedure prescribed by law:
(a) the lawful detention of a person after conviction by a
(b) the lawful arrest or detention of a person for non–
compliance with the lawful order of a court or in order to
secure the fulfilment of any obligation prescribed by law;
(c) the lawful arrest or detention of a person effected for
the purpose of bringing him before the competent legal
authority on reasonable suspicion of having committed
an offence or when it is reasonably considered necessary
to prevent his committing an offence or fleeing after
having done so;
(d) the detention of a minor by lawful order for the purpose
of educational supervision or his lawful detention for
the purpose of bringing him before the competent legal
(e) the lawful detention of persons for the prevention of the
spreading of infectious diseases, of persons of unsound
mind, alcoholics or drug addicts or vagrants;
(f) the lawful arrest or detention of a person to prevent his
effecting an unauthorised entry into the country or of a
person against whom action is being taken with a view
to deportation or extradition.
2. Everyone who is arrested shall be informed promptly, in a
language which he understands, of the reasons for his arrest and
of any charge against him.
3. Everyone arrested or detained in accordance with the
provisions of paragraph 1 (c) of this Article shall be brought
promptly before a judge or other officer authorised by law to
exercise judicial power and shall be entitled to trial within a
reasonable time or to release pending trial. Release may be
conditioned by guarantees to appear for trial.
4. Everyone who is deprived of his liberty by arrest or detention
shall be entitled to take proceedings by which the lawfulness of
his detention shall be decided speedily by a court and his release
ordered if the detention is not lawful.
5. Everyone who has been the victim of arrest or detention
in contravention of the provisions of this Article shall have an
enforceable right to compensation.
It has always been accepted that those people wrongly imprisoned and later freed on appeal, often many years later were entitled to compensation under Article 5.5. Indeed, the UK government has paid compensation in many high profile case, including the Guildford 4, the Maguire Seven.
This is enshrined in legislation e.g. s133 of the Criminal Justice Act 1988 and section 61 of the Criminal Justice and Immigration Act 2008. So, if you are wrongly imprisoned, you should be entitled to compensation then. No amount of compensation can bring back the lost time.
Well, don’t be too sure, in 2006 the government capped compensation – even in cases where a defendant was demonstrably innocent – at £500,000 (£1m where imprisonment exceeds a decade). Then in 2011 the Supreme Court in a ruling that is chilling to those concerned with the freedom of the individual, ruled that it wasn’t enough that a court quashed someone’s conviction to entitle them to compensation. (Convictions are only quashed where the Appellate Court rules a conviction is unsafe).
Now to prove they are entitled to compensation, the wrongly convicted person must prove that no court could have convicted them on the evidence available. In other words we have now created a category of people who are said to be not guilty by an Appellate Court, but are not sufficiently not “not guilty to be entitled to compensation. It.s not just the denial of compensation, but it also casts a shadow over the innocence of a man who was cleared by a court. That cannot be right notr can the fact it is in essence a reversing of the burden of guilt ie the claimant has to prove there was no evidence on which a court could have convicted rather than showing simply he was wrongly convicted. If there was evidence upon which the claimant could be convicted, then surely he would not have been freed by the Appellate Courts?
Sounds strange? well if you are such a person, it is surely denying you the maxim of innocent until proven guilty. The court are saying you are not guilty, but are not innocent enough to be entitled to compensation for wrongful conviction. How does that fit in with Article 5 of the European Convention on Human Rights (see above)?
You may think that this is just a theoretical situation and compensation will be awarded as before. Well, sadly it is not. The case of Barry George, aka Barry Bulsara who was wrongfully convicted of the murder of Jill Dando. He spent approximately 8 years in prison on remand and after conviction before he was freed after a re trial was ordered.
Part of the evidence at his original trial was forensic evidence which was later shown to be so unreliable it was not admissible at the retrial. Then there was an ID witness who purported to put George at the scene of the murder, but was unable to identify him at an identity parade! This is hardly reliable ID evidence.
Despite all this, the courts have refused Barry George the right to any compensation for the 8 years he spent in prison despite being an innocent man.
So, the state of justice in this country seems to be that:
The Government won’t honour its obligations to ensure that if you are charged with an offence you can have suitably experienced/ qualified representation despite facing lengthy prison sentences.
Even if you can pay to represent yourself and are found not guilty you are unlikely to recover all of your legal costs
If wrongly convicted and imprisoned, the Government will wriggle out of its European Convention obligation to compensate you by claiming you are not innocent enough.
What a sad situation from the so called home of democracy. We’ll charge you, deny you proper representation and if despite these and being wrongfully convicted, we won’t compensate you.
It must be nice to be able to ignore all your obligations with impunity. Lets hope Barry George can take his case to the European Court of Justice and at least overturn point 3.
I’m ashamed of the British Legal System at the present time. (It can’t be called a Justice System)