No defence:
lawyers and
miscarriages of justice
solicitorsjournal
Justice Gap series
Edited by Jon Robins
2 No defence: lawyers and miscarriages of justice solicitorsjournal.com
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contents
solicitorsjournal.com No defence: lawyers and miscarriages of justice 3
Group editor
Jean-Yves Gilg
Series editor
Jon Robins
Assistant editor
Mary-Rachel McCabe
Sub editor
Emily Bater
Design editor
Andrew Wood
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Chris Handley
Of fices
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Introduction 4
The need for constant vigilance, Michael Mansfield QC 6
Contributors 8
Poor defence, Campbell Malone and Correna Platt 10
Designing out defence lawyers, Ed Cape 14
What has the media done for us? Paul May 18
Denial and fallibility, Dr Dennis Eady and Julie Price 22
The suspension of disbelief, Satish Sekar 28
Up to the job? Tom Wainwright 32
A tough court, Francis Fitzgibbon, QC 36
More than money, Daniel Newman 40
Passionate about justice, Mark George QC 44
The right of silence, Dr Hannah Quirk 48
Policing the profession, Adam Sampson 52
It should haunt us, Andrew Green 56
Blue print, Eric Allison 62
We are all to blame, Mark Newby 65
A role for the media? David Rose 70
The client comes first, Dr Angus Nurse 74
The default belief, Ros Burnett 78
No defeNce:
lawyers and
miscarriages of justice
solicitorsjournal
Contents
Cover image by Isobel Williams, with thanks
(http://izzybody.blogspot.co.uk)
foreword
4 No defence: lawyers and miscarriages of justice solicitorsjournal.com
This the sixth in the Justice Gap
series published in conjunction with
Wilmington and Solicitors Journal. We
are grateful for their continued support.
The Justice Gap series is an ongoing series of
publications and events. The ideas behind the
series as set out in the first of the series Closing
the Justice Gap are as follows:
to make a positive and different contribution
to the debate to improve ‘access to justice’ for
ordinary people;
to challenge received wisdoms;
to be thought-provoking; and
to raise the profile of the issues.
This collection (No defence: lawyers and
miscarriages of justice) follows on from last
year’s Wrongly Accused: who is responsible
for investigating miscarriages of justice?.
The collection of essays could not have
been timed more presciently arriving as the
government begins to consider some 16,000
responses to its Transforming legal aid
consultation.
We can’t take credit for the timing. We began
commissioning in September last year when the
Coalition government, led by the then justice
secretary Ken Clarke, was busy dismantling
the civil legal aid scheme. His successor Chris
Grayling has now proposed a system of price
competitive tendering (PCT) where the number
of solicitors’ firms will be slashed from 1,600
to 400. Bids under the model of competitive
tendering, which must be 17.5 per cent below
existing rates, are expected to be made by the
likes of Serco, G4S as well as Eddie Stobart.
The proposals, as they stand, would decimate
a profession unfairly caricatured as ‘fat cats’.
Committed firms who have spent decades
representing the interests of their inner city
communities, or acting on behalf of young or
otherwise vulnerable people, as well as that tiny
number of firms that specialise in miscarriage
work are unlikely to survive the tendering
process as envisaged.
And how would quality of legal advice be
preserved under a regime which is seemingly
designed with the principal aim of slashing the
legal aid bill by £220 million?
On any reading of the consultation paper, it
seems reasonable to note that the issue of quality
is not to the fore in the government’s design
specifications for this new system of criminal
defence. At a meeting of defence lawyers last
month, the former Court of Appeal judge, Sir
Anthony Hooper quoted in full the impact
assessment from the consultation (para 23) on
quality assurance. (‘We will ensure that quality
does not fall below acceptable levels by carefully
monitoring quality and institute robust quality
assurance processes to ensure it does not fall to
an unacceptable level.’).
The former judge rightly dismissed it
as ‘gobbledygook’. He referenced the now
notorious comment by Chris Grayling that
people who find themselves in our criminal
justice system were not ‘great connoisseurs of
legal skills’. (‘We know the people in our prisons
Foreword
foreword
solicitorsjournal.com No defence: lawyers and miscarriages of justice 5
and who come into our courts often come from
the most difficult and challenged backgrounds,’
Grayling told the Law Society’s Gazette.)
‘Contrary to the views of the “secretary of state
for injustice”, defendants are not “too thick to
pick”,’ Sir Anthony said.
One of ‘the biggest impediments’ for
the Birmingham Six was ‘not having the
opportunity under the system to change their
legal representatives’, Breeda Power told
campaigners at a rally outside Parliament on the
same day of the lawyers’ meeting. Her father,
Billy Power spent over 16 years in prison for that
most notorious of miscarriages of justice. His
daughter described their lawyers as ‘two very
young and inexperienced duty solicitors who
did not realise they were unable to put their case
before the court competently’. It was the first
time she had spoken in public for 20 years.
‘It is a fundamental right to trial by jury and it
is also a fundamental right to be represented by
the legal representative of your own choice. The
proposal to tender legal aid to the lowest bidder
takes away that fundamental right. Justice
will depend on market forces and a business
decision.’ – Breeda Power
The Justice Gap is not a lawyer-led initiative.
It is run by journalists and its subject is the
law and justice and we are pleased to say it is
well supported by lawyers. All contributors
were directed towards an essay in the Wrongly
Accused collection by Maslen Merchant, a legal
executive who has specialises in miscarriage of
justices. His article started thus:
‘As controversial and unexpected as it may
be, in my experience a very high proportion
of wrongful convictions are the fault of poor
defence work by lawyers...’
The brief sent out to all contributors also
quoted the veteran campaigning lawyer Gareth
Peirce at the launch of Wrongly Accused at the
College of Law in London in March last year.
She said:
‘Lawyers are at the heart of many cases of
the wrongly accused and wrongly convicted:
wrong, shoddy, lazy representation. It is a
recurrent theme. It should haunt us.’
Legal aid lawyers are ‘passionate about
people and passionate about justice’, as one
contributor puts it. They work in the most
difficult of circumstances and often for little
money. Whilst, this is the starting point for this
collection of essays, we haven’t taken an overly
prescriptive approach. Contributors have been
encouraged to respond to the brief in the best
way that they see fit.
Thank you
We’re grateful to all our contributors for
their support. Thanks for your time, effort and
patience. Thanks to Michael Mansfield QC for
his continued support for the Justice Gap.
Also, I’d like to thank the Justice Gap team
and, in particular, Mary-Rachel McCabe for
her help.
Jon Robins
www.thejusticegap.com
June 2013
introduction
6 No defence: lawyers and miscarriages of justice solicitorsjournal.com
Instead of closing the gap a huge chasm
has just opened up right at the top of
the system. It is a shocking and disgraceful
manoeuvre by those who carry
the core responsibility for maintaining
and protecting the provision of justice.
This value is central to any meaningful
democracy, and is the attribute trumpeted
across the world by our political leaders.
But, take note people of the Arab spring,
people of Iraq, people of Afghanistan,
people of Iran and Syria, that back home
in the UK we have key figures colluding
and conniving at destroying the fabric
of fundamental rights to satisfy their
perceptions of popularity and their grasp
on power.
In the wake of electoral humiliation
the Lord Chancellor/ Justice Secretary in
tandem with the Home Secretary, both felt
not for the first time, that they could use
the opportunity to jettison the European
bedrock of human rights in order to curry
favour with the electorate. Such cheap
posturing displays an irresponsible and
totally unrealistic disregard for historically
enshrined principles.
This series of admirable essays has sought
to identify and suggest remedies for those
most disadvantaged by our judicial system.
Making any kind of progress at this level
cannot be successfully accomplished unless
there is a genuine and committed belief in
due process, fairness and equality of arms
and access from those who have the role of
political supervision.
Whether they meant what they said or
were merely huffing and puffing matters
not, because in either event they cannot be
entrusted with our future freedoms.
Chris Grayling wrote in the Sunday
Telegraph (March 3 2012): “I cannot
conceive a situation where we could put
forward a serious reform without scrapping
Labour’s Human Rights Act and starting
again... we need a dramatically curtailed
role for the European Court of Human
Rights in the UK.”
He went on to tell the BBC that he
was “absolutely certain” that the
The need
for constant
vigilance
Michael Mansfield QC
introduction
solicitorsjournal.com No defence: lawyers and miscarriages of justice 7
Conservative Party would go into the next
election with a plan that would change
human rights law. When asked whether
this meant a withdrawal from the European
Convention he replied that he had “not
ruled anything out”.
These propositions display a lamentable
lack of understanding of the history of these
rights, how they fit into an international
network of other treaties and conventions
which the UK has signed, their own party
pledges, and most of all the evolution of
common law rights in the UK long before
the codification and incorporation of
rights in the Human Rights Act which was
intended to “bring rights home”.
The reason the UK took a lead role is
because its common law had already
developed norms that embraced basic
rights - for example, concerning due
process and fair trial. Reflecting on this
position it is clear that if the UK withdraws
from both the court and the convention
the judiciary would revert to the same
principles under common law, possibly
with a more fiercely independent posture.
It would not make the difference so fondly
embraced by tabloid protagonists.
In any event the vast array of other
treaties, conventions and protocols dealing
with rights to which the UK is a party
make this initiative quite unrealistic and
unworkable. Besides, as the Attorney
General has sensibly pointed out, it sets
a bad example to the rest of the world
and places us alongside pariah states.
More importantly the message would
be unambiguous that we have lost faith
in the convention and to that extent in
the rule of law. This gives licence and
authority to those states who already
ignore their obligations to continue to do so
with impunity. All extraordinarily weird
after expending so much time and effort
promoting human rights adherence and
making it a precondition for joining the
European Union (e.g., Turkey). But then
maybe that’s what it is really about. Ousting
UKIP as the party that hates Europe the
most and leaving the union.
This reprehensible game playing with
rights has to be set alongside all the other
equally detrimental positions adopted
by the Coalition, the extension of secret
civil court hearings, severe legal aid
cuts resulting in diminishing services,
restrictions on access to judicial review,
attacks on the independence of the judiciary.
And then you add the continuing
risks of miscarriage cases highlighted in
these essays. These risks are exacerbated
by a general approach to justice exemplified
in the following themes explored in
this collection.
This is a dismal picture and requires
all those with passion and commitment
to persevere with the struggle from top to
bottom. Without this the forces of darkness
will surely extinguish the flame of justice.
Constant vigilance, remorseless exposure
and solidarity of purpose are the
eternal sentinels.
“This reprehensible game
playing with rights has to
be set alongside all the
other equally detrimental
positions adopted by
the Coalition”
6 No defence: lawyers and miscarriages of justice solicitorsjournal.com
Eric Allison
Eric Allison is the Guardian’s prison correspondent .
Ros Burnett
Ros Burnett is a senior research associate at the Centre for Criminology, University of Oxford, where she has been based for over
twenty years as a researcher and teacher of criminal justice. Her books include Joined-up Youth Justice (Russell House, 2003 coauthor:
Catherine Appleton) and Where Next for Criminal Justice? (The Policy Press, 2011, fi rst author David Faulkner).
Ed Cape
Ed Cape is the author of a range of practitioner texts, including Defending Suspects at Police Stations, he contributes to
Blackstone’s Criminal Practice, and writes case comments for Criminal Law Review. Ed has recently completed two research
projects on access to effective criminal defence in Europe, and is now working on a third project in Latin America.
Francis FitzGibbon
Francis FitzGibbon is a crimnal QC at Doughty Street Chambers, in London. He undertakes all kinds of serious criminal
cases. He is a part-time Immigration Judge, hearing appeals in asylum and other cases. He blogs on legal matters (ffgqc.
wordpress.com) and contributes to the Justice Gap, the London Review of Book, and the Guardian.
Mark George QC
Mark George QC is a defence barrister at Garden Ct North Chambers in Manchester. He is a trustee of Amicus and a regular speaker at the Amicus
training courses on the US death penalty. He regularly writes about aspects of the criminal justice system and is passionate about justice.
Andrew Green
Andrew Green has a doctorate in criminology. In 1993 he founded INNOCENT, and is currently its secretary.
He is a founder of United Against Injustice. Andrew is deputy director of the University of Sheffi eld Innocence
Project, and author of Power Resistance Knowledge: the epistemology of policing (2008).
Michael Mansfi eld QC
Michael Mansfi eld was called to the bar in 1967, established Tooks Court Chambers in 1984 and took silk in 1989. He
has written extensively in all major broadsheets and law journals and has appeared in several documentaries. He is
the president of Amicus, Haladane Society of Socialist lawyers and National Civil Rights Movement.
Campbell Malone
Campbell Malone is a consultant to Stephensons’ Criminal Appeals team. He is chair of the Criminal Appeals
Lawyers Association and one of the most experienced lawyers specialising in miscarriages of justice.
Paul May
Paul May has been involved in numerous campaigns on behalf of the victims of miscarriages from the Birmingham Six, Judith Ward, and
the Bridgewater Four through to Sam Hallam, Eddie Gilfoyle and Colin Norris.
Contributors
Dr Denis Eady
Dr Dennis Eady is founder of South Wales Liberty (now South Wales Against Wrongful
Conviction) and case consultant at Cardiff Law School Innocence Project.
contributors
solicitorsjournal.com No defence: lawyers and miscarriages of justice 7
Mark Newby
Mark is a solicitor advocate and criminal law specialist with QualitySolicitors Jordans. He is an advisor to the Innocent Network UK
and has overturned a number of high profi le wrongful convictions – notably the cases of Ian Lawless and Anver Sheikh,
who overturned his conviction on his third appeal.
Dr Daniel Newman
Dr Daniel Newman is a research assistant at Cardiff Business School. He also teaches at Cardiff Law School. For
his PhD at the University of Bristol, he investigated the state of access to justice by conducting the largest social
research study into the lawyer-client relationship in England and Wales for some two decades.
Julie Price
Julie Price is the head of Pro Bono and the Law Clinic at Cardiff University. A qualifi ed solicitor with a background in vocational law teaching,
Julie recently won a Higher Education Academy National Teaching Fellowship Award for her commitment to enhancing the student experience.
Dr Angus Nurse
Dr Angus Nurse is Senior Lecturer in Criminology at the School of Law, Middlesex University. He was a lecturer in criminology at Birmingham City
University from 2011 to 2013, and was a research fellow at the University of Lincoln’s Law School from 2008 to 2011, researching civil justice systems
and criminal justice and teaching in constitutional law and human rights. Before this, he was an investigator for the Local Government Ombudsman.
Correna Platt
Correna Platt is a Partner in Stephensons’ criminal litigation department and specialises in miscarriages of justice and serious criminal cases
at the Crown Court. Correna had the privilege of training under Campbell Malone and is committed to challenging miscarriages of justice.
Dr Hannah Quirk
Dr Hannah Quirk is a lecturer in criminal law and justice at the University of Manchester. She worked
for four years as a case review manager at the Criminal Cases review Commission.
Jon Robins
Jon Robins runs www.thejusticegap.com. He is a freelance journalist and director of the legal research company Jures. His work has
appeared regularly in The Times, The Observer, The Guardian and the Financial Times. He has written several books including The
Justice Gap: Whatever happened to Legal Aid and People Power: How to run a campaign and make a difference n your community .
Jon is a visiting senior fellow in access to justice at the University of Lincoln and a patron of Hackney Community Law Centre.
Adam Sampson
Adam Sampson is head of the Legal Ombudsman. Prior to leading the Legal Ombudsman he was Chief Executive of Shelter, the
country’s leading housing and homelessness charity. He has been a member of various Government Task Forces, and is on the Board
of a number of non-Governmental bodies, including the End Child Poverty Campaign and the UK Drugs Policy Commission.
Satish Sekar
Satish Sekar is a journalist who has specialised since the 1990s in investigating miscarriages of justice. He is the author of
The Cardiff Five: Innocent beyond any doubt which is published by the Waterside Press (‘One of the
most important books ever written about criminal justice,’ Michael Mansfi eld QC).
Tom Wainwright
Tom Wainwright has always been a devoted criminal defence barrister and is dedicated to upholding the rights of those against whom the
State seek to bring criminal charges. Tom has a formidable reputation as a passionate defender and a strong advocate. He is regularly
instructed in cases involving serious violence, sexual assaults, kidnapping, fi rearms, drug importation and armed robbery.
poor defence
10 No defence: lawyers and miscarriages of justice solicitorsjournal.com
It was inevitable, and perfectly understandable,
that the piece, ‘Poor Defence’
written by Maslen Merchant (for the
previous collection of essays ‘Wrongly accused:
who is responsible for investigating
miscarriages of justice?’) should cause offence
to defence lawyers. The uncomfortable
point made by Maslen was that, despite an
apparent reluctance by the Court of Appeal
and the Criminal Cases Review Commission
to acknowledge the fact, incompetent
defence lawyers were a significant
cause of miscarriages of justice and that
the emerging structure of the profession
was likely to make the situation worse.
Of course the majority of criminal
lawyers working under the current legal
aid provisions are committed, hardworking
professionals of integrity working
hard under considerable pressure doing
a thankless but absolutely necessary job.
All solicitors doing this work have surely
experienced long nights in a police station
facing not only hostility from sceptical
police officers but occasionally abuse from
the detainee they are trying to advise and
Poor defence
Campbell Malone and Correna Platt
poor defence
solicitorsjournal.com No defence: lawyers and miscarriages of justice 11
assist only to get up in the morning and
face an equally long day in court or in the
office conducting or preparing cases (and
frequently both). It takes a quiet heroism to
continue to do that week in, week out, year
after year in the face of tight fiscal constraint
but it is undoubtedly true that it has become
harder and harder for legal aid lawyers to
deliver a proper level of professional service
and at the same time make a reasonable
living. Regrettably, however, failures by
defence lawyers are not simply a product
of government determination to control
the legal aid budget and are certainly not a
recent development.
If one considers the well-known and
classic miscarriages of justice that have been
exposed in the past and acknowledged
by all, then it is apparent that there are
common threads. They often involve
particularly appalling crimes where there
has been public outrage with resulting
pressure on the police to achieve a positive
result leading to a flawed investigation by
them. An obvious example would be the
Birmingham pub bombings which led to
the conviction of the Birmingham Six or
the horrific murder of little Lesley Molseed
which led to the arrest and trial of Stefan
Kiszko. In his case, arrest and prosecution
followed a police investigation that could be
best described as flawed and incompetent
showing a typically blinkered attitude to the
evidence which focused on what might be
relevant against their suspect and ignored
or even buried evidence which would
exonerate him. For a flawed investigation
and prosecution to succeed in those
circumstances it can require the additional
ingredient of a flawed defence and Kiszko
was certainly an example of that, with the
defence QC electing to run both defence
of alibi, which was in accordance with
the defence instructions, and diminished
responsibility which most certainly was not.
Fortunately in Stefan`s case we had in the
failure to disclose key forensic material that
exonerated him sufficiently strong grounds
of appeal that enabled the court to avoid
dealing with failures of the trial lawyers, an
issue with which the court remains reluctant
to confront.
On 4 July 2001 we arranged a conference
at the Conway Hall in Holborn following
a series of alarming decisions in the Court
of Appeal. After the successful appeals of
the Birmingham Six, Judith Ward, Kiszko
etc in the early 1990s and the subsequent
Royal commission and the setting up
of the CCRC there was a brief period of
optimism regarding criminal appeals and
the commission enjoyed what can now be
seen as a “honeymoon period” with a high
level of success in cases they had referred.
By 2000 however, the pendulum had swung
again with the Court of Appeal rejecting
strong appeals by such as Eddie Gilfoyle,
Donald Pendleton and..
continues: http://www.solicitorsjournal.com/sites/default/files/SJ%20Justice%20Gap_No%20Defence_0.pdf
