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Friday, 29 November 2013

THE JUSTICE GAP - POOR DEFENCE BY THE LEGAL TRADE

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

Have your logo here



This page – together with the back cover – are

reserved for sponsors who help fund the print edition

of this latest Justice Gap collection.

‘No defence: lawyers and miscarriages of justice’


will be available in hardcopy later in the year, and

there will be a launch event.

For more information, vis it www.thejusticegap.com

If you want to take an advert, contact...


Chris Handley on 0207 549 86 32




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

Group sales manager



Chris Handley

Of fices



6-14 Underwood Street

London, N1 7JQ

Phone: 020 7490 0049

Fax: 020 7566 8238

Email:



editorial@solicitorsjournal.co.uk

2013 © Solicitors Journal and

contributors.


All rights reserved. No part of this publication

may be reproduced, stored in a retrieval

system, or transmitted in any form or

by any means, electronic, mechanical,

photocopying,recording, or otherwise, without

the prior written permission of the publishers.

Published by

Wilmington Publishing & Information Ltd,

a Wilmington Group company


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