30 n Socialist Lawyer l July 2010

Socialist Lawyer l July 2010 n 31

In my role as director of the Innocence Net-work UK (INUK) I am regularly contactedby lawyers, both criminal and non-criminal,who offer their services freely to a member ofthe innocence project working on the casesof people who say that they are innocent of

the serious criminal offences that they wereconvicted of, mainly murder and rape. Theysay that they want to work with an innocenceproject because they want to give somethingback, that they care about justice and theywant to help innocent people who may havebeen wrongly convicted to achieve it.

In the five years since the establishment ofINUK, this has led to dozens of pro bonolawyers assisting approximately 500 studentcaseworkers in the 25 member innocence pro-jects in universities all around the country thatare currently collectively investigating 78 casesof mainly long-term prisoners maintaininginnocence. Such lawyers are welcomed for thevital legal work that they can provide to inno-cence project investigations. This includes facil-itating prison visits, ensuring that correspon-dence to prisoners is confidential and notopened before it reaches them, obtaining affi-davits from witnesses who want to provide ali-bis or retract their incriminating statements andappointing a barrister when the case is referredback to the Court of Appeal (Criminal Divi-sion) (CACD).

However, reflecting not on what lawyersworking with member innocence projects sayin response to claims of innocence by allegedvictims of wrongful conviction but, rather, onwhat they do, it is not difficult to see why it isso rare for wrongful convictions to be over-turned. My experience shows that the reality,unfortunately, is that lawyers working with theinnocence projects tend to put law before peo-

ple. They are overwhelmingly deferential to thedictates of the legal system and appear unwill-ing to fundamentally challenge the potentialinjustice of the rules of criminal appeal.

This is ironic because INUK was establishedprecisely because the existing appeal and post-appeal provisions are failing potentially innocentvictims of wrongful conviction and are in urgentneed of reform. To start with, the principal waythat alleged wrongful convictions for seriousoffences are overturned in law is by fresh evi-dence or argument that was not available at thetime of the original trial as required by s. 23 ofthe Criminal Appeal Act 1968. As such, evidenceof innocence will not generally even constitutegrounds for appeal, let alone overturn a wrong-ful conviction unless there are exceptional rea-sons for why it was not adduced at trial.

This requirement for fresh evidence is rein-forced by the Criminal Cases Review Commis-sion (CCRC). The CCRC was set up in thewake of notorious cases such as the GuildfordFour and the Birmingham Six and is the official(so-called) independent public body thatreviews alleged miscarriages of justice at post-appeal stage. The CCRC is widely believed tohave been established to fully investigate claimsof innocence and assist in overturning wrongfulconvictions if evidence of innocence was found.However, the CCRC is, in fact, bound to theappeal courts by statute, ostensibly s.13 of theCriminal Appeal Act 1995, to only refer casesback to the appeal courts if it is felt that there isa ‘real possibility that the conviction will not beupheld’. In consequence, innocent people canremain languishing in prison even if the CCRCis presented with evidence of innocence if thatevidence was or could have been made availableat the time of the original trial.

In short, the criminal appeal system is not

CAN LAWYERSPUT PEOPLEBEFORE LAW?

by Michael Naughton

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32 n Socialist Lawyer l July 2010

really about overturning the convictions ofinnocent people who receive criminal convic-tions. Rather, it is about overturning convic-tions deemed to be ‘unsafe in law’. This isdefined in terms of a breach of the legal processor the presentation of something fresh that wasnot or could not have been available at the timeof the trial that calls the verdict into question.

In contrast to the current appeal process,INUK’s innocence projects are not restricted tothe search for fresh evidence that seek to showthat criminal convictions may not be ‘safe inlaw’. Instead, innocence projects are best seenas akin to public inquiries of claims of inno-cence to establish if they are true or not. Stu-dent caseworkers undertake full investigationsof all of the evidence that lead to the convictionto determine its reliability and/or applicabilityto the conviction. They investigate all of theavailable unused material for evidence of inno-cence and carry out fieldwork investigations,such as interviewing potential witnesses, find-ing possible alibis, and researching new scien-tific technologies that could establish innocenceor guilt. In this way, INUK reflects both thepopular belief and the public aspiration that thecriminal justice system should convict the guiltyand acquit the innocent.

Despite this difference of approach, lawyersworking with INUK’s innocence projects stillresign themselves to working within the legalframework. Perhaps due to a deeply engrainedcultural resistance, many do not seem to be ableto step outside of the very processes INUKseeks to challenge. Instead, they often opt tosubordinate innocence project investigations tothe criteria of the CACD and the CCRC byadvising students to ignore the question of fac-tual innocence or guilt and seek out legalgrounds for appeal, attempting to close cases ifno obvious grounds for appeal can be found.This is, perhaps, not surprising as it is not usualfor lawyers to question the correctness of thelegal process. Instead, they are encultured todutifully learn and apply the law in the areathat they practise. They are not inclined to seeany value in critiques or challenges of existinglaw for the clients that they represent.

As such, lawyers working with INUK’sinnocence projects typically tell student case-workers not to look at unused evidence fromcriminal trials as, by definition, there is unlikelyto be anything fresh to be found there that willsatisfy the CACD or the CCRC. Instead, whatmight be termed ‘desktop reviews’ are recom-mended of the transcript of the judge’s sum-ming up for any apparent misdirection in lawor any possible breaches of procedures in thetrial process that could constitute grounds ofappeal. But, such legal reviews for grounds ofappeal are unlikely to help applicants to theINUK who have already failed in appeal andmany of whom have also been refused a refer-ral by the CCRC. Worse, such activities takeplace entirely within the legal frameworkINUK exists to challenge. They assume the verypoint at issue, namely the justness of the rulesof criminal appeal.

As a sociologist working in a university lawschool directing the University of Bristol Inno-cence Project (UoBIP) I ask my law student case-workers to suspend the pursuit of legal groundsand focus their investigations on finding out ifthe alleged innocent victim of wrongful convic-

tion is telling the truth. This approach hasyielded dividends in the case of Simon Hall. Ameticulous search of the unused evidenceunearthed the evidence that may prove that Hallis factually innocent of the murder of 79 year-old Joan Albert, stabbed 12 times in a claimedinterrupted burglary. Student caseworkersfound a statement that indicates that the mur-der weapon originated from another burglarythat occurred ten minutes away from JoanAlbert’s house around the same time that shewas murdered, which Simon Hall could nothave committed. They also found in the ‘sched-ule of unused actions’ a reference to DNA onthe handle of the murder weapon, the profilesof which were not disclosed to the trial solicitoron the basis that it would be of ‘no practicaluse’. Perhaps, it may have been considered to beof some practical usefulness if it incriminatedSimon Hall? It is most unlikely that Hall’s crim-inal appeal lawyer would have uncovered thisevidence, operating under the conventionalappeals paradigm. It thus demonstrates theimportance of thinking ‘outside the box’ whenit comes to evaluating claims to innocence.

In the case of Neil Hurley, also investigatedby the University of Bristol Innocence Project,two criminal appeal lawyers, a solicitor and abarrister, told us on separate occasions to dropthe case. They said that legal grounds wereunlikely to be found because there have alreadybeen three failed applications to the CCRC. Atrawl of the unused evidence, however,unearthed over 120 exhibits from the crimescene which have never been tested for DNA,despite the fact that they may prove one way orthe other if Hurley is innocent of the murder ofhis former partner, Sharon Pritchard. Hurley’sprevious appeal solicitors failed to identify theobvious potential of DNA testing in his threefailed applications to the CCRC. They uni-formly restricted their submissions to ques-tioning the reliability of the evidence that leadto his conviction in attempts to cast doubts onthe safety of his conviction in law rather thanthinking ‘outside the box’ and looking for waysto determine whether he was innocent or not.

These practical examples remind us of theimportance of placing investigating claims ofinnocence at the heart of criminal justice toensure that convictions are reliable. If innocentpeople are in prison for crimes that they did notcommit, guilty offenders remain at liberty withthe potential to commit further crimes. If aninnocence project finds that an alleged victim

of a wrongful conviction is in fact factuallyguilty then justice can be said to have been donebecause a claim of innocence is settled and anydoubts that the criminal justice system has gotit wrong can be laid to rest.

At the same time, the cases of Simon Halland Neil Hurley show how lawyers, who seethemselves as being part of the solution to thewrongful conviction of innocent people, are, inreality, part of the problem. By complying withthe rules of the system which prevent the exon-eration of the innocent they are implicated,whether they like it or not, in the sacrifice ofpotentially innocent people. Simon Hall,imprisoned aged 24 for a murder he is unlikelyto have committed, has maintained innocencefor almost eight years whilst his life ticks away.Meanwhile, if Hall is, indeed, innocent a vio-lent murderer remains at large. Neil Hurley hasso far served 17 years and is three years beyondhis tariff date (the date he could have beenreleased on parole). He claims that he is pre-pared to die in prison until his innocence isestablished so his daughters know he did notkill their mother.

It is of vital importance that we havelawyers working with INUK’s innocence pro-jects because they are qualified to providemuch-needed legal assistance. Such lawyers arewell-intentioned and say that they are passion-ate about assisting alleged victims of wrongfulconviction who may be innocent and this istotally welcomed and appreciated. It would betragic for all concerned – the lawyers workingpro bono, the student caseworkers and most ofall the victims of the wrongful convictionsthemselves – if in fact the lawyers, so far fromadvancing the aims of INUK, actually ended upjeopardising the whole venture.

Yet, many lawyers working with INUK failto understand our aims and are subverting thecentral issue of investigating claims of inno-cence to get to the truth in favour of technicalquestions about the ‘safety’ of convictions inlaw. Ultimately, the work of hundreds of stu-dent caseworkers is diverted as they find it dif-ficult to resist the advice proffered by lawyers,not least because they are, for the most part,law students who want to be lawyers. Studentswho signed up to innocence projects because ofa passion for truth and justice risk having itthwarted by lawyers who say that there is nohope in the cases that they are working ondespite the possibility that the alleged victimsmay be innocent.

If it is the case that lawyers working withINUK’s innocence projects are, indeed, pas-sionate about people, truth, innocence and jus-tice then the time has come for participatinglawyers to follow through on these convictionsand to help to truly challenge the criminalappeal system to bring about the reforms nec-essary to produce the results that we aretogether supposed to be working towards.

Dr Michael Naughton is the Founder andDirector of the Innocence Network UK (INUK),the umbrella organisation for memberinnocence projects in UK universities, andDirector of the University of Bristol InnocenceProject (UoBIP), the first dedicated innocenceproject in the UK, through which hecoordinates student investigations of cases ofalleged wrongful imprisonment.

“I ask my law studentcaseworkers tosuspend the pursuit oflegal grounds and focustheir investigations onfinding out if the allegedinnocent victim ofwrongful conviction istelling the truth”

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