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Legal commentator voices concerns over challenges facing university innocence projects in damning new article

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The odds are stacked against law students investigating potential miscarriages of justice

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A prominent legal affairs journalist has raised questions about university innocence projects, where students work with professionals on possible miscarriage of justice cases with a view to securing an appeal court hearing, noting that “only one” conviction has been overturned in the 12 years since the project launched.

Jon Robins, writing in The Guardian, described the innocence movement as “mired in infighting”, in “a state of disarray”, and also claimed that some universities have “abandoned” the project over fears about democratic accountability.

It’s an unusual and interesting angle to take: pro bono projects are more often than not painted as beneficial without question, an exciting and valuable chance for students to work at the coalface of the justice system.

However, the pioneering idea was — according to Robins — thrown into confusion in 2014, when the Innocence Network UK’s founder — University of Bristol academic Dr Michael Naughton — “unilaterally pulled the plug on the scheme”.

Naughton, he recalls, accused some universities:

of jumping on the bandwagon, using projects as ‘a recruiting tool’ to attract students to their courses and playing lip service to its main mission of overturning convictions.

Robins’ article is not, however, a critique of the students and universities who take part in these pro bono projects, but of the system in which these projects operate. This is because the odds are, he explained, undeniably stacked very much against them.

It’s the job of innocence project participants to make applications to the Criminal Cases Review Commission (CCRC), the public body that has the power to send cases that have already exhausted the normal judicial appeal route back to the Court of Appeal. These projects really are the last resort for the potential miscarriage of justice victims that they help.

However, as Robins points out:

The CCRC (and universities) have to operate in a criminal justice system with a court of appeal that fails to get to grips with miscarriage cases.

As noted in a recent Legal Cheek Journal piece, the law underpinning the CCRC and the criminal appeals system more generally makes it difficult to secure a fresh appeal hearing. The CCRC is chronically underfunded and overwhelmed by applications. Perhaps unsurprisingly, therefore, a successful application is hard to come by. Robins explained:

Last year the Birmingham-based CCRC received 1,599 applications but only referred 36 cases back to the court of appeal — that’s 2.2% of the total number.

The director of the Cardiff University law school innocence project, which is mentioned in the article, spoke to Legal Cheek and reiterated Robins’ line that “statutory constraints” are the real cause of the problem. Professor Julie Price told us that the real scandal is “the refusal of this country’s lawmakers, policy makers and decision makers to take this problem seriously”.

Small wonder then that innocence projects boast just one major success story since their inception 12 years ago. In that case, the hard graft of Cardiff law students saw the appeal court overturn Dwaine George’s murder conviction in 2014. A result like this is an undeniable triumph for the students involved: as PhD student Holly Greenwood from Cardiff points out in Robins’ article, the students who take on these cases really are “starting from a difficult point”.

It’s not the end of the road just yet. Faults and all, universities are sticking with innocence projects. They are, Robins concludes, “committed” to the work that they do, and improving their efficiency by exploring “more effective ways of operating”.

17 Comments

Greg Allen

David Langwallner is the founder and director of the Irish Innocence Project, at Griffith College which was launched in 2009 and was recognized by the Innocence Network in 2010. He is a constitutional and public law barrister who has also litigated several criminal defence cases. He is a practicing Irish Barrister and member of Field Court Chambers in Grays Inns, London. He is a graduate of Trinity College Dublin, Harvard Law School and the London School of Economics and is also Dean of Griffith College Law School and Lecturer in Constitutional Law and Jurisprudence at The Kings Inns. His academic papers have been published widely and he is a frequent commentator on television and radio about miscarriages of justice.
http://www.irishtimes.com/news/crime-and-law/how-innocence-project-got-justice-for-man-hanged-75-years-ago-1.2068958

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Anonymous

Thanks for that Greg.

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Anon.

I’ve always thought that if organisations like Amnesty International and worldwide publicity cannot prevent the execution of people like Troy Davis (where 7/9 witnesses later withdrew their statements), how can a few second year law students?

https://en.wikipedia.org/wiki/Troy_Davis

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Cameron

An interesting point to raise, although I would point out that uk innocence projects aren’t handling death row cases. However, as a student who works on miscarriages of justice, I would say don’t count us out!
In many ways judging miscarriages of justice projects on a results basis, especially with all the legal obstacles that those organisations face, misses the great work that students do every day.

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Adam Hughes

Dr Dennis Eady actually wrote a very good article for the Justice Gap, on the lack of convictions overturned, and the reasons for this. http://thejusticegap.com/2016/04/student-miscarriage-projects-struggle-make-ccrc-applications/

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Jon Robins

To be clear, I am not critical of the innocence movement – I think it it is an exciting and radical idea. It is at a cross-roads and I hope universities stick with a brilliant project – if they walk away that would be a disaster.

That said, if some universities are playing lip service to the idea – just because it might attract new students or liven up CVs – that’s not good enough – and what kind of lesson is that for law students? Prisoners deserve a proper level of service. The students I saw at the Cardiff conference from a range of universities were totally into what they were doing – and seemed aware of the responsibility of their work – they were also committed to finding better ways to make it work.

What I am critical of is the legal system.

It’s not the universities’ fault that the Court of Appeal has turned its back on miscarriages and that the CCRC is so shocking underfunded. That’s the scandal – and we should all be grateful that universities have stepped in to highlight such serious concerns about the integrity of our justice system because, generally speaking, lawyers aren’t (nor are journalists).

As Adam says Dennis Eady’s article is excellent: http://thejusticegap.com/2016/04/student-miscarriage-projects-struggle-make-ccrc-applications/

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Claire Mcgourlay

I am the Director of the Miscarriages Review Centre at the University of Sheffield.

What I have commented on below is taken in part from an open letter to the CCRC in the Justice gap. I also want to post here as I feel it is important to note that Miscarriages of Justice Projects are mostly doing a great job and Cardiff have overturned a conviction and hopefully this will be the first of many by student’s projects. The media reporting at the moment is based on old statistics and processes and we are working together as a collective group via CLEO to join up what we are doing in a collaborative way that will benefit everyone. When this is done I invite a writer for Legal cheek to come and interview us and see what we do here.

The Miscarriages of Justice Review Centre at the University of Sheffield acts as an impartial reviewer of a client’s case, much like the CCRC. We assess cases on their own merits with no agenda other than to aim to overturn the convictions of innocent people. As has happened in the past, we will stop reviewing a case if our investigation leads us to uncover evidence suggesting a client is plainly guilty, leaving them free to continue with an application at the CCRC if they so wish.

What we do have is the help of talented students who elect to take time out of their degrees to fight injustice and educate themselves about the failings of the criminal justice system. The students allocated to our project are not randomly selected but are of a high academic capability and have a passion for the due process of law. They are the ones who rigorously pore over cases for hours while balancing a very challenging degree. Here at the University of Sheffield we believe that our duty to our client is discharged once we have covered the case thoroughly and exhausted all possible avenues and, yes, sometimes this process will take time. We strongly believe that it is better to have given the potentially innocent client every chance of having his/her conviction overturned than to rush through their case and pass it off when nothing of merit jumps out at a brief read over.

Unlike the CCRC our students are not faced with the pressure to turn costs into results. Our students work on a pro bono basis meaning that we can spend more time than the CCRC on each individual case. It is the nature of the beast that our cases should trickle into the CCRC and we have a few with them at the moment and many more on the way.

The reality is that tenacious investigate cases throughout the week often seeing students visiting clients in prison, liaising with the families of our clients, working with expert witnesses and legal practitioners, as well as hours of library based research. There is absolutely no truth in any suggestion that the work we carry out is not taken as seriously as it could be. We are diligent, rigorous and motivated in our investigations – Monday to Sunday.

There are a number of reasons why wrongfully convicted individuals prefer to come to pro-bono projects. Unfortunately, the wrongfully convicted are not so lucky as to have endless amounts of money to fight their cases. Many are priced out of the legal sector by its prohibitive costs and while an application to the CCRC may be afforded, the fee for an expert to draft it is not. Here, we are conscious that most individuals have never had to step into a courtroom, that the layman doesn’t understand legal jargon and that an innocent man may never have previously given any thought to the criminal legal process – what law abiding person would have to? Our time is given freely and we are fortunate enough to receive close supervision from experienced directors and group leaders.
For example in just the last two months we have spent three hours with our client in a secure hospital, had two students spend some evenings receiving advice from a practising lawyer, and thoroughly examined how the cases of nine clients may best be presented following the recent Jogee decision. We have contacted forensic experts, made and organised hours of prison visits, attended seminars on how to make legal aid work pay, attended human rights and wrongful conviction conferences and in the last year we have had guest lectures from the likes of Paddy Joe Hill, Robert Brown and Martin Foran. Beyond that, a team of our students even won the Law Commission competition 2015 with a submission regarding reforming the law of joint enterprise.
When it comes to a wrongfully convicted client they deserve to sit in a proper office when they visit us and a professional team should we have to visit them in prison. We know we owe them that!

We also feel that the numbers and information the media have about the projects are not accurate and based on out of date information. his is not a particularly fair representation of the facts. INUK’s figures were never available for transparent verification anyway so they might not even be accurate. Furthermore, some Innocence Projects were not part of INUK, and some had left, for example Cardiff in 2010. You may also wish to note that INUK is no longer a network and we do not know why it continues to represent itself as such; it is run by one person, and represents just that one person as far as is known. It has no other members. So if the figures the media and other journalists are still quoting are from INUK then you might want to investigate what the real state of play is and IT IS NOT AS REPORTED .

Further, given the rules on who can contact the CCRC regarding an application it is likely the CCRC may not always be aware they are reading the result of tireless work from a group of students. Our work takes many forms: often this will involve writing a CCRC application to be submitted by our client or their legal representative. Equally, when necessary we will write supplementary submissions to a CCRC application, submitted again through the appropriate avenue to the CCRC. Unfortunately your comment only serves to further undermine the work we do, conducive only to the end of damaging the morale and motivation of our hardworking students.

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Anonymous

Thank you for that comment. It’s terrifically interesting and encouraging. Nothing could be more important in the law than correcting miscarriages.

But I do wince slightly at the mentions of Jogee and joint enterprise. People – men essentially – convicted of very serious offences in multi-handed crimes and who pursue appeals on the basis of highly technical points of recently decided definitional law are unlikely to be true examples of injustice. At least not as the man or woman in the street would understand it.

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James

Why “men essentially”?

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Anonymous

Because most offenders in cases where joint enterprise plays a part are men (the use or threat of violence is common in joint enterprise cases). Many of the convicted are members of gangs.

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Anonymous

Apologies – I accidentally down-voted this comment when I meant to up-vote!

Well put!

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LCJ

Claire McGourlay – do they teach grammar at your august University…?

If your students’ submissions to the CCRC are as badly presented as your posting, it’s no wonder that you have never convinced the CoA…

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Julian Webb

Lcj: did they teach either courtesy or courage at yours? An anonymous post that makes a collateral attack on another post without any contribution to the merits of the debate. What a waste of space.

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Julian Webb

More substantively the critical issue here is the under-resourcing of the CCRC. The possibility of review in the wake of its creation was undoubtedly a driving impetus behind many UK innocence projects. It is probably no coincidence that innocence projects have been significantly slower to get off the ground in Australia where institutional responses to wrongful conviction have been patchy, and appellate avenues generally are restricted.

It might be interesting to compare the Canadian approach which functions with rather less formality formality – and I suspect lower infrastructure costs than the CCCRC. In Canada a Criminal Conviction Review Group (CCRG) operates as an arms length unit within the Dept of Justice. It will assess conviction review applications and advise the Minister on whether a case should be referred back to the courts. I’d be rather nervous of reducing the CRCC’s independence in the current political climate, but its notable that, while the CCRG has dealt with fewer applications than the CCRC, its referral rate has been higher. I’m not sufficiently involved in this work to be sure why that is, but obviously an interesting question!

It would also be wrong to assess innocence projects chiefly on outcomes before the CCRC. As Claire McGourlay points out, a well resourced project undoubtedly can play a valuable role in identifying and supporting the stronger cases to put before the CCRC, but that does mean that much of its impact will be hidden in the cases that don’t progress, but have at least been given an opportunity that they would not have had, had they been wholly dependent on private resourcing.

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Gilliane Williams

I am staff director of the University of Brighton Criminal Appeals innocence Program and I wish to point out that in my experience, many students work incredibly hard in trying to help those who claim they have been wrongly convicted. It is a pity that this seems to be overlooked.

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Hannah Quirk

I wrote an article in 2007 entitled ‘Identifying Miscarriages of Justice: Why Innocence in the UK is Not the Answer’ http://onlinelibrary.wiley.com/doi/10.1111/j.1468-2230.2007.00662.x/full

I am sure that students get a great deal from the experience of working on these cases – my concern is largely for the applicants. I do not mean to disparage the efforts of those involved in this work. My concern has always been that innocence projects (a model imported from America where there is no post-appeal assistance) fit awkwardly in a legal system with a body such as the CCRC. The only route back to the Court of Appeal for those who have had one appeal is via the CCRC. An inevitably lengthy investigation by students delays this process and risks contaminating new evidence.

There are ways around this, and I understand that some projects now just prepare applications to the CCRC or work on cases that have been rejected. These are often very difficult cases – junior solicitors or barristers would not work on such serious cases. Enthusiasm is important but if I were wrongly convicted, I would prefer expertise and experience.

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Andrew Green

I’m Professor Claire McGourlay’s co-director on the Miscarriages of Justice Review Centre at Sheffield University.
I contributed an article to The Justice Gap’s continuing debate on the usefulness of university innocence projects and of the CCRC. I argue that the CCRC’s competence has often come under question, and that many innocence projects are working on cases which have been made more difficult by the CCRC’s own failures to conduct timely and thorough investigations of applicants’ claims.
I argue in favour of mutual respect and more co-operation. My article can be read at http://thejusticegap.com/2016/04/investigative-competence-ccrc-innocence-projects/

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