We need our Innocence Projects now more than ever
A shorter version of this article was first published on the Justice Gap
The announcement that Innocence Network UK (INUK) had disbanded in September 2014 came as a real shock to those of us on the inside still fighting for justice. There had been no indication to those of us on their waiting list that the organisation was having any problems, so it all seemed rather disappointing and confusing when the news finally reached us. What had gone wrong, and why would they seemingly give up on us like that? In this article, I examine some of the problems innocence projects face and propose a number of ways forward for the movement.
INUK was essentially a casework referral service that assessed applications from prisoners who protested their unequivocal innocence in a crime for which they were wrongly convicted. Members of the network signed up to common operating protocols and investigative methodologies, and were allocated eligible cases by a centralised co-ordinator following assessment.
The Innocence Network helped to fulfil the desperate need for investigative assistance in criminal appeal cases which simply couldn’t be met under legal aid. INUK helped to bridge the chasm between what a legal aid lawyer could achieve and what needed to be pursued in an investigative context. With INUK’s disbandment – and the simultaneously crippling effects of legal aid reforms – that void has not only reopened, but become bigger than ever.
The need for assistance is abundantly clear. Legal aid solicitors are scandalously underpaid. The Criminal Defence Service grants just £500 for the preparation of appeal applications to the Criminal Cases Review Commission (CCRC). In the 2 years that my solicitor worked on my case, this is all he ever received. To make this in any way viable, individual solicitors need to take on in the region of 50 clients at any one time, so you need to be realistic about how much time and attention your case will be allocated in practice. With that many clients you’ll be lucky to get more than an hour a week. Inevitably, this means that cases either proceed incredibly slowly, or can receive little more than a superficial examination. This is why third party assistance from the likes of an innocence project can make all the difference.
My own firm of solicitors were forced to close their criminal appeals department at the beginning of 2015. With legal aid reforms restricting their funding further still, they simply couldn’t afford to keep the business running. This story is being replicated all over the UK, with hundreds of solicitors being laid off. The current situation is nothing short of a criminal justice crisis. With fewer firms able to assist applicants, the wrongly convicted are left with ever fewer avenues of help and longer delays in getting it. This can only perpetuate existing miscarriages of justice. With 3000 innocent men and women wrongly convicted each year according to Ministry of Justice estimates, the proportion of wrongfully convicted prisoners in our jails is set to increase further still. This is why the loss of INUK comes at such a bad time for prisoners maintaining innocence.
Those of us struggling with exhausting and lengthy appeals know how easy it would be to just give up in the face of obstacle after relentless obstacle, the setbacks, and the disappointments – year after year. This is the lot of the innocent. Things are never straightforward and you are always bracing yourself for the next hurdle, but the most important principle is perseverance. In the pursuit of truth, righteousness, and vindication, it is essential to keep the flame of hope alive – to pick yourself back up and to bear the burden of injustice with dignity and strength. INUK represented more than just a means to an end, it was a symbolic flag-bearer for miscarriage of justice victims and wider initiatives for penal reform. To see a comrade fall in that battle was bad enough, but it looked more like they were running away.
Regulation and governance
Things started making more sense when I read Dr Michael Naughton’s press release (Founder and Director of INUK). One of his chief complaints was that universities weren’t following INUK’s protocols for case management. This lack of standardisation resulted in divergent strategies across the member projects, making it difficult to maintain consistency or establish quality control. Dr Andrew Green (Sheffield Hallam University Criminal Appeals Clinic) argues that there was never any need for centralised leadership, but in my view, even if individual innocence projects assess their own cases against established eligibility criteria, they would still benefit from oversight by some kind of regulatory body. This is something that INUK was neither willing, nor able, to fashion itself into. Nevertheless, it is important to establish not only what clients can expect of innocence projects, but what innocence projects expect of their students.
Alternatively, universities could collaborate on an innocence project Charter that clearly defines codes of practice and methodologies that they all agree to uphold or follow. This would not only serve as a statement of intent but as a means of democratic self-governance.
The simultaneous curse and blessing of the INUK model is that it relies almost entirely upon student manpower. On one hand, the great advantage of this is that there is an almost endless source of talented young minds in our universities with the dedication and enthusiasm required to plough through the stacks of material in a case. As Dr Andrew Green pointed out on JusticeGap, “No one working under the restrictions of legal aid funding or the budgetary constraints of institutions such as the CCRC is likely to do the detailed work that students are prepared to do”. However, given their lack of experience and the quick turnover of university students, much of the advantage is lost in the continuous cycle of training new recruits up.
For future innocence projects to run efficiently, they need to develop a vigorous and intensive training programme to get their students into shape. A formulaic approach is critical and the first thing they need to get to grips with is what constitutes a valid ground of appeal. Once you’ve familiarised yourself with the common errors that occur at trials or in police investigations, you’ll have a good idea of what you should be looking out for: things like the wrongful admission or exclusion of evidence; non-disclosure; counsel incompetence or misconduct; poor
summing-up, or misdirection, by the Judge; police failure to pursue reasonable lines of enquiry, or secure evidence; abuses of process; and so on. Recognising the symptoms of a wrongful conviction will enable students to diagnose them.
The next big thing is understanding the various tests applied by the CCRC and the Court of Appeal: the ‘safety’ test (including the ‘lurking doubt’ test and, more recently, the ‘risk of a miscarriage of justice’ test); the ‘real possibility’ test; the ‘jury impact’ test; the cumulative effect of multiple grounds of appeal; and the court’s discretion ‘in the interests of justice’. In addition, an appreciation for historic cases and campaigns will help students to identify patterns of failure and spot the tell-tale signs of a miscarriage of justice.
Finally, an understanding of what ‘fresh’ evidence is and the issues surrounding admissibility should fully arm an innocence project member with the basic tools they need to pick apart a prosecution case and identify the threads that merit further investigation, or the commissioning of an expert, before submissions can be prepared.
There wasn’t an innocence project at my university when I was at law school in 2010. How I wish there had been, if only to structure my expectations! I walked into the Crown Court with the lofty principles and beliefs of the lecture hall. What I received in return came as a cold, sharp shock. Innocence projects serve a vital educational purpose, grounding future lawyers and barristers in the realities and practicalities of a fallible justice system.
I first contacted INUK myself in July 2011, about a week after my first appeal failed. We had no fresh evidence at that stage and I realised that a lot of investigative work needed to be done if I was to turn things around. The initial response was very encouraging. Within 15 weeks of receiving my application, INUK had conducted an in depth review of my case on the papers and deemed my case eligible for full investigation, but that’s where things stalled. I was placed in a queue with no prospect of when my case might be allocated to a member project and work could begin. A further year passed by without any news and I simply couldn’t afford to wait any longer. I had begun preparing an application to the CCRC with the help of a solicitor and decided that now was the time to submit. I needed to get the ball rolling as quickly as possible and INUK just wasn’t set up for that kind of emergency response.
The most fundamental problem facing any innocence project is funding. Without it they lack the resources or the capacity to meet demand. A radical approach is needed if others are to improve the service they can provide. When I was at university I stood for our Law Society elections. Fundamental to our role was approaching law firms to sponsor our society events, open days, competitions, etc. Every student law party we hosted was funded partly by a firm keen to attract future applicants, and partly by our own membership fees. Law societies have a responsibility to reflect the ethical interests of their student members, and I believe that in this capacity they can play a much greater role in the innocence project movement.
If student law societies allocated part of their funding to their university’s innocence project then they would be able to secure its longevity and increase its capacity. This would involve student representatives actively approaching law firms to fund their innocence projects. They may also choose to mark-up their membership fees on the basis that a percentage was going towards the initiative. Innocence projects have everything to gain from affiliations with law firms. Many will be willing to donate time rather than just money, supporting projects through the provision of invaluable expertise and legal oversight.
Exciting collaborations like these have already started appearing in the past 6 months alone: at the University of Essex, for example, who have begun working in partnership with Inside Justice (itself funded by the Esmee Fairbairn Foundation, Inside Time, and the Roddick Foundation); or Sheffield Hallam University, who are now working in conjunction with Cartwright King (albeit on prison law); and of course, the all new Centre for Criminal Appeals, which – whilst an independent law practice in its own right – is funded on a similar basis by charities including Unltd, Humanade, the Shackleton Foundation, and the law firm WilmerHale. Their vision of bringing an American model of miscarriage of justice investigation to Britain – with a focus on defence orientated ‘boots on the ground’ reinvestigation – is perhaps the most exciting ideological departure from INUK yet.
Corporate Social Responsibility
Above all, student law societies and innocence projects alike need to tap into the increasingly prevalent mind-set of Corporate Social Responsibility (CSR), through which corporate law firms pledge to channel a percentage of their time to pro bono work (free legal help) each year. CSR is founded upon the belief that corporations ultimately have a moral duty to give something back to society, and that the legal profession in particular is ethically bound to promote access to justice and equality of arms. Over recent years, this has seen a growing amount of private sector involvement in traditionally state funded areas such as social welfare. Indeed, the idea of setting an aspirational target of pro bono hours for all lawyers and firms to aim for is gaining increasing currency within the profession.
The Attorney General’s pro bono envoy, Michael Napier – in expressing his own concerns about cuts to legal aid –commented that, “There is pressure in every direction to meet the gap in unmet legal needs”. Pro bono should never replace legal aid – indeed it can’t – but it already makes a huge contribution in supplementing its provision. As Rebecca Hilsenrath, chief executive of the charity LawWorks, notes: “It doesn’t help if, as a profession, we simply maintain the line that this is the government’s responsibility. Even if some of us can’t do much, it is beholden on us to do as much as we can”. Smarter marketing will enable innocence projects to garner both the support they need and the cases they need to work with.
Dennis Eady (Cardiff University Innocence Project) has suggested that the breaking up of INUK may “provide a timely opportunity for universities to close down their activities”, but I have to disagree. Rather, they should take this opportunity to consider a new approach. We need our innocence projects now more than ever. They play an invaluable role not only in expediting justice, but in shining the spotlight on the prevalence and scale of miscarriages of justice in Britain. From the ashes of INUK lingers a glistening phoenix. Exciting opportunities await. Now is the time to grasp those opportunities and foster the rebirth of an all new innocence movement in our country – based upon democracy, regulation, and collaboration – potential mechanisms for which we have explored in this article. There has never been greater potential for change in this field. Let us rise to the occasion and unite in our pursuit of justice.