Guilty Until Proven Innocent: The Crisis in Our Justice System

PREFACE

The front door crashes open. It’s just gone 5 a.m. There are feet pounding up the stairs. As you stumble out of bed, you’re taken aside. You hear the words that you have heard so many times before on TV: ‘You don’t have to say anything…’. The neighbours’ curtains twitch as, head bowed, you’re placed in the backseat of a police car. You have nothing to hide. You have faith in the criminal justice system – but your nightmare is only just beginning.

As a lawyer specialising in criminal defence for twenty years, I have news for you: many of the people I represent are not guilty. How sure can any of us be that the police will realise when they have taken a wrong turn? That the CPS will decide not to take the matter any further? That the jury will find sufficient doubt to outweigh their ‘no smoke without fire’ prejudice?

It has been more than a quarter of a century since scandalous miscarriages of justice – such as the Guildford Four and the Birmingham Six – shocked the public out of its complacency about the supposed infallibility of our courts. Widespread concern led to a royal commission and fundamental reforms. Such reforms never fixed the problem, and it would be naive to think that they ever could.

As practitioners in our criminal courts, we witness at first hand the frailties of the justice system. This book is being published at a time when an underfunded system is creaking. Unprecedented pressures on the police and prosecution, swingeing cuts to the Ministry of Justice’s budget, not to mention two decades of frozen legal aid rates for defence lawyers have all contributed to a growing crisis.

Should the aim of the criminal justice system be to ensure that all guilty people are convicted, even if that means a few innocent ones go down? Or should it strive to protect the innocent at all costs, even if that means letting a few that are guilty slip away? Both options involve ‘miscarriages of justice’, but the presumption of innocence favours the latter over the former.

Sadly, that presumption has been under heavy fire over the last two decades from ambitious politicians and a press quick to be outraged, but reluctant to understand.

The cases that feature in this book should send shivers down the spines of every law-abiding citizen. The increasing focus on convicting the guilty instead of protecting the innocent means that we may soon all have cause to fear the dawn raid.

Rod Hayler

Old Bailey Solicitors

INTRODUCTION

When a miscarriage of justice case hits the headlines, it is easy to dismiss it as a shocking one-off aberration – a minor hiccup in a system that otherwise functions in an exemplary fashion. After all, we are told by politicians and lawyers that our criminal justice system is the finest in the world.

In reality, our justice system is in a state of permanent crisis. Our dilapidated courts are falling apart. It’s not just that paint peels off the courtroom walls and the roofs leak; inefficiency has become endemic. More than half of criminal trials in this country have to be called off or rescheduled. In 2015, some 1,200 Crown Court trials were unable to start as scheduled because the private companies contracted to escort prisoners to court failed to deliver the defendants on time. According to the spending watchdog, the National Audit Office, the Crown Prosecution Service spent £21.5 million that year on preparing for cases that were never heard.

Austerity has hit the criminal justice system hard. The Ministry of Justice’s budget, which covers prisons, probation and the legal aid system, will have been slashed by 40 per cent since the coalition government came to power in 2010 by the end of the decade. That is a cut from £9.3 billion in 2010/11 to a predicted £5.6 billion by 2019/20.

Legal aid lawyers, derided in the press as ‘fat cats’, have not had an increase in their fees for twenty years. It is a measure of the disdain in which the rights of defendants are held that the coalition government threatened to impose a 17.5 per cent cut in legal aid rates. Where else do we see cuts on that scale?*

Our courts operate on a ‘two-nation’ system. There is ‘the wealthy, international class’ who opt to settle their cases in London with its ‘gold standard of British justice’. And then there is everyone else. The rest of us have to put up with ‘a creaking, outdated system’.

That is not the confected outrage of some vested interest with an axe to grind. It is the assessment of a recent Lord Chancellor. ‘I have heard too many accounts of cases derailed by the late arrival of prisoners, broken video links or missing paperwork,’ said Michael Gove in 2015, in his first speech as Lord Chancellor. The politician observed for himself lawyers arriving in court with their huge bundles of paper, describing the large stacks with typical flourish as ‘snowdrifts of paper held in place by delicate pink ribbons’, and wondered what century our courts were living in.†

Gove did not last long in the post. Lord Chancellors don’t these days. There have been six in the past six years. The problems that he rightly identified, however, have only got worse.

At the same time as this impoverishment, the criminal justice pendulum has swung dramatically in the direction of victims’ rights and away from the rights of defendants. Successive governments have bought into Tony Blair’s ‘tough on crime, tough on the causes of crime’ mantra.

‘Some of our reforms will be controversial,’ Tony Blair told Labour Party conference delegates in 2002, ahead of the launch of his criminal justice White Paper. The then Prime Minister promised to ‘rebalance’ our justice system, so that the rights of suspects did not outweigh the rights of ‘the law-abiding majority’.

In his conference speech, Blair sought to redefine what we understand by ‘miscarriages of justice’. Perhaps, he suggested to the party faithful, ‘the biggest miscarriage of justice’ in today’s system is ‘when the guilty walk away unpunished’.

Of course, Tony Blair’s speech was not controversial in the slightest. It now takes a brave politician to speak out in defence of the rights of defendants in this climate. At the start of 2018, a series of high-profile rape cases collapsed over a two-month period because of failures to disclose evidence. In the high-profile case of Liam Allan, the police had downloaded 40,000 text and WhatsApp messages from the woman’s phone. Allan’s lawyers had repeatedly asked for the data to be handed over to them before the trial. Instead, they were assured there was nothing to disclose. The messages were finally released three days into Allan’s trial. This wealth of evidence revealed that his accuser had pursued the 22-year-old psychology student for (her words) ‘casual sex’.

A miscarriage of justice was narrowly avoided. Allan had been on bail for nearly two years. It was the prosecution counsel who insisted on the defence seeing all the evidence three days into the trial at Croydon Crown Court. ‘The system nearly failed,’ the barrister said. ‘This is a criminal justice system which is not just creaking, it’s about to croak.’

As a result of this and a run of similarly collapsed cases, the Metropolitan Police drafted in more than 100 officers to review 600 rape and sexual assault cases. An unreserved apology has been extended to Allan.

This is not a one-off.‡ The number of prosecutions in England and Wales that have collapsed due to a failure by police or prosecutors to disclose evidence has increased by 70 per cent in the past two years. Meanwhile, the miscarriage of justice watchdog reports that failures in disclosure are the biggest cause of wrongful convictions.

The Director of Public Prosecutions, Alison Saunders, was asked if it was possible that there were people in prison today because of failures of disclosures. Apparently, there is nothing to worry about.§

• • •

On 14 March 1991, Paddy Hill, Hugh Callaghan, Richard McIlkenny, Gerry Hunter, Billy Power and Johnny Walker left the Old Bailey. They were finally free, having spent sixteen years behind bars after their convictions for the murder of twenty-one people, as a result of bombs placed in two Birmingham pubs in November 1974, were overturned.

Set up on the very day that the so-called Birmingham Six were released, a royal commission was tasked with repairing the battered reputation of British justice. That scandal had exposed a mindset at the top of the judiciary that valued maintaining the appearance of integrity over the lives of individuals destroyed in the rush to judgment.

It was a view most infamously articulated by Lord Denning. Then Master of the Rolls, Denning ruled in 1980 that there would be no further appeals in the Birmingham Six case. ‘If they won,’ he said,

it would mean that the police were guilty of perjury; that they were guilty of violence and threats; that the confessions were involuntary and improperly admitted in evidence; and that the convictions were erroneous. That was such an appalling vista that every sensible person would say: ‘It cannot be right that these actions should go any further.’

It was a position that Denning did not resile from even in retirement. Historian A. N. Wilson asked him in 1990 whether he was glad that the death penalty had been scrapped. ‘Not really,’ the esteemed judge replied. ‘It ought to be retained for murder most foul. We shouldn’t have all these campaigns to get the Birmingham Six released if they’d been hanged. They’d have been forgotten, and the whole community would have been satisfied.’

All ‘systems’ make mistakes. No sensible person would be surprised that one so complex, chronically underfunded and dependent on other autonomous but similarly cash-starved agencies as British justice would from time to time err. A willingness to acknowledge fallibility, as well as being the decent and humane thing to do, is the right thing to do.

From the Birmingham Six to the 1989 Hillsborough football stadium tragedy, extreme institutional denial of the justice system has done more to undermine public confidence than the begrudging confirmation that the police really did beat confessions out of innocent Irish men or, in the case of Hillsborough, falsely made out grieving football fans to be drunken, ticketless louts who invited tragedy upon themselves.

It took the Hillsborough families twenty-eight years to get their measure of justice in the form of the 2016 inquests, which ruled that the ninety-six fans were ‘unlawfully killed’.

Like many people, all these years later, I can still recall the moment I first saw those distressing television images of Hillsborough stadium on the afternoon of Saturday 15 April 1989. I come from a family of Liverpool FC fans. My father and brother were both at the match. My mother and I endured a long wait before discovering that they were OK. Then there was further anxiety until we heard news about my brother’s friend, who had travelled with them. Ray was one of the lucky ones. He managed to extricate himself from the Lepping Lane stand and climbed over the fencing to the adjoining pens.

On 29 September 2016, I interviewed Margaret Aspinall, chair of the Hillsborough family support group at Liverpool FC’s ground. Her eighteen-year-old son James died in the stadium disaster. ‘Even now it feels raw,’ she told me. ‘He goes off to a football game and he comes back five days later in a coffin. You need answers.’

In the background as we spoke, the Kop boomed out ‘You’ll Never Walk Alone’. It was playing on a fifteen-minute loop over the Anfield speaker system, for the benefit of fans from all over the world who were touring the hallowed ground.

The Hillsborough families had a community behind them. ‘That is why we have to try and change things,’ Margaret Aspinall told me. ‘No parent should have to go through what we did alone.’

There are many families out there fighting for justice on behalf of loved ones. Their campaigns do not have the critical mass of the Hillsborough campaign – they go it alone.

• • •

Much of this book was written in the year of the twentieth anniversary of the Criminal Cases Review Commission (CCRC). The most concrete of 350-plus recommendations of the royal commission, set up on the day the Birmingham Six were released, was its proposal to create the first state-funded miscarriage of justice watchdog.

If you are in prison for a crime you have not committed, and you have unsuccessfully appealed, then your one and only chance of clearing your name resides with the Birmingham-based CCRC. It alone has the power to refer your case back to the Court of Appeal.

On average the CCRC receives 1,500 applications a year, mainly from prisoners. In the year of writing, the miscarriage watchdog referred just twelve cases back to the Court of Appeal.

The commission, oversubscribed and understaffed, is just another symptom of a failing criminal justice system. It is no coincidence that the system’s so-called safety net mechanism has suffered more under austerity than any other agency.

In 2016, the CCRC’s chair, Richard Foster, told MPs that for every £10 that his predecessor had to spend on a case a decade ago, he now had just £4. That represented the deepest cut that had taken place anywhere in the justice budget.

Almost as soon as the CCRC was set up, it was undermined: first by politicians and then by the Court of Appeal.

Many lawyers and academics would say that the Court of Appeal has changed little since those bad old days.

• • •

Guilty Until Proven Innocent is about miscarriages of justice (but not of Tony Blair’s kind). Each chapter starts with a different case of alleged wrongful conviction. The purpose of the book is to explore the common ground between the cases, all quite different and unique, in an attempt to shine light on why the criminal justice system keeps failing us.

This book is the work of a journalist, not an academic or a lawyer, although it is influenced by the debate in legal and academic circles. There is a small constituency of concern comprising lawyers, academics, journalists and campaigners that has mobilised around miscarriages of justice.

Many of them have written for the Justice Gap website, taken part in the House of Commons’ justice committee 2015 investigation into the CCRC, and are currently involved in the formation of the all-party parliamentary group on miscarriages of justice. I have been influenced by their work in writing this book (but the book is an entirely independent enterprise).

The book is not arranged thematically, but I examine the following big issues:

There is no adequate safety net. The Court of Appeal continues to fail to get to grips with miscarriages of justice.

There is no effective watchdog. The CCRC is so chronically underfunded and overwhelmed that it fails to do the job it was set up to do.

These are hidden problems. The creation of the commission has usurped the role of others who previously investigated miscarriages of justice and, as a result, this failure of our justice system has gone largely unreported. As a result of a two-decade pay freeze on legal aid, very few lawyers are willing to undertake appeal work. Similarly, the media (with honourable exceptions) have largely given up on miscarriage cases. I began this introduction by saying: ‘Whenever a miscarriage of justice case hits the headlines…’ The reality is that they very rarely do.

We have little meaningful ‘open justice’. There remain huge problems with disclosure and access to evidence, and more generally a lack of accountability on the parts of the courts and legal profession.

Failures in policing persist. Tunnel vision, police misconduct and allegations of corruption feature in many of the cases included in this book.

Poor legal defence. The inevitable consequence of the crisis in legal aid is that many defendants suffer as a result of incompetent legal representation.

Inexpert evidence. Courts are often over-reliant and misled by flawed expert evidence.

Prior to the CCRC, there were clear types of cases (terrorism, unreliable identifications, police misconduct etc.) that came to redefine in people’s minds what a ‘miscarriage of justice’ was.

Over the past twenty years there have been clear categories of miscarriages of justice (‘joint enterprise’ convictions, especially in the context of gang and knife crime, junk science cases and historical sexual abuse cases). But they are less well understood by the public.

As I said, each chapter features a different case. Each one is complex. They are not black and white. I attempt to write about the cases in a way that is fair to all sides. It does not help anyone to embellish the facts of a case and present it in a more positive light.

• • •

One day in March 2015, I found myself sitting in the lounge of a married couple. They had been through a hellish experience. The husband had spent twenty months in prison for crimes he always insisted he had never committed. He was convicted of offences relating to historical sexual abuse allegations. Miraculously, the couple had come out the other side intact.

On his first night in prison, the husband had contemplated taking his own life. He had a heart condition and had recently had a stent fitted in his upper thigh to regulate the flow of blood. He planned to take the plug out and ‘lie there; quietly bleeding to death’.

But, he insisted, he had had it easy compared to his wife. One day she was sitting outside school in her car, having just picked up their seven-year-old son. She was about to pull away from the kerb when the mother of one of her son’s friends came over. Her window was open and the woman punched her in the face. As she walked away, she keyed the side of her car. All the time, their son sat behind his mother with his seatbelt on.

Her husband is now a free man because of the hard work of a loving wife, who refused to give up despite what must have seemed an impossible fight. His conviction was quashed in the Court of Appeal.

As I sat down on their sofa, I placed my iPhone on the table ready to record. The interview had been cancelled and then rescheduled. The husband didn’t want to talk to the press. His wife believed it was important that they did. She wanted to tell other people in their position that they weren’t alone.

So I hit ‘record’. I sense there is something he wants to say before we start. There is. ‘As a society, we accept that there are miscarriages of justice and that there has to be collateral damage,’ he tells me. ‘For every eight people who get sent to prison in relation to these types of allegations, two might be innocent. They are the collateral damage.’

• • •

Over the past couple of years, there has been a surge of interest in the topic of miscarriages of justice. Curiously, this renewed interest has had nothing to do with the deepening crisis in the justice system, and everything to do with the success of American documentaries into cases of alleged wrongful conviction.

The best of these programmes was the Netflix hit Making a Murderer, which documented the plight of Steven Avery of Manitowoc County, Wisconsin, who spent eighteen years in prison for a sexual assault that he did not commit.¶ Two years after Avery’s release, and having just filed a $36 million lawsuit, he was arrested for murder. What followed over ten episodes was an unsparing dissection of what looks like some pretty rough justice. The two film-makers, Laura Ricciardi and Moira Demos, spent ten years working on the series.

As you reach the climax of Avery’s story, one of his lawyers, the wise and eloquent Dean Strang, using words that resonate on this side of the Atlantic, delivers the following impromptu soliloquy on the limits of American justice:

Most of what ails our criminal justice system lies in an unwarranted certitude on the part of police officers, and prosecutors and defence lawyers, and judges and jurors, that they’re getting it right. That they’re simply right. It is just a tragic lack of humility.

This book is dedicated to our justice system’s collateral damage.

* In 2014, a cut of 8.75 per cent was imposed on the legal aid fees for criminal defence solicitors and a second equal-sized cut was put on hold.

† Michael Gove gave his first speech as Lord Chancellor at the Legatum Institute on 25 June 2015. He said: ‘I have seen both prosecution and defence barristers in a case that touched on an individual’s most precious rights acknowledge that each had only received the massive bundles in front of them hours before and – through no fault of their own – were very far from being able to make the best case possible.’ He was sacked from the post by Prime Minister Theresa May in July the following year.

‡ The Liam Allan case is uncannily similar to the case of Elgan Varney (see Chapter Six ).

§ When asked on BBC Radio 4’s Today programme on 18 January 2018, the DPP Alison Saunders said: ‘I don’t think so because what these cases show is that when we take a case through to trial there are various safeguards in place, not least of which is the defence indicating what their defence is going to be.’

¶ The US podcast Serial, which narrated an unfolding investigation into the case of Adnan Syed, who was convicted of killing his ex-girlfriend, is the most popular podcast ever and is reckoned to have been downloaded 68 million times.

CHAPTER ONE

THE WAITING GAME

In the early evening of 4 June 1992, off-duty police officer Paul Caddick opened the garage door at No. 6, Grafton Drive in Upton, on the Wirral peninsula not far from Liverpool, and made a gruesome discovery. His sister-in-law, eight and a half months pregnant, was hanging by the neck from a rope that had been suspended from a ceiling beam.

The death of Paula Gilfoyle continues to cast a long shadow over the lives of family and friends more than a quarter of a century later. When Paul Caddick, then a 34-year-old police sergeant based down the road in Upton village, arrived at No. 6, he still had a bright career ahead of him. Paula’s death would change his life irrevocably.

The nightmare began when Caddick’s father-in-law rang him at 7 p.m. that evening; Norman Gilfoyle wanted him to come to his son’s house. When Caddick arrived, he found his brother-in-law, Eddie Gilfoyle, distraught. Norman passed over a handwritten note from Paula, as if it would explain everything.

Dear Eddie,

I’ve decided to put an end to everything and in doing so end a chapter in my life that I can’t face up to any longer. I don’t want to have this baby that I’m carrying. I wish now that I’d got rid of it. When I was thinking about it, I wouldn’t be hurting the way I am now…

The couple both worked shifts and had picked up the habit of leaving notes on the kitchen work surface for each other. Gilfoyle claimed to have only read the opening lines when he returned from work earlier that afternoon. Convinced that he was reading a ‘Dear John’ letter – and that his wife had walked out on him – Gilfoyle said he had driven directly to his parents’ house ten minutes away.

Paul Caddick kept reading:

Don’t blame yourself, Eddie, it’s not your fault. I’ve caused all your pain and heartache. I’ve destroyed you and your life. I just hope you can rebuild everything and realise your goals and dreams.

I am sorry for hurting my family, your family and my friends, but most of all hurting you. I never meant to. Don’t be afraid to tell people the truth, they can’t hurt me because I’m not there to face up to them all. I loved you in my own way but I destroyed it all through my own stupidity. All my moaning and nagging at you wouldn’t have helped us to rebuild things between us.

Eddie, I’ve done some things in my life that I am not proud of but I got through somehow but this is just too much. I can’t face up to my problems any more. I had packed a bag and even moved some of my clothes already but I can’t run any more, it is the end of the line for me on this earth.

Give my mum and dad a keepsake for me, explain things as best as you can, tell them I love them and that I’m sorry for everything.

Eddie, I hope you will find it in your heart to forgive me and that one day we will meet again until that day, take care of yourself, don’t be afraid in life, I will watch over you and protect you from harm. I’ve ruined your life, it is the best I can do maybe it will be the one thing I can do right in life.

I can’t change or alter what I’ve done but if I could, I would. They say time heals a broken heart, I hope your heart heals pretty quick. I don’t want you to waste any more of your life. It’s time to turn the clock forward instead of backwards and go forward.

Good night and God bless.

Love,

Paula

PS: I apologise for all the pain and suffering I have caused by taking my own life. I don’t mean to cause any problems for anyone, no one is to blame except myself.

The due date for Eddie and Paula’s baby was in two weeks: 18 June.

While Paul Caddick read the note, Norman Gilfoyle rang around family and friends who might know of his daughter-in-law’s whereabouts. Caddick called Upton Police Station, requesting that a colleague come over and make a missing person’s report. Caddick asked if Norman and his wife Jessie had looked upstairs. They had. What about outside? No.

Caddick asked Eddie Gilfoyle for the keys to the garage. While Caddick was trying, but failing, to open the garage door, a uniformed colleague arrived. Gilfoyle directed Caddick to a spare key kept underneath the porch mat. There were two Yale keys there.

No. 6 was a semi-detached house, with a lean-to garage at one side. Caddick peered through the frosted glass of the garage doors and glimpsed a blue outline, but he could not make it out, and opened the door to make his grim discovery. He was immediately confronted by Paula’s suspended body. Beneath it was a small aluminium stepladder. Paula’s feet trailed from the ladder’s lower step, her knees some fifteen inches from the garage floor.

The second police officer on the scene was PC Brian Jones. He arrived at 8 p.m. As coroner’s officer for the Wirral, PC Jones reported unnatural and suspicious deaths.

During the course of his ten years in the job as coroner’s officer, Jones had made many visits like this, and had seen the aftermath of countless suicides. He saw Paula’s suspended body and drew the obvious conclusion. He cut the body down to, as he later put it, ‘preserve her dignity’. Jones took Paula’s weight by holding her under the armpits, while his uniformed colleague severed the rope. The pair then laid the body of Paula Gilfoyle on the floor.

As coroner’s officer, PC Jones assumed control of what, in his view, was evidently a case of suicide. When the scene of crime officer arrived at Grafton Drive at 8.18 p.m., Paula’s body had already been laid out on the garage’s cold, concrete floor. Jones informed the scene of crime officer that photographs were not necessary. Two CID officers soon arrived. ‘There’s nothing for you,’ Jones told them.

Two minutes later, the police surgeon turned up. He detected early signs of rigor mortis. Some seven officers were called to the garage that day.

Out of respect for a grieving family, PC Jones