Author Archives: Carole McCartney

UK Supreme Court Rule on Access to Evidence Post-Appeal

400px-uk_supreme_court_badgeThe Supreme Court of England and Wales has today ruled in the case of Kevin Nunn, an important ruling concerning the right of a convicted prisoner to access evidence in his case after he has been tried, and lost an appeal. Nunn had applied to the CCRC, claiming to be innocent of the murder of his girlfriend in 2005. Nunn is serving a life sentence for the murder. The CCRC denied a request to DNA test fluids found on the victim’s body. Nunn then applied through the Courts to gain access to the evidence in his case to have it re-tested (at his own expense). The Supreme Court this morning were ruling on whether he had the right to demand this evidence from the police and Crown. The full ruling (of just over 9 minutes) can be watched on YouTube here…. There has been some reporting of this morning’s judgement here…

Supreme Court rejects Kevin Nunn’s evidence release plea

Kevin Nunn: Lifer loses forensic tests fight eight years after murder conviction

There has also been a blog post, expressing unease – particularly as it lays a heavy burden upon the CCRC, who have not been known in the past to always make the right decision with regard to the re-testing of evidence. see here….

Kevin Nunn Case – Supreme Court application dismissed

I have jotted down a very quick summary of the main points of the unanimous judgement (which was mercifully short).

This appeal concerns the extent of disclosure duty AFTER the close of the case and any appeal. Police declined to keep going back to the evidence. Were they allowed to take this stance? Were they under the same duty of disclosure?

Unanimous decision that duty of disclosure does NOT continue unaltered after the trial. Up until end of trial he is presumed innocent. Once convicted he is no longer presumed innocent, but rather is proven guilty.

There remains a public interest in any flaw in his conviction being exposed. No-one ought to remain convicted if the conviction is unsafe. BUT also an important public interest in the finality of the process, for the family, witnesses etc. but also because of resources. There should not be indefinite re-investigations take resources away from new investigations.

There is a duty of disclosure but it is now more limited after trial. Guidelines issued by AG set out rules. Police and prosecutors must provide defendant with anything new if it casts doubt on the safety of the conviction. They must cooperate in further inquiry if the new inquiry has a real prospect of casting doubt. Not speculative reinvestigation simply because the defendant does not accept the decision of the jury.

In England and Wales, and Scotland, there is a specialist body charged with investigating suspected miscarriages of justice (CCRC). The existence of this body is another reason why there is no occasion for the Crown’s duty of disclosure to continue unaltered after conviction. If there is a proper inquiry on a topic where these is a real prospect that the conviction might be shown to be unsafe, the police and prosecution ought not to wait for an approach from the CCRC, but should cooperate in the inquiry.

If DNA retesting had a real prospect of showing that someone else committed the crime, then the continuing duty of disclosure would apply to it. on the facts of this case, it would not. It was known at the trial that the fluid could not have come from the defendant. Retesting in this case would not eliminate the defendant. A request for DNA testing should be dealt with according to the principles set out under the AG Guidelines.

 

Police lying: an endemic international problem?

It is starting to feel in the UK like ‘another day, another story of police lies’. In what feels like just a few months we have had media coverage of (to mention just a few) scandals where, for example, police have been caught falsifying reports of an altercation that they ‘witnessed’ when they were not present (see Plebgate scandal...). We have the ongoing revelations over police lies and their coercion of others to lie in the Hillsborough disaster cover-up (see Hillsborough inquiry...). It is suspected that these tactics were honed during the Miner’s Strike when striking miners were ‘fitted up’ (see Miners Strike….). Such tactics clearly have continued for years with many undercover police officers lies leading to convictions  (see undercover policing....) as well as the recent revelation that high profile victim Stephen Lawrence’s family were put under police surveillance during the inquiries into the police failures after Stephen’s murder (to try and discredit the family and their campaign for justice). This all comes on top of the almost run-of-the-mill stories of police ‘collusion’ with one another after fatal police shootings, with the introduction of body-worn cameras to enable the police to be ‘more transparent’ about fatal shootings. In fact, the introduction of police body-worn cameras has been posited as a boon for police as it will cut down on false allegations from the public. However, is it perhaps more likely that police body-worn cameras may serve to make the police more honest? Will they be able to lie with camera footage of the real altercation readily available?

0In Omagh, Northern Ireland, the introduction of CCTV cameras in the town has led to the uncovering of police lies leading to miscarriages of justice – with solicitors claiming that miscarriages may be ‘endemic’: increasingly, CCTC footage is being shown to demonstrate that the police account of events is unreliable – even untrue (see story here…) Of course this has not been a good week either for police south of the border in Ireland, having been found to have been illicitly tape recording phone calls made to police stations (see here…). The other side of the world, in New Zealand, they are calling police lies and false evidence which have led to convictions as ‘failings’ and ‘sloppy police work’ (see here…Police failures led to wrongful conviction).

We have all known for years that there are ‘rotten apples’ and that wrongful convictions have often had police misrepresentations, if not outright corruption and lying, at their heart. However, the question must surely now be asked: is lying among the police an endemic international problem? If so, what can be done about it? These questions are already beginning to be murmured in corners of the UK, I think it is now time to get such questions out in the open. These are challenging times for the police, and if we are not to lose trust in them completely, I believe some hard questions must be asked and answers demanded.

 

UK Parliamentary debate on definition of a ‘miscarriage of justice’

There have been recent moves by the government in the UK, to severely restrict access to compensation for victims of miscarriages of justice. There has rightly, been (muted) outrage about the proposed requirement that the person claiming compensation had to prove their ‘innocence’ to be eligible for compensation. (see post here…)

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“A statutory definition was first attempted by the government as part of the Anti-social Behaviour, Crime and Policing Bill, which originally stated a miscarriage of justice has occurred if new evidence must “show beyond reasonable doubt that the person was innocent of the offence”. When the bill progressed to the House of Lords, peers voted to defeat the government and change the wording so that the new evidence “shows conclusively that the evidence against the person at trial is so undermined that no conviction could possibly be based on it”.

The debate on the amendment and the definition of a ‘miscarriage of justice’ is available here….  For those of us involved in miscarriages of justice in the UK, this is essential viewing – and those interested in how authorities approach these issues. It is a long debate, but very very interesting! There has been limited reporting so far of the debate – but you can see one article here…

Wrongly jailed in UK may not get redress

Recent UK Exoneree talks about release and time in jail

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Recent DNA exoneree Victor Nealon, who spent 17 years in prison for an attempted rape he did not commit, has spoken of his time in prison and his release. He was given just 7 days notice of his appeal, then when freed from the appeal court, dropped at a local train station with 46 pounds (approx US$75) and nowhere to live. He is now considering suing the police for his arrest in order to gain some compensation to rebuild his life. Read the full interview here….

Postman who spent 17 years in prison after wrongful conviction for attempted rape says he is a ‘greater person’ for being victim of miscarriage of justice

Chinese saga of wrongful conviction finally ends after 16 years

A Chinese man who was sentenced to death and spent 12 years in prison for the rape and murder of a child was awarded US$160,000 compensation after his conviction was overturned, a court said. Li Huailiang stood trial seven times and was given three different sentences for the rape and murder of a 13-year-old girl in Pingdingshan in August 2001, Xinhua reported.

The farmer was condemned to death, then death with a two-year reprieve – a sentence normally commuted to life in prison – and after that, 15 years in jail.
Each time, the verdict was subsequently overturned “due to lack of evidence,’’ but he was not formally acquitted until April this year, when he was released from prison, Xinhua said. The Intermediate People’s Court in Pingdingshan, in central Henan, granted him 780,000 yuan (US$130,000) for the loss of “personal freedom’’ for 4,282 days spent in prison and a further 200,000 yuan for “psychological damage,’’ a statement posted on its website said.
Li had claimed 3.79 million yuan in total, the statement added.

Indian man freed by Delhi High Court after 14 years in prison

Bhupender Singh walked free on Friday after the Delhi High Court acquitted him of the 1999 murder of the wife of his former employer. Singh had been convicted in 2006, after fingerprints were found in his employers house. The fingerprint evidence was highly contentious, and never dealt with satisfactorily, but the High Court has now decided that Singh can go free, because there was not sufficient evidence for the conviction.

Read more here… HC acquits man of murder 14 yrs after he was jailed

UK Innocence Project case to be heard at Court of Appeal

Some great news from the UK: The Cardiff Law School Innocence Project (see here...), operating since 2005, has had a case referred back to the Court of Appeal in England and Wales, via the Criminal Cases Review Commission. See the official press release here: Commission refers the murder conviction of Dwaine George to the to the Court of Appeal

This case centres upon gunshot residue evidence, with the students at the project providing the CCRC with a new expert report. The Innocence Project Director, Julie Price, has been writing a blog about the challenges of running an Innocence Project and has written about the news here… Whilst it is indeed time for reflection, and this is not a ‘victory’ in that the appeal still has to be won, it is surely a good day for all of us in the UK who hoped that Innocence Projects in this country could make a difference.

Sad news from UK – the death of Susan May – wrongly convicted.

_70427007_susanintI have previously written on this blog of the case of Susan May (see here… ) a brave lady who served 12 years in prison for the murder of her aunt, a murder she almost certainly did not commit. The sad news is that Susan May has not lived to see her conviction overturned, and she passed away last week. This is very sad news indeed and all wrongful conviction campaigners send their condolences to her family, friends, and her many many supporters. They will continue to fight her conviction.

read more here…

Susan May: Murder case woman dies before appeal ruling

Hope at last for UK’s Susan May, wrongly convicted 20 yrs ago?

Susan May always denied murdering her auntIt is unusual to find criminal cases where large numbers of individuals are prepared to put their head above the parapet and state that they wholly believe in their innocence, regardless of having failed to date to overturn their conviction. Susan May’s case is one of the few. Convicted in 1993 of killing her 87 year old aunt, Susan served 12 years in prison before being released, the first life sentenced prisoner to be released while still proclaiming their innocence. Susan and her supporters however, have never given up trying to prove her innocence and have her murder conviction overturned. After all these years, there is still some hope. Internationally renowned fingerprint expert Arie Zeelenberg has writte a report that the ‘fingerprints in blood’ that were the main prosecution evidence were not, in fact, in blood at all, and were most likely left before the crime. Zeelenberg’s report is now with the CCRC, who are considering her case for referral again, back at the Court of Appeal. I sincerely hope that Susan May’s nightmare may soon be over. Read more here….

New evidence may clear woman convicted of murder 21 years ago

Susan May’s 20-year fight against murder conviction

Strict UK compensation rules for exonerees soon to be passed

Strict new rules which will severely restrict the ability to obtain compensation for those who have had convictions overturned in the courts of England and Wales, look set to be passed. Earlier blog posts have detailed these changes (here….and here…) and now, former ‘Birmingham Six’ member, Billy Power, has spoken out. It is very rare for Mr Power to speak to the media, and his clear concerns about the new rules are prompting him, and others, to try and raise the issue, which seems to be entirely evading any political or public debate at all. imageRead Mr Power’s views here…

Birmingham Six member warns over changes to UK miscarriage of justice rules

And more reaction here:

Criminal compensation reforms would shift burden of proof on to victims

More calls in New Zealand for independent justice review committee

In light of this week’s decision at the Privy Council to overturn the murder conviction of New Zealand citizen Mark Lundy (see earlier post here….), ongoing debate surrounding the need for an independent review commission, along the lines of the UK’s Criminal Cases Review Commissions, has again been sparked. An earlier post here…. detailed how New Zealand authorities have long been contemplating the creation of a post-appeal review body, but they have so far resisted calls. See an interesting news piece here…. untitled

Call for justice review committee for miscarriages

Privy Council in London overturn New Zealand murder conviction

The Privy Council, sitting in London, has heard an appeal from Mark Lundy, a New Zealand resident serving a 20 year life sentence for murdering his wife and daughter. Mark Lundy has already served over 12 years in prison for the murder that he has always maintained he did not commit. The court has overturned the conviction and instructed the authorities in New Zealand to give Mr Lundy a new trial as soon as possible. Mr Lundy turned to the Privy Council after losing all appeal avenues in New Zealand. His appeal turns upon new ‘credible’ expert evidence that casts serious doubt over the original evidence used at trial, of stomach contents analysis, in order to determine the time of death of the victims. Mr Lundy has always had an alibi for when he claims the murders must have taken place, but the stomach content analysis put the deaths at a time when he could have committed the murders. If this evidence is proved flawed, then the whole case is thrown into doubt.

Read more here:

Mark Lundy murder convictions quashed  

New Zealand businessman Mark Lundy wins appeal in UK court over conviction for murdering wife and daughter with tomahawk-like weapon

New Zealand judge: ‘Case for Independent body to investigate miscarriages of justice even stronger now’

untitledA retired New Zealand judge is arguing, 10 years after conducting an inquiry into miscarriages of justice in New Zealand, that the country is still in dire need of an independent body to investigate cases. This article outlines his conclusions then, and now, and the political concerns surrounding the establishment of such a body.

Read more here: A decade after he recommended New Zealand set up an independent commission to investigate claims of miscarriages of justice, Sir Thomas Thorp says the case is even stronger.

Top Chinese Forensic Scientist Quits in Protest Over Miscarriages of Justice

Following hot on the heels of previous posts about the rising awareness of wrongful convictions in China (see here… and here…. and here…), one of the leading forensic scientists in the country has now resigned in protest at the mishandling of evidence in criminal cases and a series of miscarriages of justice:

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Wang Xuemei, the vice-president of the government-administered Chinese Forensic Medicine Association, said she could no longer be involved with an organisation that routinely serves up “ridiculous and false expert conclusions”

Defence solicitors have commented that the judiciary in China remain under the control of the Communist Party, and cannot be independent. Such comments, and a high profile resignation, should serve as clarion calls for reformers in China to work to bring about urgent reforms, and those in the international innocence movement must continue reaching out to our Chinese colleagues, to ensure that exonerations can be secured. Read more here…

Top Chinese forensic scientist quits over mishandled cases

Neil Heywood case: forensic scientist who raised doubts over conviction quits

Ahead of Bo Xilai trial, a top China forensic scientist quits

Aside

As several of my blog posts have pointed out (here…. and here….  and here…), seeking compensation for a wrongful conviction in the UK is becoming nigh on impossible. Recent decisions to severely restrict compensation to only those who can demonstrate … Continue reading

Miscarriages of Justice in China Prompt New Guidelines

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China has recently been uncovering a raft of miscarriages of justice. The latest case sees a man released after spending 17 years in prison for the murder of his wife. This latest case, and the many that have recently hit the headlines have led to new guidelines from the ruling Communist Party, regarding prosecution policy and procedures. The guidelines reaffirm the presumption of innocence, and makes police and prosecutors ‘responsible’ for erroneous convictions – removing the previous ‘conviction target’ system of appraising performance simply through numbers of convictions. Read more here:

Chinese man innocent after 17yrs in jail

Lifelong Responsibility

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High Hopes for South African DNA Database

dnabill-adopted

Yesterday, (August 15th 2013), the South African Parliament passed a bill, permitting the creation of a DNA database for South African police. The Criminal Law (Forensic Procedures) Amendment Bill, permits the taking of DNA from suspects during criminal investigations. While the cost of the DNA database and associated costs have been queried and concerns abound about whether the nation can afford the cost it is hoped that the human rights/ civil liberties concerns that have delayed the passing of the bill, have been addressed (e.g. see:  Costing queried as DNA bill gets the nod).

There are high hopes that in South  Africa, a country beset with a massive crime problem, with corruption rife within a highly dysfunctional justice system, will assist with criminal detection.

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The DNA bill was supported by a very high profile (and successful) campaign by families of crime victims – you can see their work and campaign successes in their very professional website: ‘The DNA Project’.

 

As yet, even with the wide media coverage, there has been no mention of the use of DNA to exonerate innocent prisoners, of whom there would be expected to be many. The emphasis so far is all on the detection of offenders – although we know that the diligent use of DNA at an early stage in criminal investigations can be an effective tool in the prevention of wrongful convictions. However, it is hoped that with the establishment, and investment in a DNA database, South Africa may be able to take action on miscarriages of justice.

Further north, in Kenya, there has been a recent call to recognise the potential for miscarriages of justice, and take action to give greater rights of appeal and for the judicial system to acknowledge the possibility of miscarriages of justice, albeit the country is yet to publicise any: Kenya scarred by miscarriage of justicePerhaps there is cause for cautious optimism that the ‘innocence movement’ may be spreading to the African continent.

Australasia: New calls for criminal cases review body

New Zealand media are again focussing attention on the case of Teina Pora (read about his case here) , a man convicted 21 years ago of a rape and murder that he maintains he did not commit. Pora is now awaiting a pardon, having lost all his appeals and reached the end of the line. Many groups including politicians and police support his claims of innocence. However, the Premier of New Zealand (John Key) is rejecting calls for the government to set up an inquiry into the conviction. Instead, the case may (if refused a pardon) have to go to the Privy Council in London.

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Read more here:  Key, Collins shy off action on Pora case

The case is attracting sufficient criticism that it is heightening calls for a criminal case review body specifically created to look at potential miscarriages of justice. Commentators are looking to renew previous calls in New Zealand to set up a review bodysimilar to the CCRC in the UK. With Pora’s case featuring so heavily in the news, the calls may get greater political and public support.  Read more here: Criminal conviction review system long overdue

Meanwhile, similar calls are being made just across the Tasman Seain Tasmania (a state of Australia). They too are demanding new appeal rights for those alleging a miscarriage of justice. Similar to many of the States in Australia, once you have your appeal in Tasmania, 

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you cannot have a subsequent one, even if new evidence is produced. Civil Liberties Australia are now calling for greater appeal rights in Tasmania, a call that could similarly be made all across Australia. Read more here:  Calls mount for retrial ruling

Germany frees innocent man from asylum after 7 years

For the last seven years, Gustl Mollath, 56, has been held in a German asylum, after his wife accused him of assault. Mr Mollath had been trying to expose bank staff at Bavaria’s HypoVereinsbank (HVB), including his wife, who he accused of smuggling millions into Swiss accounts. Instead judges ruled that he was paranoid and committed him to psychiatric care for an indeterminate period. An audit of the bank has now proven his claims to be true, and he was released from involuntary detention. Read more here…

Germany’s worst miscarriage of justice? ‘Paranoid’ husband freed after he was mistakenly held in asylum for seven yearspg-34-mollath-reuters

Australia: Call for end of juries in new book: ‘Presumed Guilty’

A veteran reporter in Western Australia, Bret Christian, has written a new book entitled ‘Presumed Guilty’. In promoting the book, he has given an interesting radio interview where he calls for the abolition of juries. He claims that having covered many miscarriages of justice, this may prevent further occurring. You can listen to the interview here….   

More details on the book are available here:

Presumed Guilty

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