In Western Australia, a Corruption and Crime Commission investigation is underway after it has been revealed that a mistake in labelling DNA samples in a laboratory led to the wrongful conviction of a man in 2004. There are lots of aspects to this story that beggar belief. Here are some that we know about already:
- The original mix-up at the laboratory: DNA found at the scene of a burglary was incorrectly identified as belonging to the innocent man. The DNA actually belonged to a man with the same name and a laboratory worker assigned the DNA test results to the wrong person.
- The laboratory informed the police of the mix-up after it’s discovery in April 2016 when the real offender was arrested over a separate matter. The police then took a further YEAR to act on this information.
- The victim initially protested his innocence to police but agreed to plead guilty on the advice of his lawyer who apparently told him that no one was likely to believe him and that he risked a prison sentence if he went to trial.
This laboratory is again under investigation – hot on the heels of another inquiry launched last month after it emerged a forensic biologist for PathWest, Laurance Webb, was sacked because he breached testing protocols four times between 2008 and 2014, including failing to conduct quality control testing and have work peer reviewed (see here….) . There is also an urgent question over why the police took a year to act on the information. One must surely also question the original legal advice to plead guilty – though that is not being mentioned in any of the media reports below:
CCC probe: Man wrongly convicted after DNA bungle
WA cops took a year to clear innocent man
Man wrongfully convicted after DNA mixup
DNA bungle finds WA man wrongly convicted of home invasion in 2004
I’ve written before about the many injustices that the Indigenous people of Australia face when caught up in the criminal justice system (for example see here…. and here…. and here ). I’ve also had occasion to write about the flawed investigative techniques of Australian police officers (see here… ). Both issues combined to see the wrongful conviction of a young Aboriginal man, convicted of the 2010 manslaughter of 21 yr old Josh Warnecke. However, justice has finally been done with his wrongful conviction overturned after over four years in prison.
Gene Gibson had given police a confession – induced by false evidence – when he was intellectually incapable of understanding the legal process. Gibson had been interviewed without an interpreter (despite having little English language) and no lawyer present. Gibson retracted his confession but was still convicted. He was supported in his efforts to win his freedom by the mother of the victim (who claims to feel ‘hoodwinked’ by the police), and some of Australia’s best legal professionals, working for free.
The Police Commissioner is planning to meet with Gibson after his release to personally apologise. In an earlier investigation into the police handling of the case, a scathing report found the problems with the case were a symptom of wider “failures and weaknesses” in the Western Australian Police handling of major cases. A total of eleven police officers face disciplinary action over their handling of the case.
Read more here:
and earlier reports from 2015 on the police disciplinary action:
Miscarriages of justice (as wrongful convictions are more commonly referred to in the UK) rarely feature in the national media in the UK. This has been noted for many years now. If a case is sufficiently high-profile or has some peculiarity (i.e. involves a footballer or other ‘celebrity’), then it may merit a short piece in a national newspaper. Most will only make a paragraph or two in a regional newspaper if lucky supporters can provoke the interest of a local journalist. The overwhelming majority get no media coverage at all. This is not because of a lack of miscarriages of justice (our Criminal Court of Appeal is as over-run with work as ever, as is our Criminal Cases Review Commission), but a perceived lack of public interest. Perhaps domestic miscarriages lack the ‘drama’ of an exoneration in the US (we lack the ridiculously lengthy sentences for a start). The contrast is becoming increasingly stark, with ‘Making a Murderer’ lawyers ‘on tour’ in the UK speaking to rapturous crowds, while campaigners for domestic cases struggle to be heard. In just one example: a leading national newspaper this week has a major splash on an exoneration in the US, that has a small ‘home’ angle that can be exploited:
“Innocent man jailed for 24 years after being framed over British tourist’s murder in New Orleans is freed by two lawyers who exposed a jaw-dropping fit-up that shames the US legal system.”
Yet look at the coverage of a shocking (but all too common) miscarriage of justice in the UK – a story in a local paper: Exclusive: Sheffield milkshake shop owner’s three-year nightmare in fight to clear name over child sex attack
While clearly anecdotal, yet again today I have had to correct a law student who is interested in studing miscarriages of justice after watching US TV shows, who thought that they were an “American thing”. Students seem astonished when I point out that we have our own miscarriages of justice they could study. Perhaps the media could play their part in actually reporting on ‘home’ miscarriages of justice rather than just seeking those instances we can revel in shaming the US for ‘away’ cases.
In England and Wales, since the closure of the Forensic Science Service, forensic testing has been undertaken by a number of private companies. At the time of the privatisation, many warned that introducing a profit-motive into forensic science could have perverse outcomes. Many were concerned about falling standards and ‘bargain basement’ outfits doing shoddy work. Some of these concerns look to have been justified, with news this week that two men have been arrested after the discovery that they have manipulated alcohol/ drug test results used in both the criminal and family courts. The media have reported that almost 500 cases are being reviewed to see if an injustice has occurred. Already, there is one reported instance of a case being dropped because the results of the drug tests cannot be relied upon (First case dropped since forensic science blunders as CPS says it cannot proceed)
While the news of the arrests and falsified rest results have received wide coverage, (see here…. and here… and here…) it comes hot on the heels of a critical report by the Forensic Regulator that iterates that “standards may be at significant risk” (see here. ). The 2016 Annual Report details major failings in the previous year, and warns of the financial pressures that are putting forensic quality at risk, with many police forces still not fully signed-up to minimum standards. Read the report here…. The press release stated that: A lack of funding to improve forensic science is jeopardising the integrity of the criminal justice system. Read the press release here….
With financial pressures on companies, and pressures on workers within those companies to ‘perform’, the risks to forensic science integrity in the UK is obvious. However, it is not limited to the UK and also encompasses all forensic evidence – as concerns grow about the quality of digital forensics in the US as just one example: Bargain Basement Digital Forensics Examiners – Too Good to be True.
The lesson – one that those dealing with wrongful convictions have known for years – is that forensic science cannot be done ‘on the cheap’, and attempting to do so puts the entire legal system in jeopardy.
An interesting question, with, I suspect, a terrifying answer. But who knows when miscarriages of justice in Australia are so notoriously difficult to overturn. Particularly if you are an indigenous prisoner, as this article points out:
For Aboriginal people who already have the justice system stacked against them, the avenues to protest a guilty verdict are limited, and it is unlikely you will be believed.
Remember that Aboriginal and Torres Strait Islander people are massively overrepresented in the criminal justice system of Australia.Aboriginal people represent only 3% of the total population, yet 28% of Australia’s prison population are Aboriginal.
This podcast details one case in particular of a suspected miscarriage of justice – of an Aboriginal man sentenced for a murder in 1991, that it is highly unlikely he was involved with despite his confession (most of which was thrown out of court for being involuntary). This is a case that is worthy of support – but points to a deeper problem: that there are most likely to be many many more like it, hidden from view not just because of the systemic hurdles in overturning wrongful convictions, but the almost blissful ignorance of the public that there are serious flaws in their justice system that only very rarely come to the surface.
Read more here… Curtain And The Case For Freedom: How Many Indigenous Prisoners In Australia Are Innocent?
On 22nd November 2016, a book will be published in the Netherlands (sadly, in Dutch) which aims to answer the question: How many people in the Netherlands are wrongly convicted? (amazon page here).
Some news coverage (in English) relating to the book release (Read here… and here… ) have declared that one in nine convicted people in the Netherlands may be victims of miscarriages of justice. That figure, the author suggests, may be even higher in countries like Norway but he estimates that in most countries, the wrongful conviction rate will be between 4 and 11 percent.
The author, Ton Derksen, is emeritus professor of philosophy of science and has spent his career looking at questions of ‘truth’ and ‘evidence’ and how people interpret evidence and statistics. He famously became involved in a notorious Dutch case of a nurse, Lucia de Berk, convicted of the multiple murders of patients, purely on statistical evidence. She was later released after his book was published concerning her case. He has subsequently written on lots of other cases where he examines the operation of the burden of proof.
His latest book is based upon new research among prisoners and forensic experts. He comes to some shocking conclusions. While Derksen’s work clearly focuses upon the Netherlands, it appears his research could have widespread application internationally, particularly his work on the nature of ‘truth’ and criminal investigations and trials. One has to hope that his work will be translated into English for the mono-linguists among us.
New Zealand has seen a few high profile miscarriages of justice in recent years, yet successive governments have ruled out the possibility of setting up a body – similar to the Criminal Cases Review Commision in the UK – to investigate potential miscarriages of justice. Justice William Young said courts could benefit from having a Criminal Cases Review Commission, like that established in the UK – an idea backed by the Police Association and most political parties. In a rare interview – which you can listen to here: Supreme Court Judge interview – the Justice discusses welcoming the introduction of such a body – despite being recently dismissed by the Ministry of Justice. There is also a handy guide to the New Zealand post-conviction relief here: Reviewing Criminal Cases. While in 2012 – Malcolm David Birdling published a PhD thesis examining the two systems (available here): Corrections of Miscarriages of Justice in New Zealand and England and Wales (PhD Thesis).
Michael Hannon was accused of sexual assault by a 10 year old neighbour, in 1997. He was convicted and yet in 2006, his accuser came forward and retracted her statement, confessing that she had made a false allegation. Despite this, the Ministry of Justice ‘lost’ Hannon’s case files. It was not until 2009 that he was able to have his case certified as a miscarriage of justice. The Ministry and Hannon have now reached an out-of-court settlement after his claim for compensation went to the High Court. The case is a stark example of what can happen when police pursue allegations in spite of a total lack of evidence. This failure was compounded by incompetence on behalf of the prosecutors and Ministry of Justice staff who not only ‘lost’ his file for 15 months, but continued to protest against his case being declared a miscarriage of justice.
Mr Hannon has thanked his family and supporters but spoke of the need for an inquiry into the actions of the Ministry, and why the retraction by the complainant was not forwarded to him or his legal team. He said that it is ‘impossible to summarise the impact of a wrongful conviction upon a person.”
Read more here:
Two Decades On…. Closure for Connemarra Neighbour falsely convicted of child sex abuse
A man who spent six years in prison has successfully sued the England and Wales Crown Prosecution Service after their failure to disclose police surveillance tapes that proved his innocence. Wrongly convicted of perverting the course of justice in 2007 (after 2 failed trials), Conrad Jones was freed in 2014 when he won an appeal. He was on trial for bribing a witness in a murder trial, but police surveillance tapes proved he could not have been present. While the Judge at his appeal called the failure to disclose the exculpatory evidence ‘lamentable’, Jones’s solicitor said: “It is clear that the CPS and prosecution counsel had in their possession, both while my client remained on remand in prison awaiting trial and at the time of my client’s trial, surveillance material which showed he could not realistically have met with and bribed [the witness] not to give evidence. They knew it was relevant, they knew it undermined the prosecution case and strengthened Mr Jones’s defence and they knew that the law required them to disclose it. To discover years after the event that the CPS, on the advice of highly experienced lawyers, has knowingly and repeatedly failed to comply with the criminal law on disclosure is shocking, and raises very serious questions which go right to the heart of public confidence in the criminal justice system and the legal profession.”
It is interesting however to note that Jones had to sue the CPS for their failure through the civil courts for ‘damages’, rather than attempt to win ‘compensation’ through the Government scheme that compensates miscarriage of justice victims. This scheme has proven almost impossible to win any compensation through – and the settlement reached – of over £100,000 – is far more than he would have been eligible for through the compensation scheme. While the CPS have remained silent and said the terms of the settlement are ‘confidential’, they have not admitted liability despite paying the damages. Could this perhaps be an interesting route for victims of miscarriages of justice who can pinpoint failures on the part of the CPS that saw them wrongly convicted? Could victims try suing the police? With the compensation scheme set up to prevent almost all claims succeeding, perhaps we should pursue this alternative route?
Read more here:
CPS to pay six-figure sum to man over wrongful conviction
CPS pays ‘significant sum’ over ‘lamentable’ failures to disclose critical evidence
Australia is viewed by many as an idyllic continent, where people can feel safe, and the rule of law prevails. Yet despite being a first world nation, policing can often be outdated and primitive. The use of paid-informants, and the reliance upon supposed ‘jail-house’ confessions has been known to cause wrongful convictions for decades. Yet as recently as 2009, the police of New South Wales used a paid informant to secure a confession from a young vulnerable Sudanese refugee. This supposed confession was obtained while the young man believed the informant had been brought to him to offer support during questioning by the police.
Such tactics not only smack of the worst kind of trickery, they also provide the flimsiest of evidence upon which to base a prosecution. However, this is exactly what the prosecution in the murder case against JB – a Sudanese refugee aged 15 at the time – did. Not only did they rely upon this evidence, they then proceeded to cover it up. It was not disclosed at trial, nor at a subsequent appeal, that the man known as A107 was a police informant, who then avoided his own criminal charges after this assistance with the case against JB.
There is now – belatedly – an inquiry into the police – including the ‘editing’ of contemporaneous notes – and the prosecution (for non-disclosure). This comes 7 years after the jailing of an innocent teenager. The inquiry should be asking why the police, as recently as 2009, were using such methods to try and obtain confessions, and then conspiring to cover their methods up.
Read more here:
Probe launched into wrongful conviction of Sudanese refugee jailed over Edward Spowart murder
In the past week, there have been two painful reminders that it is now almost impossible for people who have suffered a miscarriage of justice in the UK to obtain compensation. In two separate cases, in England and in Northern Ireland, men who have served years in prison before having their convictions overturned have been refused compensation by the State. These men have now had these decisions confirmed by the high courts.
In Northern Ireland Gerard Magee lost an appeal against being denied compensation. Convicted of involvement with an IRA bombing in 1988 and sentenced to 20 years, the European Court of Human Rights ruled in 2000 that his right to a fair trial had been breached after his admissions to police were made without seeing a solicitor for two days. The Northern Ireland courts subsequently overturned his conviction (he had served 10 years before being released under the Good Friday agreement). The courts have now ruled that because there were no ‘new facts’ in the case, his case does not merit compensation. To add insult to injury, he is now facing paying the legal costs of the Dept of Justice as well as his own. During the ruling Mr Justice Deeny said: “It seems clear to us that the Department of Justice was correct in arriving at the conclusion that there was no new or newly discovered fact… The Department was therefore entitled to refuse the application for compensation without going on to consider whether, in any event, there could be said to be a miscarriage of justice where the defendant had subsequently admitted to the truth of the statements which he had made admitting the offences.” Read more here…. Man wrongly jailed for IRA bombing loses appeal over compensation
Meanwhile, in England and Wales, Victor Nealon and Sam Hallam (read more about their cases here…. and here…. and in various earlier posts regarding UK compensation on these blog pages) have lost their appeal against the Ministry of Justice decision to not award them compensation for the years they spent behind bars for crimes they did not commit. After the passing of an Act in 2014, exonerees in the UK now essentially have to prove their complete innocence in order to be compensated. Simply having their conviction ruled ‘unsafe’ and overturned by the appeal courts is insufficient. For an insight into the case and the shocking state of the law in this area, read a post on the appeal and the law on compensation by Victor Nealon’s solicitor Mark Newby here… ‘Without recompense for the wrongfully convicted, the integrity of our justice system is in question’
One can only hope that their fight will now continue to the Supreme Court, who may be persuaded that the laws governing compensation for miscarriages of justice in the UK not only breaches our human rights obligations, but brings shame upon our justice system internationally.
Further to my post here…. Exoneration in Australia?: Henry Keogh freed after 20 years. The South Australian DPP has now dropped murder charges against Henry Keogh, and his planned retrial in March will now not go ahead. This is apparently because of the illness of a witness – however, it seems likely that the pathologist at the original trial – who subsequently changed his opinion dramatically, will not now testify given his later opinion. Keogh served 21 years for the murder of his fiancee, accused of drowning her in the bath. He was released from prison last year after winning an appeal.
read more here: Murder charge against Henry Keogh, accused of drowning fiancee in bath, dropped by SA DPP
Roseanne Beckett, wrongly convicted for conspiracy to kill her husband in 1991, served 10 years of her 12 year sentence. She finally overturned her conviction in 2005. This month, 26 years later, she successfully sued the New South Wales (Australia) government for AU$2.3m for malicious prosecution after proving that it was the corrupt detective, Peter Thomas and his obsession with Beckett, that led to her wrongful conviction. In a lengthy ruling, the judge stated;
“Ms Beckett says that if she had not been prosecuted by Detective Thomas, tried and imprisoned for over ten years, her future might have been “like any other normal woman, mother, or member of a community,..The fact that the State has managed successfully to defend a substantial proportion of Ms Beckett’s claims in these proceedings ought not be permitted to disguise the fact that Detective Thomas’ determination to get square sullied his objectivity. In the ten years of her incarceration, Ms Beckett was denied the basic human right of liberty and she was separated from her family, her friends and her community. She was deprived of her role as a mother. She lost the opportunity to engage in social and romantic relationships. She was denied a valuable working life that may have brought with it not only pecuniary profits but also the intangible benefits of doing well in one’s occupation.The enormity of this loss is made still more staggering by the significant period of time for which that loss was suffered.”
For media coverage see here: Roseanne Beckett awarded $2.3 million for wrongful conviction over soliciting murder of husband
For a comprehensive review of the case with lots of links – see here: Roseanne Beckett: A Miscarriage of Justice
Coming amidst growing concerns and warnings from scientists about the state of forensic science in the UK, is the announcement that Dr Gill Tully – the UK’s Forensic Regulator, has ordered a review of a series of sexual assault cases: “to find out whether there are occasional examples of poor practice or whether there are more systematic issues.” The review was prompted by cases where “the scientific opportunities don’t appear to have been maximised”. These included examples where scientific analysis was not carried out at all. Read more here: Forensic review of sexual assault cases ordered after poor practice concerns
Many forensic scientists are now speaking out about the severe budget cuts which have led to a near decimation of the UK ‘market’ in forensic services. Police are spending a fraction of what they used to on forensic science during investigations. Tiernan Coyle – a fibre specialist who has worked on many cold cases and wrongful convictions over the years, has warned of the dire state of forensic science in the UK: Forensics in crisis: Why are vital skills being allowed to die out? Coyle has now been forced to close his specialist fibre analysis company… Contact Traces leaves the forensic market.
Prof Peter Gill, one of the worlds leading DNA specialists – who left the UK some years ago because of the dire state of forensic science, and is now warning about the inevitability of miscarriages of justice: “With the Birmingham Six and Judith Ward [the M62 bomber whose conviction was quashed], there was very poor reporting by forensic science,” he said. “The problem is we’re in danger of revisiting that era.”
Just how long before there is a miscarriage of justice – or a wrongful conviction that depends upon a crucial bit of forensic evidence that can no longer be analysed?
The case of Andrew Mallard (pictured here) will be well known to those in Australia – he was wrongly convicted in 1995 of the murder of two women in Western Australia, spending 12 years in prison before his conviction was overturned. Mallard was eventually awarded AU$3.25 for his 12 years wrongly imprisoned, but the litany of ‘errors’ during the police investigation continue to come to light.
The real perpetrator was never convicted of the murders, he committed suicide in 2006 after being named as prime suspect by the police subsequent to a cold case review. However, during this review, and other subsequent inquiries into the policing handling of the murders, many questions have been raised about the police handling of evidence and exhibits – with many being claimed to be “lost”, now appearing on exhibit lists during a police audit – at the same time the police claimed to have lost the exhibits. Is this incompetence of malfeasance?
The whole investigation, the police handling of the evidence, the wrongful conviction and the ongoing shambles – should leave all Western Australia police and judicial system ashamed. There is a wealth of material to read on the Mallard case, as there have been so many official inquiries into the case. For more on the media coverage of recent revelations read here:
Since the high profile exoneration of Teina Pora (see here…) and lots of calls for reforms in New Zealand, including a body to look at miscarriages of justice, the newly created New Zealand Public Interest Project (NZPIP) has now started work. A charitable organisation, it plans to look into cases as well as wider concerns about the operation of the NZ criminal justice system. The body already has a queue of high profile cases in which a prisoner is claiming innocence. While good news…. it is not a government backed (or funded) body… which should have been the response to growing concerns about the justice system in New Zealand. One hopes that if they can bring attention, and overturn, further miscarriages of justice, the government will take the issue seriously and set up a funded body. Read more here….
In yet another encouraging sign the the ‘problem’ of miscarriages of justice is starting to be taken more seriously globally – the National Assembly of Vietnam has this week been debating the issue of wrongful convictions. In a courageous move, a standing committee looking at wrongful convictions and compensation, admitted that while most investigations and prosecutions were carried out in adherence with rules and upheld human rights, there were some ‘weaknesses and shortcomings’. The report states that between October 1, 2011 to September 30, 2014, there were 71 wrongful convictions – a rate of 0.02 per cent. Although a ‘small’ number, they admitted: “Some serious cases created extreme anxiety among the public, eroding many people’s confidence in our justice system and damaging the prestige of our law enforcement agencies.”. However, with 80% of trials in Vietnam taking place with NO defence counsel, and the country still reportedly ‘trying hard’ to eradicate torture and coerced confessions, it may be questionable how the figure of 71 was reached… and it’s accuracy. Despite this scepticism, it is still heartening that such reports are being published. Read more here…
A case that I have highlighted previously here… has been examined by some of the best legal minds in Sweden and they have concluded that there were no ‘systemic’ failures that led to a mental health patient being wrongly convicted of over 30 murders. Instead, they blame a culture of ‘trust’ which meant that critical questions were not asked of investigators and psychiatric personnel involved. There was insufficient scepticism of supposed confessions and no care was taken over the possibility of false memories. While the report seeks to ensure that mistakes are not repeated, ultimately the report leaves all involved individually blameless so no-one has been held to account. This may result in the case rumbling on for some time yet in the Swedish media. Read more here (including a link to the full report)…
In a long running issue over exoneree compensation in the UK – or the lack of it – that I have blogged on previously (here…,here… and here) Sam Hallam and Victor Nealon, who spent 24 years in prison between them, have now lost their argument that UK law wrongly restricts compensation in miscarriage of justice cases. Hallam and Nealon’s solicitors had judicially reviewed the government decision to not compensate them for the years they spent imprisoned when innocent.
The Secretary of State for Justice denied Nealon compensation for his years in jail, on the grounds that the Court of Appeal’s verdict – which said that “the fresh evidence has not ‘demolished’ the prosecution case” – meant that he was not a victim of a miscarriage of justice. In Hallam’s case – his appeal judgement partially laid the blame for his wrongful conviction at his door as the phone evidence that exonerated him 7 years after his conviction had been in his possession.
On Monday, Nealon and Hallam lost their bid to persuade British judges to accept that denying compensation broke the European Convention on Human Rights. The case is the first legal challenge to be heard to the decision to narrow eligibility grounds for compensation, which effectively requires people to prove that they did not commit the crime.
Wrongfully jailed men lose high court actions in battle for compensation
Irish man fails in compensation bid against British government
Victor Nealon falsely imprisoned for 17 years denied compensation