Category Archives: Reforming/Improving the system

In the UK and Australia, as elsewhere,  there have been high profile acquittals of persons who were considered ‘guilty’ in the media. I have long thought that while we often do not do enough to heed the lessons of wrongful convictions, we should also be taking note of acquittals and seeing what wider lessons they may also hold. Two such cases this week have given me pause to consider the criminal process when it ‘works’ and how this can be portrayed in the media in such as way as to be damaging to public confidence in the criminal justice system. While it can be difficult and unpopular, I believe those working to prevent wrongful convictions, should not be afraid to support these cases and speak up in support of the protections that have led to the acquittals.

In the UK, the case of Christopher Halliwell (called a ‘dangerous predator here) hit the headlines. Halliwell was arrested on suspicion of kidnapping Sian O’Callaghan and upon arrest, was driven to a deserted spot and grilled by a detective. While he pleaded to see a solicitor, he eventually buckled and led the police to Sian’s body. After subsequent questioning, all still outside of the bounds of legality, Halliwell led the police to a second body.  Under the rules of evidence in England and Wales, his ‘confession’ to the second murder (which had occurred 8 years previously) was not admissible, and as there was no other evidence, Halliwell could not be tried for that murder. Halliwell is clearly guilty of 2 murders, and yet can only be convicted of one, with an understandable ensuing outcry led by the victims mother. Commentators have also taken the opportunity to bemoan the plentiful ‘rights’ that are afforded suspects and how these obstruct justice, pledging support for the now suspended detective. However, these rules on confessions and police conduct  of interviews are there for a purpose. There is a long history of false confessions that have been co-erced or even beaten out of suspects, who have gone on to be convicted and serve many years in prison wrongfully. It took many years of campaigning to get these rights enshrined in law and we lose them at our peril. I have faced down critics on more than one occasion, for standing up for the rights of suspects, including those of murderers. (Read more on Halliwell case here and how he ‘evaded trial’).

In Australia this week, a high profile acquittal was covered in the media with much accompanying outrage. Lloyd Rayney has been cleared of murdering his wife after the ‘trial of the decade’ (see here and see here). The beauty of this trial is that it was a judge-only trial, and you can read the judge’s statement here... The reasoning reasserts that it is for the prosecution to prove beyond a reasonable doubt the guilt of the accused and the accused does not have to prove his innocence. He goes on to explain that in this case: “Endeavours by the State to fill critical gaps and explain away improbabilities are primarily no more than speculation without foundation in the evidence.”

This echoes a prior acquittal, in the case against Francis Marshall, again in a judge-only trial in Australia in 2010, where the judge stated: “I’m satisfied that the accused had a motive, and find that there are a number of suspicious circumstances which implicate the accused as the killer of Bernadette Liston,… But motive, by itself, is insufficient to find the accused guilty, (and) suspicion piled upon suspicion does not equate to proof beyond reasonable doubt.”

Perhaps there is something to be said for holding more ‘judge only’ trials. That is a debate for another day. What I do believe, is that we need to support these acquittals, even in the face of strong criticism. We cannot allow the media to use such cases to fight against removal of any hard-won protections for suspects and defendants.

The case of Johnny Montani will hopefully be successful and instructive (read more here). Montani’s brother has lodged a complaint with the Australian Corruption and Crime Commission over his three trials (and acquittals), three years on remand and huge legal bill. Montani is alleging police misconduct for adducing erroneous evidence. Being put on trial for a crime you didn’t commit should not be considered a minor inconvenience. Lives can be shattered, just as with a wrongful conviction.

In many of these ‘near misses’, there are lessons for all the participants in the criminal process to learn. These people mentioned here are fortunate to not now be fighting for their wrongful convictions to be overturned. It is important that we do not allow the media to use such cases to argue against due process rights.