Presumed Guilty

“I don’t care about the money,” is a frequent refrain of the innocent. “I want my name back and an apology.” Usually they get neither, because miscarriage of justice organisations and campaigners still don’t get it. Quashing a conviction is no more than half the job. The criminal justice system does not care about guilt or innocence; it never did.

An acquittal at trial is nothing more than an admission that the prosecutor could not prove the defendant guilty beyond reasonable doubt. It is not a declaration of innocence. Appeal is no better. If a conviction is quashed, it meant that the conviction was found to be unsafe. That is not the same as a finding of innocence. Occasionally judges make sure that there is no doubt, by saying that they are not finding the appellant innocent. There is no verdict of innocence, yet that is demanded now in compensation claims.

Exoneration

Annette Hewins, Sion Jenkins, Barry George and Andrew Adams are part of a growing trend. Their convictions were quashed on appeal, yet none of them have received a penny in compensation because the Assessor decided that they had not been exonerated. The fact that there is no verdict at trial or appeal in British law that guarantees exoneration seems to have escaped politicians, eager to save pennies at the expense of those wronged by society.

The former Unionist MP, Lord John Laird, sought clarification. Laird asked the government to “issue a practice direction to criminal courts ensuring judges declare any defendant acquitted at trial, or appellant whose conviction has been quashed as unsafe on appeal, as innocent at the close of the court proceedings.”

He also asked the government “whether they will ensure that appropriate compensation and aftercare is provided to such persons?” His question and the subsequent answer from Lord Tom McNally, a Minister of State at the Ministry of justice were ignored by media expressing an interest now the Supreme Court is considering these issues.

Practice

“Practice directions in the criminal courts are a matter for the Lord Chief Justice, not the Government,” said McNally. “It has long been an important feature of our criminal justice system that a person charged with an offence is presumed to be innocent until proved guilty. A person found not guilty is to be treated as innocent, as too is a person whose conviction has been quashed on appeal.”

But the practice is different. Exoneration is required for compensation now. “A person whose conviction is quashed on appeal may apply for compensation under Section 133 of the Criminal Justice Act 1988. Entitlement to compensation under that provision will be considered shortly by the Supreme Court in the case of Adams.”

Actually they can’t. The abolition of the Discretionary Scheme means that any person whose conviction is quashed in an in time first appeal will not qualify under Section 133. Even if there is no doubt about innocence whatsoever, they are not entitled to anything and the government not only knows it, but refused to right the wrong. The very same minister Lord McNally said as much previously when asked to restore the Discretionary Scheme by Lord Laird.

“The discretionary compensation scheme was abolished on 19 April 2006 by the then Home Secretary and the coalition Government have no plans to reintroduce it,” said McNally. “We will continue to consider applications for compensation under the statutory scheme, Section 133 of the Criminal Justice Act 1988, which fully meets our international obligations.”

It also excludes anyone who had the temerity to be acquitted or have their convictions quashed on a first appeal even if they are proved innocent later by the conviction of the real perpetrator.

Lax Procedures

The families of a murder victim and her late former husband – he was wrongly accused of that crime fifteen years ago – joined forces to slam what they believe are lax procedures at a recent trial. They claim that Phillip Skipper was wrongly accused all over again at the retrial of former labourer John Pope – that it was more like Mr Skipper that was on trial than Mr Pope.

Mr Skipper was not alive to defend his reputation. Mr Pope was found guilty of the murder of Karen Skipper for the second time last week. He had been convicted of the murder in February 2009, but the Court of Appeal quashed the conviction last year and ordered a retrial. Its judgement still has not been published.¹

The Presumption of Innocence?

Mrs Skipperʼs body was discovered in the River Ely in Cardiff on the morning of March 10th 1996. A year later her estranged husband Phillip who died of cancer in 2004 was acquitted of her murder. According to the criminal justice system, the presumption of innocence was never taken away from Phillip Skipper. The Fitted-In Project followed the case carefully. It was after all Walesʼ second vindication case in the DNA age.

To the disgust of the families of Mrs Skipper and Mr Skipper, Popeʼs defence QC Mark Evans turned it into Mr Skipperʼs third trial. Having attended this trial, we agree that it was hard if not impossible to spot any evidence of Mr Skipper being presumed innocent.

We are surprised that despite the European Convention of Human Rights being incorporated into UK law in 1998, the Article 8 Right to Family Life of Mr Skipper’s family was paid such scant regard. Similarly, Mrs Skipper’s family’s rights were not defended either. This is applied in the setting of the tariff too.

Lip Service

The families insist that there was no presumption of innocence for Mr Skipper despite his acquittal, but the coalition government says there is no problem.

“It has long been an important feature of our criminal justice system that a person charged with an offence is presumed to be innocent until proved guilty”, said the Minister of State at the Ministry of Justice, Lord (Tom) McNally. “A person found not guilty is to be treated as innocent, as too is a person whose conviction has been quashed on appeal”.

Fine words, but the treatment of Mr Skipperʼs memory in this trial shows that the practice is vastly different. Mark Evans QC lost no opportunity to accuse Mr Skipper of his estranged wifeʼs murder, using evidence that had been rejected by the jury that tried and acquitted Mr Skipper and evidence that was inadmissible against him in that trial.

This was a thinly disguised prosecution of a man who could no longer defend himself – a prosecution that had no burden of proof and for whom there appeared to be no rules on the admissibility of evidence.

There was absolutely no presumption of innocence for Mr Skipper and no thought was spared for the feelings of his child – still a young teenager. The quality of the so-called evidence used in this back-door prosecution of Phillip Skipper was woeful. There ought to be rules governing such tactics and consequences for such conduct.

1 The judgement was published subsequently: The Editor.

Satish Sekar © Satish Sekar (June 1st 2011)

Discretion and Valour

Of the seven vindication cases in Britain four of them are no longer eligible for compensation or after-care and it is too late to help a fifth, who would have qualified.[2] The abolition of the Discretionary Scheme for compensation in 2006 denies anyone whose conviction is quashed too soon eligibility for compensation. The current government endorsed that shameful decision.[3]

“The discretionary compensation scheme was abolished on 19 April 2006 by the then Home Secretary and the coalition Government have no plans to reintroduce it,” Minister of State at the Ministry of Justice, Lord (Thomas) McNally replied to a written question from Lord (John) Laird earlier this year.[4]

“We will continue to consider applications for compensation under the statutory scheme, Section 133 of the Criminal Justice Act 1988, which fully meets our international obligations.”

Scandalous

That means that some people who have been vindicated would be excluded if their cases were to happen now, but compensation is only part of the problem. There is an even bigger scandal over the provision of care or restoration.
A ludicrous error passed unnoticed nearly a decade ago. The Home Office recognised that victims of miscarriages of justice required and deserved assistance to rebuild their lives. It established a Working Group to consider the issue and establish such a scheme. It was given terms of reference and so was Peter Shore (not the former MP of that name), the Consultant that it hired to conduct a scoping study.
Shore failed to execute those terms of reference adequately and recommended a scheme that excluded the vast majority of victims of miscarriages of justice. Only Sean Hodgson is alive and eligible for the scheme operated by the MJSS, which begs the question, what use is it if it excludes the demonstrably innocent?[5]

To its shame and disgrace it failed to highlight the obvious injustice of its remit excluding among others Colin Stagg. There is plenty of shame and disgrace to go round over this and that includes mainstream media.

Plain Wrong

The term injustice is grossly inadequate to describe the suffering that Stagg and others like him went through. If he is not the victim of a miscarriage of a justice, the term has no meaning. Stagg is entitled to more than just compensation for what happened to him.
He did not ask for what happened to him to occur and is in no way responsible for the incompetence and unethical practices that ruined his life. He will always be identifiable as the suspect in the Rachel Nickell case regardless of his proven innocence.
At last he has now received apologies for what he went through, but the state has an obligation to restore him to the life that he should have had if that miscarriage of justice had not happened to him. That has not happened and the coalition government has no intention of ensuring that it does. In fact, its ministers donʼt even know its own policy.
“The Ministry of Justice funds the Miscarriage of Justice Support Service (MJSS) to help those who have had their convictions quashed by the Court of Appeal,” McNally replied to Laird. “The MJSS provides help with issues such as healthcare, accommodation, finance and relationships. The MJSSʼ funding has recently been extended for a further year to March 2012 and the Ministry of Justice is working with it to improve the support they provide.”

Disgraceful

First of all, the MJSS does not provide help to those who have had their convictions quashed on appeal – it only provides that limited assistance to a tiny minority of such people. It shamefully reneged on a commitment to help Tony Paris and Yusef Abdullahi eight years ago to protect its funding, which included their wages.
The fact remains that there are several victims of miscarriages of justice who receive no help at all from the MJSS. If McNally is unaware of this, he ought to be ashamed of himself. The MJSS had the opportunity to help and improve the so-called service it provides eight years ago. It chose to sacrifice the interests of the undeniably innocent to protect its wages, claiming it was to protect its funding.
That disgraceful decision helped to cost lives. At least three vindicated people died without living to fifty without receiving any help whatsoever from the MJSS or the Ministry of Justice. Neither can ever make amends.

Exclusion Ordered

The original defendants in the Damilola Taylor case are at least still alive, but they receive no help from the MJSS. They were children when it happened; they had criminal records and were far from angels. So what!
They did not kill Taylor and they did not ask to be wrongly accused of a crime that shocked the nation. They have been compensated now after a long and hard battle and even that is resented. Why?
Where is the anger at the shoddy investigation that secured abysmal evidence from the child witness referred to as ʻBromleyʼ? Where is the anger at the utter incompetence of Sian Hedges that resulted in the wrongful release of the Preddie brothers (Ricky and Danny)?
The outrage at the size of the award given to two brothers (not the Preddies) is totally misplaced. They deserve compensation – at least that amount, but the size of the award given to Taylorʼs family is insulting. That should be addressed by increasing the award made to Taylorʼs family, not by attacking the award made to boys who stood trial when they should not have.

Motes and Specks

Meanwhile, we allow the undeniably innocent to be treated in a fashion that shames each and every one of us. That mainstream media ignores this scandal disgraces them too. That governments of both political hues refuse to act to end this outrage betrays every concept of justice.
They go to war in foreign fields to defend human rights, yet these hypocrites tolerate and ignore the human rights abuses that they allow to occur right here in Britain. By what right do they dare to lecture others when this is how they allow people they know to be innocent beyond doubt to be treated? It appears they need considerable assistance to remove the enormous mote from their own eyes, while tackling specks in the eyes of others.

Progress

The Fitted-In Project led the way in highlighting the treatment of these victims and in one of the cases we helped fill the void caused by the betrayal of the innocent with the assistance of a remarkable advocate and champion of restorative justice, Roger Backhouse QC. He led the delivery of after-care in practice to his former client, Yusef Abdullahi, without which, shorn of help and hope, the prospect of recovery was bleak.
While Backhouse and others provided the assistance required to an undoubtedly innocent man, the government and MJSS ignored that manʼs needs and those of the majority of victims of miscarriages of justice.[6]

Even now eight years later, the government has no plans to right the wrong that allowed this shameful injustice to occur. Instead it will consult with the very organisation that betrayed the innocent to protect its funding – shameful!

The Effects of Vindication

Instead of consulting people that played no part in catering for the needs of the vindicated, even at the cost of consigning them to early graves, we call for meaningful research that will boost our understanding of a shamefully neglected group of victims of miscarriages of justice.
The psychological effects of vindication remain a mystery. The vindicated are no more innocent now than they always were. The difference is that now they are believed by all but those who refuse to see. But what about the effects on vindication? Has the very thing they craved actually damaged them?
For many years they suffered whispering campaigns, including among so-called friends and developed paranoid reactions to their own communities, wondering who believed them and who didnʼt. Friendships and other relationships broke down under the strain of the certainty they now have against their knowledge that they should have been believed and supported to the hilt earlier.

Justice Betrayed

Feeling hurt – betrayed even – by people they trusted, but whose support was not strong enough, the vindicated may need extra support, or at least understanding. That requires research and it must include the psychological effects of tariff abuse.
Some vindicated people have seen the truly guilty receive more lenient tariffs than they did. How can this be justified and what effect does it have on the mental well-being of the vindicated? There is not so much a dearth of research on this – it is virtually non-existent.
Tariff Reform and after-care, especially in relation to the vindicated, are the flagship projects of The Fitted-In Project. They even involve sport as a means to aid their recovery.
We believe that research is essential on both topics and we are conducting it, but there are areas that we cannot cover as efficiently as we would like, so we call on the Clinical Forensic and Legal Medicine Section of the Royal Society of Medicine, other organisations and individuals to join us in facilitating understanding of the psychological effects of vindication in terms of after-care needs and also tariff abuse through research. We hope that its members will research these issues, or facilitate research projects with us on these issues.
It is through knowledge that their needs can be addressed, but first they need to be understood – that is a task to be led by professionals in the field through rigorous research. It is in our opinion an essential tenet of another integrated approach – one that integrates the vindicated back into society and the life they should have had.

[1] An indication of the importance of an integrated approach can be seen in Equality of Arms, at http://fittedin.org/fittedin/?p=690  for more on this case and others too.

[2]  Subsequently, a sixth who plainly was eligible has died, so it is too late for him too.

[3]  The current government has extended the attack on compensation to demand a standard that appears to demand that the wrongfully convicted must be exonerated – a standard that can prove impossible to meet unless the real perpetrator is brought to justice. Few independent observers believe that Barry George had anything to do with the murder of former gymnast and later television presenter, Jill Dando, but he has been denied compensation on the grounds of exoneration. This is grossly unfair as the criminal justice system rarely makes findings of innocence. A not guilty verdict includes both the innocent and also defendants who have not been proved guilty. The distinction is moot. Similarly convictions are quashed on appeal because they are unsafe. That includes both the innocent and appellants whose convictions were faulty. Again the distinction is moot as neither the trial nor appeal gives a finding of innocence, so how does a wrongfully accused prove that they have been exonerated and are therefore entitled to compensation?

[4] Please note that this was in 2011.

[5] That was correct when this presentation was given to a conference of medical practitioners, which included distinguished forensic pathologists.

[6]    See how we exposed this scandal in A Lack of Care at http://fittedin.org/fittedin/?p=709 and Who Cared? at http://fittedin.org/fittedin/?p=707