…"It is better that some innocent men remain in jail than the integrity of the English judicial system be impugned" … the late Lord Denning (pictured) following the overturning of guilty verdicts on the Birmingham Six.
The phrase 'noble cause corruption' was first used by Sir John Woodcock in 1992 when, as Chief Inspector of Constabulary, he was attempting to explain how miscarriages of justice occur. Surely I am not alone in thinking that, in a supposedly civilised society, such an utterance from a pillar of the establishment is nothing short of deplorable?
Has the situation improved in the sixteen years since? I think not - as the recent acquittal of Barry George amply demonstrates. The past decade has seen a number of widely publicized miscarriage of justice cases where public attention has focused on police misconduct in the process of their investigations and there undoubtedly exists a significant number of officers who are prepared to bend and break the rules to secure a conviction.
Miscarriages of justice can never be justified but there is one common thread which occurs in many of the 'high profile' cases in which a suspect verdict is achieved. It is the passage of time which elapses from when the offence occurs to the date of arrest and charge of a suspect. During this period, the police and Crown Prosecution Service come under increasing pressure, mainly from the media, to 'solve' the crime and far too frequently resort to manipulating the evidence to fit a theory. This results in the discarding of evidence which does not fit the theory and pressure being put on witnesses to alter their statements to support that theory. Regrettably, an unfortunate victim of such malpractice will discover that, after conviction, the standard set for a successful appeal is set unfeasibly high.
The greatest condemnation of any judicial system is that it should imprison innocent people yet allow them little chance of redressing the balance, and then place the interests of the system above the interests of those it was designed to protect. In researching this article, I came across a quote from the late Lord Denning following the overturning of the guilty verdicts on the Birmingham Six: "It is better that some innocent men remain in jail than the integrity of the English judicial system be impugned"…in my view, legal claptrap from someone who really should have known better. The Birmingham Six would never have been convicted in the first place were it not for so-called 'noble cause corruption'.
One of the most heart-rending examples I came across was an excerpt from a letter written by Michael MacMahon just after his appeal had been turned down for an unprecedented fifth time ... ‘I am here in my cell writing this having served almost nine years of a sentence for a murder I did not commit. I also know that I sit here not because of any evidence against me but because of the legal establishment's concern for its own pretensions of infallibility’. Michael MacMahon served his full sentence but sadly died in 2000 aged 55. However his family continued the fight for justice and, with the assistance of Gareth Pierce, Michael's posthumous sixth appeal eventually succeeded on 31 July 2003.
This is symptomatic of the problem. It is not the criminal justice system which, in the end, recognises its dreadful mistakes and moves resolutely and contritely to correct them. It is not the police, not the politicians, not the state, nor the so-called responsible members of society who eventually demand justice. It is the victims themselves, their families, friends and supporters who never give up fighting despite the passage of time.
Ludovic Kennedy, in his book ‘36 murders and two immoral earnings’, highlights a deep and fundamental malaise in our present adversarial system which lends itself to a presumption of guilt and a determination on the part of both the police and the Crown Prosecution Service to make facts fit theories. Kennedy wrote to the Ministries of Justice and/or leading newspapers in Spain, Portugal, France, Germany, Austria, Italy, Belgium, The Netherlands, Denmark, Sweden and Norway to ascertain if they are plagued, as we are, by reports of alleged miscarriages of justice running from year to year, decade to decade. None had, and some seemed faintly surprised at him raising so novel a question. A free press exists in all those countries, so if campaigners felt that miscarriages had occurred on any scale, there would have been the means and channels available to draw attention to them.
How can this be? The basic difference is that we persist with the adversarial system of justice, whereas these other countries, without exception, use the inquisitorial system. It is interesting to note that the other main countries, America, Canada and Australia, which also use the adversarial system, suffer from the distress of miscarriages of justice. Kennedy concluded - and on this evidence it is virtually impossible to disagree - that it is the accusatorial system which is the invitation to corruption: by the police, who in order to secure convictions and gain promotion have an inbuilt disposition into deluding themselves that a suspect is guilty, but lacking sufficient proof, take it upon themselves in what they see as a 'noble cause' to fabricate additional prosecution evidence; and collusion by the judiciary in a) believing police evidence, and b) emphasising that belief to juries.
Opponents of the adversarial system exist throughout the civilised world. Nicholas Cowdrey QC, the New South Wales Director of Public Prosecutions, states: "The adversary system is not directed to the ascertainment of truth”, and Geoffrey Robinson QC, author of ‘The Justice Game’ asks: "Is it a game? Yes. Should it be? No."
What chance then does a victim of a miscarriage of justice have of overturning an incorrect verdict? The Criminal Cases Review Commission is seen as the establishment's answer but - as most who have embarked on this particular course will tell you - the standard of proof is set impossibly high. The Commission is almost immovable in their insistence on 'fresh evidence' although, in recent months, this has been expanded to include 'fresh argument'.
The other avenue that has always been available is that of the campaigning journalist, and readers of Inside Time will be familiar with the name of Bob Woffinden, who writes regular articles in the national press on contemporary miscarriages of justice. Bob himself sets his own standards very high before he agrees to investigate and publicise individual cases, and I am reliably informed that a new book containing his assessments of twenty of the most prominent cases will be published in the near future.
Finally, David Jessel, one-time presenter of TV’s ‘Rough Justice’ and a former Commissioner for the Criminal Cases Review Commission, once said: "If 99 per cent of all convicted prisoners have been rightfully convicted and 1 per cent not, that means in a prison population of say 50,000 (omitting those on remand) no less than 500 shouldn't be there".