INNOVATION OF JUSTICE – A REPORT (Part 1)

On Saturday, I attended an exhilarating conference at the University of Manchester, entitled “Real Change: Reviving the Criminal Justice System”, organised by the Innovation of Justice campaign. This new initiative was set up by a remarkable young man, Liam Allan, who this time last year was on trial for alleged rape. He is a victim, both of false accusations, and also of a determined attempt by the authorities to conceal evidence that would not only exculpate him but would also have ensured that he was never charged in the first place (see Part 2 of my report). Allan’s willingness to rise above his own shocking experience, and to campaign for much-needed reform, shows great generosity of spirit.

This was a whistle-stop tour of burning issues relating to Britain’s broken criminal justice system. First the retired school-master, Simon Warr, gave a rousing address about his own experience of false allegations. He explained how he was targeted by two chancers who had already got compensation after accusing another teacher, back in the day. Trouble was, they asserted that Warr taught PE in the junior school, when in reality he only taught languages in the senior school! Rather terrifyingly, Suffolk Police used an intermediary, a man in Newbury, to trawl for other accusers via Facebook. This elicited a third accuser, who claimed that Warr had chased him round the room after a shower, to pinch his bum. 

Warr argues that trawling destroys the presumption of innocence. He said that the police made it plain to other witnesses whom they interviewed that Warr was guilty. Instead, a jury acquitted him in double-quick time! Warr is understandably angry about the ability of false accusers in sex cases to retain anonymity, and the reluctance of the authorities to prosecute them. He was driven almost to suicide and noted that one social media poster actually wrote that if Warr did kill himself, it would be “the best Christmas pressie ever”.

Jan Cunliffe of JENGbA (Joint Enterprise not Guilty by Association) then spoke about the devastating impact of the “joint enterprise” doctrine on her family, and how her 15 year-old son had been convicted in 2007, despite being blind, after being on the periphery of a fatal assault on another boy by others. She has been involved in a passionate campaign along with hundreds of other mothers to overturn this doctrine, which substitutes the civil law notion of “foreseeability” for the “intent” (mens rea) to commit a crime. Her campaign backed the Jogee appeal to the Supreme Court, which resulted in clarification of this troublesome law.

Professor Allan Jamieson gave a characteristically caustic address on developments in DNA science. “The bright ones [i.e. criminals] get away with it”, he observed. The key point he made is that a DNA match is not necessarily significant. You can now get DNA profiles from as few as 10-12 cells. There may be 10, 000 cells on the head of a pin. If DNA is found on an item, so what? You can get mixed profiles. Thus, if two people with the profiles AB and CD touch an item, DNA analysis can throw up mixed profiles i.e. of AD and BC. 

Software has been developed, which claims to calculate the probability of which profile was really implicated. Professor Jamieson emphasised that this had the potential to confuse two different things. The probability that a dog has 4 legs is not the same as the probability that an animal with 4 legs is a dog! A particular problem is that to get Legal Aid for an expert report, defence solicitors must get three quotes. The cheapest always wins. So, defence teams may not always access the level of expertise required. “The reason why most people do law”, he concluded, “is that they couldn’t cope with science at school”. In other words, most lawyers and judges are scientific illiterates.

Mark George QC, Head of Garden Court Chambers in Manchester, then introduced two new entrants to the legal professions: Danielle Manson (a pupil-barrister) and Mark Robinson. Both speakers were inspirational.  Manson described how she came to criminal law defence work as a result of a close family member being involved with the criminal justice system. 

She recently moved from a twelve-month pupillage which involved exclusively defence work to the chambers of the new DPP, Max Hill QC, which also does prosecution work. She said:

It’s really, really important that you have fair prosecutors. The role of a prosecutor is not about securing a conviction at all costs. A fair prosecution is more important than having the best defence lawyer in the world.

She said that magistrates’ courts, as The Secret Barrister’s book claims, really are the Wild West. Defence counsel is expected to advise at the defendant’s first appearance in court, when all they have is a document called an NG5, containing the police summary of the case, and not the evidence itself. These summaries are often inaccurate and rushed.

Mark Robinson explained how he had been a troublesome teenager (“a cheeky East End boy”), and later developed an interest in law, after his partner’s ex accused him of assault, and he was charged. Robinson explained how he sacked his counsel at court, to the incredulity of the trial judge (who was also named Robinson!). Robinson put up such a spirited and effective defence that the jury was hung, and a number of barristers advised him to consider a career at the Bar. He was retried and acquitted.

He studied law and joined Inner Temple but has now been snapped up by a firm of defence solicitors. Robinson was brutally realistic about the demise of criminal defence work, calling defence solicitors “a dying breed”. Only 11% of criminal defence solicitors are under 35, and the majority are over 50. He only knows two other criminal defence trainee solicitors. The pay, at the top end, is £42, 000.

Closing the morning session, Mark George agreed that magistrates’ courts are the Wild West. But criminal lawyers are neither idiots, nor toffee-nosed twats, he observed.