The Disease Not The Cure - Andrew Malkinson & The CCRC

In the world of criminal appeals a ‘DNA case’ is an open goal. By that I mean when a convicted prisoner proclaims that their conviction was wrongful the discovery of relevant DNA from another at the crime scene is as gold plated an opportunity to right that wrong as can be conceived of. 

Anyone involved in a criminal trial process will seek to play out the crime in their mind’s eye in a bid to determine what actually happened. With the proliferation of CCTV it is becoming more and more common that criminal trials involve seeing, at least to an extent, what actually did happen. 

In Andrew Malkinson’s case there was no helpful CCTV. Ring doorbells had not been invented in 2003 and we were still some way off having a camera on almost every street corner. The case against him therefore relied upon one of the most unreliable ingredients in the criminal trial process, that is human beings. Some of those humans were civilian and some were not. 

Time and again advances in DNA technology have proved unambiguously and unequivocally that humans can be just wrong, whether advertently or inadvertently. If there is no trace of a convicted person’s DNA in a crime specific place and it’s not attributable to the victim, police or other identifiable innocent then even a child is capable of inferring the significance of such a discovery. 

That kind of DNA evidence is a wrapped present, a cake with the cherry on top and an easy, easy win delivered on a silver salver to any appeal body. Although I pause on that word win. Criminal justice is not football. Prosecutors that become fixated on wins and losses are in real danger of caring about results at the cost of the integrity of the process. And if the process is flawed the results are worthless, however glittering they may appear. The same is true for a statutory body charged with examining the safety of convictions. 

In plain English Andrew Malkinson’s DNA was not found ANYWHERE in the samples taken in his case. The DNA of ANOTHER man was. That DNA was found in an obviously crime specific location and yet the CCRC took the view, for years, that the human evidence leading to the conviction was safe and sufficiently safe such as to render the DNA evidence irrelevant for the CCRC’s one purpose, which is to decide whether to send a case back to the Court of Appeal to look again. That decision was as inexplicable as it was wrong as it was enraging. You do not need to be a lawyer to discern that. 

When I was asked to advise in Malkinson’s case in 2020 I was specifically asked to bring to bear my experience of prosecuting and what I found was the wrongest case I have ever dealt with. Chris Henley KC’s uncompromising report on the CCRC’s handling of the case makes plain that there were many people that clearly did not share that perception. Strip the fresh DNA evidence out of this case and I would bet my house and every penny I have earned in 20 years of practice that Andrew Malkinson would remain convicted still. 

And yet it was not DNA evidence that led to Malkinson’s conviction. One of the charges levelled against the CCRC is corporate incuriosity. I would suggest that if your job is scrutinising whether convictions are arguably wrongful curiosity is the most fundamental of necessary qualities. An enquiring mind, a preparedness to drill into the prosecution case theory to see whether under the surface it’s pure gold or a rancorous cesspit of unreliable evidence, a willingness to take the police and prosecution to task and hold them to account is the least I would be looking for. At least look at the police files! 

No doubt there are some rightly convicted people making applications to the CCRC but if the corporate attitude is to assume convictions are safe then the wrongly convicted won’t get a look in, as Andrew Malkinson did not for such a disgracefully long time. They say hard cases make bad law but a corollary of that should be that bad cases should lead to hard action. If we sit by and shrug at what happened to Andrew Malkinson we accept that the CCRC is part of the disease and not part of the cure. 

Here are some links for those with an interest in the case and miscarriages of justice generally: 

First, watch the powerful BBC documentary about the case The Wrong Man: https://www.bbc.co.uk/iplayer/episode/m001zywl/the-wrong-man-17-years-behind-bars

You can listen to Seventeen Years, the podcast about the case: https://shows.acast.com/seventeenyears

You can watch the entire appeal proceedings here: https://www.youtube.com/watch?v=0lCRwDv8scs

You can watch a lecture that James Burley, investigator at APPEAL, and I gave on the case: https://www.youtube.com/watch?v=nR53-0FePWs

Read Emily Dugan’s reporting in the Guardian on Chris Henley’s findings: https://www.theguardian.com/law/article/2024/jul/18/catalogue-of-failures-watchdog-missed-chances-to-help-andrew-malkinson-report-finds

Finally, equipped with that information, read the report itself: https://cloud-platform-e218f50a4812967ba1215eaecede923f.s3.amazonaws.com/uploads/sites/5/2024/07/Integrated-Report-Response-Redacted-Copy.pdf

Very lastly if you want to support the work of APPEAL you can here: https://appeal.org.uk/donate/#:~:text=APPEAL%20is%20a%20small%20and,a%20fair%2C%20accountable%20justice%20system.

Blowing our own trumpets - Barristers and social media

 

There is a not insignificant part of me that longs to have a chambers profile, sans photo and text, that simply states: 

If you would like to instruct Max Hardy please telephone his clerk.

Chambers' website photographs are a very good source of entertainment if you have a lot of time to kill on a wet weekend, like a model agency's roster of talent but generally with rather less physical perfection on display. At 2004 Call I don't quite pre-date chambers websites but they were very rudimentary affairs back then and I definitely grew up schooled by barristers who themselves regarded touting as worse than blasphemy and treason rolled into one. Advertising one's services was, not all that long ago, a serious disciplinary offence and, more than that, it was just not done.

Now, however, the baby has well and truly followed the bathwater. True it is I have never encountered a barrister with personalised branded pens like those of a flamboyant Floridian defense attorney I met on the SEC Criminal Advocacy Course which boasted: 'YOU RAISE CASH. I RAISE DOUBT'. And I suppose one should be grateful that no barrister has yet resorted to advertising via sky-writing, flash mob or Oxford Street sandwich board man (although I do dimly recall some bus stop ads a few years back).

But, my learned friends, we need to talk about tone and about content also. Let me immediately acknowledge that those that live in glass houses should not throw stones and, as an occupant of a veritable crystal palace of self-promotion, perhaps I'm not best placed to sound off on this particular topic. Nonetheless, just as our journalistic friends are expected to adhere to style guides, surely the time has long since passed for the profession to discuss and agree comme il faut and how it very much is not.

When I talk to law students about pupillage applications one of my mainstays for advice is sit down with the form, identify every adjective, and then delete them. Adjectives are the friend of the estate agent but the sworn enemy of the advocate. If we boast on social media about a 'stunning acquittal' what message are we communicating to the reader - That we, in fact, had no faith in the case and were therefore astonished by its outcome? That, in our opinion, maybe the jury reached the wrong verdict? Of course those aren't the interpretations we intend, what we mean is, this result could only have been achieved by a barrister as wondrous and uniquely gifted as ourselves.

Because we never receive feedback from the primary recipients of our advocacy, namely juries, it is possible for barristers to complete a practice of 40 or even 50 years with some absolutely fundamental misapprehensions about how our routines go down with the 12 good folks and true. (By way of an aside it's why the Keble Advocacy Course is such a godsend). It is also why I balk, recoil and grimace at what has regrettably become an industry standard expression. Why is it that we have all decided to announce with fanfare on LinkedIn, Twitter and the rest that we SECURED an acquittal or we SECURED a conviction? You secure a mortgage on a tiny flat in Zone 5 because that's all Legal Aid stretches to these days. You secure your framed Certificate of Call to the wall in your downstairs [only] loo. But is it really us securing the convictions? Might it not be, instead, the evidence. After all we don't say to juries: 'You may be sure that Mr X is guilty because I have addressed you with elan, panache and brio'. Judges don't direct them to listen to the advocates and choose whose words were most beguiling and bewitching.

Maybe it's just me but if you've been in a case that has had a result that you think worth bringing to wider attention why not plainly inform your audience what the case was and that you appeared in it. And if you really have to you might add what verdict the jury reached based on their careful assessment of the evidence and the law.

Sometimes it's not just how we say it but what we say that perhaps requires a second, third and even a fourth thought. As a youngster when I was still gauche enough to talk about the day job to friends and relations they were often tolerant enough to raise a weak smile at yet another prolonged anecdote about a scallywag shoplifter. As the years have progressed I have mercifully outgrown talking shop to outsiders unless they evince a really genuine interest. But also the cases rapidly lose any sense of roguish charm. Any RASSO practitioner learns very quickly that their daily diet is quite rightly the stuff of nightmares for most people.

With that thought in mind could it be that there are certain categories of case that require especially sensitive consideration when it comes to publication on social media? We tell juries that nothing less than sure will do but there is quite the sliding scale below sure from a finding of flagrant and malicious concoction to an agonised and agonising decision that the benefit of the doubt must properly be given to the defendant even if the not guilty verdict is delivered with a genuine sense of hesitation and misgiving. Is an acquittal for a serious sexual offence in those circumstances really something to crow about?

I'm a realist, this is the world we live in now, and I wouldn't want any forensic scrutiny or even casual flick through of some of my 'announcements' held against me but if we're going to be blowing our own trumpets it's worth thinking about what tune we're playing and when.

Tales of Tenancy

Nobody likes job interviews. A lifetime of education, training and experience distilled into a 30 minute salvo of ‘What would you say is your worst quality?’ and trying to glean what a ‘competitive salary’ actually means in pounds, shillings and pence. 

Imagine then a job interview that lasts 12 months, or 18, or 2 years, or 3 for that matter. For that is how long it took me to obtain a tenancy in chambers. On the almost endless list of ways in which criminal barristers jobs are different and weird the way we recruit must feature prominently. 

If you’re not a barrister the word pupillage is very unlikely to appear much in your lexicon. If you’re aiming for the Bar it will occupy your every waking thought and most of your sleeping ones too. Every year significantly more candidates apply for pupillage than there are pupillages available. There are Pupillage Fairs, websites, Inns of Court advice sessions and a plethora of resources available to guide and advise students in the process of applying for pupillage (barrister speak for an apprenticeship/traineeship). 

Apprenticeship doesn’t really do justice to the reality of the pupillage experience which is more of a knight/squire relationship than almost any job setup I can think of, although it’s not lances you’re lugging around it’s lever arch files and you’re learning to battle with wit and words not blades and a mace. 

The intensely personal professional relationship that is engendered between supervisor and pupil gives way to exposure to chambers relationships with clerks, clients, solicitors and judges. And as the year or year and a half of pupillage unfurls like the Bayeux Tapestry the moment comes when the pupil is examined by the Tenancy Committee which decides whether they’re ready to spring from their chrysalis for addition to the Chambers butterfly collection. 

If a job interview with complete strangers feels stressful and awkward then an interview with people who’ve become friends and colleagues and who might in moments determine that you’re ‘not one of us’ after all is a singularly daunting and excoriating prospect. 

Perhaps the most extraordinary thing about applying for tenancy is that chances are those determining your fate will likely never have seen you actually doing the job for which you’ve spent all those months sweating. Certainly, any half-way decent chambers will have in-house advocacy training and this may even stretch to a showdown mock trial against another chambers. But even at its most evolved and considered this is still tennis on the practice courts, cricket in the nets, battle training with blanks. 

After 20 years on the job I’ve been involved in tenancy decisions where I’ve seen people move to other sets and shoot like rockets into the sky and others where people were considered a sure bet for a flourishing career at the Bar who within a year or two decided it wasn’t for them. Barristers are experts in many things but recruitment is rarely one of them and because of the oxymoronic possibility that something referred to as a tenancy actually denotes lifelong membership of a chambers the stakes are very high. 

I always say to those intent on the Criminal Bar that this is a not a profession for those that can’t cope with losing. Every single barrister has seen jury verdicts and judges’ rulings go against them and if you can’t deal with that you’re in the wrong job. Being rejected for tenancy can feel very, very personal and if it doesn’t it probably means they made the right decision. If it smarts then that’s the spur to go on and show them what you’re actually made of not what they wrongly thought you were.

In Defence of Jury Trial

When you are slogging your guts out trying to bring some minuscule level of function to an essential but collapsing system it is wearing, to say the least, to watch people call into question a part of it that not only actually works reasonably well but is, in fact, essential. 

 Juries are not infallible. Juries are not trained. Juries are not expert. Juries do not give reasons. Juries are private. Juries don’t read The Guardian or The Telegraph, or maybe they do but you’re not allowed to know. 

 If you ask me as a barrister of 20 years’ call (and God knows, some days it feels like 40) why I think juries are so great I can’t point to an unimpeachable academic study that demonstrates incontrovertibly that they are more likely to get decisions right than judges. And no, the irony is not wasted on me that as a foot-soldier in a profession that exalts evidence over assumption, cold facts over hot opinions I can’t show my workings for my belief that juries work. 

 What I can say is that, in my experience at least, juries do work because they do the work. By that I mean juries ask questions that so often reveal that they’ve been paying attention, turning over in their singular and collective minds the evidence and how they should apply the judge’s legal directions. And it is so important to emphasise that our most serious cases are not tried by juries alone but by judge and jury. Yes, the result is in the hands of the jury but the shepherding and the guiding is in the hands of the judge. 

 I wrote recently why I felt Channel 4’s ‘The Jury’ was, at best, a misguided experiment and at worst an actively harmful distortion of the reality of jury trial (full disclaimer I’ve still not actually seen it). Since its broadcast a truly aggravating article by Simon Jenkins was published in The Guardian which, paraphrasing somewhat, denigrated trial by jury as being justice by the thick, the prejudiced and the idle. It was a piece that did him little credit, not least of all for his completely bogus claim that rape and other offences are not even tried by juries. 

 In England & Wales we have juries of 12. From time to time there are murmurings from the Ministry of Justice pondering why that number is so sacrosanct. I will venture an opinion. If you drag 12 random people off the street, which is essentially how jurors are summonsed, you would be immensely unfortunate not to have at least 1 person actually prepared to listen to the evidence, willing to take account of the judge’s directions and steer the deliberations with a proper, reasonable and reasoned consideration of the competing arguments. All it take is 1, is my genuine belief, and rare is the jury that has to make do with only 1. 

 A bad juror has to do a hell of a lot of work and damage to turn a jury of 12 bad. A bad judge doesn’t have to turn anyone and, even worse, they’re bad today, tomorrow, next week and next year. And it doesn’t even need a judge to be actively bad, a judge beaten down by the system, by the unrelenting conveyor belt of cases, shattered by the sheer grind. Where is the freshness? Where are the new eyes and the one-time application? 

 Jury duty is a very weird and novel and generally unrepeated experience in most people’s lives. And most importantly it is a duty and here I’ve saved the most important point to the last. 

 There was a time when duty dictated all our lives and, when it came to World Wars, for many of us our deaths as well. We don’t do duty any more. 

 ‘Don’t fancy it? Then don’t bother.’ 

 ‘You can’t tell me what to do!’ 

 And so it must be a shock for many when that summons arrives. Sure, you can defer, but not indefinitely. This is the state saying put your life on hold, sit in a box with your fellow citizens, not your mates, not your colleagues, not your family, not fellow Gunners, Dog and Duckers or disco dancers: 11 total strangers selected by the state. And in a few days (or weeks, if you’re unlucky) you’ll be sitting privately in a room with those strangers and asked to make a decision that could see another stranger sitting in a prison cell every single day for the rest of their lives, or see someone who was raped weekly between the ages of 10-14 finally have that abuse recognised and acknowledged, or maybe you will see that the police did cut corners and got the wrong man. 

 Whatever your decision this is your buy in. This is you making good on a social contract that you may have never thought about or thought didn’t apply to you. Voting is not obligatory in this country but the smallest manifestation of democracy, sitting in judgement of your fellow man or woman, is. Prosecutions are brought in the name of the Crown in England but justice is done by YOU for US and it is done by US for YOU. The day that you wish justice is done by them instead is the day you abandon that contract and surrender your freedom.

Why I'm not watching The Jury

 

There are increasingly few places that remain unviolated by TV cameras. Papal conclaves and jury retiring rooms are two that spring to my mind. You may struggle to name that many more. Is it for the best that we don't get to see the horse trading and strong arming that precedes the puffs of white smoke? What about murder verdicts: is it right that we should trust to blind faith that juries faithfully follow judicial directions and bring to bear sober and dispassionate analysis of the competing cases?

You can forget about Vegas it's what goes on in jury rooms that really stays behind. I've been at the Bar for 20 years and involved in literally 100s of trials and can't say with certainty what persuaded the jury in any of them. Like any barrister worth their salt I've obviously wondered what goes on, what gets said and what, in the end, counts.

So on the face of it Channel 4's 'The Jury: Murder Trial' ought to be an absolutely tantalising prospect. But unfortunately I can't bring myself to watch it. A real life murder trial restaged in front of two juries of ordinary people. Both hearing the same evidence. All deliberations filmed. Will they reach the same verdicts? In the absence of cameras filming the Real McCoy isn't this the next best thing? Well no, unfortunately it's not.

In any serious criminal trial there can be moments of real drama. But the purpose of the proceedings is not entertainment and nobody in court is under the illusion that it is. As anyone who has served on a real jury can attest large parts of the criminal trial process can be almost mind-numbingly dull. Try sitting through even 30 minutes of mobile phone cell site schedule evidence, sometimes this can go on for a whole day or even longer.

It is because real lives at stake and the jeopardy is real that attention is maintained. If you filmed that ratings would be through the floor. A criminal trial unfolds to a set sequence. Prosecution opening, prosecution evidence, defence evidence, legal directions, prosecution speech, defence speech, summing up, deliberation. There is a reason for that sequence and it is not entertainment.

I know, without watching the programme, that sequence is not maintained, I know that the jury's opinions on the case are filmed throughout, in a real trial juries are specifically expected to await the end of the summing up before commencing their discussions and deliberations. And there is no director or producer watching on anxiously hoping for controversy and dispute.

12 Angry Men is a classic drama precisely because Reginald Rose sat down and plotted the give and take of the jury room with that end in mind. If those behind the Channel 4 programme were faithfully and absolutely intent on verisimilitude then they would need to gamble upon the experiment making for turgid television. When money and ratings are at stake who is going to take that gamble?

And there's the rub. If this show is to entertain it will need to shock or subvert our hopes and assumptions about juries weighing evidence carefully and objectively. If this show is to reflect real life it has to be bold enough to bore. What it can't do is both and the danger that lies in making good entertainment is doing bad damage to the credibility of a system that works.

A paean to pupils and pupillage

 

To outsiders it may seem that it's our horsehair wigs and Victorian starched collars that are the most unusual thing about the barristers' profession. As a member of that profession I would actually suggest it's our training. We call it pupillage. Securing one can sometimes seem to law graduates as unattainable as the Holy Grail.

It's a peculiar term and for a pupil barrister their job description can seem strangely redolent of childhood. Yet more so for those undertaking work experience with a barrister, who are referred to as mini-pupils. Those instructing pupil barristers were known, until very recently, as pupil masters or pupil mistresses. Now, prosaically and colourlessly, they are known as pupil supervisors. It's a term for which I feel little affection because you master an art or a skill but you supervise a process or a production line.

Periodically it is suggested that trainee barristers should be called, well, trainee barristers. That, of course, is a term that would be familiar to anyone in or out of the profession. It does not however do justice to quite what an education it is to be a pupil barrister. And what a mighty privilege and burden it is to have a pupil.

Most barristers are self-employed and most barristers belong to chambers. We don't earn a salary. We don't have a boss. When we are not in court we work when, how and where we like. If we do our best case prep up a valley without WiFi in Cumbria in the middle of the night that is where and how we will prepare a case.

Preparing cases is a very personal exercise and barristers have to work out what works best for them. But they also need someone to show them how to do it. That is where pupil supervisors come in. In taking on a pupil a supervisor is giving their pupil the most intimate access to their professional life and working practices. If you are an intensely private person or don't enjoy having your working habits scrutinised then pupil supervision is not for you.

It was not that many decades ago that pupils paid their masters or mistresses for the not insubstantial work involved in showing a complete beginner the ropes. Quite rightly that practice, representing as substantial a barrier to the profession as purchasing commissions in the army once did, has fallen into desuetude [that's a lawyer's term]. Pupils are now paid, in fancy commercial chambers substantial six figure sums, in criminal sets rather more modest amounts.

Supervisors, on the other hand, get absolutely nothing for training the next generation of barristers. And there you were thinking all lawyers are venal and grasping, for shame. In fairness that isn't actually true at all because a good pupil can make all the difference between a practice bursting apart at the seams and a well oiled machine of prompt advice and immaculate preparation. I always say a good pupil can halve your workload, although I have heard that a less good one can double it.

It has never, ever felt like work to me. If you care about the profession and you think what it does is important then having a hand in shaping its future custodians feels an almost sacred obligation. Having a pupil certainly keeps you on your toes because your every written and oral interaction has an audience and a witness. And not merely a passive spectator but someone who is looking at your professional conduct as a template for their own.

I had a number of pupil masters all of whom taught me valuable lessons about life at the Bar but the first necessarily always leaves the biggest imprint. I was fortunate that mine was Edward Henry KC who by my estimation is one of the most powerful advocates I've encountered in my 20 years at the Bar. Since parting ways he has led me on a number of occasions most notably in the appeal of Andrew Malkinson. The teacher/pupil dynamic has become one of colleague and collaborator.

If I have had half the effect on any one of my pupils that Edward had on my sense of what a barrister should be and stands for I will count myself a very fortunate person.

Anything you do say may be given in evidence.

The end of the prosecution case in England and Wales is conventionally the moment when the defendant’s interview under caution is adduced in evidence. At the time of the interview the defendant will have been a suspect and it is the opportunity of the police to glean the suspect’s version of events and the opportunity of the suspect to give theirs. Or not give it. I have no idea what the statistics show but many interviews under caution are met with no comment either in response to legal advice given or because the suspect of their own volition has decided it would not be in their interest to answer questions.

The caution is as follows: 

"You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence.” 

I’m getting so long in the tooth that when I started practice the interviews were recorded on tape with an annoying backing track to ensure that nobody could interfere with the contents of the recording. They continued to be recorded on tape until remarkably recently, I was given to understand to some degree because the police had one of the largest stockpiles of cassette tapes in the country. 

Briefs would come tied up in pink (defence) or white (prosecution) tape with an envelope containing a cassette tape so that the accuracy of the transcript could be checked against the recording. This resulted in a colleague having an absurd experience once when no tape was included in their brief, a request for a copy of the tape prompted a photocopy of the cassette. 

The recordings of interviews are almost never played in court before juries. Instead the prosecution barrister and the investigating officer have to engage in a moment of am-dram by reading out the transcript. I say am-dram but ‘doing the voices’ is seriously frowned upon. I only discovered recently that the Southern practice of having the barrister read the defendant’s part and the officer reading the police part is reversed in more Northern parts of the country. 

Mercifully the tapes have finally gone the way of fax machines and recordings are now digital and immediately available as digital links. No comment interviews are not adduced in evidence to save juries the brain numbing tedium of having an entire unanswered interview read to them. Instead an agreed fact informs the jury that the defendant made no comment and, where significant questions went unanswered, what they were. 

When answers are given the parties have to scrutinise the transcripts to make sure that anything irrelevant, inadmissible or prejudicial gets edited out of the interview: references to previous convictions, the officer’s opinion that the defendant is bang to rights, lengthy discussion about what the defendant had for lunch. 

When I started if such edits were not resolved in good time before the trial edits had to be done with Tippex, black marker pen (never desirable) or, especially fiddly, with scissors cutting out the offending passages so that the transcript could be photocopied on top of a blank page. I don’t miss any of it. Now edits are track changed, commented, highlight and implemented at a touch of a button. 

However, the transcript reading remains and now that we’re in the digital age it seems to me absurd that juries don’t automatically get to hear the defendant’s own voice and, where video recorded, see their own face in the police interview room. Everybody knows that often in life it’s not what was said but how it was said. It seems to me that if the police interview under caution is of evidential significance, which it obviously is, juries should at the very least actually get the chance to see and hear it. 

So many improvements to the criminal justice process require money or complicated reform. This seems to me to be basic and immediately capable of implementation.