I prefer and endorse the expression wrongful conviction. For few things are more full of wrong than the conviction of an innocent person. And few are the wrongful convictions caused by mere mistake. At the heart of almost every wrongful conviction there is a failing, either deliberate or negligent. The hallmark of a healthy, functioning justice system is a desire to expose and root out that failing. By dissecting the wrong and holding it up to the light justice is vindicated in unflinching scrutiny.
An analogy that resonates for me is that the dispensing of justice is the love in action of a society for its people. Those that love you care for you and when wrong is done to you they seek redress for you. When a government assumes that responsibility and discharges it properly it is exhibiting, on a societal level, exactly that kind of love writ large. Conversely, when wrongful convictions are tolerated and lie unexposed the government demonstrates disdain not just for those immediately affected but for all of us.
But it would be absurd to suppose that such disdain affects us all equally. To say that those directly affected by wrongful convictions experience devastation does not come close to describing the impact on the wrongfully convicted, those that love and care for them and the victims of the crime giving rise to the wrongful conviction. On one side of the equation is a person who has known from the moment the guilty verdict was delivered that an injustice had been done and on the other is someone who from the very same moment thought justice had been done. Both of them cruelly cheated of justice.
Few are the students at law school intent on criminal practice who do not suppose that one day they might be involved in the righting of a wrongful conviction. In reality involvement in such cases is vanishingly unlikely. Post-conviction appeal work is extremely difficult and hard to come by and very poorly remunerated, that is if it is remunerated at all.
Lawyers have to obtain access to the evidence called at trial, transcripts need to be applied for, unused material scrutinised, liaison needs to take place with the lawyers that appeared at first instance, instructions taken, investigation undertaken, fresh evidence sought. If preparing for a trial is like a walk in the Lake District mounting a post-conviction appeal as a lawyer new to the case is like trying to traverse the Himalayas in someone else’s climbing boots.
It is not an undertaking that the English criminal justice system encourages or generally rewards. A defendant convicted in the Crown Court by a jury has the right to apply for leave to appeal. They have no automatic right of appeal. If leave is granted and the appeal refused or a renewed oral application for leave to appeal is refused then the conviction is affirmed. The only realistic option for a defendant in such a position is to make an application to the Criminal Cases Review Commission which has the power to refer cases back to the Court of Appeal. It is not a power which it readily or speedily exercises.
A hallmark of the English system is certainty and finality. In other systems convictions are not final until all possible rights of appeal are exhausted. We favour a one-shot system. The expectation is that all involved should get it right first time. The problem is that the system falls desperately short when that expectation proves unfounded.
In an English criminal case the defendant has no right to see all material in the hands of the police and the prosecution. The prosecution serves the evidence that it relies on to prove its case and all other relevant material held by the police is supposed to be listed in a schedule. That material is called unused material. If in the judgement of the prosecutor any of that material is capable of assisting the case for the defendant or of undermining the prosecution case then the prosecutor is under a duty to provide that material to the defence. This is what lawyers mean when they talk about disclosure.
However, if material or information is known to the police but is not listed on that schedule then the prosecutor does not know about it and if the prosecutor does not know about it the defence can’t know about it, the judge can’t know about it and the jury can’t know about it. That is when verdicts turn on incomplete evidence and when they do they invariably turn against defendants.
There is something paradoxical about genuine humility which is that proximity to it is a curiously ennobling experience. Anyone who has heard Andrew Malkinson speak on TV, radio or podcast in the wake of his quashed conviction will have heard that his is a voice of reason and of compassion too. He is acutely conscious that the injustice he has suffered on his side of the equation has also now been suffered by a victim of a terrible crime on the other. I know that many who have listened to him will have marvelled that he does not speak with the ranting recriminations and reproaches commensurate to the wrong that has been done to him.
If you imagine for a moment a place that you really don’t want to be but you know that you have no choice to be, for example A&E with searing pain at 3 in the morning or an airport departures lounge with a 2 hour delay think about the sense of frustration you might feel that you are stuck there. Then imagine you’ve been imprisoned for 17 years for a horrible offence you did not commit. It’s a preposterous thought experiment because none of us can imagine the latter scenario. I’ve been visiting prisons for nearly 20 years of practice as a barrister and I can’t begin to conceive of how anyone could get through a week of such an experience.
Yet Andrew Malkinson managed it. Undoubtedly it has taken a massive toll on his mental and physical health and it has cheated him of the prime of his life. But the colossal sense of anger he must feel is articulated in the most reasonable way and it is all the more forceful for that. A refusal to accept responsibility for a crime that he did not commit meant that Andrew Malkinson spent 10 years in prison beyond the tariff for his life sentence because a key requirement for being deemed safe for release is recognition by the offender of their crime. This is another invidious way in which the English system traps the innocent in a Catch 22.
It is difficult to communicate in words the level of opposition Andrew Malkinson has endured in his quest to establish what happened to him and those acting for him have encountered. That basic and burning desire to know why has been met with obduracy, resistance and inaction. Evidence has been destroyed, information has been withheld, questions have gone unanswered. The fact that none of that precluded Andrew Malkinson from finally seeing his conviction quashed and not just because modern science has rendered critically significant DNA evidence that was there all along but because the jury was kept in the dark about evidence that should have ensured he was never convicted in the first place is thanks entirely to the relentless work of APPEAL, his solicitor Emily Bolton and their investigator James Burley.
The dismaying reality is that there are many more Andrew Malkinsons languishing right now in prison cells. If you’re not prepared to tolerate that fact as just one of those things can I encourage you to consider making a donation: https://appeal.org.uk/donate
