England and Wales are lagging far behind Mississippi and Louisiana when it comes to a fair and open criminal justice system. Photo credit: Wikimedia Commons/Officer Bimblebury, CC BY-SA 4.0. Some rights reserved.
Dean Strang, the lawyer whose defence of Steven Avery was documented in the Netflix series Making a Murderer, has spoken of a “tragic lack of humility” within the United States’ criminal justice system. Speaking to the Justice Gap, he complained about “an unwarranted certitude on the part of police officers, and prosecutors and defence lawyers and judges and jurors that they’re getting it right.”
Dean Strang is spot on. I spent nearly a decade in the Deep Southern United States investigating death penalty and wrongful conviction cases. At the Louisiana Capital Assistance Center and Innocence Project New Orleans, we dealt with scores of cases where the justice system had got it catastrophically wrong, condemning innocent people to life in prison or even death. In each case there was unwarranted certitude, humility was in short supply, and the result was tragic to say the least.
In the US at least some lessons are being learned from these miscarriages of justice, thanks mainly to the dogged work of Innocence Projects around the country (documented this month, incidentally, in a special issue of Time magazine). States have implemented reforms aimed at reducing the risk of misidentification by eyewitnesses and limiting the use of unreliable jailhouse informant testimony, to give just two examples. In New Orleans, the police are even getting training from Innocence Project lawyers on how to reduce the risk of putting the wrong person behind bars.
In 2011 I began working to establish the Centre for Criminal Appeals, a charity and law practice that would investigate and litigate on behalf of wrongly convicted prisoners in England and Wales. Since becoming operational in 2014, the Centre’s lawyers and investigators have learned one overriding lesson in the course of our innocence casework. It is that our criminal justice system is not merely failing to learn from its mistakes – it is actually hiding them. A dearth of transparency inhibits miscarriages of justice from being overturned and hinders progress towards a more effective criminal justice system.
To those who think the principle of openness is enshrined in our justice system, these claims may come as a surprise. It was an English judge who in 1923 made clear the “fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done”. But the truth is that in this country we lag shamefully behind even the poorest states of the Deep South when it comes to providing transparency and access to information in our justice system.
Take transcripts of trial proceedings. These are a basic tool for working out whether a conviction is safe or a sentence is fair. In the US, even states like Louisiana and Mississippi will provide this free of charge to appellants who can’t afford it – a right that can be traced back all the way to 1956.
Here, in contrast, the poor have no such access. If you want a record of what happened at trial, you’ll have pay a private transcription company thousands, maybe tens of thousands of pounds. You could try asking the Legal Aid Agency to cover it, but they’ll likely say: “No, you can only have the testimony of a single witness, and only if you can tell us what it will prove.” In an even greater snub to open justice, the current practice is that the digital audio recordings of trials are destroyed after just 7 years. If eventually an innocent prisoner raises the money to obtain a record of their trial, they may simply find that it has been deleted.
Next example: police and Crown Prosecution Service files. In most of the US, once a conviction is final all the police and prosecutor’s files on a case become a matter of public record. This means they can be reviewed to check for evidence of wrongdoing – such as the withholding of important evidence – which may establish whether an innocent person has been sent to prison.
In England and Wales, in contrast, a person maintaining their innocence has no ongoing right of access to any police or CPS files on their case. They can request disclosure of documentation that they think might exist and might help prove their innocence, but such requests are frequently rejected as speculative. The only way of challenging a refusal to hand over files is by judicial review – a costly option for which it is very difficult to secure legal aid.
Then there is access to physical exhibits for new forensic testing or expert review - which could yield evidence of a person’s innocence. In the US, all 50 states now have access post-conviction DNA testing enshrined in statutes. Some of these statutes may have shortcomings, but the fact that such access is embedded in law means the situation is favourable compared to England and Wales. As with police and CPS files, there is no right of access to physical exhibits here and requests to access them are frequently denied. Even more troubling is issues with such exhibits being destroyed. For example in one of our cases, that of Roger Khan, a metal pole used to beat the victim and with unidentified DNA on it, was ordered destroyed after trial – meaning it can never be tested.
Some might argue that the harm caused by these open justice shortcomings is mitigated by the work of the Criminal Cases Review Commission, the public body created in 1995 to review potential miscarriages of justice after a series of high profile cases. After all, the body has the unique ability to access any files or exhibits it wants in the course of its work. The trouble is, these investigatory powers simply aren’t used enough by this chronically underfunded body which worries about losing “the hard-won trust” of the police forces and other organisations it requests records from – even though it has an absolute right to access them. Moreover, the CCRC is of course equally hampered by the early destruction of trial recordings and physical exhibits.
As a result of the above transparency failings, we at the Centre for Criminal Appeals worked with academics and journalists on developing the Open Justice Charter. The Charter, which was launched in Westminster on 31 January, sets out open justice demands that will make it easier for gross injustices to be corrected. Its proposed reforms will help identify the root causes of wrongful convictions, and increase our criminal justice system’s accountability and effectiveness.
Responding to the Charter’s launch, a Ministry of Justice spokesperson said: “We have a world-leading legal system and we are committed to upholding and strengthening the principle of open justice.”
When I read this, I immediately thought of Dean Strang’s words, for the statement displays a sad lack of humility. First, we do not see a real commitment to open justice principles in England and Wales. Instead, we lag behind Louisiana and Mississippi when it comes to transparency. Second, we simply don’t have enough access to information to know whether or not we really have “a world-leading legal system”. In fact, our criminal justice system is like an airplane that keeps crashing, but with no one able open the black box to identify what is going wrong and why.