Wednesday, 1 June 2016

Protest Against Close Supervision Centres

A secret world exists within the high security prison estate in England, known as the Close Supervision Centre (CSC) system. The dehumanisation of CSC prisoners begins at a very early stage, in the official justification for the creation of the CSC system, which focuses on the need to contain a new breed of unmanageable and unpredictable risks. It continues with the creation of classificatory categories of ‘dangerousness’ which objectify prisoners and make more of the category and less of the human in them, and it is reinforced by the tightly controlled and highly regulated routines.
 
In addition to isolation and extremely restricted movements, prisoners’ in-cell belongings are carefully regulated and subjected to relentless scrutiny and inspection. Prisoners remain in CSC units for years, decades even, made frustrated, angry and bored by their experiences with few avenues to vent their anger and with almost no opportunities to advance through the system. All perceived acts of disobedience or non-compliance by CSC prisoners, even of the most petty kind, are responded to brutally by gangs of prison officers clad in full riot gear who show no mercy when demonstrating their authority and power, sanctioned by Prison Service management at the highest levels. Rather than controlling violence, as it officially aims to do, this hyper-controlled environment breeds it.
 
Having now spent six years subject to the unofficial punishment of allocation to the CSC myself, it is clear that without real pressure to force the required change nothing but more negative and oppressive measures will be added.

Please lend your support for the abolition of the CSC system by attending the protest demonstration:
 
21 July between 12.30pm and 2.30pm outside the offices of the Prison Ombudsman and Independent Monitoring Board,  Rose Court, 2 Southwark Bridge, London SE1 9HS.

Kevan Thakrar A4907AE
Close Supervision Centre, HMP Wakefield, 5 Love Lane, Wakefield WF2 9AG

Monday, 23 May 2016

"Reluctantly, we uphold the appeal”: The problem with the Court of Appeal



"Reluctantly, we uphold the appeal”: The problem with the Court of Appeal

Those words are, I am proud to say, not mine. They are the words of Lord Lane who was “forced” to overturn Anthony Mycock’s burglary conviction in 1984. Mycock was by no means a "lucky duck" criminal who had managed to have his conviction  quashed on a faint technicality- he had, as the Court of Appeal was forced to acknowledge, been completely exonerated. It had transpired that the burglary he was convicted of had never happened, and the only witness had admitted that she had fabricated the entire story.

The Court of Appeal, in its modern incarnation, grew out of some legal changes in the early part of the last century. Prior to that criminal appeals had been an even more disorganised affair than they are today; appeals on a "point of law" (where you are appealing the way that the trial judge ruled on something) were very possible to appeal but "points of fact" (where you want to show that the fact pattern relied on by the prosecution was wrong) were much harder to put before a court. The jury's verdict, be it 'guilty' or 'not guilty', had been arrived at in secret, on whatever basis and should therefore be respected as final. The jury had sworn a solemn oath and could be trusted to have returned the right verdict.

It may seem disingenuous that this was the case. Surely, if a jury, or a Magistrate, had convicted a person on incorrect facts, or new evidence had come to light, it would be obvious that the matter had to be looked into again?

Sadly, this was not the attitude of many of the judges of the day. It is no secret that every new crop of judges in those days (and possibly these days, depending on who you ask) was littered with "hanging judges". A "hanging judge" did not just describe any judge who imposed the death penalty- after all, until 1965, murder was punishable with death. So, every High Court judge up until that point will have been forced to impose the death sentence during their career. The concept of a "hanging judge" was far more nuanced than it might seem. It described a judge whose philosophy was that there could be no redemption for murderers, and, as a corollary of that, that the jury system was an unquestionable facility for determining guilt. No re-examination was necessary, nor was it desirable. Judges with such a mentality in this day and age, mercifully, are not less loose with the ability to execute people- but as anyone familiar with joint enterprise in action will know, they still have a frightening amount of power to destroy a convicted person's life. If you accept a jury can be wrong, then it is very hard to reconcile that with a belief that the death penalty should be allowed. It is only by taking the view that jury's verdicts should be final that the death penalty makes any sense.

How does all of this relate to the inadequacies of the modern Court of Appeal? Well, quite simply, a disturbing attitude has filtered down through the years, it still persists today. The question of who makes up the judiciary, as a whole, is my starting point. I am not speaking about the lack of diversity on the bench; I am speaking about the way that judges are selected. It is received wisdom among the legal profession that, generally, you have a better chance of becoming a judge if you spent most of your time as a barrister (or solicitor, in rare cases) prosecuting. If you had a preference for defence work you might be perceived as too renegade to be trusted with a judicial position; you may look out for the interests of the defendant too much, to the detriment of the good working order of society. It is also no secret that the last three governments have introduced a raft of measures to make convicting defendants much, much easier than it was before. 

The removal of the prohibition on double jeopardy (i.e. re-trying a person who has previously been acquitted), firstly by the Conservative Government of the 1990s (in cases of bribery of a witness or juror), secondly by the Labour Government (in cases where "new and compelling evidence" emerges) was such a change- but it has so far led to just 7 convictions. 

The really insidious changes were to the rules of disclosure in 1996, which made it more difficult for defence teams to access all of the information held by the police on a particular case, and the 2003 changes to the rules on "bad character evidence" (these changes made it far easier for the prosecution to tell a jury that a defendant had previous convictions) and the admissibility of hearsay evidence (indirect evidence, not given in live court, such as where a prosecution witness has signed a statement and then refused to give evidence in court- this deprives the defence barrister of the opportunity to cross-examine the witness). 

One of the worst assaults on the defendant's rights came in the form of an Act passed by the Conservative government of the 1990s which seriously limited an arrested person's right to silence, by introducing "adverse inferences from silence" and "adverse inferences from failure to account". This Act of Parliament was an about-face from the prevailing understanding of not only the British justice system, but most justice systems the world over, that no person should be required to answer allegations put to them. It may seem unimportant that a person suspected of a crime has the right to remain silent, until you consider that "failing to account for forensic evidence" might mean being unwilling to give the police possible reasons why a pictogram (one trillionth of a gram) of someone's cells were on your clothes; hardly a reasonable thing to expect an ordinary person without a PhD in forensic science to explain.

In short, the attitude seems to be that more convictions will lead to a safer society. Not all judges take this view, but most do. This "crime control" philosophy demands that the best trials are those in which the prosecution can introduce as much evidence as they like, sometimes unchallenged and often evidence which assassinates the character of the defendant rather than direct evidence about the case in hand. Some judges favour a "due diligence" approach, which holds that if the legal system is to have any dignity, and if convictions are to be safe, then it is vital that the defence have the opportunity to challenge as much evidence as possible; and that evidence which has been obtained illegally is not put before the court, however strong. 

The Judicial Appointments Commission oversees the appointment of most judges in this country. Prior to this, the work was nominally done by the Lord Chancellor's office.  In reality, this hid an ugly word of Old Boys networks and taps on the shoulder.

You could not apply for any judicial role more senior than a Recorder (a barrister, or solicitor, who sits part-time as a Crown Court judge, trying the more simple cases). If you wanted to be a Circuit Judge or a High Court judge then your academic qualifications or skill as an advocate were far less important than whose cocktail parties you attended and who you had been at school with. So, we did away with this arcane system a decade ago and the JAC replaced it- all is well surely?

Not so. It is true that up to the level of a High Court judge all applications are directed through the JAC, a public body which has an approved selection process and accountability of some sort. But for the two highest ranks of the English bench, the Court of Appeal & The Supreme Court (formerly the House of Lords),  it is still up to the Lord Chancellor's office to decide who to promote from the High Court bench. It is a process largely unchanged from how it was 30 or 100 years ago- with a tap on the shoulder being given to those deemed "appropriate" for such an exalted position. It does not take much imagination to conceive of the characteristics that are being looked for. Legal excellence is certainly a requirement, very few career failures make it onto the Court of Appeal bench; an unblemished personal life is a necessity; an understanding that you will not make any dramatic decisions that could upset anybody else's applecart (e.g. a conviction rate obsessed government) also seems to be a requirement.

The odd renegade does slink through the selection process, but the Court of Appeal makes decisions by majority (3 judges, with a majority of 2 needed) and so it is quite rare that they do anything out of the ordinary. It does not take David Icke to draw the conclusion that this is because the Court of Appeal is good, most of the time, for nothing more than a bit of window dressing. 

You see, roughly 1,000 full criminal appeals against conviction are made to the Court of Appeal each year (to say nothing of the thousands and thousands more applications made which are refused by the "single judge process"- which I shall explain briefly below), less than 350, in a typical year, lead to any alteration being made to the original decision of the court (by which I mean either the quashing of a conviction, or substitution of a conviction). But, the equation for working out the odds of success for an appellant is more complicated than this. In the 1960s it was decided that it was no good that, in the rare cases where their Learned Lordships agreed that one of their Learned Brothers (as judges refer to one another) in the lower court had gone wrong, the scoundrel in the dock should simply walk free....so a provision to allow their Lordships to quash a conviction but direct a retrial was introduced. Statistics are hard to come by, but it seems that in about 1/3rd of the cases where the Court of Appeal quashes a conviction they allow the prosecution to run a re-trial (depending on the age of the conviction, the severity of the offence and the way the wind is blowing at the CPS then they make or may not decide to actually have another trial). So, the odds of making a successful application to the Court of Appeal, being granted an Appeal, having your conviction quashed and not being re-tried are, by my reckoning, going to be in the 4-5% range (assuming 5,000 applications are made to appeal and roughly 200 defendant's convictions are quashed without a re-trial being held).

Other laws have been brought in to make it harder for good Court of Appeal judges to quash convictions, and easier for bad Court of Appeal judges to justify why they will not quash a conviction. Until the late 1990s, a conviction could be quashed on the basis that it was "unsafe" or that a "misdirection in law" had taken place. This covered most situations where an appellant had a genuine grievance about his or her original trial- either the judge had misdirected the jury, or the police had hidden evidence or a new witness had come forward. In 1997, it was decided that a "misdirection in law" was no longer, of itself, sufficiently good grounds to quash a conviction. The appellant had to prove that not only had there been a misdirection in law, but also that it had led to his conviction being unsafe. This change was justified on the basis that not all misdirections in law would jeopardise a conviction. This may be true, as sometimes, rarely, trial judges go further than they need to in directing a jury in order to ensure that the defendant is only convicted if the jury really is sure of their guilt- but the problem is that these sort of misdirections favourable to a defendant would not be the sort being appealed by said defendant! The only misdirections being appealed would be those where the trial judge had omitted something crucial when addressing the jury, or had coloured his directions by giving an inappropriate opinion of some of the evidence (or of the defendant) etc. So, in reality, this change only cut one way- to the detriment of appellants. It also provided modern "hanging judges" on the CoA with everything they needed to dismiss bothersome appeals brought by, in their minds, clearly guilty defendants who have been nit-picking in an attempt to secure another shot before a new jury.

They could have had a glaring misdirection in law, by the trial judge, highlighted and be free to say, "Yes, the learned judge was wrong, but in my view he was not so wrong that if he had been right the jury might have acquitted- therefore the conviction is safe". Until the change in the law this would not have been possible- they would have had to quash the conviction. 

The filtration system used by the Court of Appeal's criminal division is another problem. A single CoA judges hears very brief, very précised bases of appeal. These hearings can be over in a matter of minutes, but the single judge holds the power to either allow the prospective appellant to appeal before three judges or to prevent him from doing so. This is justified on the basis that a lot of appeals are hopeless, and such a justification may well pass muster with the bean counters in Whitehall at the Ministry of Justice, or in the pages of newspapers. BUT, in reality, this justification doesn't pass the smell test. You see, barristers may well be the "mouthpieces" of their clients but that does not permit them to say and do exactly as their clients please. Barristers are also "officers of the court", in the same way as a judge or court usher is, and they owe a duty to the court. They cannot represent a client at appeal on the basis of a hopeless legal challenge, simply to appease the client and to earn money. There is actually a specific, and somewhat misleading, term of art used to describe a scenario in which a barrister is trapped between his client's wishes (which are, notwithstanding the above, usually sacred) and his duties as an officer of the court....he or she is said to be "professionally embarrassed". I have witnessed this happen in open court just once, when an angry defendant demanded that his barrister challenge the admissibility of some disclosure evidence during a murder case, which was actually going to benefit the defendant's case- the barrister stood and announced, "Your Honour I have been instructed to oppose any decision to admit this evidence, I cannot provide any reason and am professionally embarrassed".

On the same basis barristers are prevented from disclosing certain information to juries in the hope of securing a perverse acquittal for their client. A barrister cannot tell the jury how long his client will receive if convicted in anything more than general terms, a fact which has great implications in joint enterprise cases (with jurors being astounded at the sentences handed down the most minor secondary participant). Equally, a barrister cannot tell a jury, "Yes, my client is guilty but you must acquit him as his behaviour was justified". It is an issue which came to the fore in the trial of Pat Pottle & Michael Randle, two activists who broke "KGB spy" George Blake out of prison. The two men were forced to dismiss their barristers and give their closing speeches from the dock. I segue into these two points about barrister's duty to the court only because they have such massive implications for joint enterprise trials. It is fair to assume that a lot more jurors would be in favour of acquittal if they knew the outrageous sentences imposed on secondary parties. Unfortunately, the only way for a defendant to make jurors aware of this is to represent himself.

So, it is quite simply nonsense to say that we need this filtration system to provide "worthless" appeals from taking up time. At any rate, there are provisions for "wasted costs orders" to be made if a barrister wastes the court's time with inane or irrelevant submissions- a humiliating fate no barrister would risk enduring.

The truth is that the Court of Appeal was set up to allow theoretical objections to convictions, but most judges are dyed in the wool believers that quashing convictions should be a rarity. I shall part with the words of Lord Denning, a man widely revered for his championing of the common man or woman, this was certainly true where the little man took on the government in the sphere of the public law....but if you wanted Lord Denning on your side, it was best not to appear shackled in the dock. In an interview about Rough Justice, a pioneering TV programme which sought to uncover miscarriages of justice and bring  them to light, he famously said, "Once judge and jury have come to a decision, the media MUST NOT go round trying to get what they call 'fresh evidence' so as to show, if they can that the decision was wrong". The shocked interviewer asked, "Even if that means innocent people in prison", Denning replied, "Yes". 

Denning was no worse than any other judge of his day, or of today, he was simply more outspoken. At the release of the Guildford Four he remarked that, "It would be better that we had the death penalty than this appalling vista"...it was understandably assumed that the 'appalling vista' he spoke of was police corruption and the shame of English courts convicting the innocent. In truth, he was observing that if the Guildford Four had been hanged then no appeals would have been brought and the British justice system never would have been disgraced before the world. For the COA the reputation of the system, it seems, is always more important than justice.

Josh Radcliffe

Tuesday, 17 May 2016

Thank you

Dear JENGbA families

Can I give out a huge shout for all you who were able to attend the march to Downing St yesterday and an especial shout out to Michelle (who handed in the letter/petition) and Amy, Daniel, Kerrigan, and Molly - such brave children who remind us what LOVE means!

Gloria Morrison

Gloria Morrison with 5 JENGbA kids handing in Joint Enterprise Petition
Gloria with Amy, Daniel, Kerrigan, Michelle & Molly at 10 Downing Street

Monday, 16 May 2016

JOINT ENTERPRISE: Prime Minister, please let my daddy come home


On 18th February 2016 the Supreme Court judges handed down a judgment which decided that the law on joint enterprise had taken a wrong turn.

‘The courts made a mistake. The Supreme Court took a brave step in some way by putting it right, the judges expressed that Parliament must finish the job. Until they do, tonight and every night there will be men, women and children crying themselves to sleep either because they want to go home to their families or because they want someone they desperately love to come home to them.’

On Monday 16th May 2016 the grassroots campaign group JENGbA (Joint Enterprise Not Guilty by Association) will hand deliver a letter to David Cameron – accompanied by messages from children whose parents and siblings are in prison – calling on his government to act immediately.

In their letter to the Prime Minister, JENGbA states ‘JENGbA families do not want to fight for 27 years as did the Hillsborough families, those little boys and girls whose letters you are about to read don’t want to be adults still fighting for their loved ones because the Government ignored their pain and the right to freedom for those serving life for a crime they did not commit.’

JENGbA is calling on ministers to ‘devise a legal framework to enable a blanket annulment of all the joint enterprise convictions gained in the full knowledge that the person convicted was not actually guilty of the index offence and one that would ensure no individuals would have to fight their cases separately, as well as establishing the compensation fund’.


“Daddy’s house makes me sad, I don’t like it” Tillie, aged 5

CONTACT:

Gloria Morrison
JENGbA
07709 115793
WWW.JOINTENTERPRISE.CO

Tillie’s mum, Natalie Tingle, can be contacted on 07495 583168

Wednesday, 11 May 2016

JENGbA March for Justice to 10 Downing Street, London - 2pm Monday, 16th May 2016

30 YEARS OF GETTING THE LAW WRONG...BUT THAT’S OK

Innocent prisoners, some as young as 13, have been given Life Sentences for crimes committed by others.

On 18th February 2016, the UK Supreme Court ruled the law took a wrong turn.

IT’S TIME TO FREE THE INNOCENT! JOIN US ON OUR BIGGEST MARCH YET!

Date: Monday 16th May 2016

Time: 2pm

Place: Victoria Coach Station (opp main entrance), then marching to 10 Downing Street to hand in petition

BRING YOUR BANNERS, YOUR LOVED ONES PHOTOS & TARIFFS AND WEAR RED!

JENGbA (Joint Enterprise – Not Guilty by Association)
Office A Norland House. Queensland Crescent, LONDON W11 4TL
07709 115793 or 07725 727520 www.jointenterprise.co

PLEASE DOWNLOAD A POSTER HERE
 
JENGbA taking Joint Enterprise petition to 10 Downing Street


Thursday, 28 April 2016

Monday, 11 April 2016

JENGbA's Letter to Robert Neill MP, Chair of House of Commons Justice Select Committee, 6 April 2016

Mr Robert Neill
Chair Justice Select Committee
House of Commons
SW1A 0AA

6th April 2016

Dear Mr Neill

Thank you for attending JENGbA’s conference in the House of Commons in January when we launched the Manchester University & Centre for Crime and Justice Studies report on, “Dangerous Associations: Joint Enterprise, Gangs and Race.” I am sure you will agree it was a very important report and JENGbA welcomed the robust comments from the MP’s on the panel and those who attended. Lord Beith, your predecessor, in particular, was exceptionally outspoken about the concerns the previous Justice Select Committee had about joint enterprise charging, especially the overwhelming evidence of the disproportionate convictions of young men from ethnic minorities.

As you will be aware JENGbA’s years of campaigning have finally been vindicated by the Supreme Court decision on Feb 18th in R v Jogee when the Supreme Court Judges unanimously decided that the doctrine had been misinterpreted for 32 years since Chan Wing-Siu. JENGbA absolutely welcomes this decision, and we know that the years of campaigning as well as the two reports from the Justice Select Committee would have contributed to their decision that joint enterprise charging based on possible foresight was no longer tenable in our Justice System.

It is now of vital importance to understand what the Supreme Court did in this particular case, and this was to acknowledge that the law was not wrong and therefore did not need to be corrected, but that the actual courts interpretation of the law was wrong. It is this misinterpretation of the law that has been corrected not the substantive law itself. This is important because if it were the law itself that had been changed, then what the Supreme Court says about fresh appeals would be perfectly valid.

If people have been convicted of murder when as the law as it stood at the time they would not have been convicted of anything more than manslaughter, if even that, then surely an obvious miscarriage of justice has occurred and the courts should be keen to correct it.

It may be inconvenient for the court of appeal to have to clean up the mess left by previous courts, but if injustice has been caused then obviously that must be corrected.

Supreme Court said in paragraph 100 of the judgement,
“Where a conviction has been arrived at by faithfully applying the law as it stood at the time, it can be set aside only by seeking exceptional leave to appeal to the Court of Appeal out of time. That court has power to grant such leave, and may do so if substantial injustice be demonstrated, but it will not do so simply because the law applied has now been declared to have been mistaken.”

JENGbA believe this is wide open to challenge. The interpretation of the law over the last thirty two years may have changed as a result of the decision in Chan Wing-Siu but the actual law itself did NOT change. So in that period the courts have NOT been “faithfully applying the law as it stood at the time”, they have been misinterpreting what the law always was in the first place.

However, if they did not think the ruling would open the floodgates for appeals they are wrong, we have a number of appeals that we think will be successful because of the correction, but sadly there will still be a huge number of prisoners where the 'foresight' ruling will not apply even though they we not the principal or in many cases at the scene (as with the Cohen brothers article attached.)

JENGbA would like advice on how we get a full independent inquiry into the years of abuse that have allowed people to be convicted, predominantly, though not exclusively, of murder or manslaughter based on virtually no evidence except that someone loosely associated to the principle should have/may have/could have ‘known’ what he/she might do. JENGbA does not accept that the law took a wrong turn, lawmakers including the police and CPS and the courts took a wrong turn, in charging people using joint enterprise precisely because they had no other evidence against them.

JENGbA is currently supporting 698 prisoners and if as ordinary members of the general public we recognised that this doctrine was leading to mass numbers of miscarriages of justice, something the previous Justice Select Committee agreed with because of the evidence before them in submissions, then it is only right and proper that a fuller investigation is made into police and charging decisions to find out the truth.

We believe that transparency is now key and therefore urge for a full independent inquiry so that prisoners who are serving mandatory life sentences for crimes they did not commit can have a full case review.

We would like a moratorium to be issued that no legal transcripts or documents from cases can be destroyed until this is done.

We want the CPS and police to hand over disclosure evidence that prisoners and legal teams have been trying to obtain for years. This is extremely important as the current climate for the miscarriage of justice world is loaded with obstacles and malfeasance. The CCRC are currently struggling to cope with the cases they have before them, we do not believe they will be able to do the investigative work needed to get to the 'truth' our prisoners so desperately need.

We would also urge that an inquiry is made on the life licence for prisoners who were not the principle, but were convicted of murder as a secondary party using joint enterprise. These are people who are now at liberty but living on the outside with a life time of restrictions.

There is also an important discussion to be had about Schedule 21, as mandatory sentencing is not something supported by the general public.

A further Inquiry into joint enterprise charges based on the overwhelming evidence that JENGbA has now gathered through our cases can only merit the full attention and support of Parliament and we would truly appreciate any advice from the Justice Committee or those MP's who have been supportive of JENGbA's campaign on how we take this important prison and human rights issue forward.

For information we have included an article by the Investigative journalist Bob Woffinden into a case of the Cohen brothers JENGbA have been supporting along with their families as a clear example of these exact obstacles and malfeasance prisoners seeking to right a miscarriage of justice are unable to overcome.

Yours sincerely

Gloria Morrison
Campaign Co-ordinator Joint Enterprise: Not Guilty by Association.

cc. Mr Andrew Mitchell MP, Mr Andrew Slaughter MP, Lord Alan Beith, Lord Herman Ouseley, Baroness Lola Young, Mr Stephen Pound MP, Mr Keir Starmer MP, Kate Osamor MP, Mr Jeremy Corbyn MP, Emily Thornberry MP, Sadiq Khan MP, David Davis MP, Gorden Marsden MP, John McDonnell MP, Diana Abbott MP, David Lammy MP, Dame Tessa Jowell, Baroness Neuberger, Lisa Nandy MP, Helen Jones MP, Baroness Jenny Jones, Lord Wolfe, Lord Ramsbottom, Baroness Joan Bakewell, Steve Rotheram MP, Oliver Dowden MP, John Pugh MP, Dominic Grieves MP, Andy Burnham MP, Yasmin Qureshi MP, Maria Eagle MP, Stephen Twigg MP.