RE-INVESTIGATING A CASE OF MISCARRIAGE OF JUSTICE
So someone close to you has been convicted of a crime and you want to get that person out of jail? What do you do? What is the first step?
How do you know if someone is guilty or not? This is important to you – and to any TV producer or journalist whom you might approach to take up the case. You will be asking them to bet something more that £100,000 on the case. The producer’s career could be ruined if it all goes wrong, so they will look at guilt very carefully. So should I take this case on? That is the key question.
There are some tried and trusted tips for making that leap into the dark.
What are the initial steps to take?
First, you must change your thinking about the case
Second, you must collect as many documents as you can about the case. There is a restriction on this - you must become an "agent " of the convicted person. You must get this permission in writing
Even with this permission, your re-investigation may become unlawful if you are not careful. It is wise to keep in close touch with the convict's solicitor, taking advice on what you do. There is a law restricting the use of these documents, It is called the "Criminal Procedure and Investigations Act" (CPIA) .Section 17 in particular restricts the use of these documents. Many lawyers dislike these restrictions. And perhaps significantly, there is no instance yet of this law being used in the re-investigation of cases such as you are doing.
The main document to get at the very start is the judges summing-up at the trial.
Other important documents to get hold of are the reports of the experts brought to the court at the trial.
There will also be photographs. These are often not offered, but they must be obtained, because they are an important part of the police mistakes syndrome.
Next comes the “clerking”.
At the front of the trial bundle there is usually a list of all the prosecution witnesses. If it is not there, you should ask the defence solicitor for it. Then, if you are really convinced you want to go ahead with this, you should check off every statement with the list of witnesses. If any statement is missing, you should ask for it; you have a right to get it.
Then, if you are reasonably sure you have all the documents that you are entitled to see, you should arrange them in some logical order, put them into a Lever Arch File – and put your own page numbers on them.
Once you have this, you can start – but it is best to scan the documents into a computer and put them on to a CD disc, or a DVD if necessary.
At this point you may care to consider whether or not the person in prison is really worth all this effort, because so far it is been hard, but it’s about to get a lot harder.
From now on I am going to assume that the case you are hoping to re-investigate involves a serious crime. This is one which has generated a lot of paperwork and which involves a long sentence. Further, I am assuming that the normal avenues for a first appeal have all dried up - and that what is left is simply a petition to the Criminal Case Review Commission (CCRC) in the hope that the case may get sent back to the court of appeal.
It's time to get organised now. So first, download the case form from this website. Fill it in as best you can. This form has two purposes. First, it helps you to analyse your case in a fashion that may help you find "fresh evidence". Second, if you are contacting anyone who might help you with your case, this form will help those persons to get a quick grasp of the type of case that yours is.
There are now several rules you must read and remember - because otherwise you will be wasting a lot of your time.
1. The re-investigation of a miscarriage of justice is essentially a game. It has its own rules which must be adhered to. You must learn these rules. The referee in this game is also the opposition
2. The objective of the game is to find "fresh evidence". The trial is in the past; it cannot provide "fresh evidence". One part of the opposition define whether your evidence is "fresh" or not.
3. You cannot use any of the arguments that were used at the trial.
4. You cannot proceed unless you have a copy of the judges summing up at the trial.
5. Witness evidence is unreliable. You should not use it unless you become desperate - and then only under specific rules for using witnesses in re-investigations.
6. Scientific evidence is more sure. You must learn as much as you can about scientific evidence ( often referred to as "forensics")
7. Never blame a lawyer.
8. Keep away from arguments about the law. It enrages the lawyers who might help you.
9. Document everything you do. If you use the telephone, use your home phone and record every conversation.
10. Collect every scrap of paper you can find on the case. No matter how insignificant it may seem.
11. Do not trust other people unless you have good cause to trust them. Never hand out original documents to others.
12 Do not break the law. The ends do not justify the means in this game. Remember that the only referee in this game is the opposition.
WORKING WITH DOCUMENTS.
Before you start anything on this case you should read all the documents you have collected at least three times. This is not simply because you need to know all the details - but also because you need to get rid of the anger that the case has already aroused in you. Your approach to the re-investigation must be clinical, calm and collected. If you are a friend of the prisoner, you should not communicate with the prisoner much. This will only raise your anger again - and emotion must be cut out of the process. Remember too that if you communicate with the prisoner - particularly on the phone or by letter, the warders will certainly learn what is going on. This may have a bad effect on their treatment of the prisoner. They may also tell the police what you are doing - and they in turn may well begin operations against you. "What we have, we hold" is their watchword.
More than this, if you tell the prisoner all the details of what is happening, he or she may well tell other "trusted" prisoners the details. After all, life in prison can be very lonely. However, these "trusted" friends are actually criminals and are not to be trusted. They in turn may well tell the warders - and the police will be told.
On the other hand, the innocent prisoners can despair when they think that nothing is being done for them - so invent a code. Choose something of mutual interest - perhaps a garden allotment, a football club, maybe the progress of a child at school. This gives you the opportunity to talk about success or failure. So you could say " Spurs did well this week - that new winger is going really well" - this would mean that the investigation got somewhere and in fact one particular angle did particularly well. Or you might write " Johnny did very well in Maths this week, but he has stopped doing the drama class because it was getting nowhere." This would mean " I had success in one part of the investigation, but I dropped the part we had hopes for, because it got me nowhere." With the "garden code" certain plants can be associated with individuals in the case. The solicitor might be potatoes, the police the weed killer. Other witnesses various flowers etc. This is not a perfect system - but at least it is safe and gives the prisoner some idea that work is being done on the case. And those are the essentials.
How do you choose where to start?
You are no longer involved in the arguments that went on during the trial - they are all in the past and not particularly relevant to the task before you now. From now on you are going to try to be a police officer. You must study how the police tackle the sort of crime you are investigating. For the purposes of this paper we shall generally look at murder cases, for they are the most difficult cases to investigate - with the greatest punishment for the convicted person.
To learn how the police work on a case you must look at other cases as they appear in the press and see what steps the police take day by day. You can also study the documents on your present case to see how they addressed the problems of the case day by day.
There are internal police practices which you may not be aware of - staffing problems, other pressures. So it is important to get to know the police force in general, not just the officers on this case. Police annual reports are usually in the local library - read them to know your enemy.
At some point around here you should visit the crime scene if you can. Take a stills camera with you List any timings of journeys taken by the police, simulate these timing tests yourself and note the results. You may need to visit it several times as you read the statements further, But initially you are there to check things out - such as sight angles that various witnesses may have had, or timings of people walking who saw certain things. Take lots of pictures - you never know what you might need later.
If you have read the documents three times, as suggested above, you should now be able to quickly prepare the first phase of your investigation. Make a list of:
1. The first person to be on the scene of crime after the event - or in other cases the people at the scene when the crime occurred.
2.The person who phoned or otherwise called the police.
3.The first officers on the scene.
4 The first detectives on the scene.
5. The time when the police photographer took pictures of the scene
6.When appropriate, when a doctor and/or a pathologist arrived at the scene
7 The name of the scene of crimes officer (SOCO). The SOCO is not always identified as such, but it is the officer who collects and logs the physical evidence from the scene - this is not necessarily the officer who finds the evidence.
8. The names of the forensic scientist involved in the case. It s also useful to discover where they work, because the police often list evidence as going to the lab rather than the individual scientist.
This will be your ready reference during this first phase. The operation you about to undertake is to consider the difficulties the police had at the various stages of their investigation, the different kinds of evidence they used, and their difficulties in using it. The objective is to look for their weak points in the case, where they may have used inferior evidence because better was not available to them and to see if they covered any part of their investigation because they knew it was weak. This will suggest to you where best to look for "fresh evidence".
You now take yourself back in your mind to the time of the crime. You are now going to go through the whole police process. Throughout this you will keep the judge's summing up in mind, as well as the many other statements in the bundles of documents you have read. You will be looking for discrepancies between the evidence at the scene and as presented at the trial. You will be looking for elements of the police procedure which should have been done, but which apparently were not - they were probably done, but left out for some reason.
First, the squeal - who told the police? Is the police log in the files? If not, why not? what might be missing? what was the time of the squeal? Does that fit?
Next what about the officers who arrived first - were they experienced, did they guard the crime scene well. How much contamination of the crime scene might there have been before they arrived?
If there are questions raised in your mind at this point, you should begin thinking about going into the field and finding the early witnesses and checking through with them what happened. You may well be surprised. Ask them too how many statements they actually made, check the dates on the statements you have and see if those ring true. The police sometimes come back to these witnesses late in the day - after they have a suspect - in order to "smooth out " their evidence, particularly on timings. However, beware of taking on witnesses at this stage. It is far too early in your investigation for that and this should only be undertaken if you are really puzzled about what went on. Such witnesses are generally not deeply involved in a case - if any are, stay well away.
The next stage is to look at the scene of crime photographs. Get a magnifying glass and study them systematically, inch by inch. Mentally note, or physically write down, every detail you see. You are at the crime scene and you want to find if the perpetrator has left any "trace evidence". It is an old adage that every crime leaves a "trace" - and by and large, it is true.
When you have made your inspection of the crime scene, have a look at the accounts of the police officers who made the same inspection at the start of this investigation. You may notice some significant differences in your observations. The police have no doubt left out some details out - but are any of those details significant? When did they write up their statements - was it before or after they fixed on a suspect? Are there earlier statements the solicitor should be asking for from the Crown Prosecution Service? Make a list
These questions will remain with you throughout your investigation - as further evidence emerges. And these statements are very important - for if the police really have had an innocent person convicted, you may never again come across statements as honest as these first statements are. Police officers need to be extremely detailed, thorough and honest when they do not have a suspect. It is only when they fix on someone that evidence they would rather not know about begins to be cut from statements. So it may be as well at this point to check that the first officers at the scene and the first detectives there actually appeared at the trial - it has been known that they proved "surplus to requirements".
The first job that the detectives at the scene had in the investigation was when the crime actually occurred. So that is now your task.
As with most areas of investigation, murder cases are the exception in this - because of the important pathological element in murder cases.
If the case you are investigating is not a murder, you will be dealing almost exclusively with witness evidence. It is very difficult to argue against this in an appeal - the best way is to try to find an alternative theory. You will be looking for other witnesses to time, either from the documents the prosecution disclosed - or perhaps did not disclose because they were "not relevant". Or you will be looking for entirely new witnesses to time. This is not a reliable way of moving forward - so you should look hard at the case and the scene to see if there is any other form of evidence you might use. CCTV may help. But there may be other "timing" devices around that may help you.
In murder cases, you are not usually looking so much at when the crime occurred, but at the time of death, for the two are generally the same. .Time of death calculations are usually best left to the medical and scientific evidence.
Means of Death.
The police will also be looking for the means of death. This is usually obvious - and so they quickly turn to looking for the weapon that was used. In Britain murders are most usually committed with knives, though gun crime is also common. Other methods of killing - strangulation, poison etc. usually involve local or family disputes - though some muggings or aggravated burglaries may use such methods too.
However, in the main, when there appears to be no obvious motive for a murder, the police will be looking either at a knife or at a gun, or looking for such a weapon. When they find one, their next job is to link it to the murder directly - i.e. prove it was used to commit the crime. They will then have to try to link it to someone who is either already a suspect - or who so far has not come to their attention.
When you have done time of death and means of death, you should pause.and review the situation - in two areas.
First you should look at the evidence you have reviewed so far - from the squeal to the forensic reports coming in. Is anything missing? What were the police weaknesses in this case? We are looking solely at evidence that was collected before the police fastened onto a suspect - but in some cases there is another category of evidence to consider These are statements collected by the police prior to the arrest of the person who later became convicted, but who formed a "lead in" to that suspect. The police sometimes come to the conclusion that a person might be implicated in the crime, but check out that peron's alibi before making an approach. The statemen s taken from these witnesses can show you why the police came to their conclusion about the suspect. They can also show you what part of the mass of evidence they already had, they thought was important. So is there anything important in the part they thought was unimportant - and can this lead us anywhere?
When you are considering all the evidence up to the identification of the means of death think where it is taking you - and where it might have taken the police. Did they have any suspects? Who were they interviewing who does not fit the pattern that later developed in this case? In which areas did they decide to re-interview people, or repeat any tests? Did they re-interview members of the family - or the sexual partner of the victim?
The next step is to look at how the suspect, who was later convicted, was arrested and questioned.
You have now looked at several areas where you have tried to work out where the police case was weak. But remember - if the convict is actually innocent, the police made a mistake - so where exactly is that mistake? It is a mistake to convict an innocent man - so exactly how did it come about?
This is the moment when you no longer rely solely on the statements that were used at the trial. This is the moment when you begin to look for "fresh evidence". You will be tempted yet again to rush towards various witnesses - those who appeared at the trial and those who did not. But do not do this. Instead you are going to do a lot of reading.
The first step is to get every book on forensic medicine and forensic pathology that you can. Most of the best are far too pricey for the average person to buy. But some libraries have got reasonably well-researched books - and solicitors and doctors may be able to help. It also helps to read crime reports and trial in the newspapers - there you can discover the various types of forensic science tests that are used.
The objective of this is to first learn what might have been done in the case you are investigating, second to assess which tests might have been done which the police did not do.
What you are searching for is "the key clue". This is a piece of evidence, indisputable because it is scientific, which is an anomaly in the case. You need the key clue, because the moment that you start to approach witnesses - or experts - who might help you, they are going to be sceptical, and in some cases give you a long lecture on why you should not be interfering with the "true" course of justice
Your tactic on such occasions is to sit back, let them talk themselves out - and then ask them to explain the "key clue". It is only when people realise that not everything that went on in the trial is the whole truth that they begin to cooperate with any re-investigation.
There are now many questions that you should ask from the documents you already have. Your own list will depend on the nature of the crime you are investigating. But here are some examples:
Were soil samples taken and matched to the shoes of the suspect? Was the suspect wearing those shoes at the time of the crime?
Were fibres found that linked the suspect with the crime? How common are these fibres - how certain a match are the two sets of fibres?
If blood was found on the suspect - was it tested for DNA, what group is it, what sub groups were found in it?
Were there any other stains noted at the scene? If so what were they?
If the victim was female - was a vaginal swab taken? ( to find semen).
Are there any marks on the body that might not have been done by the supposed murder weapon?
Were there any signs, such as scuffs and scratches , at the scene which indicate movement by the victim or the attacker. Do they fit the police scenario?
If there are bloodstains on the ground, do they show any direction?
Bear in mind that if there are any discrepancies, some clever police officer has probably spotted it before you - and taken steps to minimise the effect of them on the case at trial. Some statements might be re-done to omit the embarrassing sections. If a witness has made several statements, the police may well "edit them together", take them back and ask the witness to sign. They say it is only a "pull together to make life at the trial easier" - but sometimes embarrassing sentences are omitted. At the trial, the witness is actively discouraged from venturing away from the content of the final statement - so the little embarrassing bits get left out and the defence team is expected to somehow tease them out of the witness.
Bear in mind also that much "trace evidence" is not time related - for example if the police find a fingerprint from their suspect at the scene of the rime, they still have to prove in some way that the suspect was at the scene at the time of the murder. The suspect might have been at the scene before the murder - or even after. This principle applies to much "trace evidence" . It applies to DNA for example - and fibres.
Throughout this operation you should apply different approaches to evidence- such as
a) the dog that didn't bark.
b) the useless witness
c) find ancillary evidence - extra and extension to the original case and yet not in the original case
There are some types of evidence which require special techniques.
These cases are particularly difficult to re-investigate successfully.
1. CONFESSION CASES
Confessions, even when false, are powerful evidence against defendants. "why would an innocent person confess?" is a common reaction As identification cases became less frequent in the early eights - after the introduction of the "Turnbull rules"- the number of confession cases rose. And the taping of those confessions under the rules in the Police and Criminal Evidence Act (PACE) made confessions all the more compelling as evidence. It is often impossible to prove a false confession is false. However, if such a confession is recorded on tape, you should check whether or not there had been a prior confession to the officers in the police car as the suspect was taken to the police station. It is sometimes there that persuasion and suggestion have taken place. Or a deal offered.
There are three ways in which to attack "confession cases"
a) Establish an alibi. The basic premise is the convict was not at the scene of crime, so the confession must be false.
b) Establish discrepancies. Here one shows that the convict did not know certain things that the murderer must have known, or that the convict got some of the basic facts wrong. One or two discrepancies will not be enough, there must be several - and preferably in a pattern. You will need to make a list of the two sorts of "special knowledge. The first is information in the confession which the police already knew about . The second is information in the confession that the police knew nothing about, but later established to be true. There is sometimes a subdivision of the first kind of "special knowledge" - information that the police force knew in one part of the operation, but which the officers conducting the interview with the suspect did not know.
c) Establish that the convict is psychologically weak in such a fashion that he/she was capable of giving a false confession for some reason. A lot of work has been done on this area in the past 25 years or so. The main work was done by Dr. Gisli Gudjonnson . He worked for years with Dr James McKeith - who has since died. Their aim was to produce a scientifically objective approach to the avoidance and detection of false confessions. Their work led to the acceptance of such evidence in English courts. This type of evidence is also partially accepted in Scottish courts.
This type of evidence is for experts only. It is not possible for a lay person to venture into it. All you can do is consider whether the convicted person is a) of relatively low intelligence or b) given to telling "tall tales" and if you think that they might be suggestible, then you should persuade the solicitor to apply for legal aid so that a forensic psychologist can make tests for suggestibility, confabulation and other such weaknesses.
JOINT ENTERPRISE, JOINT TRIALS, AND MULTIPLE GANG TRIALS.
These are a nightmare to reinvestigate. The evidence is often entirely witness evidence - and one accused will give damning evidence against another in the hope of getting a lesser sentence. You will find yourself having to disprove the evidence of several other witnesses at the scene of the crime. You will need to employ every type of scientific evidence that you can find to either prove that the innocent convict was either not there - or not in the positions that the other witnesses claim he/she was. Such methods must also be applied in an effort to prove that the evidence of the accusers is wrong. Sight lines are particularly important, so reconstruction at the scene - or with models, might be tried.
The reasons for the conviction was of course "guilt by association", so not only should the "guilt " part of that be attacked, but also the "association" part. Evidence must be found to show that the innocent convict was not an habitual associate of the others - and indeed did not share their anti-social behaviour or habits.
GOING OUT INTO THE FIELD.
If the wrong person is in jail for this crime, there is likely to be some discrepancy found in all the evidence you have analysed. Armed with what discrepancies you have found - including, hopefully, the "key clue" - you need now to move on in the investigation to witnesses.
There are several rules about witnesses which you would be wise to heed.
a) You should find out as much about a witness you are going to approach as you can. Therefore find first a "fount of all knowledge" (FOAK)
b) You should always tell the truth from the start with witnesses who are potentially important to you.
c) Never approach a witness with an aggressive stance.
d) With key witnesses and members of the victim's family - "kill the tiger".
e) Always rehearse interviews - preferably with real witnesses.
You should always try to fix your evidence as strongly as possible. Memory of what was said is no good at all. Surreptitious recording is better, but only marginally. If the witness is willing, an audio tape recording can be made. Better still is a video recording of the evidence.
Throughout your investigation you should be taking notes. From time to time you should also write up a report on specific areas of evidence. Working with your scanned documents and other documentary evidence, you should argue your case in that area of evidence in the following order:
a) List the evidence in this area as it appeared at the trial. Copy off the relevant statements from your scanned in documents. Make footnotes in your main text and refer to the statements in an appendix. Page number the statements in the appendix.
b) Write in one sentence why you think your evidence can contradict this evidence.
c) Go through your evidence in the same manner as you did the prosecution case.
This exercise will help you see your own weak points- and here you have an advantage. Whereas the police had limited time when they discovered the weaknesses in their case, you can take almost as much time as you like to get it right.
If you can, get someone else to play "devil's advocate" with you - trying to knock down your case.
These "reports" will eventually become the main part of your petition to the CCRC.
You should learn everything you can about the CCRC. There is information on their website - and information also on this site, including some films.
When, or if, you get to that point, then you must remember:
a) The CCRC is your last hope - so be very very nice to them.
b) Try to make everything you write to them short and simple. They have a lot of cases to consider, so don't make it hard for them.
c) Use the form elsewhere on this site to simplify what this case is about.
d) When writing your petition, write a brief synopsis of the points in your case under short, clear headings - list them by number. Put your "key clue" or best point, first.
e) Write the petition in "chapters", numbered as per your list. Include the appendices you included in your reports, numbered as per your list.
f) Send all your documentation on a disk - make sure the contents are carefully labelled on the disk. Send the petition and its appendices on paper - the CCRC will auto-feed scan them into their computer..
g) The CCRC has some investigative power, but not much. You cannot leave it to them to work up your evidence to something that will ensure a reference back to the Court of Appeal. However, they have much greater pull in obtaining undisclosed statements from the police.
h) Your case will assigned a caseworker. You should stay in contact with this person. However, you should not be constantly asking" How are you getting on" - "when will you finish"; instead you should be asking "is there any further information I can get you,?" Or "is there anything you need clarified?" And remember rule (a) above.
It may be very premature to mention the rules that apply to this game if it enters the phase of going to the Court of Appeal, but three points should be borne in mind throughout the investigation
a) The Court of Appeal likes documents rather than witnesses - they rarely hear from witnesses. So if you have documented everything from the start, you have a better chance.
b) The Court of Appeal has great powers - you should try to use those powers in order to get more evidence. Witnesses who would not talk to you before, may feel more obliged to talk to you once the case is referred. Also - the police are less likely to try to influence witnesses once the Court of Appeal is on the case.
c) If the conviction is quashed and the innocent person demands compensation, he/she will only be able to present evidence which has already gone through "an adversarial process" - this invariably means that the Court of Appeal must have heard it and agreed with the appellant counsel about its validity. However, counsel and solicitor will both advise you to present your best point and, if the Crown gives in on that, drop the rest. This is a dangerous tactic - their job is to win the appeal, but that is only one battle in the war.