By Gurleen Kaur
Cardiff University is the home to the greatest Innocence Project in the United Kingdom, where the staff and students fight endlessly to achieve justice. The pro-bono work carried out should never be overlooked or undermined, as without it, we would have never seen the overturning of two miscarriages of justice. I will discuss in depth the rationale and reasoning behind why Innocence Projects exist in England and Wales, and the multitude of benefits from these Innocence Projects in affirming that the criminal justice system works to the highest standard and achieves the aims it was designed to do so. There are many disputes regarding the impact and the role played by these projects in the criminal appeals process, the main reason behind this being that since the start of these projects there has been very limited amount of success in the Court of Appeal on cases put forward through Innocence Projects. But in order to accurately assess the impacts and successes we need to look in depth into the reasoning behind these, and the surrounding circumstances into the functioning of the Innocent Projects and contrasting this to the functions and system of the Court of Appeals.
To fully understand what the rationale behind the beginning of Innocence Projects was, we firstly need to grasp what an Innocence Project does. An Innocence Project is an undergraduate student run project, that studies and investigates wrongful convictions while being supervised by academics, solicitors and barristers. Innocence Projects aim to ensure wrongful convictions are successful in being referred to the Court of Appeals through the Criminal Cases Review Commission (CRCC).[1] The rationale for this project is expressed in the same way other needs for reforms and changes in the legal system are seen, by a gap in the system. In any legal system, no matter what jurisdiction, errors are bound to be made, whether this be through trial processes or human errors. Innocence Projects act as an extra layer of safety to help ensure that those wrongfully convicted can have their convictions overturned.[2] The first Innocence project began in the USA in 1992, with the mission statement of “assist prisoners who could be proved innocent through DNA testing.”[3] By witnessing the success of Innocence Projects in the US, there was seen to be a need for these in other jurisdictions, and rightly so. This movement then began in the UK in September 2014, by Michael Naughton, he is the founder of Innocence Projects in the UK, as he began this by establishing Bristol University Innocence Project.[4] Another rationale behind Innocence Projects is creating a way for students to participate in real client work, and at the same time educating them about wrongful convictions.[5] Over five hundred students in the past five years at Cardiff University alone have been exposed to the criminal appeals system, through the use of the Innocence Project, and these students would not have otherwise know or experience this, it is only through these projects that they do.[6]
In the US the exponential growth of Innocence Projects, with an impressive record of 200 prisoners being freed, many from death row sentencings, has no doubt become a catalyst for criminal justice reforms.[7] The impact this had on the appeals system in the US is in no doubt significant, but the same might not be said about the British impact. So far only three cases have made it to the Court of Appeal via referral from CRCC, through applications made by the Innocence Project.[8] These three applications came from just two universities, out of the 36 running projects at the time.[9]
But you cannot assume that the reason there is such a disparity in results from the two jurisdiction is down to the inability of the participants in UK based Innocence Projects to those in the US. The reasoning for this difference is much deeper rooted, and a cause due to the differences in the actual legal systems and appeals systems. In the UK, there is a body called the CRCC, which is a commission that was set up to look at cases with suspected miscarriages in justice. The primary design of this is to investigate cases in which people have been wrongfully convicted or sentenced.[10] This is the same aim of Innocence Projects, and therefore making it harder for Innocence Projects in the UK to act in the same capacity, when there is already someone doing this role. The importance for a body such as the CCRC was seen in England and Wales after a series of high-profile miscarriages of justice in the 1990s.[11] The catalyst for change in the legal system was promoted by some of the most famous miscarriages in justice, such as the Guildford Four[12] and the Birmingham Six.[13] Due to these cases the CCRC was created by the powers in the Criminal Appeal Act 1995[14]. Other jurisdictions such as the US do not have this type of body that act in this capacity, and therefore the Innocence Projects fulfil this gap in the system. This is one of the biggest causes of a higher number of successes in Innocence Projects in different jurisdictions. The impact of Innocence Projects has been recognised in the US, and consideration has been given to establishing a similar body in the US[15].
But this does raise the vital question of why Innocence Project are needed in the UK when there is an already much more empowered and better funded body[16]. The CCRC are not fully fulfilling the role that they are designed to do so or are missing areas that need to be covered by the Innocence Project, and under this position the Innocence Projects are playing a role in the appeals system. The CCRC work under the directives set out in the Criminal Appeals Act 1995, under which it gives criteria on whether the application of appeal can be referred. The criteria for this is under section 13 of the Act, that highlights there must be a “real possibility” that the conviction or sentence would not be upheld[17], but this possibility must come from an argument or evidence that was not raised during the initial trial[18]. The legal authority of how this test should be interpreted is in R v Criminal Cases Review Commission, where Bingham LCJ defined, “is more than an outside chance or a bare possibility but which may be less than a probability or a likelihood or a racing certainty.”[19] This test restricts the CCRC as working to aid all the factually innocent, the CCRC is not concerned with who is factually innocent or guilty, it instead seeks to determine whether there is a breach of process, or any possibility for fresh evidence that could undermine the conviction. This criterion fails to recognise that factually innocent victims could be wrongly convicted of other causes, not just transgressions of due process[20]. This means that CCRC does not fulfil the roles set out by Innocence Projects, but merely can be best viewed as a “bolt-on quality control mechanism to the existing criminal appeals system”, it determines whether the convictions are lawful, but not whether they are just, in the sense of factual innocence and guilt[21]. This could essentially mean that the CCRC would help assist factually guilty convicts overturn their convictions, and this has happened in the case of R v Clarke, where there was no doubt that the two individuals were guilty but their conviction was quashed on the basis that there was an absence of signature on the indictment, which in turn invalidated their trial[22]. This requirement fulfilment isn’t required in Innocence Projects, as Michael Naughton explains that “Innocence Projects are not restricted to the search for fresh evidence that shows that criminal convictions may not be safe in law.”[23]
This aims of the CCRC is not reflective of the aims that the Innocence Project is built on, in the Innocence Project the main aim is to help factually innocent convicts and assist them in putting their case forward to the CCRC, and hopefully on to the Court of Appeals. The Innocence Project used to work through the Innocence Network (INUK), a Network set up by Michael Naughton to bring together all Innocence Projects in the UK. In 2012, the INUK took it upon themselves to hold the CCRC accountable of 45 cases that had been neglected by them, who all had plausible claims of innocence[24]. This shows that the separation of the network allows them to also hold the CCRC accountable for failures, and this platform is another vital part of the role Innocence Projects play in the appeals system.
The status of Innocence Projects in the appeals system is another contributing factor as to why there is such a low success rate of overturning’s and referrals. Innocence projects are a last hope, when all other routes of appeal have been exhausted, and therefore this does not leave the Innocence Projects with much substance to work with. But despite this, Cardiff Innocence Project has seen the overturning of two successful cases, the case of Dwaine George and Gareth Jones. After the success of the case, Gareth Jones, a victim of the criminal justice system, he stated “I owe my life to them”.[25] This shows that the position that Innocence Projects have is a position of hope for the wrongfully convicted, the people who have exhausted all other hopes can still hold on and hope for the best through the dedicated work of these projects.
As an end note to this article, I would like to highlight and show appreciation to the enormous amount of work and time put in by all the members of staff in the Cardiff Innocence Project, especially Dennis Eady and Julie Price. Along with their work, all the hard work done by the hundreds of students in the project, who also work alongside this brilliant staff, to achieve justice.
Gurleen Kaur
[1] Michael Naughton and Carole McCartney, “Innocence Projects in the UK: The Story So Far.” The Law Teacher 40, no 1 (2006)
[2] Michael Naughton and Carole McCartney, “Innocence Projects in the UK: The Story So Far.” The Law Teacher 40, no 1 (2006)
[3] Innocence Project website, Mission Statement, http://www.innocenceproject.org/about/Mission-Statement.php
[4] Holly Greenwood, ‘Innocence Projects: Losing their Appeal?’ in Chris Ashford and Paul McKeown (eds) Social Justice and Legal Education (Cambridge Scholars Publishing 2018)
[5] Michael Naughton and Julie Price (2006) “Innocence Projects: a perfect solution for clinical legal education?” Directions: UK Centre for Legal Education, 13.
[6] Julie Price and Dennis Eady, “Innocence Projects, the CCRC and the Court of Appeal: Breaching the Barriers?” Archbold Review 6 (2010).
[7] Michael Naughton and Carole McCartney, “Innocence Projects in the UK: The Story So Far.” The Law Teacher 40, no 1 (2006)
[8] Holly Greenwood, ‘Innocence Projects: Losing their Appeal?’ in Chris Ashford and Paul McKeown (eds) Social Justice and Legal Education (Cambridge Scholars Publishing 2018)
[9] http://www.innocencenetwork.org.uk
[10] https://ccrc.gov.uk/about-us/
[11] Stephanie Roberts and Lynne Weathered, “Assisting the Factually Innocent: The Contradicitons and Compatibility of Innocence Projects and the Criminal Cases Review Commission.” Oxford Journal of Legal Studies, Vol 29, No 1 (2009)
[12] R v Maguire (1991) 94 Crim. App. R 133
[13] R. v. McIlkenny, Hunter, Walker, Callaghan, Hill and Power (1991) 93 Crim. App. R. 287
[14] Criminal Appeals Act 1995, available on https://www.legislation.gov.uk/ukpga/1995/35/contents
[15] R Schehr and L Weathered, ‘Should the United States Establish a Criminal Cases Review Commission?’ (2004) 88 Judicature 122-125
[16] Stephanie Roberts and Lynne Weathered, “Assisting the Factually Innocent: The Contradicitons and Compatibility of Innocence Projects and the Criminal Cases Review Commission.” Oxford Journal of Legal Studies, Vol 29, No 1 (2009)
[17] Criminal Appeal Act 1995, s13(1)(a)
[18] Criminal Appeal Act 1995, s13(1)(b)
[19] R v Criminal Cases Review Commission, ex parte Pearson ADMN 18 May 1999
[20] Michael Naughton, “The Innocent & The Criminal Justice system”, Palgrave Macmillan, 2013
[21] Michael Naughton, “The Innocent & The Criminal Justice system”, Palgrave Macmillan, 2013
[22] R v Clarke [2008] UKHL 8
[23] Michael Naughton, “Can Lawyers Put People before the Law?” Socialist Lawyer (2010): 32.
[24] The Guardian, available on https://www.theguardian.com/law/2012/mar/27/criminal-cases-review-commission-reform-campaign
[25] https://www.bbc.co.uk/news/uk-wales-46632973