All posts by Appeals Barrister

Discredited Offending Behaviour Programmes

If you are a long-term prisoner and you want to be released more quickly, you will need to satisfy the Parole Board that your risk has been reduced. If you are a “lifer”, then if you want to be released at all you will need to show that your risk has reduced. The usual means of showing the Parole Board that your risk has been reduced is by the completion of ‘accredited’ offending behaviour programmes (OBPs), run by the Prison Service on behalf of the Ministry of Justice (MoJ). One of the most familiar OBPs is the sex offender treatment programme (SOTP)

I first encountered the SOTP whilst a pupil barrister. I was instructed to attend at a high security prison for a parole hearing. My lay client, serving a life term, was told that he needed to do the SOTP, but that he could not do it because he denied the offence. It occurred to me that this seemed unfair. I argued from that position. The hearing was fractious. The panel did not welcome my submissions and my client was palpably angry and frustrated at his predicament. Some time after the hearing the client was told that he would not be released, which came as no surprise to any of us. He was not released until 8 years later: when his conviction was quashed by the Court of Appeal. He had been innocent all along.

This is a stark but real-life example of the injustices that the SOTP could inflict. The programme was regularly criticised on the narrow (but compelling) basis that it is unfair to keep those who are innocent in prison unless they would feign guilt and do the SOTP.

We have now learned that this was not the only shortcoming with the SOTP model. Things, it transpires, were very much worse than that. Earlier this year rumours started flying about that the MoJ was sitting on some unpublished research which painted a damning picture of the SOTP’s effectiveness. It was then learned that the programme was to be quietly dropped.

On 24 June 2017 the Mail on Sunday published a piece by David Rose, in which he alleged that the MoJ was hiding evidence that the SOTP increased reoffending rates. If true this would undermine repeated reassurances from the MoJ – trotted out at many a parole hearing – that the programme was effective. A 2003 report by Dr Caroline Friendship, Dr Ruth Mann and Dr Anthony Beech, commissioned by the Home Office, looked at the effectiveness of the programme before 1996 (before it was “accredited”). Their research suggested that the programme had a significant positive impact on reoffending rates.

On 30 June 2017, and presumably in response to the David Rose article, the MoJ published the evidence. It  is an “impact evaluation” of the prison-based core SOTP. The background to the use of SOTP in prisons, and its accreditation, is explained in the report as follows:

“Core SOTP is a cognitive-behavioural psychological intervention designed by the HM Prison and Probation Service (HMPPS) for imprisoned men who have committed sexual offences. The Programme is intended to reduce sexual reoffending amongst participants by identifying and addressing known criminogenic needs. It was accredited for use in prisons in 1992 by the then HM Prison and Probation Service Prison and Probation Services Joint Accreditation Panel, which later became the Correctional Services Accreditation and Advice Panel (CSAAP).

The CSAAP help the MOJ and HMPPS to develop and implement high quality offending behaviour programmes and promote excellence in programmes designed to reduce reoffending. Programmes are assessed against a set of criteria derived from the “what works” evidence base. These include having a clear model of change, effective risk management, targeting offending behaviour, employing effective methods, ensuring relevance to individual learning styles, and maintaining the quality and integrity of delivery. Changes have been made to the targets, the content, and the methods used in Core SOTP since its introduction in response to emerging research. As a result, during the course of this study (and in the period thereafter) the Programme has changed. However, it remains a cognitive behavioural group based treatment approach. It was, and remains, available in approximately one-sixth of male prison establishments in England and Wales and is intended for individuals sentenced to 12 months or more, who had either a current or previous (sentence) sex offence, were willing to engage in treatment, and were not in denial of their offending”.

The evaluation used a large sample of offenders, with “treated” offenders matched to “untreated” offenders using a range of data sources.  The results are devastating for proponents of the SOTP. In summary:

-More offenders “treated” with the SOTP committed at least one further offence within an 8-year follow-up period than those who had not been treated (10% versus 8%)

– More offenders “treated” with the SOTP committed at least one further child images offence within an 8-year follow-up period than those who had not been treated (4.4% versus 2.9%)

Also important is the report’s conclusion that the emphasis on groupwork generally may be problematic. Group treatment might “normalise” deviant behaviour, or even lead to the sharing of contacts or sources. This has been a gripe of lawyers (myself included) for many years. Some prisoners are reluctant to engage in groupwork. They do not want to talk about their offences in a group setting, or they do not want to listen to others talk about theirs. Some are frankly not keen on either. Such offenders have, for years, been told that if they won’t participate in group work then they can forget it. It was put up or shut up.

What recourse do such people have now? The answer is almost certainly none at all. In a litigation context the MoJ would say that it could not – before this research – have known that the programme wasn’t working They have started a new programme, Kaizen, to plug the gap that has been left.

But the MoJ were warned, repeatedly, that the SOTP was (or at least might be) defective. As reported in the Times on 1 July, Dr Robert Forde repeatedly challenged the mantra that the SOTP was working. In response he was on the receiving end of misconduct complaint: accusing him of being “insufficiently familiar” with the literature in this area. Thankfully, but perhaps unsurprisingly the complaints were not upheld. Similar warnings were raised by another psychologist, Dr Ruth Tully, who was excommunicated by the MoJ as a result.

The MoJ cannot in good faith say that it did not – or could not – see this coming. It was there to be seen if only they had been willing to look. Lawyers have been banging their heads against prison walls for years trying to challenge the assumption that the programme did what it said on the tin. They are not the victims in this of course; nor are the psychologists who spoke up. It is the public that has suffered from this failed experiment, and those offenders who remain stuck in a system that demands of them a reduction in risk whilst failing to offer any realistic or effective means of them doing so.

The new Kaizen programme accepts prisoners who are maintaining their innocence. This is a significant and positive change. I hope that the programme succeeds; that it keeps the public safe and allows offenders to be released more speedily. But Dr Forde argues that the new programme is based on the same discredited techniques as the old one. Based on historical events, his is a voice that must be listened to.

And it is not just the MoJ that could usefully open its ears. For too long the Parole Board failed to question the “official” position on the SOTP. The Board has changed a lot since that hearing back in 2005, and mostly for the better. It is an independent body but it must be fiercely so. Because even the proponents of accredited behaviour programmes can no longer maintain that it is not right to challenge and scrutinise “accepted” thinking about the treatment of offenders.

@thepubliclawyer, 2 July 2017


Fresh Evidence Applications

The Court of Appeal has very strict rules about evidence that was not used at trial. This fact sheet looks at those rules and considers how you should prepare an application to produce “fresh” evidence.

The Application Form

If you want to rely on fresh evidence in your appeal you will need to fill out an application form called Form W. On the form you will need to (1) name the witness giving the evidence, (2) say what evidence the witness can give, and (3) explain why the evidence was not given at trial. The evidence should be in the form of a witness statement, which you can attach to the form.

If the fresh evidence is a written document, there should still be a statement should be from somebody to “exhibit” (produce) the evidence. For example, if person A has sent messages to person B on facebook, and person C wants to use them in his appeal, there should be a statement from person B confirming the fact that s/he received those messages

The Criteria

The Court will consider 4 things when deciding whether or not to “receive” fresh evidence. They are set out in the Criminal Appeal Act, which uses some quite technical language. In Plain English the 4 things amount to this: (1) is the evidence believable? (2) could the evidence be a reason for allowing the appeal, (3) could the evidence have been used in the trial? (4) is there a reasonable explanation for the evidence not being used at the trial?

Is the evidence believable?

The way in which the Court decides whether the fresh evidence is “capable of belief” (believable) depends upon what type of evidence is involved. For example: if the evidence is from an expert witness (let’s say a fingerprints expert) then the Court will probably accept that it is believable. In such cases this first hurdle is likely to be crossed quite easily.

If, however, you are looking to rely on “evidence of fact” (somebody saying that something happened, or that it did not happen) then the Court will look very closely at whether it is believable. If it is obviously not believable then the Court will probably reject it without giving it a  hearing. If it is unsure then the witness might need to come to Court to answer questions.

Could the evidence be a reason for allowing the appeal?

The way in which you answer this question is really important. It is all very well if the fresh evidence is believable if it could never be a reason for allowing the appeal. You need to explain to the Court of Appeal why the fresh evidence makes the conviction “unsafe”.

In doing so you need to think about how the fresh evidence is relevant to the issues in your case. What were the issues between the prosecution and the defence at the trial? Is this evidence relevant to those issues? If so, why and how? Might the jury might have reached a different verdict if they had heard the evidence? These are the sorts of questions that the Court of Appeal will be asking itself, so answer them at an early stage.

Could the evidence have been used at your trial?

Some types of evidence are “inadmissible”, i.e. they cannot be used in Court. For example: “hearsay” evidence (what someone heard), or evidence about someone’s sexual history, might be inadmissible. It can be difficult to say whether evidence is admissible so it is best to try and get some advice from a lawyer if  possible. If that isn’t possible you should still do your very best to say why you think that the evidence could be used.

Is there a reasonable explanation for the evidence not being used at your trial?

Even if you have got over all of the previous hurdles, this one can be the trickiest of all. The court will want to know whether the person giving the fresh evidence was spoken to at the time of your trial. If they weren’t, why not? If they were, why was the evidence not used? If a decision was taken not to use that witness, then you almost certainly cannot use them now, although that is not to say that you cannot try. 

If the witness was not spoken to at the time of the  trial the Court will look very closely at whether – with reasonable efforts – you might have been able to find it. You therefore need to set out very clearly why you say you could not have found the evidence. 

© Appeals Barrister


fresh ev v3.png 


Making an application to the CCRC

What is the CCRC?

The Criminal Cases Review Commission (CCRC) is an independent body that investigates possible miscarriages of justice. It has powers to investigate cases and to refer (send) cases to the Court of Appeal.

Can I apply to the CCRC?

The CCRC can look at convictions from the Crown Court or the Magistrates’ Court. In most cases you will have to exercise your appeal rights before the CCRC will look at your case. If you were convicted in the Magistrates’ Court this means first appealing to the Crown Court. If you were convicted in the Crown Court this means appealing to the Court of Appeal.

This fact sheet focuses on convictions from the Crown Court, which are much more likely to result in applications to the CCRC.

As I explain in the how do I appeal my conviction fact sheet, an application to the Court of Appeal usually has 2 stages. The first is a look at the case “on the papers” by a single judge. The second is asking the “full court” to consider your case. Before applying to the CCRC your case will usually need to have been considered (and rejected) by the full court.

There are some exceptions. The CCRC will sometimes accept cases where you have not already had an appeal. But it will only do so in “exceptional circumstances”.

What is meant by exceptional circumstances?

There is no easy answer to this question. The CCRC guidance say that exceptional circumstances might include cases where:

(1) There is sensitive information involved. This might include, for example, evidence that was not disclosed to you because it was withheld under “public interest immunity” (PII) procedures;

(2) There is new scientific, medical or expert evidence that the CCRC should analyse;

(3) The CCRC might be able to get hold of material that you could not get hold of yourself.

If you are in any doubt about whether there are exceptional circumstances in your case you have nothing to lose (but your time) by making an application to the CCRC. But if you choose to do that you should spell out clearly why you say your case should be looked at by the CCRC rather than the normal route of you making an application to the Court of Appeal.

If the CCRC thinks that there are no exceptional circumstances you will need to make an application to the Court of Appeal.

When will the CCRC refer a case to the Court of Appeal?

The CCRC can refer a conviction to the Court of Appeal if:

  1. There is a real possibility the conviction would be overturned; and
  2. This real possibility arises from evidence or argument not put forward at trial or appeal (or there are exceptional circumstances); and
  3. You have already appealed (or there are exceptional circumstances).

The CCRC can also refer a sentence to the Court of Appeal if:

  1. There is a real possibility that the sentence would be reduced if it were referred; and
  2. This real possibility arises from information or argument on a point of law which was not put forward at trial or appeal; and
  3. You have already appealed or applied unsuccessfully for permission to appeal (or there are exceptional circumstances).

What is meant by a “real possibility”?

This means a real possibility that the conviction will be overturned. The conviction will only be overturned in the Court of Appeal is satisfied that the fresh evidence or argument might have resulted in the jury taking a different decision (the “jury impact” test).

The “real possibility” test has been criticised because it involves speculation on speculation. In other words, it involves the CCRC speculating about what the Court of Appeal might think about how the new evidence/arguments might have influenced the jury.

How should you approach your application to the CCRC?

You should approach an application to the CCRC in much the same way as you would an application to the Court of Appeal. The CCRC has a form that you will need to complete with your application. But it’s usually best to put your arguments in a separate document. You can then simply write “see attached” on page 11 (“what went wrong with your case”).

In telling the CCRC what you think went wrong with your case you might want to follow the suggestions I have set out in the “drafting grounds of appeal” fact sheet. The CCRC deals with a large volume of cases and if you set out your case more clearly it will help them to understand your arguments and increase the chances of a successful outcome.

Your application might contain minor differences in style from a grounds of appeal document. For example your “grounds” section might become a “proposed grounds” section.

Another example might be if you are asking the CCRC to use its powers of investigation. If you have suggested lines of enquiry then you should say what they are. You might then want to have a separate heading for that.

It might look like this:

Screen Shot 2017-05-10 at 18.58.17What if the CCRC rejects my application?

The vast majority of applications are rejected. If the CCRC rejects your application it will issue a “provisional” statement of reasons and allow you an opportunity to make further arguments. It is important that your make your arguments clear and coherent; responding to the Commission’s reasons and not just re-hashing points that you have already made.

If the CCRC still rejects your application the only way of challenging its decision is through an application for judicial review. You can apply again if fresh evidence comes to light, and in fact you can apply to the CCRC as many times as you like. But if you want to challenge a decision and there has been no change in circumstances you can only do so through a judicial review claim.

What is a judicial review?

Judicial review is a process by which the courts have the power to “supervise” decisions taken by public bodies like the CCRC. If the CCRC makes an error of law then you can ask a court to “quash” its decision. If it quashes the decision then the CCRC will have to look at your case again.

It is very difficult to win a judicial review case. You cannot ask the courts to review a decision just because you disagree with it. It has to be wrong in law. There are lots of ways that a decision can be wrong in law, and I won’t set them all out here. But in very general terms you will usually need to show that the decision was “unreasonable”. This means that either (i) the person making the decision has not taken into account something that was relevant, (ii) that s/he has taken into account something irrelevant, or that (iii) the decision is illogical.

A rare example of a successful judicial review is the Ben Geen case. In that case the judge granted “permission” for a judicial review, after which the CCRC agreed to look at the case again. If you are considering a judicial review you should seek legal advice as the law in this area can be very complex.

ccrc infograph v2.png

© Appeals Barrister



Writing your grounds of appeal

This might be the most important fact sheet for people making an application for leave to appeal “in person” (without a lawyer). It should also be useful to students working at miscarriage of justice projects. Most of the hints and tips will also be relevant when making applications to the Criminal Cases Review Commission (CCRC).

Why are the Grounds of Appeal Important?

Your grounds of appeal are a massively important part of your case. If you prepare your grounds of appeal badly then the judge (or the CCRC) will not know what your arguments are. This puts you at a disadvantage. The judge will be less likely to grant you permission to appeal if you have not told them why you have a good case. So persuade them.

The Golden Rules

1) Start from the beginning. Always write your grounds of appeal as if the person reading them knows nothing about your case. It is very likely that the judge won’t know much about it anyway. So explain your case from the very beginning.

2) Make sure that your grounds are: (a) as clear as possible, (b) as brief as possible, and (c) as persuasive as possible.

(a) Be clear. The Plain English Guide includes a number of helpful tips. For example:

  • Keep sentences short (usually 15-20 words);
  • Use lists where it helps (like this one!);
  • Be professional, not emotional.

(b) Be brief. The Court of Appeal does not like grounds of appeal to be too long. If they are too long it makes it harder for the Court to understand your case. You do not want that to happen. In a conviction appeal your grounds might be no more than 10-15 pages. As a rule of thumb, if your grounds are much longer than 20 pages you have probably gone on too long.

(c) Be persuasive. The Court does not know your case. It has not lived it with you. It is not there to decide if you are innocent. It is there to decide if your conviction should be “quashed”. It will assume that you were rightly convicted. Your job is to persuade it that you weren’t. Make your best points loudly, but without emotion. If you are emotional it will get in the way of your arguments. Do not use capital letters. Ever.

A good example: “My case is that the judge’s direction was wrong in law and so I was wrongly convicted.”

A bad example: “The judge messed up the law and misled the jury. It was a STITCH UP! I am innocent”.


You can write your grounds in whatever style you like. I often choose to do it under these headings:

  1. Summary
  2. The Facts
  3. The Law
  4. Grounds of Appeal

Use whatever headings you like, but do make sure that you use headings. This helps the reader (the judge) to know when you are moving on to a new topic. It will also help you organise your thoughts as you write your grounds.

Summary of the Application

This is your chance to introduce your case. Where were you convicted? Who was the judge? What were the offences? What are the grounds that you will be relying on? (you can develop these later on).

It could look something like this:


The Facts

This section must be balanced. That means explaining the case against you as well as the case for you. Of course you will be putting your own spin on the evidence, and there is nothing wrong with that. But the judge cannot understand the case for you without understanding the case against you. And if s/he thinks that you are trying to avoid the evidence it won’t help you.

You will want to cover at least the following areas: (i) what was the prosecution case? (ii) who were the prosecution witnesses and what did they say? (iii) what was the defence case? (iv) who were the defence witnesses, and what did they say?, (v) How did the judge direct the jury?

You should not repeat everything that the witnesses said. A summary will do. Perhaps a few paragraphs about what the complainant said, and one or two paragraphs about the rest.

Where you can “marry up” an allegation with the indictment then do so. For example: “Miss C said that the applicant touched her under her clothes in the bedroom (count 3)”.

Do not start making “submissions” (argument) at this stage. There is time and space for that later on.

Your summary of the facts might look like this:

Facts 1Facts 2

The Law

If you are appearing “in person” you are not expected to say anything about the law. You could ignore it entirely and nobody would criticise you. But if you are able to get legal advice, or to do some research of your own, this will help you to set out the legal context of your arguments.

For example: in a “joint enterprise” case you might want to include a short summary of what was said in Jogee and in Johnson because they are the “leading” (important) cases on that issue.

This section might look something like this:

The Law


This section is very important. But you have already laid the groundwork so by now the judge should have a good idea of what your arguments will be. You have said in section A what your grounds will be. In section B you have explained the facts. In section C you have set out the law. This is your opportunity to hammer home your arguments by piecing together the jigsaw.

Remember: keep it brief. A few paragraphs for each ground of appeal is usually plenty. Sometime a single paragraph might be enough. Your arguments won’t benefit from repetition. A good point can often be explained quite briefly. Do not “over egg” it. If the judge was wrong, the judge was wrong. There is no need to say that s/he was “hopelessly wrong”, “plainly wrong”, or “obviously wrong”. Wrong is wrong, and adverbs won’t help you.

 Your grounds might look like this:


To Recap:

How to write grounds.png

Postscript: Uncle Bulgaria’s conviction was quashed. Mr Parker and Mr Worth are currently on desk duties.

© Appeals Barrister

Will I get legal aid for my criminal appeal?

If you qualified for legal aid in the Crown Court this will cover an application for leave to appeal if (and only if) your solicitor or barrister thinks you have grounds to appeal. If so they will issue the appeal for you on those grounds. If they don’t think that you have grounds to appeal you should ask them to explain why – in writing. You might need this later if you try to appeal using another legal team or ‘in person’ (without a lawyer).

If you think that your barrister is wrong  in his/her advice, legal aid might still be available but only in limited circumstances. This includes (a) where there has been a change of circumstances since the first advice, (b) where the first advice is obviously wrong and (c) where there is some fresh evidence. In those situations  you might still qualify for legal aid. Sometimes legal aid can also be available through another firm of solicitors where you are dissatisfied with your previous legal team.

If you qualify for legal aid and you think that you might be eligible for another advice, you  should first contact a specialist appeals solicitor. If you qualify for legal aid your case will be unsuitable for the “direct access” scheme (instructing a barrister directly). In such cases your solicitor can instruct a barrister later if it’s right for your case.

If you did not qualify for legal aid in the Crown Court, or if you have been told by a solicitor that you do not qualify for legal aid, then it might be possible for you to instruct a barrister directly. If you have a query about whether your case is suitable for direct access, please contact the practice team at Garden Court North who will be glad to assist you.

© Appeals Barrister

Can I appeal my criminal conviction?

“Can I appeal my conviction?” is the first question on most defendants’ lips after they are convicted. This fact sheet looks at the process for bringing an appeal against conviction. Below you will find a flowchart setting out the process that I am about to explain.

If you have been convicted by a jury* then your appeal will be considered by the Court of Appeal (CA), which usually sits in London. An “application for leave to appeal” must be sent to the Crown Court using form NG. It should be lodged within 28 days of the conviction. This is really important, as it can mean preparing to appeal the conviction before you have been sentenced. The time limit does not run from the date on which you were sentenced.  In some cases the CA can extend the 28-day time limit, but you should never take this for granted.

After the CA receives your paperwork it will collect together any documents that it thinks the judge will need to see. This will include the indictment, a case summary, and it may include transcripts of the evidence and the trial judge’s “summing up”.

Your case then will be considered “on the papers” (without a hearing) by a single judge. This is known as “the permission stage”. If the judge thinks you have an arguable case then s/he will grant permission to appeal and send the case to “the full court”. This means a hearing before 3 judges at the CA. That is known as “the appeal hearing“. In some cases the judge might not be sure whether to grant permission, but will send the case to the full court anyway. In many others, permission will be refused.

If permission to appeal is refused you can renew your application before the full court. This is sometimes called a “renewal hearing“. Applying to renew an application for permission can be risky. If the CA thinks that the application is hopeless it can make what is called a “loss of time order”. This means that some of the time you have served in prison will not count towards your sentence. In other words, you will serve longer in prison. Alternatively, it can sometimes order you to pay the costs of the hearing.

The possibility of such an order makes it all the more important that wherever possible you seek legal advice before renewing an application, and ideally before making one at all. In other posts I will discuss the availability of legal aid for appeals and give some hints and suggestions for the benefit of those appearing “in person” (without a lawyer).

If you win your appeal then you might face a retrial, although it will depend upon the circumstances. I will discuss this more in another fact sheet. If you lose your appeal then you cannot appeal to the Court of Appeal again (ever) unless the Criminal Cases Review Commission (CCRC) sends your case back. The CCRC will be also covered in a separate fact sheet.


© Appeals Barrister

(Header photo: the Guardian)

*I will be preparing a separate fact sheet dealing with appeals from the magistrates’ court.

R v Jogee: Joint enterprise appeals

The judgment of the Supreme Court in R v Jogee [2016] UKSC 8 is out. The Court held that for a secondary party to be guilty of an offence, he or she must intend to assist or encourage the principal. It will no longer be enough, as had been previously held, for the secondary party merely to foresee that the principal might commit the offence. The correct rule is that, whilst foresight might be evidence of an intention to assist or encourage in the commission of the offence (and indeed it may be important evidence), it is not decisive.

In other words, the law has been wrongly applied for 30 years.

So what of previous cases that proceeded under the wrong interpretation of the law? The Supreme Court addressed the issue at §100:

“100. The effect of putting the law right is not to render invalid all convictions which were arrived at over many years by faithfully applying the law as laid down in Chan Wing-Siu and in Powell and English. The error identified, of equating foresight with intent to assist rather than treating the first as evidence of the second, is important as a matter of legal principle, but it does not follow that it will have been important on the facts to the outcome of the trial or to the safety of the conviction. Moreover, 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. This principle has been consistently applied for many years…”

This approach, which puts the importance of finality in criminal cases ahead of the need for the criminal law to be fair, sounds a strong note of caution to those unjustly affected by the “old” law and their families. To succeed, an appellant must be able to show that a “substantial injustice” has occurred. That is a nebulous, and perhaps deliberately vague concept, which affords the Court of Appeal a very broad discretion. Nevertheless, some steer is given as to where the line may be drawn by the observation that in many cases the application of the “old” law will not have been important to the facts of the case (in other words, the offender would have been convicted regardless). On the other side of the coin, where it can be shown that the application of the “old” approach was important on the facts, such that a correct application of the law might have produced a different result, then the conviction could be quashed. The challenge for appeals lawyers is to meet that threshold.

Postscript: Since I posted this piece, my chambers colleague Mark George QC has written an excellent piece questioning whether the Supreme Court’s approach is correct. Mark notes that the cases cited by the Court all relate to the interpretation of the meaning of various Acts of Parliament (“change in the law cases”), as opposed to cases involving a misinterpretation of the common law. Mark further notes that the Supreme Court placed substantial reliance on the case of Fletcher [2007] 1 WLR 3262, in which the Court of Appeal distinguished change in the law cases from cases such as Bentley [2001] 1 Cr. App. R.

In Fletcher, the Court suggested that the conviction in the infamous Bentley case was quashed only because the summing up had been unfair. The decision did not depend on a legal view of the principles governing joint enterprise. As regards the outcome in Derek Bentley’s case, that is correct. The ratio of Bentley was that the summing up was unfair. The Court held that the direction on joint enterprise was, if anything, favourable to Mr Bentley. Nevertheless, in setting out the applicable principles, Lord Bingham said (§4):

“Rarely has the court been required to review the safety of a conviction recorded over 45 years earlier. In undertaking that task we conclude…
…(2) The liability of a party to a joint enterprise must be determined according to the common law as now understood”.
 The fact that the appeal in Bentley did not ultimately turn on this principle is nothing to the point. The Court of Appeal in Fletcher failed to recognise the principle, focussing only on the outcome on its particular facts. This could mean that – in turn – the Supreme Court’s approach could be open to challenge.

© Appeals Barrister

Pressure to plead guilty

I’ve written a piece for justice gap on the sentencing council’s latest consultation, and whether credit for a guilty plea places undue pressure on the innocent. I think that it does. You can find the piece here. If you subscribe to Sentencing News, a “long read” version of this piece is in the next edition.

Appeals Barrister

Proving Innocence: Miscarriage of Justice Compensation

Update 13/4/17: The Supreme Court has granted Mr Nealon and Mr Hallam permission to appeal. The appeal will be listed in due course. 

The Divisional Court has rejected judicial review claims by Victor Nealon and Sam Hallam: [2015] EWHC 1565 (Admin). The men, who were wrongfully convicted and spent many years in prison, argued that the new scheme for compensating victims of miscarriages of justice offends the requirements of Article 6(2) of the European Convention on Human Rights: the presumption of innocence. To obtain compensation they were required to show that the new facts which led to their convictions being quashed proved their innocence. 

The issue has been controversial ever since Charles Clarke abolished the ex gratia payment scheme. The initial problem was identifying what was meant by the term “miscarriage of justice” in s.133 of the Criminal Justice Act 1988. It had been thought this was put to bed by the Supreme Court’s decision in R (Adams) v Secretary of State for Justice [2011] 2 WLR 1180, in which the Court held (by a 5-4 decision) that a “miscarriage of justice” is where the evidence against the person was so undermined that no conviction could possibly be based upon it. It rejected the argument that the test was limited to cases where the new facts proved the person’s innocence.

In response, parliament introduced s.175 of the the Anti-Social Behaviour Crime & Policing Act 2014, so that the definition rejected by the Supreme Court became the legal standard for establishing a “miscarriage of justice”. In the Adams case, 3 of the 5 in the majority also held that Article 6(2) ECHR had no part to play. The justices in the minority agreed, although its reasons for doing so were different. Mr Nealon and Mr Hallam argued that the view of the justices on Article 6(2) did not bind the lower court, as the minority view resulted from a line of reasoning that was otherwise rejected by the majority (that s.133 required clear proof of innocence). It did not therefore form part of the ratio (rationale) of the decision.

The Divisional Court disagreed, and considered itself bound by  to reject the claims. The matter is complicated further by the fact that since the Supreme Court’s decision, the European Court of Human Rights (ECtHR) took a different view on the applicability of Article 6(2). In Allen v United Kingdom [2013] 36 BHRC 1, which concerned a decision under the old test, the Grand Chamber held that compensation decisions of this type were (at least in theory) justiciable under Article 6(2). Although it dismissed Ms Allen’s claim, it indicated that the outcome would likely have been different had Ms Allen been subjected to a “clear innocence” test.

In the spirit of the type of dialogue that sometimes gets lost in the argument on the Human Rights Act, the Divisional Court disagreed with the ECtHR. It held that, even if it was not bound by the Supreme Court’s decision, it would have rejected the ECtHR’s reasoning . It considered that the Supreme Court was right to find that compensation claims of this type are in a special category (“lex specialis”), and do not engage Article 6(2) (thus reminding us, once again, that the Supreme Court is the final arbiter of human rights in the UK, and that the Courts do not slavishly follow Strasbourg rulings). The Court endorsed remarks by Lord Phillips in Adams that the application of Article 6(2) in the present context is “one of the more remarkable examples of the fact that the Convention is a living instrument”. The riposte to which is, perhaps, that there is little surprising about the proposition that requiring a person to establish his innocence offends the presumption of innocence. The controversy lies in whether the compensation application is sufficiently linked to the criminal proceedings to invoke Article 6, which is concerned with the right to a fair trial. There is now a divergence of opinion between the UK courts and Strasbourg on that issue.

Fundamental to the Divisional Court’s reasoning was its acceptance of the Secretary of State’s submission that an applicant for compensation is not required to prove his innocence. That, it said, is because the test is whether the new fact establishes the person’s innocence, not whether in fact he is innocent. Although this was a distinction that Lord Phillips made in Adams, it was not one that the other justices had made, and the claimants submitted that it was not one of substance. Circumscribing the method by which innocence must be proved, they said, did not alter the fact that innocence must still be proved. Nevertheless, the Court found that there was a proper distinction to be made. Applying that reasoning, it held that the new test does not offend Article 6(2) ECHR.

The claimants have sought permission to appeal the decision, including on the grounds that the Supreme Court should have the opportunity to consider the effect of Allen v United Kingdom. Some, including Lord Hope, have suggested that the Justice Secretary Michael Gove needs to look at this issue again. In the meantime, those who have been wrongly convicted are likely, absent the very clearest proof of innocence, to go uncompensated by the state.

The Nealon & Hallam Case: Human Rights in Action

When Michael Gove turns up for work at Petty France this week, his first job (we are told) is to oversee the proposed repeal of the Human Rights Act 1998. Topically, therefore, the first significant piece of litigation of his tenure as Lord Chancellor, which is to be heard by the Divisional Court on 12 and 13 May, invokes the Human Rights Act to challenge primary legislation.

Inconveniently for Mr Gove the claimants, Victor Nealon and Sam Hallam, are not foreign criminals, or terrorists, but rather are 2 men who were wrongfully convicted and spent many years in prison for crimes they did not commit. Background to the Nealon case can be found here, and a very recent interview with Sam Hallam setting out the impact of his wrongful conviction is here.

The government has refused to compensate the men, having last year introduced legislation (s..175 of the Anti-Social Behaviour Crime and Policing Act 2014) which means that only those who can establish beyond reasonable doubt that they are innocent will be compensated. The claimants argue that this requirement offends the presumption of innocence, which has its roots in English common law, but is incorporated within Article 6(2) of the European Convention on Human Rights. Also topically (given the unlikelihood of a Human Rights Act repeal taking effect in either jurisdiction), the new provisions do not apply in Scotland or Northern Ireland, where a more generous test for compensation is applied in accordance with an earlier Supreme Court ruling.

The government is making various arguments in opposition to the claim, including that presumption of innocence was never intended to apply to this type of scenario, and that the Strasbourg case law relied upon by the claimants should not be followed in view of what it says is a binding decision by our own Supreme Court that Article 6(2) does not apply in this context.

Whatever the outcome of the case, therefore, it shows that the Human Rights Act is not always used to argue unpopular cases that offend “common sense”, and provides a backdrop for the battles to come to define the future of Human Rights in England and Wales.

I am acting for the claimant Victor Nealon alongside Joseph Markus, also from Garden Court North Chambers, instructed by Mark Newby of Quality Solicitors Jordans, whose earlier article on the Nealon case and its implications can be found here