Making a Murderer, in the UK?
22nd Sept 2016
Chris Topping – Director of JC Group and civil rights, actions against the police and Inquests solicitor. Chris is also Chair of the Access to Justice Committee at Liverpool Law Society.
· Lord McNally: “A plea to all the lawyers – those coming up and those already there. You have got to accept that bandying about access to justice, it’s really quite fraudulent.”
· Chris quotes the Halsbury Law Exchange report “Can we Safeguard Access to Justice?” In 2012 there were 140,000 cases where legal aid was available. By the Summer of 2013 there had been only 40,000. LASPO had clearly saved money.
· In these circumstances justice may not be possible, miscarriages are a distinct possibility. Chris believes it is all very well for McNally to accuse lawyers of acting like 1970s Trade Unionists but we are now reaching a point where conditions exist that there will be a Making a Murderer in the UK.
· There are few groups who get so little support and attention as the unrepresented defendants in the criminal courts, it is highly likely that the innocent will be convicted and the guilty not held to account.
· Brief History- Chris says he is not proud of the way that in his thirty years of practice he has seen a total decimation of Legal Aid.
· The 1949 enactment helped 80% of those involved in legal matters to gain access to justice. In 1986 Legal Aid was available for all matters of law excluding only defamation and conveyancing. Now almost nothing is covered. The system is in crisis, it is at the cusp of particular problems.
· Mr S- At his sentencing a judge gave him an extended licence despite not having the judicial power to do so, his legal rep at the time did not realise the mistake. When the licence was breached Mr S was taken into custody, he was sentenced to an extra 10 months in jail.
· His lawyer Flo Klaus realised the error that had been made, she made an application to appeal out of time, the appeal was allowed.
· Chris brought an action against the lawyer at the original sentencing, this was funded by Legal Aid. He doesn’t believe they would have taken the case under a CFA. He received financial compensation for the wrongful imprisonment. This is not Making a Murderer but it would be a potential miscarriage of justice after LASPO.
· Mrs Q- went to a solicitor who did not have a contract to carry out legal aid Welfare Benefits advice, her representative had no clue and did not submit an appeal against her benefits decision. As a result her benefits were stopped. She was issued with a possession order and evicted from her home.
· Broudie Jackson and Canter brought a claim against the solicitors for professional negligence. There was then legal aid available for professional negligence claims. The original firm were sued for not having referred her to a firm which had expertise in this area of law.
· This case is unlikely to be brought now. Mrs Q lost her home and benefits, only now has she received compensation and been able to pay a deposit for a private rental. This is not making a murderer but it could potentially be a clear injustice.
· CFAs and ATE insurance could be used when Legal Aid wasn’t available meaning that claimants would not be lumbered with a bill if they were unsuccessful. This has been swept away by Jackson and in so doing justice has been denied from all those who are neither very rich nor very poor. The risk is too great.
· Mr C- an aunt and her nieces and nephews went home from the cinema on Christmas eve. That night armed police burst in and raided the home, destroying their Christmas. Mr C was bundled into a police car, no warrant was handed over to the family.
· The police almost immediately realised their error and took the family home.
· Because of their income they were not eligible for legal aid, the police were clear that if Mr C won they would appeal and apply for costs of around £50,000. Mr C had to abandon the claim. This is a direct result of the removal of the repayment of ATE insurance premiums.
· This is the deprivation of the opportunity to see justice done.
· A male was arrested in a known gay area, he was arrested for Breach of the Peace for asking the officer why he was questioning him. He was taken and held at Belle Vale Police Station before being released.
· The case was very low value, we were instructed by him and applied to the LAA for funding. The Agency have refused to fund his case as it is low value. Chris and his team believe it was the homophobic attitude that precipitated the arrest and clearly this kind of attitude should be challenged and public servants must be held to account. The failure to fund cases such as these leads to a poorer society. Though these cases are clearly about more than the monetary value both to the client and to wider society the LAA do not care, they will assess them as being not worth the money.
· Inquests- All funded through exceptional case funding.
· Jasmine Lapsley- a 7 year old girl who choked on a grape and died whilst on holiday in North Wales. At the inquest the Ambulance service were represented as were the RAF and the hospital. The family were not entitled to funding. The coroner made the bold move of saying Art 2 was engaged and they were able to instruct BJC to act. This could have been a miscarriage under the current rules, a bereaved family unrepresented facing three public bodies with representatives.
· Funding for inquests is notoriously difficult to obtain as the families of the victims of the Birmingham bombings are now finding. At the time of the bombs the inquests were halted when the men were convicted, they were never resumed even following the men’s exonerations.
· The families are currently not entitled to funding for the reopened inquests, how can it be that these families can be refused access to justice?
· Lord McNally’s words must be a bitter pill to swallow.
· Don’t give up the fight. Chris directed attendees to a recent blog by local solicitor Steve Cornforth (http://thestevecornforthblog.blogspot.co.uk/2016/09/no-lord-mcnally-i-will-not-shut-up.html- here is the link for those who were interested).
· Chris told us young lawyers “you have our support, we won’t go away, don’t give up the fight.” Things aren’t going to be exactly like 1976 ever again but we can look at news that we can use our skills for the benefit of the people who need us.
· Chris said he hopes that cases involving the State will always be eligible for public funding in order to be compatible with our convention rights. BUT May has threatened to pull out of the ECHR. He believes there will be more cuts by stealth relating to scope rather than the salami slicing we have seen until now.
· You must all tell people that Legal Aid is still available.
· Emma is a trainee solicitor at Swain & Co working in Prison and Mental Health Law
· Helibronn 2007- In Helibronn in Germany in 2007 police officer Michelle Kismet was shot dead. The murder was investigated and some foreign DNA was found at the scene.
· The DNA was female and of Eastern-European origin. There were two hits on the DNA data-base, it was unidentified but connected to two other murders around Germany.
· Overtime the DNA was found in 6 murder investigations and connected to 40 other less serious crimes across Germany, France and Austria.
· Thousands of women had their DNA tested to try and identify the criminal. Eventually the lab where the tests were done was seen to be the only common factor within all of the crimes. The lab was tested and swabbed.
· It was found that the DNA matched that of a female lab technician who had been using bad procedure and contaminating all of those swabs in all of those cases.
· The moral is that DNA testing can only ever be as good as the human component.
· Colin Pitchfork- The first murder conviction based on DNA evidence was 1988, the first exoneration was 1989.
· Most of the exonerations by DNA in the USA were convictions based on other forensics such as fingerprinting and hair recognition.
· The USA had a forensic science review in 2009. None of the former methods were shown to consistently demonstrate a connection between evidence and a specific individual, for some methods the results were worse than chance.
· This month the White House said something must be done to formalise and support forensics in the USA but the Justice Department will not allow the reforms to pass.
· In the UK we see how forensic tests have led to miscarriages of justice in a number of cases. The Birmingham VI were prosecuted following the accused’s hands being tested and found to have handled explosives.
· In 2014 Dwayne George had his conviction for murder overturned after he was released. His conviction had been based on an inaccurate gun residue test, he was only exonerated because of the hard work done by students from Cardiff University Law Clinic Innocence Project.
· In the past the UK had a Forensic Science Service which regulated forensics. This was closed by the Conservative government in 2012 because it was thought to be losing too much money. This was a great cause for concern for those in the know, particularly regarding the impartiality of the testing. Forensic work has now gone in-house to police forces or been farmed out to private companies which is even more dangerous as these companies are not covered by EU regulations.
· Emma states that she believes the convictions in the Stephen Lawrence case in 2011 could not happen now following the closure of the FSS.
· Government now going to bring it back in some form- they consulted with FBI experts who advised the UK should not follow the example set by the US.
· The Home Office have launched their Home Office for Science Strategy, however the strategy for forensics is vague and clearly not as well funded as its previous form.
· Prison Law after LASPO 2012 – There is still some Legal Aid, however only for those already at or past their sentence tariff, if there is an adjudication before an independent adjudicator or an external judge for adding days onto sentence.
· Solicitors can now only help prisoners with problems that arise at the very end of their sentence but can’t help with the many issues which may arise whilst they are serving. Emma said, from experience, she has seen this create hopeless prisoners who feel abandoned and completely hopeless.
· There is a lack of funding for hearings before the Parole Board, this has led to delays of up to 6-12 months resulting in prisoners having to wait longer for a judgment on the eligibility for parole. Emma describes many attempts to Judicially Review the delays as a breach of Article 5 however rather than this putting pressure on to fix the issues the Ministry of Justice have, so far, preferred to just pay out compensation.