Why legal aid reforms must be stopped, Exhibit B: the "murderer"

Innocent people could be in jail if proposed changes to the legal system are implemented. Here is one of them.

In the previous post I told how a doting granddad ended up on a child pornography charge due to a combination of finger pointing and police and Crown Prosecution Service (CPS) inadequacies. Similar themes run through this story of Exhibit B, but the crime is more serious. This is another case that goes to show that not everyone who ends up in court is a scumbag criminal. It illustrates why everyone should be entitled to independent, quality, legal representation.

NB this is a true story. Certain details that don’t relate to the factual and legal process have been changed to protect those who were involved.

Used and unused evidence

I’ve mentioned the idea of used and unused evidence before. Lawyers get a fee for ”used evidence” based on page count. Unused evidence doesn’t attract any fee. The Crown decides what is “used” and “unused”. There were about 5000 pages of “used evidence” and over 20000 (yes, twenty thousand) pages of “unused evidence” in Exhibit B’s murder case. The kitchen table couldn’t accommodate all this. So the “unused evidence” was spread all over the living room floor, in ever shifting piles. For two weeks.

Quite often evidence arrives with the lawyer as if the CPS has thrown it all in the air, then gathered it up and put an elastic band around it. Before my husband could start to read these 20000 pages he had to put them in some semblance of order. Once he’d got it in order he started to read it. But you can’t read it in order, like you read a novel. There is no beginning middle and end, well, not at this point there isn’t. The lawyer has to find them out. So he kept going backwards and forwards, from one pile to another and back again.

This investigation had been rumbling on for a few years. When the murder was still fresh, years before the papers landed in my living room, an appeal had gone out on Crimewatch. It featured in local and national news etc. There was a reconstruction and an artist’s impression of the suspect based on a description given by an eye witness. There was a lot of interest.  As well as the “unused evidence” my husband also got hold of a copy of the Crimewatch episode, and a heap of press cuttings.

My husband took two weeks out of court to go through all of this material. Remember that they don’t get paid for “unused evidence”. Two weeks earning nothing. But it had to be done, so he would know all there was to know about this case, and could act in the best interest of his client.

Golden nugget

Ten days after the living room was first flooded with paper, my husband had a eureka moment. He came across a golden nugget, one piece of A4 paper that made sense. It was the notes of the artist who had created the impression of the suspect. The image that had been broadcast around the country. The image had a prominent facial feature and the artist had used shading to indicate this. The notes clarified what the shading was supposed to indicate, and what it was not supposed to indicate.  The police report, and all the subsequent media reports had got this detail the wrong way round.

A fork in the road

So pretty much as soon as the investigation started, unbeknownst to the police, it reached a fork in the road. One probably quite junior officer got the detail about the impression the wrong way round, reported it up the chain and the investigation went off down the wrong fork.

Reading the “unused” material my husband could see there was clear evidence, forensic evidence, that could have got the police back on the right track and even pointed towards the real murderer. The twenty thousand pages started to make sense. But because the police had been fixated on this one detail, the detail that they’d got round the wrong way, they kept pushing all the other evidence aside. This early mistake was perpetuated all the way to trial.

His day in court

After over 12 months in prison on remand, Exhibit B’s case came to court. The prosecution opened their case, repeating the mistake that the police had made right at the beginning, all those years before. This mistake was only corrected when the eye witness took the stand and gave his evidence to the jury. Needless to say there were gasps and red faces all around the courtroom.

There were many other things that went wrong or got missed in the investigation of this crime. But the detail about the artists’ impression had created a domino effect concerning the other evidence.

After four weeks the judge stopped the trial. He directed the jury to find Exhibit B not guilty, and gave them six different reasons why it was absolutely impossible for him to have been the murderer. After nearly two years of hell Exhibit B walked free.

Why this story should matter to you

  1. Police & CPS procedure – it is clear that the officer in charge of the case had not done what my husband had done, and sat down and read everything. Evidence is collated and summarised in reports, which are passed up and up through the police rank structure. By the time it gets to the top it is a case of “Chinese whispers”. What the top guy reads is not always an accurate reflection of the evidence.
  2. Performance targets – it is unrealistic to expect the police and prosecution to read all of the evidence in every case under the current system. It certainly won’t be possible, even for the defence, under the proposed system. The allocated defence lawyer will be working to targets, working for profit. He won’t have the time to take two weeks out to find the golden nugget. He’ll take a quick look at the evidence, see that it looks pretty damning, and advise the client to plead guilty.
  3. The real scumbag criminal got away with it – as far as we know the real murderer is still at large. The proposed system will lead to more of this. Because if lawyers are to be paid the same whether clients go to trial or not, there will be fewer trials. Fewer trials means less opportunity for upcoming solicitors and barristers to cut their teeth. Less practice on the more simple cases will lead to less proficiency on the complex ones. This will hold for both the defence AND the prosecution. The end result more innocent people going to prison, more guilty people getting away, quite literally, with murder.
  4. It could happen to you – Exhibit B got picked up for this because he had happened to be in the right place at the wrong time. The Crown’s own evidence showed he could not have been at the murder scene at the right time. He served over a year in prison on remand waiting for trial for something he didn’t do. I’ll spare you the details of what happened to him while he was there. And even though he was found not guilty, mud sticks. He was a young man, just starting out. His life was ruined.
  5. Innocence is not interesting – there was a journalist in court for Exhibit B’s trial. Every day there were articles in the local and national papers saying what a nasty piece of work he was. Once the case was thrown out my husband collared the journalist and demanded that he write the story up, listing the points as the judge had directed the jury. Guess what? He didn’t do it. No wonder the public always believe people are guilty until proven innocent.

Help save our justice system

As things stand the proposed changes to the criminal justice system are going to be brought in under secondary legislation, without any debate. If it comes to pass, in future young men like Exhibit B will be fed to the wolves.

The Save UK Justice e-petition needs 100 000 people to sign it in order for there to be a debate in parliament. If you have not already signed the petition please do so.

Our next scumbag criminal will be Exhibit C – the “paedophile”.

This piece is part of a series of posts exhibiting people at risk due to legal aid changes. It is cross-posted with permission from the A Barrister's Wife blog.

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Barrister's Wife is a barrister's wife. She writes a pseudonymous blog which offers a behind closed doors view of the justice system.

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Want to send a positive Brexit message to Europe? Back Arsene Wenger for England manager

Boris Johnson could make a gesture of goodwill. 

It is hard not to feel some sympathy for Sam Allardyce, who coveted the England job for so many years, before losing it after playing just a single match. Yet Allardyce has only himself to blame and the Football Association were right to move quickly to end his tenure.

There are many candidates for the job. The experience of Alan Pardew and the potential of Eddie Howe make them strong contenders. The FA's reported interest in Ralf Rangner sent most of us scurrying to Google to find out who the little known Leipzig manager is. But the standout contender is Arsenal's French boss Arsene Wenger, 

Would England fans accept a foreign manager? The experience of Sven Goran-Eriksson suggests so, especially when the results are good. Nobody complained about having a Swede in charge the night that England won 5-1 in Munich, though Sven's sides never won the glittering prizes, the Swede proving perhaps too rigidly English in his commitment to the 4-4-2 formation.

Fabio Capello's brief stint was less successful. He never seemed happy in the English game, preferring to give interviews in Italian. That perhaps contributed to his abrupt departure, falling out with his FA bosses after he seemed unable to understand why allegations of racial abuse by the England captain had to be taken seriously by the governing body.

Arsene Wenger could not be more different. Almost unknown when he arrived to "Arsene Who?" headlines two decades ago, he became as much part of North London folklore as all-time great Arsenal and Spurs bosses, Herbert Chapman or Bill Nicholson, his own Invicibles once dominating the premier league without losing a game all season. There has been more frustration since the move from Highbury to the Emirates, but Wenger's track record means he ranks among the greatest managers of the last hundred years - and he could surely do a job for England.

Arsene is a European Anglophile. While the media debate whether or not the FA Cup has lost its place in our hearts, Wenger has no doubt that its magic still matters, which may be why his Arsenal sides have kept on winning it so often. Wenger manages a multinational team but England's football traditions have certainly got under his skin. The Arsenal boss has changed his mind about emulating the continental innovation of a winter break. "I would cry if you changed that", he has said, citing his love of Boxing Day football as part of the popular tradition of English football.

Obviously, the FA must make this decision on football grounds. It is an important one to get right. Fifty years of hurt still haven't stopped us dreaming, but losing to Iceland this summer while watching Wales march to the semi-finals certainly tested any lingering optimism. Wenger was as gutted as anybody. "This is my second country. I was absolutely on my knees when we lost to Iceland. I couldn't believe it" he said.

The man to turn things around must clearly be chosen on merit. But I wonder if our new Foreign Secretary Boris Johnson - albeit more of a rugger man himself - might be tempted to quietly  suggest in the corridors of footballing power that the appointment could play an unlikely role in helping to get the mood music in place which would help to secure the best Brexit deal for Britain, and for Europe too.

Johnson does have one serious bit of unfinished business from the referendum campaign: to persuade his new boss Theresa May that the commitments made to European nationals in Britain must be honoured in full.  The government should speed up its response and put that guarantee in place. 

Nor should that commitment to 3m of our neighbours and friends be made grudgingly.

So Boris should also come out and back Arsene for the England job, as a very good symbolic way to show that we will continue to celebrate the Europeans here who contribute so much to our society.

British negotiators will be watching the twists and turns of the battle for the Elysee Palace, to see whether Alain Juppe, Nicolas Sarkozy end up as President. It is a reminder that other countries face domestic pressures over the negotiations to come too. So the political negotiations will be tough - but we should make sure our social and cultural relations with Europe remain warm.

More than half of Britons voted to leave the political structures of the European Union in June. Most voters on both sides of the referendum had little love of the Brussels institutions, or indeed any understanding of what they do.

But how can we ensure that our European neighbours and friends understand and hear that this was no rejection of them - and that so many of the ways that we engage with our fellow Europeans rom family ties to foreign holidays, the European contributions to making our society that bit better - the baguettes and cappuccinos, cultural links and sporting heroes remain as much loved as ever.

We will see that this weekend when nobody in the golf clubs will be asking who voted Remain and who voted Leave as we cheer on our European team - seven Brits playing in the twelve-strong side, alongside their Spanish, Belgian, German, Irish and Swedish team-mates.

And now another important opportunity to get that message across suddenly presents itself.

Wenger for England. What better post-Brexit commitment to a new Entente Cordiale could we possibly make?

Sunder Katwala is director of British Future and former general secretary of the Fabian Society.