Miscarriages of Justice: University of Limerick
Miscarriages of Justice: University of Limerick is an initiative established by the students and staff at the University of Limerick. The project began in 2012. While initially the project was not intended to be a website, it was found that having information available to the public in an electronic format was the best way to go forward.
The project aims to dispense information and raise awareness regarding the legal grey-area of miscarriages of justice. The project is the result of the work of two consecutive final year law student groups at the University of Limerick. In 2012 the original group came up with the idea of a website that can be found while browsing the University of Limerick's main website. The project is dedicated to the use of plain language i.e. not using legal jargon. The website is primarily a resource for the general public so the use of simple language is important to the project. In 2013 the second group of final year students at the university looked to expand the existing website. Not only that, they considered using other social media in order to reach a larger audience. It was decided that a mobile app would be developed for distribution to all the generic mobile app markets.
The website and mobile app contain information on the legal subject of miscarriages of justice and the factors that might influence the outcome of a case. Information on a variety of well known legal cases is available on the website. Along with the basic facts of the cases, there is a general theme attached to each case. Some examples of the themes are, inadequate legal counsel, media bias and influence, inaccurate forensic evidence and the issue of capacity are all addressed. Along with the case studies, the website contains information regarding international legal perspectives. European, Canadian, Australian and Irish perspectives among others are available on the website.
2013
In 2013 the project focused on awareness. Each participant decided on a subject area connected with miscarraiges of justice.
Media Influence
Media influence can be a major factor that affects the outcome of a trail. To demonstrate the power of the media, the project took a detailed look at the trial of Lindy Chamberlain. Azaria Chamberlain went missing from the family tent during a camping holiday at Uluru. Lindy claimed to have seen a dingo emerging from the tent. A massive manhunt ensued, however Azaria's body was never found. There were four inquests into the death of Azaria Chamberlain, the second of which was damning. It relied on the evidence of Professor James Cameron, who stated that upon examining the clothes belonging to Azaria that had been discovered subsequent to her disappearing, he found that the blood patterns present were consistent with a cut throat.
The Australian media were relentless in their coverage of the Chamberlain trail. Several rumours persisted that were encouraged by the media such as the name Azaria meant "sacrifice in the wilderness". It was also reported that Azaria's clothes were found folded, that Lindy was a dingo expert, that the Chamberlains were members of a cult and that Azaria was always dressed in black. These rumours have since been dispelled.
The Crown's case was weak, and the prosecution reportedly approached the defense to ask them how much compensation the Chamberlains would be asking for. However a guilty verdict was returned and Lindy was given a life sentence. She spent three years in prison until the chance discovery of Azaria's missing matinee jacket. Lindy was released and was awarded 1.3 million Australian dollars in compensation. This case is now an example used in media ethics courses throughout Australia.
The Martin Report
On 29 November 1989 the then Irish Minister for Justice approved the establishment of a committee to enquire into certain aspects of Criminal Procedure. This committee, chaired by His Honour Judge Frank Martin, published a report in March 1990, known colloquially as the Martin Report. This report detailed reform proposals and recommendations in the Irish legal system. The purpose of the committee was to examine both the need for a system of reviewing alleged Miscarriages of Justice and the use of inculpatory statements in court. The committee recognised that; "in rare instances and in extraordinary circumstances, cases may occur in which, despite the exhaustion of the appeal procedures, substantial doubts may arise as to the proprietary of the conviction". At the time the report was issued, a person who was convicted of a criminal offence and who had exhausted all avenues of appeal open to him, had no other forum available to which he could resort. Resulting from the Report of the Committee to Enquire into Certain Aspects of Criminal Procedure Committee statutory mechanisms for those who wish to claim they have been wrongfully convicted were implemented. The Criminal Procedure Act 1993 was enacted as in response to the committee report. This legislation is a mechanism for review by the Court of Criminal Appeal on the grounds of a miscarriage of justice. Application of which is reliant upon a new or newly discovered fact. The Court may; a) affirm the conviction (and may do so, notwithstanding that it is of opinion that a point raised in the appeal might be decided in favour of the appellant, if it considers that no miscarriage of justice has actually occurred), or (b) quash the conviction and make no further order, or (c) quash the conviction and order the applicant to be re-tried for the offence, or (d) quash the conviction and, if it appears to the Court that the appellant could have been found guilty of some other offence [substitute a conviction for the lesser offence and sentence accordingly].
The publication of the report has cleared up the uncertainty that was present in the Irish legal system.
Pardons
The group examined the area of pardons, and took a comparative view by examining the approach in Ireland and Canada. Within Ireland, there has been much discussion of the meaning and the procedure of the granting of Pardons. Under Article 13.6 of the Irish Constitution, the president grants pardons ‘on the advice of the government’, however the effects of the presidential pardon have not been defined within the constitution. This has been regarded as a ‘polite way of providing that the President can only grant pardons where instructed by the Government’. Nonetheless it has been strongly debated that the power of pardon cannot be delegated under the Constitution as ‘it is vested solely in the President to be exercised on the advice of the Government.’ One of the few remedies currently available for those who have suffered a miscarriage of justice is, in fact, a pardon; it has been viewed that pardon is not an appropriate response to demonstrate wrongful conviction. In Ireland the procedure for applying for the granting of a pardon can be accessed by the Criminal Procedure Act 1993. This Act, for the first time provides statutory mechanism for those who wish to claim that they have been wrongfully convicted. It provides statutory power to petition the Minister for Justice for a pardon and allows for the establishment of a committee of enquiry into such a case. Under section 7 an individual whose conviction remains following an appeal, and who alleges that a new or newly discovered fact shows that the miscarriage has occurred in relation to conviction, can petition the Minister for Justice with a view to the Government advising the President to grant a pardon. It is for the Minister for Justice to make enquiries or cause enquiries to be made ‘as he considers necessary’. Further to this where a petition for pardons has been made, the Government under Section 8, may establish a Committee to enquire into the subject matter of the petition, however there is no legislative obligation to do so. The fundamental difference between a committee set up under section 8 and the courts, is that under section 8(5) the committee can receive any evidence or information, even if that evidence has not been admissible in the court of law. The importance of this section is that the committee are not bound by the usual rules of evidence, which has been recognised as a crucial determining factor in which a miscarriage of justice has actually occurred. Thus, the ministers are nevertheless entitled to an effective and perhaps decisive say in the pardoning process. Presidential power of pardons has only been exercised on three occasions in the state. Most recently, Nicky Kelly, which remains one of the most notorious miscarriages of justice in the history of the Irish state. In contrast with Canada, since 1970, more than 400,000 Canadians have been granted a pardon. The power to revisit a conviction and seek a pardon ‘has long been part of the Canadian legal landscape’. Concern about miscarriages of justice and pardons in particular within Canada has centred in recent years a serious of publicised individual cases.The Parole Board of Canada (PBC) was established as a federal agency responsible for making pardon decisions under the Criminal Records Act (CRA). Under the CRA, the PBC can ‘issue, grant, deny and revoke pardons.’ On 12 March 2012, the Government of Canada passed Bill C-10, new legislation which changed a number of elements regarding the criminal justice system. C-10 replaces the terminology ‘pardon’ with ‘record suspension’, and the pardon system was similarly changed. This name change has been welcomed as it more accurately reflects what the government is trying to do; it is not excusing someone ‘who has committed an offence, nor is a forgiving them, as the state lacks the moral authority to do these things; such forgiveness can only be expressed by the victim’. It is thought the reason for this name change is to help former offenders re-join society and the workforce without difficulty, which a ‘criminal record often impedes’. The change of name from ‘pardon’ to ‘record suspension’ will now make it easier for the offender to travel and to re-establish themselves within their community and therefore would be an enormous benefit to society as a whole.
DNA Evidence
DNA evidence is arguably the most convincing tool in securing post-conviction exonerations. However, as a caveat, it is important to remember there are often unappreciated limitations to its use.
The role of DNA in post-conviction testing increased dramatically in the 1990s due to scientific advancements which were utilised by the then newly established Innocence Project in the USA. The definitive nature of DNA evidence allows for the establishment of factual innocence. DNA evidence has highlighted the frequency of wrongful conviction and presented such findings in the public domain. DNA’s relative scientific infallibility has served as a far more powerful demonstration of the unacceptable frequency of miscarriages of justice than previous arguments relating to ‘balance of probability’, as it removes doubt in regards to the innocence of the individual.
Unfortunately, from an Irish perspective, the use of DNA and forensic advancements to exonerate victims of miscarriages of justice has mainly been confined to the USA. Recent empirical evidence shows that the USA Innocence Network has achieved 297 post-conviction exonerations through the use of forensic science. This report found that those persons exonerated had spent an average of 13 years incarcerated. In light of this, it would be foolish to assume that there are not more innocent people serving prison sentences.
This jurisdiction has unfortunately not kept pace with the development of scientific testing. Low Copy Number DNA profiling is one of the advancements in forensic science and this method was given qualified approval in England in R. v Reed and Reed. LCN DNA testing however has limitations and its use has been criticised. It is a more sensitive form of testing and as a result is more susceptible to contamination. In the US case of Shabazz v State there was acceptance of the Y.-S.T.R. profiling method which is highly specialised. These cases serve to demonstrate the way in which more refined methods of DNA testing are entering the mainstream of criminal justice internationally. At present the State Forensic Laboratory in Ireland only carries out standard S.G.M. testing. This is most likely as a result of limited resources rather than an unwillingness to trust more refined methods.
Although DNA evidence as a means of establishing miscarriages of justice in some jurisdictions has been accepted relatively quickly since its emergence there are still obvious limitations. The irrefutable fact remains that most criminal cases do not involve biological evidence and in addition, most cases where there is a subsequent claim of innocence the relevant biological evidence has been destroyed.
Guildford 4 and the Maguire 7
The Guildford 4 and the Maguire 7 were a group of Irish people who faced a miscarriage of Justice in the English courts in the 1970s. Despite pleading their innocence for many years, the Guildford 4 were held responsible for the Guilford Pub bombings that occurred on 5 October 1974. This was an attack carried out by the provisional IRA. The Maguire 7 were convicted of handling the explosives used in the bombing. They served 15–16 years in prison until a detective investigated the case and found that some of the findings were not ensuring justice was being served correctly. The four accused of the bombing included Gerry Conlon, 21, Paul Michael Hill, 21, Carole Richardson, 17, and Patrick Armstrong, 25. Following their arrest, all four confessed to the bombing. However, they later retracted this, saying that the confession was coerced due to intimidation, torture, threats against family member as well as the symptoms of [...] withdrawal. They were convicted of [...] and all four members of the Guilford 4 were sentenced to life imprisonment. However, Mr. Justice Donaldson used his judicial discretion to indicate the Carole Richardson should receive no less than 20 years; Gerry Conlon not less than 30 years and Patrick Armstrong not less than 35 years not to mention his remarks that Paul Michael Hill should never be released. Following the discovery of the miscarriage of justice that had taken place, Mr Justice Donaldson was heavily criticised for his comments made in court. He expressed regret that those involved could not be convicted of high treason, which was still punishable by the mandatory death penalty.
These cases outline the role of the police in criminal proceedings. It is clear that the police must be monitored stringently in order to prevent a repeat of the above cases.
Psychological Capacity
People with a psychological vulnerability often misunderstand the implications of admitting guilt, and often admit to guilt in order to end their discomfort in the interviewing room. They may also believe that it is obvious they are innocent and their confession is retractable. Similarly, children and adolescents routinely fail to understand their rights during a police interrogation.
The following case aims to illustrate the detrimental effect of police induced false confessions and the need for additional safeguards for mentally vulnerable suspects.As there are no Irish cases for this particular topic, the English case law was examined by the group.
The case of Stephen Downing is thought to be one of the longest running Miscarriage of justice in British legal history. Downing spent 27 years in prison before his conviction was overturned. Wendy Sewell, a 32 year old legal secretary was assaulted and sexually abused on 12 September 1973; as a result of her injuries she died two days later. Downing a 17 year old male of ‘good character’ worked as a groundskeeper in the cemetery, lived nearby was first on the scene of the crime.Downing was the primary suspect from the outset and was immediately taken to the police station. He was questioned for 9 hours without a Solicitor present and signed a confession written by the police officer, even though he had the mental ability and reading age of on an 11 year old. At the time of signing the confession Sewell was still alive. Upon her death he wished to retract his confession. However, it remained a key part of the prosecution’s case against him. Following Downing’s second appeal his case was referred to the criminal Cases Review commission in 1997. Downing was released on appeal in 2001. The Court of Appeal overturned his conviction on the grounds that it was unsafe.
Adequate Legal Counsel
The right to counsel is an internationally accepted principle which finds protection under Article 10 of the Universal Declaration of Human Rights as well as Article 6 of the European Convention on Human Rights. Domestically, the right to counsel in criminal matters was accepted by the courts to have constitutional status in People (DPP) V Healy.
Extending from this right, the right to effective legal counsel in criminal cases was first developed in the U.S courts. In Powell v. Alabama, the courts ruled that the mere provision of counsel for a defendant was not sufficient in itself; the defendant had a right to effective legal counsel. The court did not however elaborate on what constituted "effective counsel". The principle was eventually clarified in Strickland v. Washington which introduced a two pronged test for establishing ineffective assistance of counsel. First the defendant must show the defence counsel’s performance was deficient. Secondly the actions of the defence counsel were so prejudicial that if not for them the outcome of the case would have been different. Some practical examples of in effective legal counsel are, Failure to communicate with the client or communicating in a dismissive, callous or hurried manner, Perfunctory or no attempt at discovery, Narrow, shallow or no investigation, Failure to retain needed experts and/or test physical evidence, Minimal preparation, weak trial advocacy and superficial or tentative cross-examination.
It is clear that a defendant must have adequate counsel in order to vindicate and protect his fundamental right to liberty.
Other Areas Examined
The project also examined the position of the EU, the reliability of eye-witness testimony and the Birmingham 6.
The APP
The group in 2013 decided that the development of a mobile app would aid the awareness campaign. The app has been developed. The content of the app is consistent with the content of the website.
Awareness
To promote awareness, the group has conducted radio interviews. The group has also started a Twitter account and submitted several essays to newspapers and legal websites.