Justice as rough as ever

Miscarriages of justice are still shockingly common, but 20 years after the release of the Birmingham Six, the issue isn’t fashionable any more. Jon Robins reports

Some 18 months ago, a man walked into the office of Birmingham-based lawyer Maslen Merchant. He had just pleaded guilty to a serious sexual offence against a child. ‘He told me that he wasn’t guilty but had been bullied into pleading guilty by his lawyers,’ says Maslen. Apparently, the man was told that if he was convicted he would get life (‘the same sentence you get for murder’). Petrified, he agreed to go with the lesser offence.

‘It took me about five minutes to have serious concerns that he had a learning disability. His difficulty with speech was a clue,’ Maslen recalls, adding that the ‘real clincher’ was that the man ‘took three attempts to sign his own name’.

That man has since been acquitted after a new defence team led by Maslen commissioned reports from a psychologist and psychiatrist placing him in the bottom 0.3 per cent of the population in terms of IQ, indicating that he was both highly suggestible and suffering a severe learning disability.

It has been two decades since the release of the Birmingham Six – Paddy Hill, Hugh Callaghan, Richard McIlkenny, Gerry Hunter, Billy Power and Johnny Walker – sent shockwaves through the criminal justice landscape. They had been in prison for 16 years.

Their release eventually led to the creation of the Criminal Cases Review Commission (CCRC) 13 years ago as the independent body to investigate miscarriages of justice. Since then, though, such miscarriages seem to have dropped off the radar. The issue has been consigned to some distant Life on Mars past.

The media, which did so much spadework on the issue in the 1970s and 1980s, through, for example, the BBC’s Rough Justice, has given up. The broadcaster pulled the plug on Rough Justice after 25 years in 2007. Michael Jackson, chief executive of Channel 4, dismissed Trial and Error, which also investigated miscarriages, as a ‘bit 1980s’.

Sadly, while miscarriages of justice might have gone out of fashion, they haven’t gone away. The CCRC is deluged by close to 1,000 new applications every year, and rejects 96 per cent. There is growing disquiet about its lack of action (see Red Pepper, Feb/Mar 2010).

Maslen reckons many miscarriages of justice are down to shoddy work done by defence lawyers struggling under the commercial realities of running a high-volume business on a diminishing legal aid budget.

He wonders what the lawyers who advised his client with learning disabilities were playing at. ‘How couldn’t they see he was vulnerable? Why put him under such pressure? Why even mention murder?’ The answer, according to the lawyer, is that putting in the extra work – for example, obtaining medical reports – was such an inconvenience that it was simply not cost-effective. ‘This was a business decision. It was a gross miscarriage of justice.’

Meanwhile, Gareth Peirce, the veteran campaigning lawyer who represented the Birmingham Six, talks of the creation of ‘a new suspect community’ of young Muslims.

That view chimes with the experience of Maslen, who has specialised in miscarriages of justice for 20 years. ‘In the 1970s it almost became an arrestable offence to be Irish in a city centre in England. In the 1980s and 1990s people were arrested for being black in a built up area. Since 9/11 it seems that sufficient suspicion is raised for an arrest if you have a beard and appear to be Muslim.’

Against this backdrop there is growing concern about the CCRC. Veteran campaigning journalist Bob Woffinden has gone so far as to damn the commission as ‘an experiment that failed’. He reckons the CCRC can only take credit for taking seven ‘major cases’ to appeal since 2005. He argues that many notorious cases are left to languish.

The commission has been spared the ‘bonfire of the quangos’, though it faces cuts, but Woffinden argues it exists only to serve as a ‘fig leaf’ for the system. That’s a minority view, though. The CCRC needs to be ‘supported and expanded’, argues Michael Mansfield QC, who has been associated with the overturning of numerous notorious cases from the Birmingham Six to Barry George.

Mansfield urges its critics not to play into the hands of those who would see it consigned to history. ‘There is a strong reactionary lobby that should not be underestimated,’ he says, ‘which embraces the doctrine “prison works” and regards prisoners as almost sub-human, meriting few facilities and, heaven forbid, the right to vote.’