"Justice should not depend on luck" by Gabe Tan

Gabe Tan argues that fresh evidence should not be needed in miscarriages of justice

The Court of Appeal (Criminal Division) is often described as the safety net of the criminal justice system. One of its key functions is to ensure that the wrongly convicted can have their convictions quashed. In 1995, following a series of high profile miscarriages of justice including the Guildford Four and the Birmingham Six, the Criminal Cases Review Commission was established as an added safeguard to the Court of Appeal. Its role is to review alleged miscarriages of justice and refer convictions and sentences deemed to have a ‘real possibility’ of being quashed back to the Court of Appeal.

Yet, just how effective are these safeguards in protecting the innocent and ensuring their prompt acquittal?

On the 18th March 2009, Sean Hodgson walked out of the Royal Courts of Justice frazzled and overwhelmed by the crowding press. After 27 years of incarceration, it did not take the Court of Appeal much deliberation to declare Hodgson a free man. Hodgson’s conviction for the murder and rape of Teresa de Simone was overturned when DNA testing on biological swabs taken from the victim proved him to be factually innocent.

The Forensic Science Service very soon became the target of the media’s fingerpointing exercise for wrongly reporting that the swabs were destroyed 11 years earlier when the request for DNA testing was first made. Hampshire Police was also subjected to criticism for ruling out another suspect, David Lace, who confessed to the murder in 1983 and took his own life shortly after.

However, the focus on blaming individual parts of the criminal justice jigsaw lost sight of the systemic dysfunctions with the criminal appeal system that, for over two decades, failed to overturn Hodgson’s conviction.

The jury’s conviction of Hodgson back in 1982 was hardly surprising. At trial, the jury heard how Hodgson made a series of voluntary confessions – first to a priest, then to a prison officer, to the police and to his own solicitor. He made oral and written admissions to the murder, each time giving a detailed account of how he killed Teresa de Simone – details which, the prosecution claimed, could only have been known by the killer. Supporting his confessions, his blood group was a match to that of the killer, and he was undoubtedly present in the locality at the time of the murder.

The unreliability of Hodgson’s confession was put forward at trial and, certainly, when he applied for leave to appeal in 1983. Hodgson was a notorious compulsive liar with a known severe personality disorder. He had made repeated false claims to the police for other criminal offences, including confessions for two other murders that he could not have committed as they did not happen. Many of the details that the prosecution claimed could only have been known by the killer were widely reported in newspapers and television reports.

The then Court of Criminal Appeal dismissed Hodgson’s leave to appeal almost as quickly as the Court of Appeal would allow it 26 years later. The initial appeal was dismissed on the basis that these arguments, as forceful as they may be, were either already heard by the jury or could have been made at the time of his trial. Instead, presumably because counsel had thought that Hodgson was unlikely to be able to withstand the prosecution’s crossexamination, a tactical decision was made for Hodgson to give an unsworn statement from the dock which barely gave details of why and how he had made up the false confessions. The safety net of the appeal court offered little protection to this vulnerable man. Rather, a severely mentally ill defendant was somehow to be individually blamed for not being able to stand in the dock and convincingly articulate to the jury the complex psychological processes that made him repeatedly confess to the most heinous of crimes.

The advent in knowledge on the phenomenon of false confessions appeared to be of no help at all to Hodgson either. Since the early 1990s, dozens of others who voluntarily confessed to crimes that they had not committed have had their convictions quashed due to fresh psychiatric evidence not heard at trial that rendered their convictions unsafe. Key examples include Judith Ward, Andrew Evans, Ashley King, Darren Hall and Patrick Kane who all suffered from forms of psychiatric or personality disorders that made them vulnerable to false confessions. As far back as 1989, the Lloyd-Bostock report cited false confessions as the second biggest cause of wrongful convictions in Britain after eyewitness misidentification. The pioneering work of internationally renowned forensic psychologist Professor Gisli Gudjonsson further enhanced our understanding of how even ordinary people with normal intelligence can be susceptible to making false confessions either voluntarily or under the pressures of police interrogation. It appeared that because Hodgson’s history of making false confessions was already known to the jury who nevertheless decided to convict him, the doctrine of finality precluded the (un)reliability of his confession from being re-examined.

As with all other appeals against conviction, the primary way to defy this long-standing doctrine is to find fresh evidence that renders a conviction unsafe – a requirement under section 23 of the Criminal Appeal Act 1968 and section 2 of the Criminal Appeal Act 1995 respectively. Hodgson’s fate was therefore sealed, at least until luck befell him with the discovery of the exonerating DNA evidence – the fresh evidence that held the key to his eventual acquittal by the Court of Appeal.

Hodgson is one of the ‘lucky’ few – perhaps an odd term to describe someone who served almost three decades of wrongful incarceration. However, the discovery of fresh evidence is not something that can be guaranteed for every innocent victim of wrongful conviction. Indeed, the Criminal Cases Review Commission, which similarly applies the fresh evidence criteria in deciding whether to refer an application back to the appeal courts, has referred fewer than four per cent of over 13,000 applications it has received since its establishment.

The Innocence Network UK, established at the University of Bristol in September 2004 to facilitate investigations into alleged wrongful conviction has, to date, deemed around 200 prisoners (out of over 1,000 requests for assistance) to have a plausible claim of innocence. Many are convicted on evidence that is dubious to say the least – alleged cell confessions; inconsistent witness testimonies; questionable forensic evidence; and forms of highly circumstantial evidence. Almost all these 200 prisoners have failed in their first appeal – the principal reason being that arguments relating to the unreliability of the evidence that convicted them have already been heard by the jury and, unless fresh evidence is produced, the Court of Appeal is not entitled to go behind the jury’s verdict. Around half of these cases have been refused at least once by the Criminal Cases Review Commission. Despite the questionable circumstances of their convictions, the Criminal Cases Review Commission, whose role is generally confined to a review of fresh evidence, can do little, if anything, to assist them.

However, returning to the case of Hodgson, it should not have required fresh evidence in the form of a DNA exoneration to quash his conviction 27 years later. He was convicted mainly on his own confession, which we knew then and certainly more so in the last two decades, to be an inherently unreliable form of evidence. Hodgson’s conviction should arguably have been overturned much earlier on the basis of his questionable confession alone. Yet, without the miraculous discovery of the DNA evidence, Hodgson would most certainly still be trapped within the prison system.

If there is anything that Hodgson’s wrongful conviction has taught us it is that justice should not be dependent on the luck of finding fresh evidence. If the overriding concern of the Court of Appeal and the Criminal Cases Review Commission is truly about safeguarding the innocent, then the requirement for fresh evidence should not be a barrier for revisiting the convictions of those who might be.

Gabe Tan is Executive Director of the Innocence Network UK (INUK)