At War with the Court’s 4 Sublime Complacency’ Bob Woffinden Remembered
Jon Robins
It is wrong to keep innocent people in prison. That is a truth so basic that no amount of politics, of bureaucratic expediency and judicial casuistry, can alter it. The shaming fact is that the continued incarceration of the innocent is nothing less than national policy. (Woffinden, 1987: 246)
That is the still startling conclusion of Bob Woffinden’s 1987 book Miscarriages of Justice. Woffinden was one of a small handful of brilliant and bloody-minded print journalists including Ludovic Kennedy and Paul Foot, who devoted their professional lives to giving voice to those ‘casualties of justice’ otherwise ignored by the media, lawyers, and the courts.1
Bob Woffinden is perhaps remembered best for his campaigning journalism, investigating cases of alleged wrongful conviction including James Hanratty, Philip English, Sion Jenkins, Charles Ingram, Jonathan King, and Barry George. His original idea for Miscarriages of Justice was to review every major post-war ‘miscarriage of justice’ case and, by doing so, demonstrate that each case cited as a putative wrongful conviction turned out to be an actual one.
That there were miscarriages was no surprise to Bob Woffinden nor should it be to any sensible person. All ‘systems’ make mistakes, not least so one complex as our chronically under-resourced criminal justice system which depends upon that most human of institutions, the jury. What angered him (Miscarriages of Justice is an unashamedly angry book) was not the existence of wrongful convictions, but the refusal of the criminal justice system to recognise its errors or be held accountable in anyway.
In an article for the New Statesman in 1984, the journalist identified the rot he sought to expose in the book that he was then beginning to write. For Woffinden (1984):
Far from seeing the redressing of wrongs as an urgent priority, the political and legal establishment has developed an intricate web of obstructive procedures designed to pervert the course of retrospective justice and almost eliminate the need to admit publicly to fault in the system.
In the introduction to Miscarriages of Justice, Woffinden (1987: xi) wrote of the ‘remarkably limited’ capacity of the judiciary to find fault with itself and ‘even in Britain, few institutions can match its sublime complacency’.
The journalist set out to shatter a complacency that can perhaps be best represented by reference to an infamous judicial statement that ever}' student of miscarriages of justice will be familiar with and one that is cited a number of times in Miscarriages of Justice. In 1980, Lord Denning, then Master of the Rolls, said of the Birmingham Six case:
If they won it would mean that the police were guilt}' of perjury; that they were guilty of violence and threats; that the confessions were involuntary and improperly admitted in evidence; and that the convictions were erroneous. That was such an appalling vista that ever}' sensible person would say: ‘It cannot be right that these actions should go any further’. (Woffinden, 1987:299)
Ludovic Kennedy called it ‘the most shocking thing’ he had heard uttered by any English judge (Woffinden, 1987: 315). ‘If it does not mean better for them to rot in jail than admit we have made a mistake, then I do not know what it does’ (Woffinden, 1987: 315).
If there was any doubt, the outspoken judge was to return to the theme over the years, and each time upping the ante. ‘It is better that some innocent men remain in jail than the integrity of the English judicial system should be impugned’, Denning said in 1988 (Robins, 2018). Two years later, the historian A.N. Wilson asked the now nonagenarian whether he was glad that the death penalty had been scrapped:
Not really .... It ought to be retained for murder most foul. We shouldn’t have all these campaigns to get the Birmingham Six released if they’d been hanged. They’d have been forgotten, and the whole community would have been satisfied. (Robins, 2018)
It wasn’t just the judiciary that Woffinden had in his sites, Miscarriages of Justice was unsparing on those the author believed were complicit in upholding a failed system. According to Woffinden, journalists and politicians who campaigned on behalf of victims of miscarriages deliberately ‘refrained’ from criticising the system. He understood why. They did not want to jeopardise the prospects of success of their campaign by attacking the institutions that had the power to rectify the mistake.
Bob Woffinden did not pull any punches.
According to the journalist, there was ‘no sadder reflection’ on the state of Britain in 1987 than that there seemed to be ‘no one in the legal or political hierarchies’ with ‘the moral fibre, or simple human decency’ prepared to tackle the problem of wrongful convictions (Woffinden, 1987: 346). The journalist’s righteous ire divided readers. Writing for the Time Literary Supplement, David
Pannick (1988: 356), now cross bench peer Lord Pannick QC, dismissed his analysis ‘too simple’ and his conclusion (about the ‘incarceration of the innocence’ being a ‘national policy’) ‘perhaps overstated’.
Miscarriages of Justice, like all good journalism, was timed for maximum impact. Within weeks of publication, the Court of Appeal upheld the convictions of the Birmingham Six, and by doing so, left itself dangerously exposed and grimly clinging to the fiction of the men’s guilt. Meanwhile an unstoppable campaign which by then had attracted the likes of Lord Scarman, Cardinal Hume, and Roy Jenkins was in motion. It was only a matter of time before Denning’s ‘appalling vista’ would have to be confronted.
Public concern about the case and those of others imprisoned as a result of the Irish Republican Army (IRA)’s 1974 bombing campaign (Guildford Four, Maguire Seven, and Judith Ward) as well as non-Irish cases (Tottenham Three, Cardiff Three, and Stefan Kiszko) was snowballing into a full-blown crisis of public confidence.
Two years after the book came out, the Guildford Four were released swiftly followed by the Maguire Seven. When the Birmingham Six walked out of the Old Bailey as free men after 16 years in prison in March 1991, the government finally and belatedly bowed to public pressure. A royal commission into a failing justice system was established.
As a result of the kinds of cases that featured in Miscarriages of Justice, John Major’s government set up a Royal Commission on Criminal Justice in 1991 that went on to make over 300 recommendations.2 Its big idea was the creation of the first-ever state-funded miscarriage of justice watchdog.
During the course of my research for this chapter, I had access to the family’s archive in the journalist’s former office in his East London home. His was an extraordinary a career that began with a brief foray into the relative glamour of 1970s music journalism as an associate editor of the New Musical Express (NME) before settling into a 30-year slog through the dark corners of our justice system. He was a staff writer for The Listener and a producer for Yorkshire Television; but his most notable output was his freelance work for titles including the Daily Telegraph, New Statesman, Guardian, and Daily Mail.
‘Bob never really changed his mind’, Bob Woffinden’s widow, Anne told me when researching this chapter. I had asked whether her husband had ever reconsidered his view on James Hanratty hung for the A6 murder. In Miscarriages of Justice, Woffinden (1987) wrote: ‘We can now be certain Hanratty was innocent’. The journalist could never be accused of fence-sitting.
Could we be sure of Hanratty’s innocence though? In 2002, the Court of Appeal ruled that the man’s guilt had been proved ‘beyond doubt’. In a striking aside, the judge paid tribute to those like Woffinden and Paul Foot who fought so hard to overturn the man’s conviction, which, the court said, had been pursued ‘logically but mistakenly’ (Bowcott and Hopkins, 2002).
Bob Woffinden never changed his mind about James Hanratty. Nor did he change his mind about our justice system. His criticism was to become more trenchant as the years passed.
A contemporary reader might be tempted to reflect how society has changed for the better since Miscarriages of Justice with its dark tales of bodies buried beneath the floorboards of Notting Hill slums, prostitutes beaten to a pulp in the bombed remains of Manchester city centre and the men who all too often ending up hanging from a rope for crimes they didn’t commit.
I suspect Bob Woffinden would have been unmoved by the consolation of such rose-tinted complacency. Miscarriages of Justice matters today because it provides context for the problems that bedevil justice system to this day. His book provided the evidence base and moral case for a much needed reform; but the author was a realist. He understood the problems he identified had beset the criminal justice system ever since the modern Court of Appeal opened for business in 1907. As Bob Woffinden was to make clear over three decades of journalism after his book was published, they still do.
That is why Miscarriages of Justice remains an important book.
Miscarriages of Justice comprises a series of harrowing accounts of the multiple failures of our justice system, starting in the immediate aftermath of the Second World War. There are eleven cases over 18 chapters.
The story of serial killer John Christie and the unjustly executed Timothy Evans starts the collection with a powerful reminder of how some of these grim tales still haunt the popular imagination. It was the subject of both a 1971 British neo-noir film (10 Rillington Place) and a 2016 BBC drama (Rillington Place). Christie, played by Tim Ross and Richard Attenborough, respectively, killed at least eight women including his own wife over a ten-year period during the 1940s and 1950s, hiding the corpses at the terraced house in Notting Hill, West London.
Timothy Evans and his wife Beryl were unlucky enough to move into the infamous address with their one-year-old daughter. Woffinden relates how Christie murdered mother and child and framed a 24-year-old innocent from the Welsh valleys with an IQ of 70. A gripping and lurid story, but the journalist’s focus is the establishment’s hypocrisy.
Christie’s prosecution was led by the attorney general, Sir Lionel Heald, who addressed the jury in the following slippery terms:
I think you will understand how, especially in my position ... in a governmental position ... it is most important that nothing avoidable should be said in court which might cast an unjustified reflection on the administration of justice. (Woffinden, 1987: 13)
According to Woffinden (1987), this was ‘an all too rare elucidation of the first principle British justice’. In other words, there must be ‘no political embarrassment’.
‘Embarrassment’ is not the word when you hang the wrong man. Poor Timothy Evans died at Pentonville on 9 March 1950. Christie subsequently pleaded insanity, was found guilty of murder, and sentenced to death. He was reckoned to have killed at least eight people: three bodies were secreted in a wallpaper-covered alcove, two in the garden, and his wife under the floorboards.
A number of obvious thoughts should have flowed from the shocking confirmation of Christie as serial killer. Woffinden (1987) wrote:
First, it seems an incredible coincidence that two stranglers, who were killing people in exactly the same way, should, unknown to each other, have been living in the same house at the same time, disposing of the bodies of the victims in precisely the same way.
‘Second, if Evans was guilty, then it was uncanny that he should have chosen to accuse of his crimes perhaps the one man in the country who was strangling people in exactly that fashion’ (Woffinden, 1987).
One of the themes of Miscarriages of Justice is the capacity of the powers-that-be for cognitive dissonance when it suits them. Three years after Timothy Evans was sent to the gallows, Christie was similarly dispatched also at Pentonville. Hours before the serial killer was executed, a report written by John Scott Henderson QC, the recorder of Portsmouth with the assistance of an assistant chief constable and treasury solicitor, concluded that the case against Evans had been ‘overwhelming’. The Henderson report is the first of many official post-conviction reports in Miscarriages of Justice which appear to be little more than whitewash.
‘We are not attacking this report because it does not disclose the truth’, the Labour MP Reginald Paget QC told MPs in the House of Commons. ‘We are attacking it because it deliberately conceals the truth. We are attacking it not because it is mistaken but because, we say, it is dishonest’.
Nothing could shake the determination of officialdom to maintain Timothy Evan’s guilt. It was ‘an extraordinary coincidence’ that two stranglers should be living in one house at the same time but there was ‘no reason why it should not have occurred’, dissembled one government minister in 1961. In 1965, the Home Secretary ordered an inquiry chaired by a High Court judge who found it was ‘more probable than not’ that Evans murdered his wife but not murdered his daughter.
A number of the cases that feature in Miscarriages of Justice, ‘historic’ at the time of publication, remained unresolved for years after the Criminal Cases Review Commission (CCRC) was established. Half a century after Timothy Evans was executed, the Home Office awarded his family, an ex gratia payment by way of compensation for the miscarriage of justice. The then independent assessor for the Home Office, Lord Brennan QC acknowledged that there was ‘no evidence’ to implicate Timothy Evans in the murder of his wife and that she was ‘most probably’ murdered by Christie.
The ‘probably’ strikes a sour note. The family were left to challenge through the courts a decision by the Criminal Cases Review Commission not to send the case back to the Court of Appeal to have his conviction quashed. The request to refer the case was dismissed in November 2004, with the judges saying that the cost of quashing it could not be justified. In a typically messy end to a shameful saga, the judge declared that Evans should be regarded as having been innocent of the charge of murdering his baby daughter. ‘And no jury' could properly have convicted him of murdering his wife, and he must be regarded as innocent of that charge too’, he added.
Within weeks of Miscarriages of Justice coming out, parliamentarians were debating the return of the death penalty. Margaret Thatcher’s government offered succour to ‘hang “em and flog em’” brigade who wanted to resurrect the death penalty abolished in 1965. The Timothy Evans case had been instrumental in its abolition.
Woffinden (2017) later argued that ending capital punishment did nothing to improve the quality of British justice. He pointed out that conviction rate at the beginning of the 1960s was 45% and over 90% by the end. Nothing like the burden of sending an innocent person to death to focus a jury’s mind.
The fatal appeal of Walter Rowland against his conviction for the brutal murder of a prostitute in the bombed remains of Deansgate, Manchester, took place in the bitter winter of 1946 during a blackout. Most of the proceedings were heard by candlelight. There could be no more apt a metaphor. ‘The judge seemed hopelessly in the dark’, Woffinden (1987) noted.
Another man admitted to the murder that Rowland was to swing for at HMP Strangeways on 27 February 1947. His execution took place four weeks after David John Ware made his confession. The inability of the justice system to make a timely correction for an obvious injustice was all the more surprising, given the number of opportunities afforded to it in such a short period of time.
On 10 February, the Court of Appeal heard Walter Rowland’s appeal. They refused to hear Ware’s evidence (or alibi evidence) taking the view that they were not prepared to acquit Rowland on the word of a man who had yet to be convicted. ‘I am an innocent man’, declared Rowland who had a previous murder conviction.
This is the grossest miscarriage of justice which has ever occurred in an English court. Why did you not have the man in court who confessed to the crime? I’m not having justice because of my past. I am innocent before God.
Eleven days after the disastrous appeal, the Home Secretary ordered an experienced barrister, John Caterall Jolly QC, to investigate Ware’s confession as well as the other evidence piling up after Rowlands’ conviction. The weekend before the man’s death, both prisoners were housed at Strangeways together with Jolly. That should have provided some urgency to his investigation. However, the day before Walter Rowland went to the gallows, the inappropriately named Jolly report was released rejecting the second man’s evidence. Ware had produced a second statement explaining what had induced him to make a ‘false’ confession. His first statement confessing to the murder was replete with compelling detail;
At War with the Court’s ‘Sublime Complacency’ 213 the second statement made as a man’s life hung in the balance was full of inconsistencies. ‘I know I die for another man’s crime’, wrote Rowland in his last letter to his mother.
Yes, agreed Woffinden: John Caterall Jolly.
What to make of Bob Woffinden’s unshakeable commitment to overturning the conviction of James Hanratty now that his guilt has (apparently) been established beyond doubt by a technology developed almost quarter of a century after his hanging?
Michael Gregsten and Valerie Storie were work colleagues. Gregsten, who was separated from his wife and children, was having an affair with Storie. As the couple left a pub in his Morris Minor, they were confronted by a man with a gun. He ordered them to drive to Deadman’s Hill, on the A6 near Bedford. Gregsten was executed and Storie raped, shot five times, and abandoned for dead. She survived but was paralysed from the waist down.
‘The whole story is so bizarre and complex that virtually the only absolutely safe conclusion is that the man convicted of the crime, James Hanratty, had nothing whatever to do with it’, began the chapter on the A6 murder (Woffinden, 1987). Hanratty, who always denied his guilt was hanged at Bedford Gaol in 1962, after what was then the longest murder trial having.
As soon as the miscarriage of justice watchdog was established in 1997, the Home Office referred the case to the new Criminal Cases Review Commission. All their work seemed to point to his innocence and the new group apparently shared the view. Bob Woffinden himself led the call for a DNA test. Hanratty’s body was exhumed in 2001, his DNA compared with samples from a handkerchief within which the murder weapon had been found wrapped and Storie’s underwear. They matched.
The journalist made his confident assertion of Hanratty’s innocence in the context of what he and others believed (and still believe) to be an unshakeable alibi that the man was in Rhyl, North Wales, when he was supposed to have been at Deadman’s Hill.
How to explain the DNA? According to Anne Woffiden, her husband was devastated by the revelations four decades after the killing but not surprised. He and other Hanratty supporters believe that the match could be explained by cross-contamination. ‘Even a lord justice of appeal can work out that if you are in Rhyl, you cannot commit a murder near Bedford’, argued Paul Foot in 2002. The fight goes on.
Hanratty was one of 251 files deposited on the CCRC by the Home Office on the day the new watchdog opened for business in 1997. It was a troubling case that screamed out for resolution. After dismissing the appeal in 2002, Appeal judges delivered the kind of ticking off to the commission that it was going to receive on a regular basis over the years. ‘There have to be exceptional circumstances, to justify incurring the expenditure of resources on this scale on a case of this age’, they chided.
One year later and the Appeal judges were forced to reluctantly turn their attentions to another historic case. This time the Appeal judges did quash theconvictions of Michael McMahon and David Cooper for the 1969 Luton post office murder. Justice, when it finally arrived in 2003, came too late for the two men who had long since died.
The convictions were finally overturned on the sixth occasion that the Appeal judges had looked a case. The Crown’s case was built on the flimsiest of foundations, the testimony of a member of the gang who shot the sub-postmaster dead in a carpark. Alfred Mathews turned queen’s evidence, admitting to a minor role in a robbery that Woffinden (1987) described as ‘a complete balls up’. By shooting the postmaster, the gang metaphorically shot themselves in the foot prematurely aborting their mission. The plan had been to force him into handing over the post office keys. The gang had driven to Luton in their own cars before swapping them for a stolen van. Numerous witnesses spotted their various vehicles, including one alert bystander who even noted down the registration number.
Alfred Mathews became the chief prosecution witness at the trial where, instead of grassing up his mates, he implicated two innocent men. He pocketed a £2,000 reward from the post office and was placed under 24-hour police protection for his troubles. Woffinden suggested that the reward was split with the senior investigating officer, the soon-to-be disgraced head of the Flying Squad, Chief Superintendent Ken Drury.
At the 1970 trial, the judge displayed touching faith in the criminal classes when he said that the Mathews would have had to have been ‘wicked beyond belief to deliberately identify as gang members three people not involved in the killing. Two years later, the Court of Appeal overturned the conviction of the one of the three after compelling alibi evidence came to light. A development that Woffinden argues should have revealed Mathew’s evidence as a self-serving fiction; however, the Lord Chief Justice explicitly ruled that this did not ‘necessarily mean’ that Cooper and McMahon’s convictions were ‘in any way unsafe’.
After another desultory experience at the court in 1974, the solicitor Gareth Pierce, then an articled clerk, adopted an unusual approach. She took her concerns about the safety of the convictions to a former law lord, Lord Devlin, at his home in Wiltshire. ‘He was very shy, and very deaf, Pierce told Woffinden (2003), ‘and didn’t relish encounters with articled clerks. But he was absolutely extraordinary. He saw this case completely clearly in a way that no one else ever did’.
In July 1976, a fourth appeal was rejected with Lord Justice Roskill holding the inconsistent view that whilst Mathews story was, in part, lies (‘a cock and bull story’, to quote one of his fellow judges), he was on ‘the vital part of the story ... clearly telling the truth’. As the rest of the world was waking up to what had gone on (i.e., Drury had set up the robbery with Matthews), the Appeal judges alone maintained faith in the prosecution case. This is how Woffinden (1987: 144) deals with this particular nadir:
Appeal court judges have frequently displayed an ignorance of what goes on in the real world outside and occasionally delivered judgments that defy
At War with the Court’s ‘Sublime Complacency’ 215 rational analysis. Never have they made such conspicuous fools of themselves as they did on this occasion.
A year after the fiasco, Drury joined Cooper and McMahon in prison, when was jailed for eight years alongside 12 of his colleagues for charges relating to the taking bribes from Soho pornographers.
At a public lecture in 1978, Lord Devlin explicitly criticised the court’s treatment of the case which, he said, had been an appeal ‘in form only and not in substance’. In what was to become an important intervention, Devlin attacked the court for having ‘usurped’ the role of the jury. The retired judge went on to write a damning contribution to Ludovic Kennedy’s 1980 book on the case Wicked Beyond Belief in which he characterised the prosecution as ‘dogged by misfortune, a witness upon whom almost all depends and whom no court can feel generally reliable, a police office who turns out to be a lamentable exception to his calling’ (Devlin, 1980).
‘Doubts’, Devlin continued, ‘do not just lurk. From the first they have flown about the case like bats in a belfry’. This was a reference to the ‘lurking doubt’ doctrine under which the Court of Appeal can theoretically quash a conviction if there was ‘some lurking doubt in [its] minds which [made it] wonder whether an injustice has been done’, even without fresh evidence or an irregularity in the trial process.3
In July 1980, the Home Secretary Willie Whitelaw bypassed the courts and released Cooper and McMahon, saying that ‘the maintenance of public confidence in our system of criminal justice the matter should now be resolved’. His intervention did no such thing. David Cooper died in 1993, aged 51, and Michael McMahon died on his 55th birthday in 1999. Both lives cut short by the trauma of injustice, Gareth Peirce told Woffinden (2003) when the Appeal judges finally righted the wrong: ‘It’s a relief that they’re out and thank God’, Peirce said. ‘It never feels a triumph. All it feels is a cessation of failure’ (Woffinden, 2003).
Inevitably the collection closes with Bob Woffinden’s account of the wrongful conviction of 17 men, women, and even children wrongly convicted in relation to the terror campaign on the British mainland conducted by the IRA in the early 1970s. Some 21 people, mostly young men and women, were killed as a result of bombs placed in two pubs in the centre of Birmingham one night in November 1974. The previous month the IRA had targeted two pubs in Guildford pubs popular with young soldiers, killing five people including four army recruits.
The British public was appalled by the savagely of the attacks and a vicious anti-Irish backlash ensued. Within a week of the bombings, the Home Secretary introduced the Prevention of Terrorism (temporary provisions) Bill enabling the police to arrest without warrant anyone reasonably suspected of being involved in terrorism and detain someone arrested for 48 hours and for a further five days with the permission of the Home Secretary.
A test of any criminal justice system is how the courts withstand the ‘moral panics’ that arise from time to time. In relation to the Irish cases, Woffinden (1987) argues that police, prosecution, and courts failed at every hurdle. At the time he is writing, the judiciary and government ministers had yet to confront Lord Denning’s ‘appalling vista’ and accept the unpalatable truth that, yes, the police were guilty of perjury; yes, they were guilty of violence and threats; and yes false ‘confessions’ had been beaten out of innocent men and women.
Denning’s infamous ‘appalling vista’ speech came from a hearing at the Court of Appeal in January 1980 in which the West Midlands police authority appealed a decision to dismiss their attempt to strike out the attempt by the Birmingham Six to sue the police for the violence inflicted upon them. The police successfully relied upon arcane law (estoppel) to frustrate the efforts of the men. Woffinden (1987) called the judgement ‘intellectually dishonest’. ‘“An appalling vista” it may be; but if a landscape must be surveyed, then the law must survey it’, Woffinden (1987: 299) wrote. ‘Not to do so brings into focus an even more appalling vista’ (Woffinden, 1987: 300).
Denning concluded his judgements by reflecting that the cases illustrated ‘what a civilised country we were’ in that our system of legal aid had allowed six Irishmen a generous crack of the judicial whip. ‘I beg leave to differ, your Lordship’, Woffinden (1987) retorted: ‘The cases show what a wicked, wicked country we can be’.
We now know there was no evidence against the Guildford Four apart from the own self-contradictory and nonsensical false confessions beaten out of them by the police. The threadbare case against the Birmingham Six was padded out by dubious forensic evidence which, Woffinden argues, was known to be unreliable prior to the trial. In the related Maguire Seven case, almost an entire family was put behind bars including a child (Patrick Maguire was just 13 when he was arrested) on the false confession of one of the Guildford Four. Gerty’ Conlon told the police that he had learned to make bombs at ‘Auntie Annie’s kitchen’ in North London. A non-existent case again bolstered by the same nonsense forensic science that was to ensnare the Birmingham Six. A bitter irony was that the Crown had no more loyal subjects than Paddy Maguire and wife Anne who set sail for England on the night they married in 1957. The couple were members of the Paddington Conservative club, vociferously anti-Republican, and Paddy even served in the British Army.
The Guildford and Birmingham cases will be familiar to readers of this book so I will highlight a telling moment from the trial of the so-called Balcome Street gang - four members of the IRA unit responsible for the bombings including Guildford. It seems inconceivable that terrorists that wrought such devastation and caused such a loss of innocent life should be afforded the moral high ground in the British courts; however, our topsy-turvy justice system shamefully delivered them such an opportunity.
The IRA never recognised the British courts on the grounds that it was representative of the imperialism that they were fighting. The Crown deliberately left the Guildford and Woolwich pub bombings from the charges to avoid the
At War with the Court’s ‘Sublime Complacency’ 217 embarrassment of having to confront the reality that the wrong people were behind bars (the Guildford Four).
Such was the hypocrisy that one of the gang, Joseph O’Connell, decided to break his silence and address the court. ‘We are all four Irish Republicans’, he told the court.
We have recognised this court to the extent that we have instructed our lawyers to draw to the attention of the court to the fact that four totally innocent people - Carole Richardson, Gerard Conlon, Paul Hill and Patrick Armstrong - are serving massive sentences for three bombings, two in Guildford and one in Woolwich, which the three of us and another man now imprisoned had admitted that we did.
Bob Woffinden (2007) once argued that, whilst we no longer had the death penalty, many of those wrongly convicted received sentences of capital punishment all the same. He was reflecting on the psychological devastation inflicted upon the wrongly incarcerated as evidenced in his view by the high incidence of premature deaths of the wrongly convicted. Noting that the Birmingham Six all repudiated their confessions at trial on the basis that they had been beaten out of them, he observed that from the moment of their arrests, they had been ‘plunged into a nightmare from which no-one has yet emerged’ (Woffinden, 2007).
Over the years I have interviewed members of the Birmingham Six, Guildford Four, and the Maguire Seven. None has recovered from the nightmare. When I interviewed Paddy Hill in 2016, on the 25th anniversary of his release, he told me: ‘I still break down and cry even now. It is like a big black cloud descends on you. I don’t even know what I’m crying about. Sometimes I pull the shutters down, and stare at the walls for days’ (Robins, 2018: 315).
When I first interviewed Hill in 1999, the father of six told me that he no longer had feelings for his children. It was a shocking statement. I asked him how he now felt, 18 years after our first interview. ‘I spent more time here with you today than I have spent with my kids in the last five years’, he replied (Robins, 2018). ‘It is not because I don’t want to. I can’t’ (Robins, 2018).
Bob Woffinden argued that the wrongful conviction of the Guildford Four was all part of a pattern. It was not the pattern claimed by Joseph O’Connell (‘the oppression of the Irish’) but, he argued, ‘the conviction of the innocent’ (Woffinden, 1987).
Where to place Miscarriages of Justice in the context of legal academia? A question I feel confident would never have troubled Bob Woffinden. His was a book that aimed to shock its readership and change hearts and minds. That said, his work provides a robust riposte to what legal scholars might call the ‘rationalist’ view of our justice system. In other words, a system that evolves through aprocess of‘enlightened reform’ moving the criminal justice system ever closer to justice without miscarriage.
Woffinden (1987) argues that the courts’ ‘sublime complacency’ predates the birth of the modern Court of Appeal in 1907. The journalist points out that a royal commission in 1845 addressed ‘the lack of any machinery’ (Woffinden, 1987) for correcting mistakes in criminal trials and that it took 31 bills proposing some form of an appellate court before legislation finally made it on to the statute book. It was an earlier generation of miscarriage of justice scandals at the end of the 19th century (for example, Adolph Beck) that persuaded government ministers to act.
That rationalist view has often been expressed by commentators post Birmingham Six: that there are not many miscarriages of justice, those that have happened have been identified and remedied, and the system has been ‘fixed’ except for the occasional one-off mistake. For example, the Guardian crime correspondent Duncan Campbell (2008) noted that it was ‘widely assumed’ following cases such as the Birmingham Six and Guildford Four and other high-profile cases that originated in the 1970s, when evidence rules were ‘lax’ and there was ‘a culture of institutional corruption’ in some police forces, that ‘the days of miscarriages of justice were over’ (Campbell, 2008).
In what is considered to be one of the leading academic texts on the topic, Understanding Miscarriages of Justice, Nobles and Schiff (2000) explored ‘the pattern of repeated crisis and reform’. They blamed the press for its overheated coverage of miscarriages that contributed to ‘episodic perceptions’ that the criminal justice system was in crisis (Nobles and Schiff, 2000).
Roberts (2001), in a critical review of their work, characterised the authors’ account of the history of criminal appeals as ‘a story' of eternal recurrence’. ‘A period of media-stoked public disquiet at the frequency of wrongful convictions of the innocent precipitates political agitation and legal debate, which translate, in due course, into procedural reform’, Roberts (2001) said. For Roberts (2001),
In the face of mounting criticism of ‘failing’ criminal process, institutional innovation is held out as the remedy for correcting miscarriages of justice. The procedural cure is then solemnly administered, and the swelling crisis in public confidence for the time being subsides. But respite is only ever temporary, and it is not long before politicians, media and public are once more in a stew about miscarriages of justice.
No one did more than Bob Woffinden to ‘stoke’ disquiet in our justice system. Nobles and Schiff drew on an analysis of media coverage of miscarriages of justice over a ten-year period, beginning the year that Miscarriages of Justice was published. Inevitably, his journalism features prominently in the academics’ analysis of journalism for that critical period.
Understanding Miscarriages of Justice is not for the faint-hearted. The book draws heavily on two separate big theoretical ideas. The authors argue that the perception of crisis in our justice system (as distinct from the very real ‘crisis’ that
Woffinden depicted in Miscarriages of Justice) is based on a failure by the media to get to grips with what a ‘miscarriage of justice’ is and what such an event should reveal about the justice system.
This apparent legal illiteracy on the part of the press is explained by reference to autopoietic systems theory. According to Nobles and Schiff (2000), there is no single conception of the phrase ‘miscarriages of justice’ that works across the discourses of media, politics, and law, and it is often ‘difficult to formulate one coherent conception’ of the phrase within the different ‘systems of communications’. They argue that the ‘legal’ meaning is based on a ‘commitment to the truth and legal processes’, whereas the ‘media’ meaning is based on a ‘commitment to the truth without commitment to legal procedures’ (Nobles and Schiff, 2000). It is the second of these meanings ‘and the inability of the legal system to satisfy it’ that creates the conditions whereby cases of miscarriage fuel ‘a metanarrative of crisis’ (Nobles and Schiff, 2000: 110).
‘As a journalist specializing in miscarriages of justice, writing at the time when the hoped-for benefits and promises of the 1960s reforms had not been fulfilled, he rightly anticipated the crisis generated by miscarriages of the late 1980s and early 1990s’, they wrote of Miscarriages of Justice (Nobles and Schiff, 2000: 245).
Nobles and Schiff (2000) noted the ‘moral outrage’ ofWoffinden’s work and his criticism of the appeal process, as characterised by the academics, is over its ‘failure to exhibit a wholehearted commitment to truth’. In their view, the journalist correctly identifies the competing challenges facing the Appeal court: its role in providing ‘finality’; the fear of being swamped by applicants by largely unworthy applications; and the need to avoid undermining the role of the jury. But, they argue, Woffinden takes the view that it was ‘nevertheless unpardonable that appeal judges have allowed such considerations an overriding importance, with the result that the channels of judicial review have effectively been sealed’ (Nobles and Schiff, 2001).
‘To us this seems to be a classic statement of tragic choice, and a good example of the greater emphasis placed on considerations of truth over those of due process by many commentators in the media’, Nobles and Schiff (2001) argue.
The thesis of ‘tragic choices’ is the second big idea that the academics draw on. They argue that within the limited resources of a criminal trial, there is a trade-off between ‘truth’ (a correct verdict) and ‘fairness’ (due process); however, that unpalatable trade-off is disguised, and so miscarriages of justice become misrepresented as ‘undesired outcomes’ rather than the inevitable by-product of a working system.
As far as Woffinden is concerned, the Court of Appeal has ‘ducked the responsibilities which Parliament prescribed for them and which the country expected of them’. But is this a satisfactory interpretation of the Court’s mandate and failings? Parliament has delegated to the Court the task of defining and correcting miscarriages of justice. But is this really a mandate to demonstrate a commitment to truth that is incompatible with existing standards of investigation, advocacy, forensic science, jury perceptions and intelligence, etc.? This mandate places an enormous political responsibility upon the judiciary in terms of a substantial reduction in the number of supposed criminals who can be dealt with through the courts. It also undermines the Court’s role in enforcing due process. (Nobles and Schiff, 2001: 246)
Miscarriages of Justice arrived at a fraught time in the history of the relationship between journalists and judiciary. In what should have been a notable success for the BBC, Anthony Mycock became the second person to walk free in 1985 as a result of an investigation by the broadcaster’s pioneering investigative programme Rough Justice* Instead the BBC ended up suspending two of its reporters for using ‘unjustifiable threats’ to secure an interview from a witness who confessed to faking the crime. The broadcaster incurred the wrath of Lord Chief Justice Lane for the tactics Rough Justice were alleged to have used and, in doing so, damned their work as ‘mere entertainment’.
In an article for The Listener, Woffinden wrote in support of Rough Justice as the series faced the axe. He argued that ‘a tide of legal and political opinion’ accepted there was now ‘a demonstrable need’ for the acclaimed series which had broken viewing records for television current affairs documentaries. ‘Ideally, it should compliment official channels’, a barrister Paddy O’ Connor told the journalist. Tn practice it has to serve instead of them’.
In an interview on the saga, Lord Denning (2011) offered the following insight into the judicial mind-set and its attitude towards open justice:
Denning: After a decision by judge and jury, the media must not go round trying to get what they call fresh evidence in order to show, if they can, the decision was wrong. That is undermining our system of justice altogether.
Q Are you saying that the integrity of the system is more important than the fate of individuals?
Denning: Certainly. The integrity of our system of justice and upholding it is one of the foundations of society.
Bob Woffinden went on to score one notable victory in this battle between investigative journalism and the courts in the House of Lords in 1999 when he successfully challenged a Home Office ban on journalists visiting prisoners and writing about their cases.5 The journalist had been prevented from seeing two men claiming to be wrongly convicted.
In Miscarriages of Justice, Woffinden (1987) joked that the best chance a wrongly convicted prisoner has of overturning his conviction was ‘to persuade Ludovic Kennedy to write a book’. In this landmark judgement, he provided the court with details of more than 60 cases over the previous decade where ‘journalists played a substantial role in identifying miscarriages of justice which led to the quashing of the convictions’. The case suggested a sea change on the part of the judiciary in their attitude towards investigative journalists. Lord Steyn acknowledged that many miscarriages have been identified ‘only through painstaking investigations by journalists’.
Just as the Appeal judges finally acknowledged the contribution of journalists, the media was rapidly losing interest in the subject. The notion of public service broadcasting had changed; commissioning budgets dried up; and the tastes of viewers shifted. The BBC’s Rough Justice was axed in 2007 and Channel Four’s Trial & Error (which began in 1992) ended in 2000. ‘IfWorld in Action was to uncover three more serious miscarriages ... delivering an audience of five million, I would still cut it. It isn’t part of the ITV system to get people out of prison’, said Carlton TVs Paul Jackson (Barnett 2011: 123).
Recent academic studies have recorded the marked drop off in press coverage of miscarriages of justice since the Runciman Commission (for example, Thornton (2018) which identified an 18% fall in reporting of miscarriages in the national press between 1992 and 2007). Meanwhile, an insidious inversion of what it meant to be a ‘miscarriage of justice’ has taken place as unsympathetic politicians and journalists conspired to redefine the phrase.
In 2002, the then Prime Minister, Tony Blair promised to ‘rebalance’ the justice system in a speech in which he argued that it was ‘perhaps the biggest miscarriage of justice ... when the guilty walk away unpunished’. In 2006, The Sun ran an appeal at the end of an article: ‘DO you know about a miscarriage of justice? Call us on 020 7782 4104’. The tabloid wasn’t interested in innocent people wrongly convicted (i.e., ‘miscarriages of justice’ as Woffinden wrote about them) but in the guilty wrongly convicted. The appeal came at the end of an article about a paedophile began: ‘The mum whose toddler was attacked by evil pervert Craig Sweeney erupted in fun’ last night after the Government’s law chief refused to challenge his soft sentence’ (Pascoe-Watson, 2006).
Thornton (2018) reflected that Blair’s ‘biggest miscarriage of justice’ speech contained this implicit narrative:
The media’s reporting of high-profile miscarriages had created a crisis of confidence, the politicians had responded with structural reform and now the crisis had dissipated. Essentially what was being assumed was that the ‘innocence crisis’ had been dealt with and energies should now focused on other areas where the criminal justice was misfiring; namely in the effective punishment of the guilty.
The Nobles and Schiff ‘eternal recurrence’ analysis presupposes a massive press interest in miscarriages which drives the ‘crisis metanarrative’. That media interest, reciprocated at Westminster by politicians sympathetic to the cause, was a feature of Woffinden’s 1987 book; however, it soon evaporated. No one in the media is getting ‘in a stew’ about miscarriages of justice these days.6
Three years before Bob Woffinden died, he wrote a series of brilliant long articles for my website, the Justice Gap. In the first, the journalist argued that the body that he and others campaigned so hard for, the Criminal Cases Review Commission, had had the ironic effect of ‘institutionalising’ miscarriages of justice. He said:
It is as though we have created a situation in which the authorities can afford not only to be complacent about the judicial system failing, but we can even exacerbate them. The Commission ill be there to clear up the resulting mess. (Woffinden, 2015)
The journalist had been one of the first commentators to lose faith with the watchdog when in 2010 he wrote the group off as ‘an experiment that failed’ (Woffinden, 2010). I thought his assessment was unnecessarily polemical and risked playing into the hands of ministers who would need little persuasion that the Criminal Cases Review Commission was an unnecessary luxury.
As I reflect on what was to happen to the watchdog, I am struck by how prescient his words were:
[The Commission] has become a highly expedient mechanism. It allows ministers to deflect all questions about, and accordingly blame for, miscarriages of justice and the malfunctioning of the judicial system. Probably that’s its main residual function: as a fig leaf. (Woffinden, 2010)
Over its first 20 years, the Criminal Cases Review Commission has referred 652 cases (as of July 2018) which means an average of 32.6 referrals a year. It presently receives about 1,500 applications a year, mainly from prisoners claiming their innocence.
In 2017, the Criminal Cases Review Commission referred just 12 cases which represented a referral rate of just 0.77%. That marked a dramatic and unexplained fall from an average of 3%. The following year, the group referred 19 cases (including eight cases concerning asylum seekers convicted of entering the country with false documentation), and last year just 13 cases. In its last year, the Home Office department that the commission replaced (C3) received about 900 applications and referred nine cases to the Court of Appeal.
This alarming and unexplained drop off in referrals has been accompanied by concerns about the lack of independence from the Ministry of Justice as well as some verj' odd messaging from the commission itself. In 2019, the watchdog’s new chair Helen Pitcher said that referrals (i.e., sending cases back to the Court of Appeal) was ‘not the be-all-and-end-all’ (Criminal Cases Review Commission, 2019). She said:
I think perhaps too little attention is paid to the other outcomes of the Commission’s work, such as the considerable value we bring to the justice system in the de facto audit of the safety of convictions and correctness of sentences in each case we consider but do not refer. (Criminal Cases Review Commission, 2019)
The investigative journalist, former Rough Justice presenter and ex CCR.C commissioner, David Jessel (2012: 17) once described the group’s creation as ‘the nationalisation of zeal, the taking of fervour into public ownership’. The likes of Jessel, Woffinden, Foot as well as Ludovic Kennedy and Chris Mullen were fighting for an organisation that would free the wrongly convicted, not to set up the justice equivalent of the National Audit Office.
The CCRC does not have an easy job to do. It has not been assisted by successive governments, failing to fund it adequately and a hostile Court of Appeal that from time to time has displayed a tendency to treat referrals as a personal affront. However, the commission is at least blessed with a simplicity of purpose. It has one role: to send cases of alleged wrongful conviction back to the Court of Appeal.
The last article Bob Woffinden wrote for Proo/(the magazine I edit) in 2017 was completed after his diagnosis for the cancer that was to kill him. It was a brilliant and furious takedown of the press for its failure to hold to account a failing justice system. That his copy arrived late was not unexpected. The last email I received was a cheery message from Portugal to say that the prognosis was good; however, I knew enough about mesothelioma to realise there was no such thing.
His article did not disappoint. Fuelled by the righteous anger that made Miscarriages of Justice so shocking, the journalist attacked the media for its indifference to the victims of miscarriages of justice. He attacked the ‘rancorous and vituperative’ character of social media which chimed with what he called the new ‘journalism of nastiness’ (Woffinden, 2017). For Woffinden (2017):
Those whose voices are the loudest in what is supposed to be public debate about criminal matters are those who have no time for the careful deliberations of the criminal justice process; they are those who are impatient just to get whoever is perceived as the malefactor convicted, jailed and utterly ruined at the earliest opportunity. The more considered voices of those championing defendants are never heard.
It is uncontroversial to assert that our justice system is ‘broken’ - as the bestselling anonymous blogger the Secret Barrister (2018) puts it in his bestselling book. Michael Gove in 2015, in his first speech as Lord Chancellor, described our courts operate as a ‘two-nation’ system: ‘the wealthy, international class’ opt to settle their cases in London with its ‘gold standard of British justice’ and then everyone else has to put up with ‘a creaking, outdated system’.
Yet the British public is barely aware of miscarriages of justice, the inevitable by-product of a broken justice system. Unless, of course, the wrongful conviction happens to take place on the other side of the Atlantic and features in a Netflix documentary. In his final Proo/article, Woffinden (2017) reflected on the support the press offered to the campaigns to free the Birmingham Six and the Guildford Four when he was writing Miscarriages of Justice. The veteran journalist noted the recent success of the docuseries Making a Murderer about an American miscarriage of justice story which he felt could prove ‘seminal’.
This is how he signed off:
The reassurance that we have a free and unfettered media to report criminal trials, and that we have a plurality of media organisations to offer comments on aspects of the system, are empty reassurances. In the realm of criminal justice, the media betrays is all on a daily basis. (Woffinden, 2017)
Notes
- 1 In 2016, Bob Woffinden’s final book The Nicholas Cases: the Casualties of Justice was published and, like Miscarriages of Justice published almost 30 years earlier, featured a series of alleged wrongful convictions.
- 2 See Runciman (1993).
- 3 See R v Cooper [1969] 1 QB 267.
- 4 Anthony Mycock spent two years in prison for a burglary that never happened.
- 5 See R v Secretary of State for the Home Department, ex parte Simms ex parte O’ Brien 1999.
- 6 The case of Eddie Gilfoyle is the case in the last decade to have been championed by a national newspaper (The Times).
References
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