Methods for investigating claims of Innocence (evidence of facts) - studying investigative Journalism

In their book Claims of Innocence, An Introduction to wrongful convictions and how they might be challenged Michael Naughton and Gabe Tan give fantastic guidelines listing few steps to how to approach an alleged miscarriage of justice.

Crucial are ensuring the retention of evidence and case documents, team will have to ensure of the retention of material by the police, Forensic Science Services (FSS) and by solicitors.

Few good tips there were that if “you are still seeking to challenge your conviction even after you have lost in your appeal or the CCC has refused to refer your case back to appeal courts it is vital that you make a formal written request to the relevant police force for all material relating to your case to be retained.” In case of FSS, “All items submitted by the police to the FSS will normally be returned to the police upon completion of the laboratory examination except in circumstances where the samples are thought to pose a potential hazard (e.g. biological samples such as blood), or, where an agreement has been reached with a relevant police force/organisation for the FSS to retain them, or part of them, under specialised storage conditions, for reference purposes or for possible future re-examination using improved techniques.

The FSS will maintain a document audit trail in relation to retained and destroyed material. The FSS will retain [keep in their possession] material for 30 years as a matter of course in serious cases” including the the murder . This 30 year period do not cover items of perishable nature, like body fluids for example. A “Notification of Intention to Destroy Items of a Perishable Nature' will be sent to the defence team prior to destruction which lists the items that the FSS are intending to dispose of. “ In light of this alleged victims of wrongful convictions should instruct their defence team to respond to the FSS ' Notification of Intention to Destroy Items of Perishable Nature' and request to the FSS for the destruction to be stayed – stopped.” It is also stated here that in addition o above, “ a formal request to the FSS should be made for other non-perishable materials to be retained beyond the minimum retention period.” In situation when the materials have been destroyed it is still possible that material taken from the item has still been retained. Further advise is given here that “it is worth contacting the FSS to ascertain the specific items and samples that they still hold in relation to your case.”

Retention policy with forensic science providers other than FSS is within General Specification Schedule 6A Items 3.22-3.26 Storage, Retention and Disposal, further on it was advaised again that “it is recommended that it be requested in writing to the forensic science that the police need to be contacted is that once a forensic science provider has finished with a case, most exhibits will be sent back to the police. However, certain items such as microscope slides , DNA extracts , acetate sheets containing fibre tape lifts etc will be retained by the forensic science provider for a variable amount of time.” an example of a case study given here is the conviction of Sean Hodgson who was imprisoned for murder of Teresa De Simone in 1979 because FSS had incorrectly declared that “all exhibits in the case were destroyed when the first request for DNA testing on the samples was made”. He served 27 years in prison before his conviction was overturned “when DNA testing of the semen sample collected at the crime scene did not match his profile.”

It is also important that the solicitors are also instructed “in writing not to destroy their files, including instructions and briefs, attendance notes and correspondence sent to third parties on their behalf.”

As an important starting point to investigation it is crucial to learn trial proceedings and examin how the jury decides on convictions which I already did go through the law aspect in two of my other posts when looking into law aspects of Criminal sentencing and jury decision making as well as focused on studying specific crime (murder) and different asoects of defence:

Criminal Law– Smith and Hogan, studying Investigative Journalism
Criminal Law by Alan Reed and Ben Fitzpatrick, chosen aspects- studying Investigative Journalism

The trial scripts and judges summing up are very important and probably best starting point before going deeper into specific areas of the case like for example DNA evidence or handprints. It is good to recognise what wa sthe Prosecutions' and Defence case for the defendant.

In Prosecution's Case, as Michael and Gabe point out it is significant to learn what is the prosequtions's version of what happened and what were the evidence supporting this version and what evidence was produced to undermine the defence's case. They also give advise to construct a list of all the proseqution witnesses who testified in court or whose statements were read out in court, and the evidence given by each of these witnesses. It is a key factor to understand evidence that led to the conviction and look for evidence undermining it or as Gabe and Michael say "disprove it tottaly". The same thing should be done for defence case just studying how the prosecution case was undermined by the defence and all the rest to do with the statements but corresponding to the defence. To stand up arguments against prosecition "evidence needs to be found that contradicts their statements or testiminios."

It is also equaly significant to "to get grips with how the police investigation was conducted, how the evidence was obtained, and whether there is evience that could support your case at trial which was not disclosed by the prosecution or which was ommited by the defence team." As an Inocence Project team that re-examines the case "you have to actively find evidence that undermines the prosecution's case and/or produce new evidence that could positively establish that alleged victims of wrongful conviction are innocent ot the crime that they have been convicted of."

When looking at the witness testimonies it is worth looking into things like whether the evidence given to the police is consistent with the evidence that the witness gave in court; "if a witness provided more than one statement, and the evidence which incriminates the alleged victim of wrongful conviction only came out in the later statement, it is crucial to question why the witness did not provide the evidence in his or her earlier statement(s). " Other thing to be done in course of examinations are looking into unused materials like witness statements perhaps there was something in there that that could contradict the witness's evidence or even find out if any of the witnesses had ever had a history of making false allegations.

Further on, loking into witness evidence, eyewitness identification evidence "featured in the prosecution's case at trial and you think that eyewitness might have been genuinely mistaken, (i.e. you are not claiming that the eye witness lied to the police or in court) the following pointers could assist you in proving that the eyewitness identification evidence is unreliable (...).”

Identififation procedure also has to comply with the Police and Crim inal Evidence Act 1984, particulary the Code of Practice for the Identification of Persons by the Police officers (Code d). Other significant tip is that “the witness should not see suspect on any photographs or description of the suspect prior to the ID parade.” Or even “could the witness have heard or heard any describtion of the suspect from the media prior to making the identification?” All these are vitally important, Michael and Gabe also give website that helps with other aspects of identification issues on Crampton, S. (2005) ‘Identification Issues’. (www.unitedagainstinjustice.org.uk )

Other aspect of giving statements is confesions, “if an alleged victim of wrongful conviction is convicted on basis of a confession, and s/he now [is] claiming that confession is false, the following pointers might assist in showing the unreliability of the confession:”
- all police interviews with suspects have to be audio recorded,
- if a person is forced to make a false confesion – check if police compied with the provisions set out under the PACE (Code of Practice C) (including the alleged victim of wrongful conviction)
- if the alleged victim of wrongful conviction is a vulnerabl suspect or suffers from mental or physical disability, check if the proper procedures for interviewing vulnerable suspects were adhered to.
-Does the confession contain describtions like how the crime was committed which do not fit with the evidence ,
- “At which point did the confession emerge? Are there any inconsistencies in the evidence given by the alleged victim of a wrongful convicton in the course of the police investigation? Did the alleged victim attempt to retract their confession in the course of the police investigation?”
-check how long was the alleged victim of wrongful conviction retained in custody before making the confession?
-Was the confession made in presence of the solicitor
- “if the alleged victim of wrongful conviction is alleging that the confession was fabricated by the police, send the statement for analysis by forensic psychologist. There might be words or forms of expressions contained in the statement that does not fit with the age/or educational background of the alleged victim”
-“if the alleged victim might have an undiagnosed mental or personality disorder which could make him/her vulnerable to making a false confession, arrange for a diagnosis by forensic psychologist.”

All above is vital, I will be dealing with more Forensic issues in separate chapter, which I will publish soon.

Finally, last but not least to end this post it is worth adding fue more quotes from Michael and Gabe’s book regarding solicitors. In the centre of all major wrongful conviction cases that Michael and Gabe cited in their book are “defence solicitors who were committed to the plight of the alleged innocent victims and dedicated themselves to assisting them to overturn their criminal convictions.

Such criminal appeal solicitors are vital in attempts to overturn alleged wrongful convictions. They can use their legal powers to ask for, and obtain, disclosure of evidence, challenge decisions made by authorities such as Crown Prosecution Service (CPS) or the police, ensure that correspondence to prisoners is confidential and not opened before it reaches them, obtain affidavits from witnesses who want to prove alibis or retract their incriminating statements, they can commission new tests to be conducted to produce new evidence that can call safety of the conviction in question, they can make the application for the appeal or to Criminal Cases Review Commission (CCRC).”

*All quotes and information are from:
Claims of Innocence, An Introduction to wrongful convictions and how they might be challenged
Michael Naughton with Gabe Tan (2010)

*My other posts created on basis of this book:
SEE HERE - Claims of Innocence by Michael Naughton and Gabe Tan – studying Investigative Journalism

Claims of Innocence by Michael Naughton and Gabe Tan – studying Investigative Journalism

“Criminal justice process is not perfect and factually innocent individuals can, and for variety reasons are , wrongly convicted and even imprisoned for crimes they have played no part in.”

Through my research and reading I will be trying to show the emergence of rethinking the circumstances which allowed for some of the wrongful convictions to happen. Claims of Innocence by Michael Naughton is on of these books which explore number of wrongful convictions and introduce the concept of challenging them.

As a third year student of Journalism being part of the Innocence Project I am interested in certain aspects of investigatory techniques as well as trying to learn important law concepts that have affected our case.

In his book, Michael lists causes of wrongful convictions including aspects of the pre-trial and trial stages of the criminal justice process “from false allegations, police misconduct, prosecution and and police non-disclosure, erroneous forensic science and expert evidence, and poor representation from criminal defence lawyers.” Michael, a founder and leader for Innocent Project in Bristol wrote this book along with Gabe Tan giving useful guidelines for not only members of Innocence Project but also future lawyers and investigative journalists.

“Innocence projects were established in recognition of failings of the Court Appeal (Criminal Devision) and the Criminal Cases Review Commission to guarantee that factually innocent victims of wrongful conviction will overturn their convictions. But innocence projects, too, are constrained by the lack of resources and investigatory powers. “

Michael talks about the beginning of the need for creation of organisations like Innocence Project.
“The CCRC [Criminal Cases Review Commission] followed a recommendation by the Royal Commission on Criminal Justice (1993) (RCCJ) that was prompted by the public cricis of the confidence in the entire criminal justice system, which was caused by the cases of the Guildford Four and the Birmingham Six and a string of other notable cases in which Irish people were wrongly convicted upon suspiction of being connected with terrorist crimes that were commited by the IRA (Irish Republican Army). “

Criminal Cases Review Commission (CCRC) “was set up in response to notorious cases such as Guildford Four and the Birmingham Six, but it cannot guarantee that innocent victims of wrongful conviction will have their cases referred back to the Court of Appeal (Criminal Devision) if the evidence of innocence was available at the time of the original trial.”

The CCRC website states ' We do not consider innocence or guilt, but whether there is new evidence or argument that may cast doubt on the safety of an original decision'. It seeks to check the decisions are made within the rules and procedures and to determine lawfulness of the convictions. Important are new evidence that “may undermine legal safety of the criminal convictions”.

Since 2002, applicants for CCRC have to write a letter to the CCRC setting out basis of challenge before proceeding with an application for judicial review.
The CCRC will decide within 14 days id the challenge should be conceded or not. (www.ccrc.gov.uk/canwe.htm> and guide to making application: http://unitedagainstinjustice.org.uk/advice/CCRC%20applications%20guide.html+constraints>)

Following that another quite a shocking fact in English law I found was that if the convicted person doesn't admit the guilt and “refuse to undertake specified offending behaviour programmes to provide the Parole Board with the evidence that it needs to recommend release.” So effectively, law is not particularly concerned with absolute truth, but “with proof before a fallible human tribunal to a requisite standard of probability in accordance with formal rules of evidence” (House of Lords ruling in the case of Director of Public Prosecutions v. Shanron [1974] 59 Cr. App. R. 250) The above accounts for reasons of innocent people being convicted, what is more, the fact that “proof that the evidence that led to the conviction is unreliable does not guarantee that the Court of Appeal (Criminal Devision) will deem a wrongful conviction unsafe and quash it.” Successful appeals in the Court of Appeal (Criminal Division) are “mainly achieved by new evidence that shows criminal convictions to be unreliable and, therefore deemed to be unsafe.”

Michel lists key causes of wrongful convictions like False Confessions, like in case of Ian Lawless, who in 2001 was convicted and given a life sentence for a murdering Alf Wilkins. His conviction was quashed in 2009 after 8 years in prison after it was revealed that Ian suffered from personality disorder which made him create false confessions because of a pathological need for attention. 

Incompetent Police investigation was a reason to convicting Warren Blackwell in 1999. The independent Police Complaints Commission (IPCC) revealed a series of errors by Northamptonshire Police that contributed to Blackwell's wrongful Conviction. 

Example of Police Misconduct can be observed in case of Cardiff Newsagent Three where three innocent people were convicted in 1988 of killing and robbery of cardiff Newsagent Philip Sunders. Johny Kamara spent 20years in prison when “it was found that the police failed to disclosure over 200 statements taken during the course of investigation this injustice has been committed due to so called non-disclosure of Vital Evidence.

George Anderson and Margaret Hewitt were convicted in 2004 of child abuse, their convictions were quashed due to revealing false allegations by one of the complainants who admitted that he had lied.
In 1998, Tony Wild admitted in a BBCRough Justice documentary that he had fabricated the evidence against Reg Dudley and Bob Maynard who were convicted of murdering Billy Mosley and Micky Cornwall, to evade long prison sentence for armed robbery. Both Reg and Bob have served over 20 years of wrongful conviction due to so called Prison Informants.

Flawed Expert Evidence was a reason for creating misleading evidence by Professor Sir Roy Meadow who stated that odds of deaths of two children was 73,000,000 to 1 and Sally Clark and Angela Cannings were both given life sentences for murdering their children. In 2003 it was revealed that their children had most likely died of natural causes. 

The conviction of Andrew Adams was overturned after he served 15years in prison due to a poor defence in 1993 in which numerous crucial evidence were overlooked.

“Thousands of people convicted of criminal offences seek to challenge their convictions in the Appeal Courts in England and Wales each year.” As Michael notices, there are various reasons why “alleged victims of wrongful conviction might maintain innocence when they are not innocent” like hope for successful appeal; ignorance of criminal law in which the convicted people do not know or understand that their behaviour is criminal. Other reasons can account for disagreement with Criminal law in which the convicted person is aware of the actions of criminal offence but disagree that they should be convicted; claims that there was a technical miscarriage of justice or even because of shame or even stigma of being associated with a criminal offender.

Striking to find out was for me to find out how the Parole Deal works. Looking at the cases like for example Paul Blackburn and Robert Brown, each of them spent 25 years in prison being innocent and maintaining their innocence, had they acknowledged guilt and had they “confronted their offending behaviour and, thus, demonstrated a reduced risk of reoffending in eyes of the Parole Board, they would, probably, have served around half that time.”

“An appellant challenging a conviction given in a magistrates' Court who fails his/her appeal in the High Court might apply to have the case heard at the Supreme Court.” Which only hears cases from the High Court, what is more it happens in a very limited circumstances where “the case involves arguable points of law and is deemed to be of general public importance.”

“The latest available figures from the Ministry of Justice show that between 2004-2008 (inclusive), the CACD [Court of Appeal, Criminal Devision]received an annual average of 1,627 applicants for leave to appeal against conviction” of which “24% on almost a quarter of all whose made an application to single Judge were successful in having their case referred to the Full Court for an Appeal. “

“Under s.2 of the Criminal Appeal act 1995 the role of the CACD is solely to adjudicate the safety of the conviction and quash a conviction if it decides that the conviction is 'unsafe':
Subject to the provisions of this Act, the Court of Appeal:
a)Shall allow an appeal against conviction if they think that the conviction is unsafe; and,

b) shall dismiss such an appeal in any other case. “

“An appelant to the Supreme Court may only be brought with the permission of the CACD or of the Supreme Court and, if refused, to The Supreme Court.”

All quotes and information from:

Claims of Innocence, An Introduction to wrongful convictions and how they might be challenged
Michael Naughton with Gabe Tan (2010)

Criminal Law– Smith and Hogan, studying Investigative Journalism

“The Law Commission recently described murder as a ‘rickety structure set upon shaky foundations. Law Commission Consultation Paper No 177, New Homicide Act for England and Wales (2005) (LCCP 177), para 1.4. See below, p 633. (...) Murder is when a man of sound memory, and of the age of discretion, unlawfully killed within any county of the realm any reasonable creature in rerum natura under the king’s peace, with malice aforethought, either expressed by the party or implied by law, [so as the party wounded, or hurt, etc die of the wound or hurt, etc within a year and a duty after the same]. (Coke 3 Inst 47)” (ref.1)

The European Court of Human Rights (ECtHR) sates in Article 2 that everyone has a right to live, murder breaks this law directly.

The Smith and Hogan’s Criminal Law states that, “it must be proved that the defendant caused the death of the deceased person.” (ref.1)

“The starting point is that we are concerned with proof of real state of mind. The mens rea for murder is that D must have malice aforethought, that is, D must have intended to kill or cause grievous bodily harm.” (ref.1)

“The mental element required for the crime of murder, as for the crime of manslaughter, has varied over the centuries. From Coke’s time (...) there has been a steady contradiction of definition of murder but for the unfortunate decision in DPP v Smith. Reporting in 1953 the Royal Commission on Capital punishment (RCCP) (Cmd 8932) found it ‘impractical’ to form a satisfactory definition of murder but it did recommend that the reach of murder be curtailed by abolition of the doctrine of ‘constructive’ murder. Under the doctrine a person was guilty of murder if he caused death during the commission of felony involving violence (eg, rape, robbery) or if he caused death while resisting an officer of justice.” (ref.1)

Further on the book explains the concept of abolition of ‘constructive malice’:

“1. Where a person kills another in the course of furtherance of some other offence, the killing shall not amount to murder unless done with the same malice aforethought (express or implied) as it is required for killing to amount to murder when not done in the course of furtherance of another offence.

2. For purposes of the foregoing subsection, a killing done in the course or for the purpose of resisting an officer of justice, or of resisting or avoiding or preventing a lawful arrest, or of effecting or assisting an escape or rescue from legal custody, shall be treated as a killing in the course or furtherance of an offence.” (ref.1)

Studying elements of crime it is essential to have a look into actus reus and mens rea which are components of crime. “Lawyers have long found it convenient to distinguish the mental element from the other elements for the purposes of exposition of the law and have called it ‘mens rea’. This phrase derives from a maximum quoted by Coke in his Institutes (Ch 1, fo 1o) ‘ Actus non facit reum nisi mens sit rea’, an act does not make a man guilty of a crime unless his mind also be guilty. (...) The elements of the actus reus include elements of conduct, circumstances, and in some offences, consequences. (...)

Most crimes require proof of a mental element of some sort. It has to be proved with the same degree of strictness as the other elements of the crime as the case of Woolminghton (...). It is possible for the courts to dispense with mens rea in whole or in part with offences of strict or absolute liability (...), but, except in the anomalous case of an intoxication offender (...) they can never dispense with the actus reus. There are no ‘thought crimes’. (...)

Above all it is essential to emphasise that “these expressions – mens rea and actus reus – are only analytical tools: they help us to identify which elements of the offence are in dispute etc. The only thing that exists in law is the crime.” (ref.1)

There are two points of controversy in a description of the two concepts. “The actus reus generally requires proof that the defendant did an act. It is argued that since an act is essentially a voluntary movement and not a spasm or convulsion, ‘voluntariness’, though a mental element, is part of actus reus. (...) Some of writers and judges have described these mental elements as part of the mens rea. However, the only thing that really matters is whether they area elements in the crime. If they are, it is immaterial whether they are assigned to the actus reus or to the mens rea.”

All these concepts I already explored in my previous post, by reading a different book I wanted to compare and find if the definitions would differ and bring a new meaning into answers that I am looking for in aspect of murder and finding certain defences and understanding judgment through criminal law.

Again, it is clear that "all the elements of crime charged must be proved" and this is what is very important in understanding how prosecution has to act in order to persuade the jury to their side of arguments.

Other aspect on my research involves speculation and suspicion that leads to a suspect and how a suspect becomes a defendant. studying these concepts is crucial in understanding what would have had to be proved or investigated by the prosecution so that the legal guilt could be found and effectively the suspect turned into convicted person.

"There are may serious offences with law level mensrea requirements such as 'suspiction' and ' having reasonable grounds to suspect'. "

"In Da Silva [2006] EWCA Crim 1654, 'supicion' was held to impose a subjective test: D's suspicion need no be based on 'reasonable grounds'. D must think that there is a possibility, which is more than fanciful, that the relevant facts exist. Use of words like 'fleeting thought' and 'inkling' [vague idea of suspiction] is apt to mislead.(...) the court held that the essential element in the word 'suspect' and its affiliates, in this content, is that the defendant must think that there is a possibility, which is more than fanciful, that the relevant facts exist. A vague feeling of unease would not suffice. But the statue does not require the suspicion to be 'clear' or 'firmlygrounded and targeted on specific facts', or based upon 'reasonable grounds'." (ref.1)

Lord Devlin in Hussien v Chang Fook Kam [1970] AC 942 at 948 defined suspicion as its common meaning to be "in state of conjecture or surmise where proof is lacking: 'I suspect but I cannot prove'. Susption arises at or near the starting point of an investigation of which the obtaining of prima facie prof is the end." (ref.1)

The presumption of innocence is measured within the necessity for the Crown to establish every element of the offence to the standard of proof which will be measured on the balance of probabilities or beyond reasonable doubt depending what sort of offence did the person commit. As mentioned in my previous post the side of the argument that berries the burden of proof does not satisfy the jury/court they lose the case. The defendant on the other hand  is not obliged to prove the particular defence in order to be not guilty. However, the defendant still needs to 'raise evidence' of the "defence in order get it on its feet". (ref.1)
As soon as he does so the Crown will have to disprove it, if it fails to do so the defendant is acquitted.

"In a criminal trial, the prosecution will have to satisfy the court of defendant's guilt  to 'criminal standard': that is beyond reasonable doubt." (ref.1) which is what I have already learnt from the previous reading, in here there comes another aspect of exception in which "the defence bears the burden of proof the defendant must satisfy the court on the balance of probabilities - that is that it more likely than not. Crudely, that equates to 51 per cent. There is no standard of proof in relation to evidential burdens of proof. The requirement is that the party adduces enough evidence to raise the issue."

"The presumption of innocence is found  in all international instruments of human rights and the constitutions of many states throughout the world. It is rightly perceived as a fundamental principle; many would say that it is foundational principle of criminal process.
...
It is submitted that when a challenge is made to the compatibility of a reverse onus the present law requires a three-stage process of decision-making.

1. interpretation of the statue: does the provision in question, interpreted in accordance with the ordinary principles of construction, place a burden on the accused? If so, is it a legal or an evidential burden? If it is evidential no further inquiry need [to] be made about compatibility with Art. 6 (2). If it is a legal burden, the court must move to stage 2 to assess the question of compatibility.

2. Justification of the reverse onus: does the provision in question serve a legitimate aim and is it proportionate to that aim? If the answer is Yes, the provision is an acceptable qualification to the presumption of innocence. The defendant will then bear the burden of proof on the matter in question, although to a lower standard of proof than the prosecution (namely the balance of probabilities), if the answer is No the court must move to stage 3.

3. Reading down the provision: if the reverse legal burden cannot be justified can the court 'read down' the burden to an evidential one, using s.3 of the HRA? If it can it should do so. If it cannot the court should make a declaration of incompatibility of the provision under s.4 of the HRA. (ref.1)

All the above is essential in understanding processes of conviction and at the same time learning the ways that Criminal law works.


Reference:
1. Smith and Hogan, Ormerod. D (2009) Criminal Law, Cases and Materials, 10th Edition

Criminal Law by Alan Reed and Ben Fitzpatrick, chosen aspects- studying Investigative Journalism

" Throughout the web of the English criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt, subject to... the defence of insanity and subject also to any statutory exception... No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained". Woolmington v DPP, Viscount Sankey L.C.

Investigative Journalists are probably experts in this part of law or just as well informed as they know their Media Law. Main focus of Criminal Law turns into facts of the case, "on what happened, rather than on the criminal law itself."(ref.1) And investigating facts and finding the factual innocence rather tan only looking at legal innocence or guilt.

"However, underpinning any discussion, factual or fictitious, of the criminal justice process, is the possibility more mundane question of what behaviour amounts to a criminal offence. Thus, if the question in a television drama is whether a suspect has committed murder, somebody needs to know what, at law, constitutes the offence of murder." (ref.1)

"Criminal Law operates in the area in which the interests of citizens conflict with each other, and where the state claims a legitimate stake in people's behaviour. It is therefore one of many ideal subjects for developing an understanding of how society fits together, and is regulated." (ref.1)

Looking into the burden of proof and standard of proof. "The basic rule of criminal evidence is that the prosecution must prove the case against the defendant. Thus, if a defendant is charged with murder, the prosecution must prove that all the elements of murder are present - that is, that the defendant unlawfully caused the death of human being, with the intention to kill or to grievous bodily hard. The requirement for the prosecution to prove the case reflects what is known as the presumption f innocence." (ref.1) Which in other words means 'innocent until proven guilty'. Essentially it is only prosecution that has to prove the case.

There are also situations where the prosecution does not bear the burden of proof in case that the defendant wants to claim that they are insane, in order to avoid conviction and this is when the defendant will have to prove that they are insane. Further more it is important to know how much proof is needed (the standard proof), " the prosecution must prove their case beyond reasonable doubt" (ref.1), however "it does not mean with absolute certainty". (ref .1)

The meaning of the 'reasonable' in there means that the prosecution has to make you to be sure of it, so strength of persuasion of the prosecution is crucial in presenting the evidence in that case as from what it looks like even though the defence' stand and evidence were factually correct and the person would be factually innocent if the defence doesn't have a strong persuasion and skill to present it, prosecution can win still win the case. It seems like this phrase, 'beyond reasonable doubt' all of the sudden brings up hesitation in fair judgement and it looks like there is room for doubt.

"If after considering all the evidence you are sure that the defendant is guilty, you must return a verdict of 'Guilty'. If you are not sure, your verdict must be 'Not Guilty'." This is what the Judicial Studies Board (...) suggests that judges direct juries on so called standard of proof.

"If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence 'of course it is possible, but not in the least probable.' the case is proved, but nothing short of that will suffice." (Miller v Minister of Pensions, Denning J,) (ref.1)

However, “if the burden of proof is on the defendant, it need never be satisfied beyond reasonable doubt. Rather, the required standard is 'the balance of probabilities'. This means, effectively, more likely than not.” (ref.1)

“The … degree of cogency... required... is well settled. It must carry a reasonable degree of probability … If the evidence is discharged, but, if the probabilities are equal, it is not.” (ref.1) In other words the burden of proof in a criminal trial lies in hands of the prosecution not for the accused to prove his innocence, as long defendant pleas 'not guilty' (nothing is admitted) every argument of the prosecution is questionable and will have to prove his guilt.

External element of the offence (actus reus) is guilty act of the crime, and the so called internal elements (mens rea) are in other words guilty mind, meaning that a guilty person committed the crime with intention of doing so. These two main ingredients of crime.

“As a general rule the larger the penalty the less likely the court is to treat it as a crime involving strict liability. The reasoning behind this is that a heavy maximum penalty is an indication of Parliament's intention that the accused should be shown to be blameworthy. “ (ref.1)

In light of the above rule it appears that the question should be asked, what about these who have been wrongly accused. Why this judgement which is supposed to be beyond reasonable doubt can still be within a level of doubt that can allow for an innocent person to be convicted of crime that they did not commit. It does happen, and again looking at the rule above it would make 'in eyes' of law and 'Parliament's intention' that an innocent person can be judged to be blameworthy and convicted and imprisoned while being innocent.

Within the aspect of so called 'mentally abnormal offender (insanity and unfitness to plead) it is very interestingly stated that “the defence of insanity is raised by a defendant who is claiming that at the time he was alleged to have committed the offence he was suffering from a mental condition which would excuse him from criminal responsibility.” (ref.1) This would lead to verdict 'not guilty by a reason of insanity'. Going further into the phrase above, how about if a defendant's mind and skill wasn't sharp enough, 'equipped' in knowledge and skill to commit presumably premeditated crime that would involve from could be classed as a high skill as well as knowledge to cover the evidence so that there is close to none on the crime scene. Would this classify as “a mental condition which would excuse him from criminal responsibility”?

“ The law is not concerned with the brain but with the mind, in the same sense that 'mind' is ordinarily used, the mental faculties of reason, memory and understanding. If one read for 'disease of mind' 'disease of the brain', it would follow that in many cases pleas of insanity would not be established because it could not be proved that the brain had been affected in any way, either by degeneration of cells orin any other way. “ This judgement was said Davlin J. in Kemp (ref.1, page 190), it was also added that “the condition of brain is irrelevant and so is the question whether the condition of the mind is curable or incurable, transitory or permanent.” (ref.1, page 190)

In case of Podola (ref.1, page 181), “ where D sought to rely on hysterical amnesia preventing him from remembering events material to the commission of the crime which involved the murder of a police officer. This emphasises that it is the state of the person's mind at the time of the trial that in in issue. By the time of the trial Padola was clearly able to understand the charges that had been brought against him and knew difference between pleading 'guilty' or 'not guilty'. In this case, if his claims as to hysterical amnesia were true, his difficulty lay in knowing whether to plead' guilty' or 'not guilty' since he could not recall what happened.

Where the issue is raised by the defendant he has burden of proving on a balance of probabilities that he is unfit to plead; where it is raised by the judge or prosecution, the prosecution bears the burden of proving beyond reasonable doubt that the accused is unfit.” (ref.1) (All the aspects of levels of the defendant to be 'unfit' are understandably to be explored in depth with attendant medical evidence.)

“ The 1991 Act provides that no jury may make a finding that the accused is insane or unfit to plead unless they have received evidence from at least two qualified medical practitioners, at least one of whom must be approved by the Home Secretary as having special experience in the diagnosis or treatment of mental disorder. (…) Once a jury have returned a finding that the defendant is unclear a disability and hence unfit to plead, the jury will then determine, on the evidence already received or now adduced, whether they are satisfied that the defendant did in fact do the act or make the omission charged against him.” (ref.1, page 184)

Insanity as a defence today is seen as a wider range of conditions and "in theory, it could be raised as a defence to even the most trivial assault. However, the result of a successful defence of insanity may be committed to a mental institution for an indeterminate length of time. In effect, therefore, insanity will rarely be raised by the accused on anything but a charge of murder and even there a plea of diminished responsibility would normally be preferred which could lead there a plea of diminished responsibility would normally be preferred which could lead to a determinate prison sentence. " (ref.1) Insanity may be raised indirectly as a defence today. "This could occur because the accused has attempted to plead that he did not possess the necessary mens rea for the offence only to find that the judge has ruled that as a matter of law reason he is advancing amounts to a disease of the mind." (ref.1)

This could partly answer my question from earlier on, for example in Clarke case (ref.1, page 193), "the accused was charged with stealing from a shop. She pleaded that she had taken the items from the shelf absent-mindedly as a result of the depression that she was suffering. If Mrs Clarke had simply rested her case on absent-mindedness, all would probably have been well. Unfortunately, medical evidence was called to support her statements and it was the effect of this evidence which led the trial judge to decide she was raising the defence of insanity." (ref.1)

From what it looks the aspect of the defendant to be not capable of the crime because of not high level of intelligence with dyslexia for example and therefore I can clarify this state of mind to any of the particular of being unfit or call it 'disease of the mind' or example of a non-insane automatism, question is whether it could be defined under any of the mentioned states of mind?

Moving into other aspects of my interest in here, intoxication. As it is given in Criminal Law by Alan Reed and Ben Fitzpatric is that there is posible argument for questioning the mens rea in situstion when defendant is intoxicated, occasion when "he will be so drunk that he does not form the necessary mens rea." (ref.1)

Good question to ask here is whether a certain level of intoxication could give a defendant some sort of alibi that he couldn't commit the crime because of certain level of the intoxication in other words could it be used as a defence?

Alan Reed & Ben Fitzpatrick give this general rule, " intoxication will provide a defence only when it negatives the required mens rea, and even here the defence is severely restricted. We can say that where the effect of intoxication is simply to remove the inhibitions, it will be no defence (...). The defendant will have a defence in these circumstances only if he can bring himself within a defence such as diminished responsibility. "(ref.1)

"Lord Birkenhead took murder as an example. If the accused did not form intention to kill or cause greviou bodily harm bacause he was intoxicated , he could not be convicted of murder (...). The positon would appear to be that voluntary intoxication is a defence only to crimes requiring a specific intent (...)." Could this parts of statements answer my question about having intoxication as part of the defence of being incapable of commiting a crime? Well eventhough it may sound like it is, journalistic nature some aspects that I am questioning doesnt allow me to satisfy myelf with that answer untill I see direct an factual answer as above was in different context and so it may answer it indirectly which is not enough to make it a fact.

Looking at the offences against the person, "murder for example, requires proof that the accused caused death and the offence under s.47 of the Offence Against the Person act 1861 requires proof that the accused caused bodily harm." (ref.1) Further on attempt of definig a murder was "murder is when a man of sound memory, and of age of discretion, unlawfully killeth within any country of realm any reasonable creature in rerum natura under the King's peace, with malice aforethought, ... " (ref.1)

"Historicaly, when an offender was convicted of murder, they would be required to serve a minimum term of imprisonment - known as 'tarif' - which was fixed by the House secretary, after which they become eligable for release on license. " (ref.1) However, the Criminal Justice Act 2003 placed the sentencing regime for murder on a "stautory footing". (ref.1) To prove Unlawful killing prosecution needs to prove that defendant killed the victim and that the killing was unlawful and the proof must be beyound reasonable doubt. To establish a charge of murder the prosecution also has to prove that "the defendant possessed the necessary mens rea on each element of the actus reus." (ref.1)

References:
1. Criminal Law by Alan Reed and Ben Fitzpatric, (2009) 4th Edition

'Conviction' an amazing true story about ultimate sacrifice and real victory of justice - it should have received higher rating!

I completely do not agree with the rating of the film which I saw was even given 3/5 on some websites or newspaper reviews. This film's value and narrative story has something very special to offer, this film was one of the most valuable and significant films I have ever watched in my life and if films of this type do not deserve a high rating then all the rating system may be thrown out of the window.



One first comments underneath this film's trailer follows: " Someone please tell me what is wrong with Hollywood and why this movie was not awarded an Oscar or Golden Globe? This movie was the best I have ever seen. (...) I hope this movie inspires you to do the same for your family if God forbid something like this should happen. I wish Hollywood would have reconsidered. I say it was better then Black Swan and deserved an award. Hillary Swank was awesome as was Sam Rockwell who played Kenny." (Ref. 5)

"Conviction is a 2010 drama film directed by Tony Goldwyn. It stars Hilary Swank as Betty Anne Waters and Sam Rockwell as her brother Kenneth Waters. The film premiered on September 11, 2010, at the Toronto Film Festival and was released on October 15, 2010." (Ref.1)

The film is based on the true story of Betty Anne Waters, an unemployed single mother who, with the help of attorney Barry Scheck from the Innocence Project, exonerated her wrongfully convicted brother. In order to do this she earned her GED, then her bachelor's, a master's in education, and eventually a law degree from Roger Williams University in Rhode Island. She accomplished this while raising two boys alone and working as a waitress part-time. While in law school, she began investigating her brother's case.

The story of a true murder and real conviction of Kenny who was so fantastically acted as by Sam Rockwell took place in1983.

The murder of Katharina Brow in Ayer, Massachusetts in 1980 led the investigation to a completely wrong source and an innocent man was imprisoned.

This story also brings the significance of the Innocence Project to our cinema screens. Winchester University is currently a member of the project and I am proud of it.

Betty Anne (played by Hilary Swank),  single mother spends a decade earning a law degree so she can represent her brother at court. She managed to locate biological evidence and then worked with the Innocence Project, to obtain DNA testing on the evidence. Her love, faith and devotion led to proving Waters' innocence and his exoneration on June 19, 2001.

Betty crushes the conviction by revealing the corruption of the police officer Nancy Taylor played by Melissa Leo, a cop who pins the murder on Kenny.

The story is deeply moving and shows heroic actions of Betty, who from a just an average citizen living peacefully with her family and enjoying her life became an extraordinary hero, fearless and unbreakable even when her whole world stood against her. She did not give in and never lost her faith in her brother's innocence.

The fact that the film was based on this extraordinary story shows a great taste and idea for film played by award winning actors.

Bearing all above in mind I was unpleasantly surprised by the lack of audience in the cinema and some of the reviews in the cinema I happened to be watching it at.

Reading comments and reviews on the film like for example one of popular websites, has only given Conviction "generally positive reviews" with an average score of 6.2/10 which I completely disagree with. Further on I read "he critical consensus is: Less compelling -- and more manipulative -- than it should be, Conviction benefits from its compelling true story and a pair of solid performances from Swank and Rockwell. Another review aggregator Metacritic assigned the film a weighted average score of 59 out of 100, indicating "mixed or average reviews".

True stories like this should be rated in it's own individual and category. The play of actors perhaps can be judged performance wise (which I would give 9/10) but the story is real, we can not judge the reality in which someone's life has nearly been wasted in prison for a wrongful conviction. The answer to that is quite simple. We can not.

References:
1. http://en.wikipedia.org/wiki/Conviction_(film)
2. http://www.imdb.com/title/tt1244754/
3. http://www.telegraph.co.uk/culture/film/filmreviews/8070463/Conviction-London-Film-Festival-review.html
4. http://www.guardian.co.uk/film/2011/jan/13/conviction-review
5. shttp://www.youtube.com/watch?v=NrPtr0aQx3s

Innocence Project in Winchester & Investigative Journalism

Bringing the Innocence Project as the aspect of studying Investigative Journalism, as mentioned in my previous posts since 2005, universities across England, Wales and Scotland have established innocence projects to investigate cases of alleged wrongful convictions. (Ref.4)

“We have now about 30 innocence projects in the UK of which more than 20 are members of the innocence Network UK (INUK). Innocence project movement emerged in response to growing concerns that the criminal justice systems cannot guarantee innocent victims of wrongful conviction will be able to have their convictions overturned. “ (Ref.4)

“INUk’ innocence projects do not offer campaigning or victim-support services, they undertake free, impartial casework investigations to alleged factually innocent victims of wrongful conviction who exhausted the normal appeals process.” (Ref.4)

“ To date, the INUK and its network of member innocence projects are collectively working on over 80 cases of alleged wrongful convictions. Most of these cases involve prisoner serving life long term sentences for serious offences, over half of whom have already been refused by the CCRC” (ref.4)

“ The investigations undertaken by the innocence projects generally involve going through all available unused material, conducting research on forms of evidence and areas of law relevant to the case, following up on any leads that could assist in the case, interviewing witnesses and finding new methods such us forensic science technologies that could help to establish whether a claim of innocence is valid. “(Ref.4)

There are currently 8 cases under review by the CCRC and 1 case under review at the SCCRC that were referred to a member innocence projects. (Ref.4) The Innocence Project http://www.innocenceproject.org/

An idea of supporting wrongly convicted prisoners has started from one of the biggest miscarriages of justice in the British law. The times that have been famously remembered that have exercised the legal system investigating miscarriages of justice are shown in a short film called: Reeling in the Years 1974-3, which shows two of the cases that I would like to talk about. The case of The Birmingham Six and the case of The Guilford Four:

(Ref.1)

In 1974, in Ireland, The Guildford four was wrongly accused and imprisoned for many years for the crime they did not commit. Gerry Carole, Paddy Hill, Padd Armstrong and Carole Richardson, their conviction has come to the history of British law as one of the worst miscarriages of Justice.

The Guildford four: “In the name of the father final scene” (Ref.2)


And here is the real footage from youtube of Gerry Conlon who had been to be released after spending 15 years in prison:


They were released in 2005, after they had spent 14 years in prison, even British Prime Minister, Tony Blair apologised to them.

Then, after other cases like The Birmingham six, in seventies


See more in my article: Investigative Journalism & article on Miscarriages of Justice - Birmingham Six and Guildford Four.

After the course of miscarriages of justice in seventies the Government created The Criminal Cases Review Commission (CCRC), formally established in 1st January 1997 to review cases with possible grounds to appeal.

Innocence Project steps in when mistakes are being made in the process to appeal, and when the process for rectifying them is flawed. The idea of The Innocence Project stands on side of wrongly imprisoned people giving them their last chance for appeal. As its name indicates, Innocence Project concentrates on prisoners maintaining innocence, and its leading idea is to work towards gathering new evidence that could allow for an appeal. INUK is university based initiative and was launched in 2014.

INUK founder and creator, Michael Naughton says that “it may as well be called the guilty projects” as it is often that the project have to communicate to the client that their claim of innocence is wrong and that they are in fact guilty as there are numerous occasions that the clients need to be made aware of their guilt and explained of why they are guilty in light of Criminal law.

For group of students it is as successful to discover either factual guilt or even better - factual innocence, as that will take the student’s re-investigation to its end and make it easier in the process of reconciliation and acceptance of the cause of verdict way to improve as a human being.

Even if the client is found factually guilty at the end of the student’s re-investigation, the idea of promoting the idea of questioning and having a hunger for justice and helping people not even mentioning investigative skills which will definitely help in journalistic/law/medical profession. It will all benefit all the students involved, strengthen the character and develop their personality in any different areas.

Winchester University has joined the Innocence Network and BA Journalism students at The University of Winchester are now working within the Innocence Network UK and have undertaken reexamining of couple of cases.

Journalists “have the curiosity and persistence, a strong sense of purpose, a feeling of outage about wrongdoing and a moral conviction to find the truth.” (Sparks, D.1999)

One of the core functions that Winchester journalism students have taken upon themselves by joining the Innocence Project is undertaking a “full investigations into alleged cases of wrongful conviction that meet the eligibility criteria, seeking to determine whether claims of innocence are valid and overturn convictions given to factually innocent people.” (http://www.innocencenetwork.org.uk/)

Innocence Project gets involved when legally guilty people claim their factual innocence. After careful consideration, if the decision is that there are possible grounds for appeal, and this is when universities get involved. The case is passed over to a member university, which then will be working towards “gathering new evidence that will allow convicted criminal’s cases to be taken to appeal”. (Kenyon J.)

And therefore, students of Journalism will be working either towards proving factual innocence of our clients and try their best to reach beyond reasonable doubt of our clients’ conviction to either prove their factual innocence or prove the legal system right and make the client aware why was the verdict right, both factually and legally.

As one of our students rightly emphasized, “despite limited law background a journalist is used to researching unfamiliar subjects and being placed outside our comfort zones”. (Kenyon J.) Skills of an investigative journalist serve very well in searching for new evidence, witnesses and searching through the case files for the millionth time to find something that could have potentially been missed out on or misunderstood.

Journalists have the confidence “to pick up the phone and ask questions where others might not” (Kenyon J.) and our student journalists will certainly get to the bottom of the case to find the missing link.

Other responsibilities as members of INUK that journalism students from Winchester will have to fulfil, as stated in the INUK’s core functions are to conduct and facilitate research into, among other related things like ” the cause of wrongful conviction of the innocent; the barriers to attempt to overturn these convictions that are presented by the Criminal Cases Review Commission (CCRC), the Scottish Criminal Cases Review Commission (SCCRC) and the respective courts appeal; the associated harmful consequences of wrongful conviction on victims, their families, friends and society as a whole. ” (http://www.innocencenetwork.org.uk/)

What is also essential is communication, informing “the public debates about wrongful conviction and imprisonment of factually innocent people, the INUK will communicate the findings from research and the practical work of its member innocence projects with the objective of improving the criminal justice system and preventing future wrongful convictions.” (http://www.innocencenetwork.org.uk/)


References:

Ref.1) Reeling in years 1974-3 http://www.youtube.com/watch?v=O_OFo7Crigs&NR=1&feature=fvwp
Ref.2) The Guilford Four, In the name of the father : http://www.youtube.com/watch?v=RgUWn0gVpq0&feature=related
Ref.3) http://www.innocencenetwork.org.uk/
Ref.4) Claims of Innocence, An Introduction to wrongful convictions and how they might be challenged by Michael Naughton with Gabe Tan (2010)

Miscarriages of justice and Investigative Journalism (Birmingham Six & Guilford four)

The times that have been famously remembered that have exercise the legal system by miscarriages of justice are shown in a short film called: Reeling in the Years 1974-3, which shows two of the cases that I would like to talk about. The case of The Birmingham Six and the case of The Guilford Four:

(Ref.12)

Who Bombed Birmingham (Part 1-11)?

Six men were arrested and sentenced to life imprisonment after the bombing in Birmingham in 1970s. IRA seemed to be the instigator but what the IRA insisted was that none of the sentenced six were their members. 21st November 1974 two of the public houses were bombed by the IRA, 21 people were killed and 162 injured, 6 people were convicted and had been in prison since 1974. A Granada film is a reconstruction of examining of their case by three journalists since 1985 giving the story of the Birmingham six.

Part 2:

The journalists kept on knocking on the doors. Forensic scientists made some sort of method of DNA testing and few of the results showed positive. The journalists noticed inaccuracies to do with the times of interrogation by the police and started questioning the course of the investigation that had put the six men into prison.

Part 3:

As we can see on the film, the men were brutally beaten and assaulted. As the journalists found out (suggestion that due to the interrogation they were forced the six to sign the confessions.) Journalists find a clue in ‘playing cards’ and interview men in prison.

Part 4:

The journalists decide to run a simple DNA test that proves that the test carried out on the Birmingham six may have been misleading (playing cards in the train-test turning red in the DNA test bowl when one of the journalists played with card and then had the DNA sample taken” ). Men in prison were very severely mistreated. The journalists see a clue in the fact that the men are severely beaten up on their faces as they can see from the pictures, all six men were bruised and abused in prison, the journalists were looking into that aspect. Looking into the bombing routine - bombings were tightened up with the funeral?).

Part 6 is the next one given on youtube (there is no part 5)

Chris comes to the conclusion that there were four people responsible for the bombing, 2makers two planters and “we have agreed that you are one of them” says the journalist to one of his interviewees. There is also an assumption about the guy in the van to be another. The film ‘Word In Action’ is made and broadcasted, men in prison re watching it (possibility of an appeal? New evidence?) “Two makers, two planters, not six, four” – Chris now needs the planters to make the application for an appeal stronger.

Part 7:

Chris finds the guy who put the suitcase with the bomb under the table in the pub. ‘Error of judgment’ book by Chris was published, it doesn’t get men out of the prison but it makes the governing bodies start to question things again (Home office 1986). The police who is under the eye of the home secretary requests to interview Chris.

Part 8:

During the questioning Chris keeps his sources covered fulfilling his journalistic code of Conduct. Police says to him that they never said that the imprisoned 6 were members of IRA even though that he knows that in evidence they said that the Birmingham 6 was. Chris meets the policeman who gives the evidence about the mistreating in prison (shotguns) saying that he personally saw it. Further material is being broadcasted, possibility of the DNA judgment to be wrong and mistreating by the looks of the prisoner’s faces. In court again, stage; after two programs had been published and book by Chris Muller, 1987 the case goes into the court of Appeal!

Part 9:

The Birmingham six has met and get to study the timings of them being questioned, the case is investigated again as the case has been taken to the court of appeal. 1987 in court.

Part 10: (my favourite part of the film! “they didn’t know where the bombs were, it was you! I challenge you to deny it! “)

While being questioned in court, the police officer denies all the allegation on violence used on the Birmingham six and inaccuracies within the schedule of questioning them but the turning point is when the police woman who has previously given a false statement (because she was being threatened) came back to court and said in front of the judge and jury how she witnessed one of the defendants to be physically assaulted, she also heard what was said “This is what we do to the fucking murdering bustards”(Ref.10). Then the forensic scientist who examined the original samples of the defendants’ DNA is called a witness and his statement proves that his judgment then was wrong. In the meantime Chris Mullin goes to the house of the man who he believes to be ‘the young planter of the bomb’ and challenges him to deny what Chris believes to be true.
Part 11:

The appeal fails but Chris does not give in, he keeps exercising the justice system. It took until the 1991 for the court to admit that they had the wrong men The Birmingham Six spent 16 years in prison before found not guilty and was released.

Other case mentioned in the that has come to the history as miscarriage of Justice is the case of the Guildford four: “In the name of the father final scene” (Ref.13)


And here is the real footage of Gerry Conlon who had been to be released after spending 15 years in prison:


See more on:
INVESTIGATIVE JOURNALISM (Media Law week 7) here

INNOCENCE PROJECT IN WINCHESTER &  INVESTIGATIVE JOURNALISM here
References:
Ref.11) Who bombed Birmingham?
Part1: http://www.youtube.com/watch?v=tbTqTbmMgkQ
Part2: http://www.youtube.com/watch?v=NNCGyaS3oPk&feature=related
Part 3: http://www.youtube.com/watch?v=vpPW2LjkYnE&feature=related
Part 4: http://www.youtube.com/watch?v=vXMUuyEgbb8&NR=1
Part 6 (which is the following part after part 4 on youtube): http://www.youtube.com/watch?v=XstdO1PY5gQ&feature=related
Part 7: http://www.youtube.com/watch?v=gu9isCmV-rs&NR=1
Part 8: http://www.youtube.com/watch?v=-YBqyYOjCcQ&NR=1
Part 9: http://www.youtube.com/watch?v=kIO0lClllzI&NR=1
Part 10: http://www.youtube.com/watch?v=3nY70XT_Muo&NR=1
Part 11: http://www.youtube.com/watch?v=-WhtXQo5EC4&feature=related
Ref.12) Reeling in years 1974-3 http://www.youtube.com/watch?v=O_OFo7Crigs&NR=1&feature=fvwp
Ref.13) The Guilford Four, In the name of the father : http://www.youtube.com/watch?v=RgUWn0gVpq0&feature=related

Investigative journalism- J’Accuse (studying Media law week 7)

De Burgh in his book Investigative Journalism defines Investigative Journalism: as an act leading to “discover the truth and to identify lapses from it in whatever media may be available… distinct from apparently similar work done by police, lawyers, auditors and regulatory bodies in that it is not limited as to target, not legally founded and it is closely connected to publicity”. (Ref.2)

In the chapter about ‘globalising media agendas (The production of journalism)’ De Burgh also mentions that “because investigative journalism upholds people’s right to know about controversial issues and events through media exposure, it is central to debates about the public sphere.” (Ref.4)

In other words investigative journalism is closely related to ‘Gonzo’ journalism and performance journalism. Ordinary ‘news’ journalism is just telling the news which determined by the public agenda whereas investigative journalism is where journalists decide the agenda for themselves. Unlike De Burgh definition this could include subject matter on a lightweight or TV or even entertainment-led agenda. The classic ‘investigations’ however are on heavy subjects like for example Harry Evans and the Insight Team. A lot of the serious IJ these days is financial, fraud and money laundering for example. (Ref.2)

De Burgh also says that the principle of publicity coincides with the principle of investigative journalism, the principle of reason and truth to be more important than a personal profit intentions and therefore it is within for public good to make sure of exposing corruption and domination. (Ref.4) He also rightly notices that the “role of journalism in upholding democratic communication are increasingly taking place in a global concept.” (Ref.4) The features that define the globalisation process through “intensification of global interconnectness and media networks, financial systems, the expansion of transnational corporate activity (...) and so on bring up the question on “the nature of information and news and practices of investigative journalism at an international level”(Ref.4) as one of the arguments given is that transnational media business can lead to the “homogenisation of culture and may erode distinctive national and local cultures across the world through an ‘Americanisation’ of other cultures, particularly poorer and weaker Third World nations.” (Ref.4) However, what we should take into consideration is the fact that many broadcasting organisations in America have the materials that they use more available and convenient (cheaper) if obtainable from their own country or even England than other countries. The broadcasts are made out of specific country and so they will be covered in a particular way representing the culture they are in. I think it is safe to say that America or England have more financial potential to produce/print materials to the world that yes, can be about other countries or events happening elsewhere but it is understandable it will be shown to the world in a specific cultural style that is representing their own country. Whereas broadcasts from the Third World countries for example is probable not as frequent and not as reachable (sometimes restriction wise or financially not as advanced technically for example) to other countries and so majority of people is likely to watch programs from let’s say America than from any other poorer country.


MISCARRIAGE OF JUSTICE

The classic ‘off agenda’ for investigative journalism is miscarriage of justice – where innocent people go to jail and if it is the case that it is the criminal justice system that is corrupt then the last hope is the journalists which brings up the concept of the journalism fulfilling the role of The Fourth Estate. (Ref.2) The Fourth Estate also hits when there is a need for exposing a political manipulation (Watergate, “All the president’s men”- when the legendary power of the press is shown during the famous Watergate case which inspired generation of journalists. , to see more go to post “All the president’s men” Watergate exposed- power of the fourth estate)

The times that have been famously remembered that have exercised the legal system by re-examining miscarriages of justice are shown in a short film called: Reeling in the Years 1974-3, which shows two of the cases that I would like to talk about. The case of The Birmingham Six and the case of The Guilford Four:

(Ref.11)

Who Bombed Birmingham- Parts 1-11 (Ref.10)



Six men were arrested and sentenced to life imprisonment after the bombing in Birmingham in 1970s. IRA seemed to be the instigator but what the IRA insisted was that none of the sentenced six were their members. 21st November 1974 two of the public houses were bombed by the IRA, 21 people were killed and 162 injured, 6 people were convicted and had been in prison since 1974. A Granada film is a reconstruction of examining of their case by three journalists since 1985 giving the story of the Birmingham six.
See article on Miscarriages of Justice –Investigative Journalism (The Birmingham Six and The Guilford four. )

The journalists who were re-examining their case noticed inaccuracies to do with the times of interrogation by the police, methods and possible fault in the DNA testing; they started questioning the course of the investigation that had put the six men into prison. As we can see on the film, the men were brutally beaten and assaulted (the interrogation forced the Six to sign the confessions).They were also looking into the bombing routine. In part 6 Chris Muller, one of the journalists comes to the conclusion that there were four people responsible for the bombing, two makers and two planters and there is also an assumption about the guy in the van to be another. The film ‘Word In Action’ is made and broadcasted as a result of the investigative journalism of the re-examining of the case (possibility of an appeal? New evidence?). Chris finds the man who put the suitcase with the bomb under the table in the pub and shortly his ‘Error of judgment’ book was published. It didn’t get men out of the prison but it made the governing bodies start to question things again (Home office 1986). The police was under the eye of the home secretary. During the questioning by the police Chris kept his sources covered fulfilling his journalistic code of Conduct. Police says to him that they never said that the imprisoned Six were members of IRA. Eventually Chris found the police officer who decided to give the evidence about the mistreating in prison (shotguns). Further material is being broadcasted, possibility of the DNA judgment to be wrong and mistreating (looks of the prisoner’s faces). The case goes to court of Appeal after two programs had been done and book by Chris Muller published, 1987. Once the Appeal started The Birmingham Six got to study the schedule of the timings produced by the police of them being questioned, the case is investigated again (1987).

Part 10 is my favourite part of the film when Chris says to the ‘young bomber’: “They didn’t know where the bombs were, it was you! I challenge you to deny it! “. In the meantime, while being questioned in court, the police officer unfortunately denies all the allegation on violence used on the Birmingham Six and inaccuracies within the schedule of questioning them but the turning point is when the police woman who had previously given a false statement came back to the court and admitted how she had witnessed one of the defendants to had been physically assaulted, she had also heard what was said “This is what we do to the fucking murdering bustards”(Ref.10). Then the forensic scientist who examined the original samples of the defendants’ DNA is called as a witness and his statement implies that his judgment then could have been faulty but neither that or any other allegations put forward in the court of Appeal convinced the judge and in the last part of the film the appeal fails. Chris does not give in; he keeps exercising the justice system. It took until the 1991 for the court to admit that they had the wrong men The Birmingham Six spent 16 years in prison before found not guilty and was released.

Other case mentioned in the that has come to the history as miscarriage of Justice is the case of the Guildford four: “In the name of the father final scene” (Ref.12)


The Innocence Project (The Innocence Network UK) http://www.innocenceproject.org/
An idea of supporting wrongly convicted prisoners has started from one of the biggest miscarriages of justice in the British law. After cases like The Birmingham six, in seventies, and the Guildford four the Government created The Criminal Cases Review Commission (CCRC), formally established in 1st January 1997 to review cases with possible grounds to appeal. The Innocence Project steps in when mistakes are being made in the process to appeal, and when the process for rectifying them is flawed. The idea of The Innocence Project stands on side of wrongly imprisoned people giving them their last chance for appeal. (Read more on Innocence Project here).

EXPOSING CORRUPTION (PEOPLE’S TRIBUNES) is certainly another fascinating aspect of investigative journalism. The work and story of Veronica Guerin brilliantly shows the risks that come with this dangerous subject. See the post on: Journalists resources and my Irish inspiration – Veronica Guerin here
which also explores aspects of protection of sources which is one of the most difficult aspects to cover by being a journalists.

The NUJ's Code of Conduct has set out the main principles of British and Irish journalism since 1936. It is part of the rules and all journalists joining the union must sign that they will strive to adhere to it. As the European Court reached conclusion over the Goodwin v United kingdom case from 1996, it said that “protection of journalistic sources was one of the basic conditions for press freedom, as was reflected in the laws and professional codes of conduct in a number of contracting states and was affirmed in several international instruments on journalistic freedoms.” (Ref.1)

Another great example of a journalist who was not afraid of sacrifices to curry out journalistic duty of keeping the source of his information safe is Bill Goodwin, I talk about Bill’s case in detail in a separate post: Max Mosley, Catherine Zeta Jones and other cases - celebrities and privacy here. 

Police Act 1997, Regulation of Investigatory Powers (RIP) Act 2000, the Terrorism Act 2000 and the Anti-terrorism, Crime and Security Act 2001 and Serious Organised Crime and Police Act 2005... they all have now created more opportunities for lawful chance to ace the confidential information from citizens (including journalists). (Ref.1) And the European Court of Human Rights has stated that “an order to disclose the source of information cannot be compatible with the Article 10 of the Convention (freedom of expression) unless it is justified by overriding requirements in the public interest.” (Ref.1)

Protection of confidential sources of information is perhaps the key professional duty of the journalist. Refusal by journalists to reveal sources of confidential information can lead to prosecution for contempt of court if the journalist defies a court order to reveal those sources. (Ref.2)

“More recently the Attorney General threatened the deputy news editor of the Manchester Evening News, Steve Panter, with prosecution after he had refused to reveal protected sources who had helped him name suspects behind the 1996 IRA bombing of central Manchester. The case was dropped amid comment that it would have been politically unwise to turn Panter into an ‘instant martyr’”. (Ref.2)

Other aspect to be considered when talking about investigative journalism is the evidence gap - civil and criminal standards of proof. “The Daily Mail’s famous branding of five young men suspected of killing the London teenager Stephen Lawrence as “Murderers” is a highly illustrative example of the way in which journalism can operate in the ‘gap’ between the standards of proof in the civil and criminal law. After the collapse of the trial the Daily Mail printed front page pictures of the five youths beneath the block headline “MURDERERS” and the prominent strapline: “The Mail accuses these men of killing. If we are wrong, let them sue.” http://img.dailymail.co.uk/i/pix/2008/02_04/paperDM2502_468x433.jpg

“Had the accused been facing trial the paper would have been guilty of the serious crime of contempt of court. But since it was now extremely unlikely that the accused would be facing trial in front of a jury in the near future the only legal risk was an action for libel. “ (Ref.2)

OMAGH BOMBING
“The BBC Panorama programme’s investigation into the Omagh bombing is another illustrative example of investigative journalists using persuasive and accurate, but legally inadmissible evidence, gathered by the police. The official investigation was largely based on then innovative methods of electronic tracking of patterns of mobile phone traffic. The evidence was highly persuasive, but open to challenge as circumstantial and co-incidental. ‘The programme’s reporter, John Ware, defended his methods and commented: “Getting people out of jail who have been wrongly convicted has always been recognised as a journalistic pursuit very much in the public interest. “ (Ref.2)

The investigative work has to be of course practiced with absence of malice and keeping the Common Law Qualified Privilege (REYNOLD’S DEFENCE AND COMMON LAW QP). Central to the Reynolds ten-point test is the idea of the public good and “the public interest”, and “how this is to be balanced against the right of the individuals under investigation to maintain their reputation, as well as their HRA right to privacy (36). If it can be shown that there is a high level of public interest in making the allegations, and that they are free from malice, then there is a strong QP right to publish them (and perhaps, indeed, even a duty to publish), even if the allegations turn out to untrue, or are incapable of proof (37).” (Ref.20

"INVESTIGATION OF CELEB PRIVATE LIFE – FAR LESS PROTECTED thus ‘investigative journalism’ which has as its focus purely private concerns such as the state of health or interesting lifestyles of public figures may not enjoy protection even if the methods used to obtain and check information conform to the ten point test and are otherwise of the highest quality .” Read more on examples of celebrities and their privacy cases:  ‘Max Mosley, Catherine Zeta Jones and other cases - CELEBRITIES AND PRIVACY, (CATHERINE ZETA JONES CASE; MAX MOSLEY CASE; PRINCESS CAROLINE OF MONACO; NAOMI AND DAILY MIRROR DRUG REHAB CASE )

The law says that a person who has obtained information in confidence must not take unfair advantage of it and therefore someone who believes his/her confidence is to be breached can get an injunction preventing this. Such injunction will prevent all media from publishing it. The right to privacy is guaranteed by Article 8 of the Convention of Human Rights. Section 12 of the Human Rights Act is intended to provide some protection against injunctions in matters involving freedom of expression but in absence of a cause of action for privacy, courts use breach of confidence actions to prevent ‘the unjustified publication of private information’. (Ref.9)

See the details on Breach of Confidence and secrecy – studying media law week 5 post in here.

SUBTERFUGE, usually, you must ALWAYS clearly identify that you are a reporter and that anything said to you COULD be published. You have no choice but to honour an ‘off record’ undertaking, because of the general obligation in the first place to protect sources and possibility of denial. TAPE RECORDERS and SECRET RECORDING are not allowed in radio/TV without specific prior permission from regulatory bodies or BBC editorial policy. If there’s no consent you can’t use the material at all as evidence, but you can quote it. (Ref.2)

HEAVY INVESTIGATIVE STUFF (electronic surveillance)
Some of the law are more relevant to photographer, journalists using video cameras, and TV crews than the print reporters (PPS Code of practice and Photo-journalism). (Ref.1) in Clause 3: Privacy, states that “everyone is entitled to respect for his or her private and family life, home, health and correspondence, including digital communications. Editors will be expected to justify intrusions into any individual’s private life without consent.”(Ref.1) And that “it is unacceptable to photograph individuals in a private place without their consent.” (Ref.1)

Journalistic infiltration of far right, far left can be perfectly legitimate, so long on matters of public interest, and no entrapment (Infiltration (eg Gunther Wal lraff) of Bild – he’s the German Fake Shiek), The Secret Policeman (BBC)
In Clause 4 of the Privacy Act it is stated that “Journalists must not engage in intimidation, harassment or persistent pursuit. They must not persist in questioning, telephoning, pursuing photographing individuals once asked to desist; not remain on their property when asked to leave and must not follow them. Editors must ensure these principles are observed by those working for them and take care not to use non-compliant material from other sources.” (Ref.1)

Electronic surveillance by private persons (and journalists) was made illegal by the 1997 Criminal Law Act, and the prohibition was strengthened by the Regulation of Investigatory Powers Act (RIPA), 2000. There was concern at the time of the RIPA’s passage that it would constrain certain types of legitimate journalistic investigation. January 2007 saw the first prosecution of an investigate journalist using RIPA - News of the World investigative reporter Clive Goodman was sentenced to four months in jail after being discovered using an electronic ‘bug’ to record telephone calls made by the British royal princes. (Ref.2)

“Photographers, to avoid the arrest, need to know law on aggravated trespass, and the general powers police have to arrest those ‘obstructing’ them or the highway.”(Ref.1) Moreover, the law of trespasses forbids an unlawful entry to a land or property and if failed to do so the result can be “an injunction to prevent further trespasses, or damages.”(Ref.1)

Police have also “issued guidelines to their officers about the need to help the media, and about controversial ‘stop and search’ powers in section 44 of the Terrorism Act 2000.” (Ref.1) It should be well known for journalists that publishing of a wrong photograph or juxtaposing it results in action for libel and so the editors have to be careful when “deciding whether to use ‘user-generated content’ (...)” (Ref.1) which is essentially the materials (pictures/footage) that is supplied by the members of the public because their “publication may breach someone’s privacy or copyright” (Ref.1) or even defame a someone.

Laws are clearly against terrorism and even the UK citizens now are legally obliged to communicate with the police about any information about actual terrorist activity anywhere in the world. Terrorism in UK is defined as “the use or threat of action where the threat is designed to influence the government, or an international government organisation, or to intimidate the public or a section of the public, and the use or threat is made for the purpose of advancing a political, religious, racial or ideological cause. (Ref.13)

(Read more on terrorism and Counter Terrorism in the post: Terrorism and the effect of counter-terrorism law- studying McNae’s).


References:
Ref.1) McNae’s essential law for journalists (Twentieth Edition) Banks, D. Hanna, M. (2009)
Ref.2) Notes from the Media Law section on Winchester Journalism site for third year ba students (updates, year 3, BA Journalism 2010) week 7 http://journalism.winchester.ac.uk/?page=102
Ref.3) Media Law Lecture ba Journalism, year 3, week 7
Ref.4) Investigative Journalism, Context and Practice (2nd Edition) Hugo de Burgh (edited) Routledge, chapter 6
Ref.5) Emile Zola and J’Accuse – Dreyfus http://www.lawsch.uga.edu/academics/profiles/dwilkes_more/his9_jaccuse.html
Ref.6) My blog on Breach of Confidence and Secrecy (to Privacy) http://veronicafryd.blogspot.com/2010/11/breach-of-confidence-and-secrecy.html
Ref.7) My blog on terrorism and effects of counter terrorism: http://veronicafryd.blogspot.com/2010/12/terrorism-and-effect-of-counter_02.html
Ref.8) My blog on protecting the sources ( and my Irish inspiration: Veronica Guerin): http://veronicafryd.blogspot.com/2010/11/journalists-sources-and-my-irish.html
Ref.9) My blog on recent cases on Privacy: Max Mosley, Catherine Zeta Jones and other cases - celebrities and privacy http://veronicafryd.blogspot.com/2010/11/max-mosley-catherine-zeta-jones-and.html
Ref.10) Who bombed Birmingham?
Part1: http://www.youtube.com/watch?v=tbTqTbmMgkQ
Part2: http://www.youtube.com/watch?v=NNCGyaS3oPk&feature=related
Part 3: http://www.youtube.com/watch?v=vpPW2LjkYnE&feature=related
Part 4: http://www.youtube.com/watch?v=vXMUuyEgbb8&NR=1
Part 6 (which is the following part after part 4 on youtube): http://www.youtube.com/watch?v=XstdO1PY5gQ&feature=related
Part 7: http://www.youtube.com/watch?v=gu9isCmV-rs&NR=1
Part 8: http://www.youtube.com/watch?v=-YBqyYOjCcQ&NR=1
Part 9: http://www.youtube.com/watch?v=kIO0lClllzI&NR=1
Part 10: http://www.youtube.com/watch?v=3nY70XT_Muo&NR=1
Part 11: http://www.youtube.com/watch?v=-WhtXQo5EC4&feature=related
Ref.11) Reeling in years 1974-3 http://www.youtube.com/watch?v=O_OFo7Crigs&NR=1&feature=fvwp
Ref.12) The Guilford Four, In the name of the father : http://www.youtube.com/watch?v=RgUWn0gVpq0&feature=related
Ref.13) Terrorism and the effect of counter-terrorism law- studying McNae’s http://veronicafryd.blogspot.com/2010/12/terrorism-and-effect-of-counter_02.html