Clive Freeman playing polo
Introduction
It seems something of a cruel irony that one of Britain’s longest serving alleged victims of wrongful conviction and imprisonment is called Clive Freeman. Indeed, Mr Freeman has not been a free man for more than 35 years, and counting, as he languishes in prison protesting his innocence for the murder of Alexander Hardie, a man who almost certainly died of natural causes and no crime even occurred.
It is also looking quite likely that Mr Freeman, who is now almost 80 years old with prostate cancer, will die in prison if he is unable to have his conviction referred by the Criminal Cases Review Commission (CCRC), the publicly funded body that reviews alleged miscarriages of justice, back to the Court of Appeal.
The CCRC has so far rejected four applications by Mr Freeman.
This article is written for Empowering the Innocent (ETI) to coincide with the launch of a UK Government and Parliament Petition, which is spearheaded by the case of Clive Freeman.
The Petition Calls for the abolition of the CCRC's 'real possibility' test under s.13 of the Criminal appeal Act 1995 so that all innocent victims of wrongful convictions are able to overturn their convictions when they occur.
We urge readers to sign the Petition if they agree that it is wrong, inhumane and unacceptable that despite the setting up of the CCRC innocent victims in England and Wales remain unable to overturn their wrongful convictions when they occur.
What is the CCRC and how can it fail innocent applicants
The Criminal Cases Review Commission (CCRC) is the last hope for alleged innocent victims of wrongful convictions who fail in their attempts to overturn their convictions within the normal criminal appeals system.
It was established as the main recommendation of the Royal Commission on Criminal Justice (RCCJ), which was announced on the day that the Birmingham Six overturned their wrongful convictions in the Royal Courts of Justice.
It was the cases of the Guildford Four, Birmingham Six and other now notorious miscarriage of justice cases, including those of the Maguire Seven and Judith Ward, that were able to cause a widespread lack of confidence in the workings of the entire criminal justice system in the late 1980s and early 1990s.
The public awareness that the criminal justice system was convicting innocent victims and then failing to provide the necessary mechanisms for them to overturn their wrongful convictions was something that was deemed to be unacceptable and something that needed to be urgently addressed to restore public confidence.
In recommending the setting up of the CCRC, the Royal Commission on Criminal Justice (RCCJ) envisaged a post-appeal body that would act as a public enquiry to try to get to the truth of claims of innocence by alleged victims of wrongful conviction and/or imprisonment.
But, the CCRC is not the panacea to the problem of the wrongful conviction of the innocent that was hoped for, and many believe it is, as it can leave innocent victims languishing in prison unable to overturn their wrongful convictions.
The main problem is s.13 of the Criminal Appeal Act 1995, the governing legislation that established the CCRC and determines its remit. It undermines the CCRC’s claim of independence in its requirement that the CCRC can only refer cases back to the appeal courts if it is felt that the conviction has a ‘real possibility’ of not being upheld.
This statutory requirement impacts on how applications to the CCRC are reviewed, too, as it forces Case Review Managers (CRMs) to consider the criteria of Court of Appeal when deciding whether a case may qualify for referral.
Crucially, Case Review Managers (CRMs) must consider such legislation as s. 23 of the Criminal Appeal Act 1968, which requires that evidence admissible in the Court of Appeal must be ‘fresh’, understood generally as evidence or argument that was not or could not have been available at the time of the original trial.
As a result, CCRC reviews are for the most part mere desktop assessments of applications to determine whether cases might contain ‘fresh’ evidence that was not or could not be available at the time of the original trial that is deemed to have a decent chance of overturning the conviction.
In consequence, the way that the CCRC is structured by s.13 of the 1995 Criminal Appeal Act means that it will reject the applications of alleged innocent victims of miscarriages of justice who are or may be innocent if it is not felt that they have the necessary ‘fresh’ evidence to satisfy the ‘real possibility’ test.
It is for this reason that Empowering the Innocent (ETI) is calling for the reform of s.13 of the Criminal Appeal Act and the abolition of the so called 'real possibility' test. The CCRC must be truly independent and conduct investigations into alleged wrongful convictions in the interests of truth and justice.
The fresh evidence in support of Mr Freeman's claim of innocence
There were two interrelated planks of the prosecution case against Mr Freeman:
1. The main claim that Mr Freeman murdered Mr Hardie was provided by the forensic pathologist at trial, Dr Richard Shepherd, who opined that Mr Hardie was murdered, rather than died of natural causes.
2. Building on the opinion by Dr Shepherd, the prosecution claimed that there was supporting circumstantial evidence that Mr Freeman had a motive for murdering Mr Hardie as part of a life insurance policy fraud.
In this section, I will restrict the discussion to Mr Freeman's 4th and latest application to the CCRC in February 2021, firstly outlining Dr Shepherd's opinion.
Dr Shepherd's opinion
Mr Hardie died on the 16 April. On the same day, Dr Shepherd carried out his first post-mortem on his body concluding that the cause of death was by natural causes due to drug and alcohol induced acute pancreatitis.
There followed two further post-mortems, the last one was on the 25 April (9 days after Mr Hardie died). It was after this final post-mortem that Dr Shepherd reported that he had changed his opinion and claimed that the cause of death was traumatic asphyxiation.
The following extract is taken from Dr Richard Shepherd's report dated the 8th June 1988:
"11. In my opinion Alexander Calder HARDIE (sic) has no significant natural disease that could have caused his death at that time. 12. The pattern of injuries is entirely consistent with compression of the chest by a heavy object whilst lying on the ground. Asphyxia."
Burking
According to Dr Shepherd, Mr Freeman murdered Mr Hardie in a very specific way using a technique referred to as ‘Burking’, in this case, by applying pressure to the victim's chest with the knees and causing asphyxiation. The prosecution argued that Mr Freeman's military background as a soldier in the Rhodesian army meant that he had knowledge of burking and was trained in the method.
In the 4th application to the CCRC, however, fresh evidence was provided in the form of a number of statements from individuals who had served in the Rhodesian Grey Scouts with Mr Freeman which debunked the claim that Mr Freeman was trained in Burking when he was in the army.
"All statements confirm that the Grey Scout’ only received basic military training, and no one was trained in burking. Indeed, none of the individuals had heard of burking" (4th application to the CCRC, page 11).
Dr Shepherd stepping outside of his area of expertise
The 4th application to the CCRC also questioned Dr Shepherd's expertise in Rhodesian army training, which was argued should have been challenged by the judge as it was outside of his field of expertise:
Dr Shepherd was not an expert in military training and the methods of killing employed in the military. This evidence should have been challenged by the judge or at the least by defence counsel. Failure to have done so would have undoubtedly led to confusion in the minds of the jury (4th application to the CCRC, page 10).
No post-mortem photographs to support Dr Shepherd's change of opinion
The reason for Dr Shepherd's change of opinion from death by natural causes to murder is something that neither Mr Freeman nor his legal team has seen support for.
Dr Shepherd claimed that on the third post-mortem he saw some bruising on Mr Hardie's back that made him think that he must have been murdered rather than died of natural causes.
However, despite the fact that photographs are a routine feature of post-mortems, and there have been a number of requests from Mr Freeman's lawyers to see the photos from the third post-mortem, they have not been forthcoming.
Suspicious memo
A suspicious memo (in the photograph below) has also been found in the unused evidence that raises the possibility that Dr Shepherd's change of opinion, that is yet to be supported with photographic or other evidence, may have been influenced by the police.
The memo was sent to Dr Shepherd on official notepaper from the Metropolitan Police, Southwark. It is dated a week before Dr Shepherd wrote his final report (8th June 1988) and 6 weeks after his third post-mortem of Mr Hardie (25 April 1988). It was found by Terry Wilcock, one of Mr Freeman's friends and supporters, and raises the possibility that Dr Shepherd's change of opinion on Mr Hardie's cause of death from natural causes to murder may have been influenced by the extract referred to by the police. It reads:
Dear Dickie,
Herewith the extract I promised.
Yours sincerely,
Janet
The discovery of the memo raises a number of pertinent questions:
What was the 'extract' that was sent to Dr Shepherd by Janet?
Why would someone from the Metropolitan Police send an extract to a forensic pathologist when he was writing up his final report?
Did the extract play any part in changing Dr Shepherd's opinion from death by natural causes to death by murder? and,
Why was Dr Shepherd referred to as "Dickie" in the memo? I heard an interview on Talk TV with Dr Shepherd recently where he was referred to as "Richard". Calling him "Dickie" seems overly familiar, raising further concerns about the possibility that Dr Shepherd's opinion may have been influenced by the police/Janet.
Terry Wilcock who found the memo was unequivocal about his thoughts on it. For him, it "smells of collusion between the police and Dr Shepherd". He wonders why the memo was found in the unused evidence but there was no accompanying extract that was mentioned in the memo.
Mr Freeman believes that ‘Janet’ was Janet Carter who was head of the investigation into Mr Hardie’s death. He thinks that she was a Chief Inspector and that she was promoted to Superintendent after his conviction. Hopefully, the CCRC will be able to clarify this matter, too, when we send them the article.
[Note: The memo is not something that has featured in any of Mr Freeman's applications to the CCRC. This article will be sent to the CCRC on behalf of Mr Freeman with a request that it investigates the matter.]
Jury not told of Dr Shepherd's original opinion
Mr Freeman's 4th application to the CCRC submits that it is brushing aside the fact that there was a failure to disclose to the defence the notes of the first and second post mortems.
Non disclosure is a perennial feature of miscarriage of justice cases. In Clive Freeman's case, justice demands that the jury should have been made aware that the conclusion of the first and second post mortems conducted by Dr Richard Shepherd were that Mr Hardie died of natural causes and that it was only after his third post mortem that he changed his opinion to murder as the cause of death.
Dr Kolar
Further fresh evidence was submitted to the CCRC in Mr Freeman's 4th application by Dr Kolar. It concurs with the previous seven forensic experts who challenged the alleged method of murder, Burking, in previous applications to the CCRC. It provides additional support that Dr Shepherd's opinion after the third post-mortem was made in error.
Most crucially, for Dr Kolar, Dr Shepherd's opinion on Burking is described as:
"...an unreliable opinion" that "is no longer consistent with current literature" (Dr Kolar, 4th application to the CCRC, page 7-8).
Moreover, Dr Kolar's report concluded that Dr Shepherd did not have sufficient pathology evidence to state a specific cause of death and should have recorded “unascertained” as the correct entry for cause of death on his post-mortem report:
“The cause of death….should be given appropriately as unascertained at autopsy examination” (Dr Kolar, 4th application to the CCRC, page 9).
Professor Kroll
If this isn't enough to indicate that Mr Freeman is a prima facie victim of a wrongful conviction who should have his conviction referred back to the Court of Appeal, yet further additional fresh evidence was sent to the CCRC in a letter dated 31 October 2020 from Professor Mark Kroll leaves little doubt.
In it, Professor Kroll states categorically that Mr Freeman did not murder Mr Hardie according to fresh evidence that has emerged since Mr Freeman was convicted.
The following is an extract taken directly from Professor Kroll's letter to the CCRC:
"I have reviewed evidence in the above case and wish to opine on the possibility of death from knee-force on the chest. Death from weight to the chest alone requires a force of 2550 newtons causing flail chest. A force of 2550 N is equivalent to a weight of 260 kg with earth gravity. I understand that Mr. Freeman weighed 15 st or 102 kg. We have studied the single knee weight force from police officers weighing over 90 kg and, depending on the application location and alignment, the force is 24.9 – 33.3. kg.2 Hence, the weight required would have been about 10 times that available. With a double knee restraint, the weight would have been about 51.2 ± 11.2 kg which is also insufficient...An adult male has 60% of his weight above the legs and thus the upper body weight of Mr. Freeman was 61 kg. Even if he had been able to put all of that weight on Mr. Hardie’s back — which would have been difficult due to the need to use the arms and hands for stability — it would have been far too little to cause asphyxia. The Coroner's opinion, of chest weight causing asphyxia in this case, is contrary to present scientific knowledge" (my emphasis).
Alleged circumstantial evidence
In terms of motive, the prosecution claimed that Mr Freeman murdered Mr Hardie in his flat, which he then set fire to in an attempt to hide the identity of Mr Hardie, who he hoped would be mistaken for himself so that a £300,000 life insurance policy would be paid out on.
Differences between Mr Hardie and Mr Freeman
There are a number of immediate problems with this prosecution claim as there were significant physical and other differences between the two men.
1. Mr Hardie was 5’ 6” tall and weighed 140 lbs, whilst Mr Freeman is six feet tall and weighed 200 lbs at the time.
2. Mr Hardie had hardly any teeth and had only three fingers on his left hand, whilst Mr Freeman had all of his teeth and fingers.
As such, the idea that Mr Hardie thought that Mr Hardie would be mistaken for him is absurd.
Fingerprints
Also acting against the idea that Mr Freeman hoped that Mr Hardie's body would be mistaken for his was that it was quite straightforward for the police to identify Mr Hardie. He was a convicted burglar, so the police held his fingerprints.
Insurance policy
Much has been made of Mr Freeman renewing an insurance policy eight days before the death of Mr Hardie. I repeat, renewing an existing life insurance policy rather than taking out a new life insurance policy.
This may seem like a minor point, but the prosecution's alleged circumstantial evidence is based entirely on the claim that Mr Freeman's motive to murder Mr Hardie was as part of a life insurance policy fraud relating to a new life insurance policy that he was claimed to have taken out eight days before Mr Hardie's death.
In response to this, Mr Freeman said:
"I promised my wife that I would update my insurance policy whilst I was in the UK. The Rhodesian monetary system at time was worthless. A trillion dollar note couldn't buy a packet of cigarettes."
He went on:
"If it wasn't so tragic, it would be laughable to say that I would take out a new life insurance policy and murder Hardie just eight days later."
Mr Freeman also acknowledges that a drunken telephone conversation with his brother when he heard that Mr Hardie had been found dead in his flat to the effect that his family could make an insurance claim if Mr Hardie was mistaken for himself was just that - an off the cuff joke in poor taste that he made when he was very drunk.
The main point about the insurance policy, though, whatever we may think about Mr Freeman's sense of humour when he was drunk, is that there is no evidence to support the prosecution's claim that he murdered Mr Hardie to fraudulently cash in on a life insurance policy:
No new life insurance policy was taken out; and,
No claim was ever made against Mr Freeman's existing life insurance policy.
Clive Freeman with Shumba (lion)
How the CCRC has failed Mr Freeman
Despite the foregoing, Mr Freeman's 4th application was rejected in September 2021.
In its Statement of Reasons (SoR) explaining why Mr Freeman's application was not being referred back to the Court of Appeal, the CCRC said:
"A re-application has to contain something important which has not been looked at before. Your application to us has been rejected because what you say in your application:
has already been considered by the CCRC; or
has already been considered at trial or appeal; or
does not amount to significant new evidence or argument (CCRC Statement of Reasons, 23 September 2021, page 2).
This response is astonishing in its failure to acknowledge the plethora of undoubtedly fresh evidence that was contained in Mr Freeman's 4th application to the CCRC.
To summarise:
The statements from the former Rhodesian Grey Scouts who testified that they were not trained in Burking and that none of them had ever heard of Burking was fresh evidence that countered Dr Shepherd's claim that Mr Freeman would have known about, and been trained in, Burking when he was in the Rhodesian army. This evidence was not considered at trial, appeal nor in previous CCRC applications and represents new evidence and argument.
The statements from the Grey Scouts also provide fresh evidence and argument of Dr Shepherd giving opinion evidence outside of his area of expertise, which the trial judge should have cautioned the jury about.
The report from Dr Kolar is entirely fresh evidence that was not available at the time of Mr Freeman's original trial, was not heard in a previous appeal and has not featured in previous applications to the CCRC. It states it categorical terms that Dr Shepherd's opinion as to cause of death is wrong; that he did not have sufficient pathological evidence to be able to state a cause of death one way or the other; and, that Dr Shepherd should have recorded 'unascertained' as cause of death. This has significant impacts on the alleged circumstantial evidence against Mr Freeman, too, because if Mr Hardie was not murdered then he could not have had a circumstantial motive to murder him.
The letter to the CCRC by Professor Kroll is also entirely fresh evidence that was not available at his trial, appeal and has not been presented to the CCRC in any previous application. Professor Kroll's conclusion that Dr Shepherd's "opinion, of chest weight causing asphyxia in this case, is contrary to present scientific knowledge" should be enough on it's own for the CCRC to refer Mr Freeman's conviction to the Court of Appeal. It is brand new and fresh evidence that totally demolishes the case against Mr Freeman. Again, if Mr Hardie was not murdered and, instead, died of natural causes, as Dr Kolar and Professor Kroll state in no uncertain terms, then Mr Freeman did not murder him and Mr Freeman had no motive for murder as Mr Hardie was not murdered.
The CCRC's SoR in response to Mr Freeman's 4th application went on to say:
"The position regarding the pathology evidence relating to your conviction has been considered in each of the CCRC's previous reviews...we cannot conclude that the position has changed to an extent such that a real possibility arises that the Court of Appeal would find your conviction to be unsafe. The pathology evidence cannot exclude unlawful killing as a cause of Mr Hardie's death" (CCRC Statement of Reasons, 23 September 2021, page 2 my emphasis).
It is difficult to understand this interpretation by those reviewing Mr Freeman's application. It illustrates a failure to understand the evidence that was the basis for the conviction and how it has now been entirely undermined and wholly discredited.
To further emphasise, both Dr Kolar and Professor Kroll are explicitly saying that the pathology evidence given at Trial by Dr Shepherd was entirely wrong, which by any definition must render Mr Freeman's conviction a miscarriage of justice.
As shown above, Dr Kolar's evidence, that there was not sufficient pathology evidence to determine a cause of death one way or the other, which highlights the error in Dr Shepherd's changing opinion from natural causes to murder. As Dr Kolar said, no definitive cause of death could be stated with any certainty so "unascertained" was the correct and appropriate term to record.
Moreover, Professor Kroll's evidence states in a way that is unambiguously explicit that the prevailing science, that was not available at Mr Freeman's trial, appeal or when previous applications were submitted to the CCRC, is that Mr Hardie could not have been murdered in the way that Dr Shepherd claimed as his "opinion, of chest weight causing asphyxia in this case, is contrary to present scientific knowledge."
Despite this, the Statement of Reasons (SoR) that rejected Mr Freeman's 4th application goes on to say something that suggests that the CCRC was not interested in anything that Mr Freeman submitted to them, fresh or otherwise, and that it had already made up its mind to reject his 4th application no matter how much fresh evidence was submitted.
This is evident in the following extract:
"The CCRC first recognised that conclusion [that the pathology evidence cannot exclude unlawful killing as a cause of Mr Hardie's death] in it's Final Statement of Reasons dated 20 November 2002, issued to you at the conclusion of its first review. At paragraph 6.15 it was stated: The Commission has considered the medical reports and the evidence given by Professor Mant and Dr Shepherd at trial and had decided against instructing a further expert. None of the experts can exclude unlawful killing but can only express themselves in terms of probability having regard to the interpretation of the pathological evidence" CCRC Statement of Reasons, 23 September 2021, page 2 my emphasis).
Where the CCRC say "issued to you at the conclusion of its first review" can be read as more than an inference that the CCRC is saying that nothing in the subsequent three applications have contained anything of interest and that Mr Freeman should get the message and desist from making further applications.
In rejecting Mr Freeman's 4th application, however, the CCRC needed to show that it had engaged with it and say why the specific fresh evidence that it submitted was rejected. Instead, Mr Freeman received a regurgitated cut and paste response from a previously rejected application from 20 years ago that took no account whatsoever of the fresh evidence submitted to the CCRC in his 4th application, or his 2nd and 3rd applications either.
Indeed, other than saying that the evidence of Professor Kroll was "considered" and that it "did not amount to new evidence for the purpose of this application"(CCRC Statement of Reasons, 23 September 2021, page 2), the CCRC did not explain why it didn't.
Moreover, the CCRC revealed, clearly, it's lack of independence from the Court of Appeal and deference to the trial process and Dr Shepherd as the prosecution expert witness by relying on the Court of Appeal judgement that rejected Mr Freeman's appeal in 1992:
"The jury at your trial was aware that Dr Shepherd's opinion was disputed but, as the Court of Appeal pointed out in its judgement of 6 April 1992: What the judge very fairly did was put to the jury that if that evidence had stood alone, they might well not feel satisfied and what they had to consider was that evidence in the context of all of the other considerations that we have referred to here" (CCRC Statement of Reasons, 23 September 2021, pages 2-3 my emphasis).
Here, the CCRC not only fails to see that this is an explicit acknowledgement that if Dr Shepherd's opinion is shown to be erroneous, which it has been, that Mr Freeman would have no case to answer.
This highlights how both the Court of Appeal got it wrong in 1992 and how the CCRC has followed that mistake ever since Mr Freeman's first application 20 years ago.
To repeat, there can be no circumstantial evidence to support the continued conviction and incarceration of Mr Freeman if Mr Hardie was not murdered as Mr Freeman would have no circumstantial motive to murder him.
Finally, the CCRC's SoR rejecting Mr Freeman's 4th application, which amounted to a mere four pages, includes a further paragraph that is worth quoting to shed still further light on how the CCRC totally failed Mr Freeman. It failed Mr Hardie and any surviving family, too, if one considers that it is unlikely that anyone would want an innocent person to be convicted for an alleged crime that did not occur.
Again relying on it's SoR in rejection of Mr Freeman's first application to the CCRC in 2002, the CCRC states that it:
"...considers it inescapable on the specific facts of this case that if the Court of Appeal considered that the independent body of evidence was sufficient to convict Mr Freeman, irrespective of the question whether or not the jury accepted Dr Shepherd's conclusions, then in the absence of anything new affecting that independent body of evidence, further evidence affecting the force of Dr Shepherd's conclusions cannot give rise to a real possibility that the Court of Appeal would not uphold the conviction" (CCRC Statement of Reasons, 23 September 2021, page 2 my emphasis).
What independent body of evidence is the CCRC referring to here that it claims would be sufficient to convict Mr Freeman of murder whether or not Dr Shepherd's opinion were accepted or not by the jury? Such evidence independent of Dr Shepherd's opinion that Mr Hardie was murdered does not and cannot exist.
Again, this betrays the CCRC's slavish deference to convictions given at trial and rejected by the Court of Appeal, failing to appreciate, either intentional or through ignorance and incompetence, that the entire case against Mr Freeman rests on whether Mr Hardie was murdered. If he wasn't, which now nine eminent global experts agree on, then the other so called "independent body of evidence", which is best seen for what it is - alleged circumstantial evidence - has no bearing on the charge and conviction that Mr Freeman murdered Mr Hardie.
Conclusion
Clive Freeman's alleged wrongful conviction and imprisonment is a case that epitomises how the CCRC can, and does, fail innocent applicants and why it is in need of urgent reform.
It is not a complex case. It hinges entirely on Dr Shepherd's change of opinion from death by natural causes to death by murder. Yet, the CCRC fail to see that if Dr Shepherd had not changed his opinion Mr Freeman could neither be charged nor convicted for his murder.
The alleged circumstantial evidence that the CCRC cling onto to protect the conviction is a red herring for the same reason: There can be no circumstantial evidence for the murder of Mr Hardie if he wasn't murdered.
As such, if Dr Shepherd's opinion evidence is undermined or shown to be entirely inappropriate or wrong, as it has been in Mr Freeman's 4th application to the CCRC according to the prevailing science, then Mr Freeman's conviction is wrongful in both law and logic.
Despite this, the CCRC effectively gaslight Mr Freeman, his legal team and supporters, by denying the reality of the existence of the fresh evidence that has been submitted in his 4th application and, instead, reject the application by reciting chunks of irrelevant text from the Statement of Reasons that rejected his first application 20 years ago.
The history of criminal justice system reform shows a link between miscarriage of justice that demonstrate new failings and reforms aimed at preventing such miscarriages of justice from occurring again or providing new ways for them to be overturned when they do occur: The Court of Appeal was established in 1907 in response to public pressure around the case of Adolf Beck; the Police and Criminal Evidence Act (PACE), which formalised the guidelines on how the police should treat suspects, was introduced in response to the miscarriages of justice relating to the Confait Affair; and, the CCRC was set up in response to the public crisis in the workings of the entire criminal justice system that was caused by the cases of the Guildford Four, Birmingham Six, Maguire Seven, and so on
In the same way, it is hoped that the case of Clive Freeman is able to create a public crisis of confidence that can:
Highlight just how far the CCRC is from what the Royal Commission that recommended its creation thought it was supposed to be, i.e. a body to investigate alleged miscarriages of justice and assist those individuals where the evidence that lead to the conviction is shown to be unreliable and/or wrong; and,
Strengthen the call for the CCRC to be reformed so that the mechanisms exist to allow all innocent victims of wrongful convictions to overturn their convictions when they occur.
The reforms that Empowering the Innocent (ETI) is calling for are:
The urgent repeal of the ‘real possibility test’. This would uncouple the CCRC from the Court of Appeal so that it is free to conduct truly independent and impartial investigations into claims of factual innocence by alleged victims of wrongful convictions in the interests of truth and justice.
In these investigations, any evidence not presented to the jury at trial is to be considered as fresh or new, as it should be as it has not been heard by a jury, and if it undermines the reliability of the evidence that led to the conviction or validates a claim of innocence then the conviction must be quashed by the CCRC.
This requires the CCRC to also have its own authority to overturn wrongful convictions and not have to send cases that it finds are wrongful convictions backwards to the Court of Appeal which previously refused to overturn the alleged wrongful conviction. This authority is also something that the Royal Commission on Criminal Justice (RCCJ) envisaged the CCRC to have.
But, it is not only Clive Freeman who is being failed by the CCRC’s ‘real possibility’ test. There is a growing number of other alleged innocent victims of wrongful conviction with plausible claims of innocence who have also been rejected by the CCRC.
This includes the case of Robin Garbutt (see here, here, here, here and here), Jeremy Bamber (see here, here, here and here), Ray Gilbert, Mark Osborne, Walid Habib, Ben Geen, Sean Bw Parker, John Bartlett (see here and here) and others, all of whom have articles about their cases on the CCRC Watch website.
These cases also attest to the CCRC failing to investigate claims of innocence by alleged victims of wrongful convictions due to the restrictive nature of the so called 'real possibility' test under a blanket rejection of the evidence in their applications on the grounds that it 'was or could have been dealt with in your trial.'
In this call for the CCRC to be reformed, Empowering the Innocent builds on the Innocence Network UK (INUK) dossier of 44 cases, all of which were rejected at least once by the CCRC despite continuing doubts about the evidence that led to their convictions.
It is the growing list of cases that have been rejected by the CCRC despite plausible claims of innocence that illustrates that it is not the kind of post-appeal body recommended by the Royal Commission on Criminal Justice (RCCJ) to assist innocent victims of wrongful convictions to overturn their convictions that the normal criminal appeals system could not do, as discussed above. Nor is the CCRC the kind of body that conducts 'comprehensive investigations' of alleged miscarriages of justice in their 'totality' that was promised.
Overall, the CCRC has rejected an average of 97% of the 29,569 applications it has received from alleged victims of miscarriages of justice since it was set up. For four years in a row it rejected 99% of applications. Are we really to accept that the criminal justice system is near-perfect and that 99% of around 1,500 applicants per year are wrong or barefaced liars in their claims of miscarriage of justice?
The CCRC was meant to ensure that victims of miscarriages of justice have their cases investigated and referred back to the appeal courts if it is thought that the applicant is or might be innocent, but it is failing in that public mandate.
We urge readers to sign the Petition for the abolition of the 'real possibility' test under s.13 of the Criminal Appeal Act 1995 if they agree that it is wrong, inhumane and unacceptable that despite the setting up of the CCRC innocent victims in England and Wales remain unable to overturn their wrongful convictions when they occur.
By Michael Naughton
Dr Michael Naughton is the Founder and Director of Empowering the Innocent (ETI) and a Reader in Sociology and Law at the University of Bristol. Click here for more about Michael.
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