Introduction
I remember Gerry Conlon once saying to me that he was glad that he was wrongly convicted in England rather than his native Northern Ireland. His reasoning was that it was so common for Catholics to be wrongly convicted in Northern Ireland during the so called 'Troubles' that those who were wrongly convicted were unlikely to even challenge their convictions because they didn't have any confidence or faith in the system to overturn them. By contrast, Gerry continued, British people had such faith in their criminal justice system that when they found out through stories in the mainstream media, newspapers, television, radio, that innocent victims had been wrongful convicted they were so outraged that they bombarded their MPs and demanded that those convictions were overturned.
Gerry was referring to the 1970s and 80s, a time before the Criminal Cases Review Commission (CCRC) and when there were only three TV Channels in the UK: BBC1, BBC2 and ITV. This was a time where the so called Fourth Estate was at its peak; when the print, news and television media had huge readerships and audiences compared with today and had a significant impact on shaping the prevailing views of the general public and influence in terms of holding governmental forms of power to account; a time when forms of governmental power took notice of its mainstream media; when government felt obliged to do something in response to widespread matters of public concern such as innocent victims of wrongful convictions languishing in prison, if only to prevent or resolve the potential widespread public crises of confidence in the workings of the criminal justice system that apparent miscarriages of justice can induce in the population.
Was BBC's Rough Justice too successful at highlighting miscarriages of justice?
Indeed, it was through investigative television programmes such as the BBC's Rough Justice that the public got to know about alleged wrongful convictions; were able to empathise with the wrongly convicted; able to put themselves into their proverbial shoes; and, when they were ashamed when they found out that that their criminal justice system, routinely hailed as the best in the world, was apparently causing such gross injustices. It was programmes like Rough Justice that connected the general public with alleged innocent victims of wrongful convictions, serving to strengthen the campaigns of the cases featured for the governmental agency that dealt with such claims at the time (C3 Division of the Home Office) to investigate to determine whether the claims of innocence were valid and overturn the convictions if they were.
In an article in The Guardian in 2007, Chris Tryhorn reported that over its lifetime Rough Justice featured 32 cases, playing a role in overturning the convictions of 15 people where miscarriages of justice had occurred. Elsewhere, in 2014, Duncan Campbell reported that Rough Justice led to the release of 18 victims of wrongful convictions. Neither Tryhorn nor Campbell say how many individuals featured in the Rough Justice programmes, but on their face the figures suggest a success rate of 47% (Tryhorn) or 56% (Campbell). Of course, these percentages will be reduced if more than a single individual featured in the cases investigated by Rough Justice, which I know at least some the cases investigated did. Equally, though, the percentages may need to be increased if one considers that the cases investigated by Rough Justice may also have involved innocent victims of wrongful conviction and imprisonment that the criminal appeals regime has yet to overturn. Whatever the true percentage of wrongful convictions that were overturned by Rough Justice and other investigative programmes around the same time, such as Trial & Error when Channel 4 was created, for instance, such programmes made a huge impact in terms of informing and educating the British public about the limitations and outright failings of their criminal justice system, which contributed to a widespread crisis of confidence at the time.
Clearly, governmental power needed to do something to stem the tide of wrongful convictions coming to the attention of the British public and to try to halt the increasing erosion of trust and confidence in the criminal justice system that they were causing.
The Royal Commission on Criminal Justice and the setting up of the CCRC
The cases that broke the camel's back and forced governmental intervention turned out to be the wrongful convictions of Gerry and the other members of the so called Guildford Four (Paul Hill, Paddy Armstrong and Carole Richardson) and the Maguire Seven (Gerry's Father, Giuseppe Conlon, and other family relations Anne Maguire, Giuseppe's Sister-in-Law, her husband, Patrick Maguire, their children, Patrick and Vincent Maguire, Anne's brother, Sean Smyth, and family friend Patrick O' Neill).
These cases caused such widespread concern in the press and in Parliament that the British Government appointed Sir John May, a Court of Appeal judge, to investigate the wrongful convictions related to the Guildford Four and Maguire Seven, as well as other miscarriages of justice linked to convictions for Irish Republican Army (IRA) bombings. The May Inquiry rolled into the Royal Commission on Criminal Justice (RCCJ) with a remit to examine the entire criminal justice system from the stage at which the police investigate an alleged criminal offences right through to the stage that a defendant has been convicted of a criminal offence and exhausted their appeal rights. The most extensive review of the criminal justice system for many hundreds of years, the RCCJ was announced on the day that the Birmingham Six (Hugh Callaghan, Patrick Joseph Hill, Gerard Hunter, Richard McIlkenny, William Power and John Walker) overturned their wrongful convictions.
As regular readers of CCRC Watch will know, the main recommendation of the RCCJ was the setting up of the Criminal Cases Review Commission (CCRC) with the reasoning that:
"Public confidence was undermined when the arrangements for criminal justice failed to secure the speedy...acquittal of the innocent" (RCCJ, 1993: 1).
Well, quite!
The CCRC and the disappearance of wrongful convictions from the public domain
But, rather than setting up a body to deal genuinely with the plethora of well documented causes of miscarriages of justice or a truly independent body that could assist all innocent victims of wrongful convictions to overturn their convictions, the CCRC was presented to the public and to Parliament as the panacea to miscarriages of justice when in truth it is a backstop for the criminal appeals system that wards off challenges against wrongful convictions. Rather than representing an authentic watchdog body to correct the wrongful convictions caused by the criminal justice system, then, the CCRC is better seen as a lapdog body that dances to the tune of its Master, the Court of Appeal.
This is evident in the so called 'real possibility test' contained in s.13 of the Criminal Appeal Act 1995, something that I, personally, have been highlighting for over two decades and was the reason for setting up Innocence Network UK (INUK) and the innocence projects that it spawned in universities around the UK. The major problem with the 'real possibility test' from the perspective of trying to assist innocent victims to overturn their wrongful convictions is that it dictates that the CCRC can only refer convictions back to the Court of Appeal if it feels that there is a real possibility that it will be overturned. This shackles the CCRC to the Court of Appeal in a way that was neither intended nor envisioned by the RCCJ. It forces the CCRC to consider the Court of Appeal's criteria for 'fresh' evidence that wasn't available at the time of the original trial when making decisions about whether or not to refer alleged wrongful convictions. Clearly, this also undermines the independence that the RCCJ said was essential when it recommended the setting up of the CCRC.
Another detrimental consequence from the perspective of innocent applicants hoping that the CCRC will assist them in their quests for justice is that CCRC reviews are for the most part mere desktop considerations of whether so called fresh evidence may exist that was not or could not be available at the time of the original trial or previous failed appeal. Crucially, such an approach overlooks and positively excludes lines of inquiry that may prove an applicant innocent if it is not felt that such investigations would discover material that would meet the ‘real possibility’ criteria.
It is for these reasons that I have argued elsewhere that the assistance that the CCRC provides to innocent applicants is merely incidental, inconsistent and certainly very rare, occurring only on those occasions when the ‘real possibility’ test is satisfied by chance or good fortune. To be sure, the CCRC rejects applications from innocent victims of wrongful convictions when they have been failed by their lawyers, when forensic scientists make mistakes or juries get it wrong and they are deemed not to have the so called 'fresh' evidence required for their convictions to be referred. A recent example of this point is the case of Andy Malkinson who was rejected twice by the CCRC before his legal team proved with DNA testing that he was factually innocent of the alleged rape that he was wrongly convicted of and for which he spent 17 years in prison maintaining his innocence.
The statistic for successful appeals claimed by the CCRC when compared with Rough Justice is unsurprisingly low, standing at an average of 1.8% per annum for applications received between April 1997 and December 2023, 31,176, and successful appeals over the same period, 569. Yet, if this statistic is restricted to conviction appeals, rather than a combined figure for conviction and sentence appeals, and also excludes sentence and conviction appeals against convictions and/or sentences given in magistrates' courts the percentage will decrease still further, and significantly so.
It is in light of such statistics that I have argued previously that if the evidence doesn't fit the theory then we need to change the theory and that the evidence is now clear that the CCRC is better seen, not as a body to assist innocent victims to overturn their wrongful convictions but, rather, as a body to prevent miscarriages of justice from coming to public attention to protect the criminal justice system from the kind of crises that miscarriages of justice can cause.
How the CCRC disconnected innocent victims of wrongful convictions from the mainstream media and their MPs
In consequence of the setting up of the CCRC three major changes occurred which have disconnected innocent victims of wrongful convictions from the mainstream media, therefore the general public, the existing forms of casework support available to alleged innocent victims of miscarriages of justice and their MPs, effectively abandoning them to the vagaries of the CCRC.
Firstly, alleged miscarriages of justice cases became less newsworthy with the setting up of the CCRC and investigative programmes like Rough Justice and Trial & Error were deemed to be no longer necessary and cancelled. It was widely believed, wrongly, that the CCRC would conduct the investigations that programmes like Rough Justice and Trial & Error once did to get to the truth of whether the claim of wrongful conviction was valid or not.
Secondly, on the same flawed reasoning, human rights and civil liberties organisations such as JUSTICE and Liberty, also immediately ceased their casework on alleged miscarriages of justice when the CCRC was set up, which closed the door on a vital source of casework assistance to innocent victims of wrongful convictions and their families. On this point, a source at JUSTICE told me some years ago that they were glad to be rid of alleged miscarriages of justice casework when the CCRC was established and couldn't hand over its cases to the CCRC fast enough. They said that investigating alleged miscarriages of justice was too costly and time consuming and it was not something that JUSTICE was originally set up to do in the first place. Rather, the decision was taken independently by Tom Sargant, JUSTICE's first secretary, when JUSTICE was created in response to being inundated with requests for help from alleged victims of miscarriages of justice. The source told me that JUSTICE were proud that that they led the campaign for the setting up of the CCRC and that they provided the blueprint for it to the RCCJ. I was told that I should stop criticising the CCRC and that JUSTICE would never say anything wrong about the CCRC as they regarded it as their baby. (The worst kind of 'parents' if you ask me, which can create spoilt 'children' who think that they can act in whatever way they want to with total impunity - wait, that does sound rather familiar!).
Thirdly, the establishment of the CCRC saw alleged innocent victims of wrongful convictions became disconnected from their MPs, too, also on the mistaken belief that the CCRC would investigate alleged wrongful convictions to get to the truth so innocent applicants no longer needed support from their MPs in their efforts to obtain justice. On this point, I have literally heard from scores of alleged innocent victims over the years that their MP has told them that they cannot help them and that they must apply to the CCRC. When they write back to the MP to inform them that the CCRC does not work the way that they seem to think it does, sometimes with articles that I have written on how the CCRC can fail innocent applicants enclosed, the MPs either issue the same template letter that they sent previously or don't reply at all.
Mr Bates vs the Post Office
This brings me on to a the recent ITV drama series Mr Bates vs The Post Office, which has literally gripped the nation in a way that has never before been seen in the CCRC-era, forcing the issue of false allegations and wrongful convictions to the centre of the public consciousness and conversation. Indeed, since the drama series was first aired in January, there has hardly been a day when the case hasn't featured in the mainstream media or been discussed in Parliament.
Known as the Post Office Scandal, it transpired that faulty accounting software provided by Fujitsu, known as Horizon, created false shortfalls in the accounts of thousands of post offices around the country. It is estimated that more than 900 sub-postmasters and sub-postmistresses were wrongly convicted between 1999 and 2015, with about 700 of the prosecutions carried out by Post Office Limited. In addition, other sub-postmasters and sub-postmistresses were prosecuted but not convicted, forced to cover Horizon deficits with their own money, or had their contracts terminated.
The victims suffered loss of liberty through wrongful imprisonment, business closures and bankruptcies, loss of jobs and livelihoods, huge debts and divorces. At least four of those affected are known to have committed suicide and recent research on 101 of the victims found that 67% experienced PTSD (Post Traumatic Stress Disorder) and that 60% exhibited depressive symptoms.
What about Robin Garbutt?
But, what about Robin Garbutt who may turn out to be the greatest victim of the Post Office Scandal, certainly in terms of the nature of the crime that he was convicted for, murder, and the time spent in prison? Indeed, Robin Garbutt, convicted of the murder of his wife, Diana Garbutt, has so far languished in prison maintaining his innocence for almost 14 years. Yet, the recent press coverage in almost all of the mainstream newspapers of Robin Garbutt's alleged wrongful conviction also suggests a revival of the Fourth Estate as it relates to alleged miscarriages of justice and that confidence in the CCRC may be finally starting to wane, too.
In what looked like a coordinated action, the press coverage was extensive, the like of which has also not before been seen on a a single alleged wrongful conviction case since the CCRC was established. Over the 12th to the 20th January, his alleged wrongful conviction featured in The Telegraph (12th January), twice in the Mail Online (12th January and 16th January), The Express (13th January), The Guardian (13th January), The Sun (13th January) and The Metro (13th January). When combined, millions of British citizens will likely have read the articles, each of which questioned the justness of Robin Garbutt's conviction, noting also that he has so far had three applications rejected by the CCRC.
No doubt spurred on by the impact of Mr Bates vs The Post Office, a key pillar of the prosecution case against Robin Garbutt also hinged on the now discredited Horizon system. It was Post Office investigators citing Horizon data that provided evidence in support of the prosecution's claim that the motive for Robin Garbutt to murder Diana was to prevent her from finding out that he was stealing money from the post office that they ran together, where Diana was the post office sub-post mistress. Yet, like many of the victims in the cases accepted as part of the Post Office Scandal, Robin and Diana Garbutt had complained about accounting errors caused by the Horizon system on several occasions to the Post Office, which is also an issue that has featured prominently in all three of his failed applications to the CCRC.
The second pillar of the prosecution case against Robin Garbutt is equally problematic and just as unreliable. It relates to the time of death (TOD) evidence provided by Dr Jennifer Miller that supported the prosecution's further claim that Diana was murdered at a time that undermined Mr Garbutt's account of his movements on the day and claim that his wife was murdered by armed robbers. A forensic dismantling of Dr Miller's evidence is provided by Bill Robertson in an article on CCRC Watch (click here for the article). Of direct relevance here, it transpires that Dr Miller also gave TOD evidence for the prosecution in the conviction of Vincent Tabak for the murder of Joanna Yeates where she gave an altogether different time of death despite Diana Garbutt and Joanna Yeates being similar in size and having almost identical stomach contents.
There are further anomalies with the conviction of Robin Garbutt that further that he is a prima facie victim of wrongful conviction and imprisonment. This includes a clump of blond hair pictured in crime scene photographs on the pillow of the bed where Diana was murdered that the police say that they lost - Diana had dark brown hair while Robin's hair was grey. Further, there was no DNA matching Robin Garbutt to the murder of his wife, yet DNA on the iron bar that was used to murder Diana Garbutt matches a police officer who was not on duty of the day of the murder and didn't attend the murder scene.
Conclusion
By way of conclusion, it is important to note that two letters were sent to the current Prime Minister, Rishi Sunak, by Jane Metcalfe, who leads the campaign for justice for Robin Garbutt, when he was the MP for the constituency that Robin and Diana Garbutt resided, one in 2018 and another in 2019. In reply to the first letter Mr Sunak trotted out the usual reply from MPs in reply to requests for assistance with alleged wrongful convictions since the setting up of the CCRC:
'Unfortunately, due to the separation of powers between politicians and the legal system, I am unable to intervene or influence the legal process.'
In reply to the second letter, Mr Sunak wrote:
'Due to the separation of powers between politicians and the legal system, MPs are not able to intervene in such cases.'
More recently, however, Mr Sunak described the Post Office Scandal as 'one of the greatest miscarriages of justice in our nation’s history', moreover that the government plans new emergency legislation to exonerate all sub-postmasters.
This contradicts what Mr Sunak said in the reply to Jane Metcalfe's letters about how he, and MPs generally, couldn't intervene in legal matters for reasons of separation of powers between politicians and the legal system. It highlights that politicians could become involved with the alleged wrongful convictions of their constituents despite the setting up of the CCRC, it was just that they didn't want to. And, it shows how public awareness of gross injustices obtained from the mainstream media can pressure politicians, our so called public representatives, to intervene to remedy miscarriages of justice when they occur, which also emphasises the need for the mainstream media to revive its interest in alleged wrongful convictions.
Yet, a major problem remains for Robin Garbutt in his quest for justice as the criteria that will determine which cases will benefit from the government's planned response to the Horizon Affair have been crafted in a way that exclude convictions for murder. In full, the proposed criteria for cases that will be covered are:
convictions from the Post Office and CPS
"relevant offences", such as theft and false accounting
sub-postmasters and their employees or family members
cases where the offence took place during the time that the Horizon system (and its pilots) was in operation
cases where the convicted person was working in a Post Office that was using the Horizon system software (including relevant pilot schemes)
cases in England and Wales
So, where does this leave Mr Garbutt, who satisfies all of the foregoing criteria except the "relevant offences" clause?
Is there a way for his case to be included in such plans, which will bypass the machinations of the CCRC and, if he is, what is the process for that to happen?
Should he and his supporters petition Post Office Minister Kevin Hollinrake who said when announcing the government's plans to absolve all of the victims of the Post Office Scandal, including those who pleaded guilty and those 'who were, in fact, guilty of a crime', on which he said: '[t]he government accepts that this is a price worth paying in order to ensure that many innocent people are exonerated' ?
Or, should Mr Garbutt and his legal team submit a 4th application to the CCRC in the hope that it, too, will finally recognise that his conviction hinged on flawed Horizon evidence from so called Post Office 'experts' and that the Mr Bates vs The Post Office effect will propel his case to the Court of Appeal?
Only time will tell, of course, but one thing is certain. So long as Robin Garbutt remains convicted for the murder of his wife, Diana, the real perpetrator, if Robin Garbutt is, indeed, innocent, remains at wrongful liberty with the potential to commit further serious offences and for whom justice is long overdue. This should trouble us all, as such matters once did in Britain, and prompt a widespread demand that his conviction is properly investigated to determine if his claim of innocence is valid and, if it is, that justice be done and Mr Garbutt be released with immediate effect.
By Michael Naughton
Dr Michael Naughton is the Founder and Director of Empowering the Innocent (ETI). He
holds a Readership in Sociology and Law at the University of Bristol. Click here for more about Michael.
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