When I was a pre-teen my family moved round. A lot. A consequence of this was that I attended well on the way to a double-digit number of primary schools. In the summer before moving up to senior school, (as it was called then,) I was musing with my father over the fact that I had very few friends and none whom I had known for more than a few months. Ever present with sage advice, my father pointed out a few salient facts to me. Firstly, he told me that a person who can reach middle or old age able to count their friends on ‘more than the fingers of one thumb’ is a fortunate person indeed. Secondly, he told me that most people think that they have lots of friends when in fact they have lots of acquaintances. Thirdly, he told me that having friends is far less important than being a friend. Without the latter, the former will never happen.
Years passed and I reached adulthood, waiting for the day when I would know all I needed to know to navigate this thing called life, gradually learning that that day would never come. Every day is a school day and no subject knowledge is complete. My education on friendship continues and only recently this nugget slapped me in the face like a wet fish, metaphorically speaking – ‘A friend isn’t your friend until they defend you in your absence.’ Now that may not be strictly true, but I think most of us will understand the sentiment.
Speaking up for our friends is as important as speaking up against wrongdoing and injustice and it’s my pleasure and honour to do both in the same breath, much as I wish it wasn’t necessary. In fact, I consider it my duty.
I have a friend, let’s call him Ben, who has been metaphorically bound and gagged. His voice has been taken from him and he speaks under pain of punishment, so he doesn’t speak at all. How unjust is that? To tell anyone that they cannot speak of injustice perpetrated against them flies in the face of free speech, justice, and everything that I hold dear and have been railing against for most of my life in one way or another – just ask my father. So, if he is forbidden to tell his story I will do it for him, with outrage gushing from every pore; outrage for him and outrage for the thousands of others in similar circumstances because believe you me, outrage upon outrage, Ben’s situation is by no means unique.
It seems to me that the British public have become inured to the fact of injustice that washes around our judicial system at risk of drowning it. It’s not surprising. The problems have become so endemic that it’s almost too big a task to address any of it, but addressed it must be. Almost everyone knows of Timothy Evans, Derek Bentley, The Birmingham 6, The Guildford 4, and others and knew about them at the time, but how long did it take to resolve their cases? What did it take to make the public aware of the Post Office Scandal? How long did it take for the Hillsborough Disaster to be resolved? How long has the CCRC been quietly shelving thousands of applications without comment? There are a few high profile cases at present. Jeremy Bamber, and Robin Garbutt remain at the forefront, Lucy Letby is the ‘case du jour’, but thousands of others, some equally as lengthy as Jeremy Bamber’s, remain locked in a limbo much like IPP prisoners and WASPI women. It’s the standard practice of governments of all colours, it seems, to take the position of ‘if we ignore it, it will go away’.
The CCRC has become, whether it admits it or not, the gatekeeper for the Appeal Court, second-guessing its decisions and deciding in the vast majority of cases, where it makes a decision at all, that even fresh evidence, that Holy Grail of evidentiary requirements, would make no difference to a Court of Appeal conclusion, a decision it is not theirs to make. Even new evidence can be not enough to pass the ‘real possibility test’, a test that is more a matter of opinion than a legal threshold in much the same way as the Threshold and Full Code tests that the CPS apply are. Both organisations used these tests to justify maintaining a conviction on the one hand and going to trial on the other, and it is all, like it or not, simply a matter of opinion. There is nothing concrete about any of it at all, and it is all open to abuse, just like the Balance of Probability Test, another much misused application, driven by policy rather than fact.
As previously mentioned the British public has become complacent and needs something to jolt it out of its complacency. If Andrew Malkinson spending 17 years in jail for a rape that he did not commit and may never even have happened, if the endless breaches of disclosure that litter the Jeremy Bamber case, if the tragedy of the Robin Garbutt case, if the international interest in the Lucy Letby case and the fact that Lord Denning even claimed that it would have been better if the Birmingham 6 had been executed, and should not be allowed to challenged legal decisions, while simultaneously declaring that ‘the wrongly convicted can always appeal', (such was his zeal to keep the legal system immutable and unchallenged), what will? Individually, people may express outrage, but collectively, it washes over us, year upon year.
Perhaps it’s the fact that we, the general public, don’t really know these people or enough of their circumstances to be moved to act, to be outraged on their behalf or to even have much of an opinion. Perhaps they are too removed from our personal experience.
So, let me tell you of the circumstances of my friend Ben, who could so easily be your friend and who represents literally thousands of people in similar circumstances.
My friend Ben, who did nothing more than have a drunken night of consensual sex, something that happens hundreds of thousands of times up and down the country every night of the week, and normally stays a private affair. However, if someone gets outraged by the fact, well, you’re life can be in tatters in an instant.
In a nutshell, Ben slept with a friend one night, had what he thought was a lovely time and that, he thought was the end of it. However, cue the ’Jake and Josie’ poster scenario and enter stage right the outraged boyfriend and the girl’s parents, after she went home and in her hangover, stated ‘I might have been raped’. It doesn’t take much to realise that it’s likely that comment came about to justify to her boyfriend why she spent a night away from home. Of course, with ‘Jake and Josie’ at the front of the boyfriend’s mind, it was a short step to insist that yes, of course, she had been raped; that in her drunken state she could not possibly have consented. The boyfriend and parents promptly physically attacked Ben, the boyfriend made a complaint to the police and within a year, Ben was charged, found guilty and sentenced to over 8 years in prison, while the girl in question made no formal complaint of which Ben is aware and his attackers received nothing more than a community resolution order. They could hardly have been treated more leniently without actively ignoring their behaviour, while Ben, now released on licence, is subjected to the experience of years’ jail and constantly changing goal-posts as his licence conditions are managed. Third-party outrage clearly ruled the day and one way or another she was persuaded that a charge and the road to conviction was the correct road to travel.
Moreover, Ben’s belief in implied consent, bolstered by enthusiastic participation, was waved away by her testimony, and by the time the case came to court she was willing to say ‘I said ‘no’, a statement hotly disputed by Ben. This was despite the fact that no other people in adjoining rooms at the time, (and there were several), heard anything untoward, in fact reported ‘laughing and moaning’ and that one person in particular, willing to be a defence witness for Ben suddenly withdrew his consent and broke off all contact with him. Anyone see an agenda here, even manipulation?
And, of course, there is more, and the push for prosecution needs to be explained. It’s not difficult. There had been another complaint made against Ben some months before involving a kiss and another irate boyfriend. The complaint was left on file, but Alison Saunders DPP directed that the CPS should start prosecuting ‘suspected patterns of behaviour’, and the CPS took that to conclude that two allegations, false or otherwise, were evidence of ‘a predatorial pattern of behaviour’, regardless of the fact that women and girls voluntarily kiss men and boys who are not their husbands or boyfriends every day of the week. The moves to make boys and men solely responsible for whatever behaviour women and girls later regretted or needed to explain away were in full swing. MeToo had run amok and the TV series ‘Liar’ was on everybody’s mind. For Ben, it was a perfect storm; a storm that swept up and continues to sweep up more men than it is comfortable to count.
Understandably, Ben has maintained his innocence from that day to this, and fought his corner every which way he can until, as I say, he has been effectively, bound and gagged. Banned from having any contact with anyone else in a similar situation – and there are so, so many – and having had his appeals rejected, one might argue that the official position is ‘shut up and go away’, and this is in spite of him having the required ‘fresh evidence’.
‘What’, I hear you say? Fresh evidence? Yes, fresh evidence, but the CCRC can, (and did), decide that fresh evidence wasn’t truly ‘fresh’, and anyway, is not enough in and of itself to refer a case to the Court of Appeal. This is not uncommon. According to the CCRC, the fresh evidence must be enough to convince them that there is a real possibility that the conviction would be quashed. So, not only is Ben’s application refused, he is not allowed to speak out about that bizarre decision himself.
Why is it a bizarre decision and beyond the remit of the CCRC? Because, as Dr Michael Naughton so eloquently explains here - https://empowerinnocent.wixsite.com/ccrcwatch/post/ccrc-watch - the CCRC has become a lapdog, not the watchdog that was originally supposedly intended. The more cynical among us might think that the CCRC is doing exactly what is required of it. Pared to the bone at the coal face and bloated to the gunnels at the executive level, it has become less and less effective at referring cases and more and more effective at overlooking them. Their tactics have become to leave cases languishing for years while maintaining that they are under review, pleading poverty stifling their ability to move more quickly while their executives enjoy hugely expensive business courses and hotel accommodation, and now to gag those who rightly feel aggrieved at their frankly outlandish, contrived and some might say politically motivated decisions.
Dr Naughton predicted that the way the CCRC is structured that it would be unlikely to fulfil its stated tasks, so I am left thinking that the predicament that my friend finds himself in was intended all along. That, and the fact that it’s clear that the CCRC caseworkers tie themselves up in knots in the effort to explain away the unexplainable in their responses to applicants. As Dr Naughton says, MPs gave up assisting constituents who needed help to pursue a wrongful convictions because ‘the CCRC ‘. I am finding in my own quest for answers from politicians and government bodies when I ask about policies that make no sense and do not provide justice that I am passed from pillar to post and told to ‘seek legal advice’ and the legal advice is always ‘that’s the policy’. Franz Kafka, George Orwell and Joseph Heller come to mind.
We live in a dystopian world where more and more of our friends are suffering.
Ben was falsely accused by the boyfriend and parents of the woman he spent a lovely evening with. According to her, no crime took place, (I’d argue that it you only ‘think’ you were raped, you were not, except in the most extreme circumstances that clearly did not apply here), but a crime was manufactured. He was falsely accused by an outraged boyfriend, who was not present, and by the authorities, from the CPS who charged him to the prosecution lawyers who manipulated the ‘evidence’ against him to secure a verdict. He is trapped in that false accusation by the CCRC who refuse to refer his case to the Court of Appeal.
Governments give nothing to the population without it being wrested from them. The public has periodically lost confidence in the judicial system and The Court of Appeal was set up in 1907 in the wake of the notorious Adolph Beck case. Later, in 1995, the CCRC was set up to address the issue of ‘fresh evidence’ and to restore public confidence in the legal system after a spate of high profile wrongful convictions. All that has happened is that the status quo has been maintained and the cynical might say that the public have been duped again and again. Political fears that judicial mistakes will undermine public confidence are beginning to have the opposite effect and reform is needed once more. Of course, maintaining wrongful convictions allows the real perpetrator of a crime to remain at large and maintaining manufactured crimes and the ensuing prosecutions and punishments as in the case of Ben and so many other ‘Jakes’ steal resources from the genuinely harmed.
There are thousands of Bens and those Bens have thousands of friends. It’s time friends started acting like friends, and speaking up; speaking up until the necessary reforms are made and cases come before the Court of Appeal as they should. The criminal justice system is not just unless and until the wrongly convicted have a real and genuine chance of overturning their wrongful convictions. The CCRC’s boast that it has referred 850 cases to the court of appeal since its inception when it has completed 31,590 cases in that time and 180 remain outstanding, some of them for years, rings very hollow indeed.
Ben and all the Bens like him deserve better.
By Felicity Stryjak
Felicity Stryjak is retired having worn many hats in her life so far, teacher and paralegal among them. She was born in Torquay in 1953 and has lived in a variety of interesting places both in the UK and abroad. She intends Scotland to be her final place of abode.
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