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Friday, 20 August 2010

The Injustices of Siôn Jenkins

When I was first training to be a lawyer, I attended as a "mini-pupil" (a form of internship or work experience) the original trial in Lewes of Siôn Jenkins.

This was back in 1998 and I was shadowing someone in the defence team.

I only attended the trial for a day or two, and I have never heard the full case against him or the entirety of his defence; I have not attended any of the appeal hearings; and, indeed, I have had no involvement in the case whatsoever since that visit to Lewes twelve years ago.

And if I was ever privy to any details of the case other than those in the public domain, I have completely forgotten them.

But what I do remember is my entirely subjective sense that there was a severe miscarriage of justice in the original conviction of Siôn Jenkins.

In The Guardian today, there is an interesting interview with the now acquitted Siôn Jenkins.

In this he makes the fair point that English criminal law does not provide for any means to prove innocence, even though this is the standard seemingly required for compensation for his period of (in my view) wrongful imprisonment.

Regardless of whether one is correct in seeing the original trial as an injustice, it appears to me that for him now not to have compensation is a new and fresh injustice.


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20 comments:

Evsie said...

The Birmingham Six were guilty of bombing a pub, killing 26 people and injuring hundreds more. The "appeal" was a joke. Just one example - their duty solicitor who was with them from arrest to when they were left in prison was not called to testify. Had he been, he could have told the court that the 6 were unharmed before being put in prison (disproving claims of police abuse) - it was a political "appeal" which still sickens me to this day.

They each received between £840,000 and £1,200,000 in compensation without having to "prove their innocence". This man was wrongfully convicted and had his life stolen by a broken system. How can he NOT be compensated for that.

ivan said...

The standard used for finding someone guilty is "beyond reasonable doubt". Not "beyond all doubt" This inevitably means that some innocent people will be found guilty. If we used the test "beyond all doubt", we would find almost no one guilty of anything. So there is trade-off between finding culprits guilty at a reasonable rate and the number of false guilty verdicts one has.

My view is that, because of this, society should routinely compensate people who are wrongly imprisoned.

Of course sometimes someone will be released on a technicality, and one can understand the distaste of paying compensation in these cases. But the innocent should be compensated, and if that means we occasionally pay compensation to the guilty, I think that is a price we should pay.

There is also what prosecutors do: they put cases which a reasonable chance of a guilty verdict. They know juries have problems with circumstantial evidence, and particularly nasty crimes. The prosecutor takes the attitude "put it in front of a jury and see what they decide". They really ought ot be more mature than that. They know perfectly well that that juries make guilty verdicts too often with circumstantial evidence, and in nasty cases. So when a rational, logical appraisal suggests that there is not really a good case against someone, they should really refrain from prosecution. But they don't.

Nick Gordon said...

Are we heading to a state where anyone whose conviction is later overturned on appeal will get compensation? There are cases where the conviction was never fairly obtained (incompetence, dishonesty) and there are cases where the conviction was a mistake, the law being a human construct, and therefore susceptible to human errors.

I don't know into which of these categories Mr Jenkins' case falls - I don't know enough about it. I also don't have a fully formed opinion on compensation. I would be interested in others' views including, naturally, JoK's.

MTPT said...

I'm not clear why the distinction Nick Gordon is drawing should exist. If someone is wrongly deprived of their liberty, they should be compensated for this. Unless they in someway contributed to their imprisonment (a refusal to engage with the trial process, for example, or lying to the police or court) it's difficult to see why the mechanism (mistake versus malice) matters to the question of liability.

The issue of pre-trial detention is worth raising here - someone who is remanded, then subsequently cleared receives no recompense, and someone who receives a community penalty (a significant number, but on the MoJ apparently declines to identify) gets no credit for their pre-trial detention. Contrast the case of someone remanded, then sentenced to “time served”.

The principle should surely be that any person deprived of their liberty should receive credit for this – either towards a sentence subsequently passed, or by way of compensation?

Anne Fay said...

I found the most horrifying part of the Guardian article to be Siôn Jenkins' description of the utterly appalling conditions in which prisoners live. It doesn't matter how heinous their crime, they are still human beings who shouldn't be treated worse than we treat animals.
Nobody should have to live in fear for their life, not even those who have taken the lives of others or ruined the lives of others in the many unpleasant ways that mankind has invented.

Mouse of Lords said...

It's a bit Kafka-esque or Helleresque, isn't it? You can't have compensation until you're proven innocent. But how do you prove yourself innocent? You can't: you can only prove that your conviction was unsafe...

And all because the MoJ wanted to look tough on crime, or were more likely just scared of Daily Mail "millions in compensation" headlines. The cowards.

ObiterJ said...

I am pleased that you are on to this case. It came back into the news because, on 10th August, it was revealed that the MoJ had refused Jenkins' application for compensation. I think it was a decision by Jack Straw.

I touched upon this on my blog:

http://www.guardian.co.uk/uk/2010/aug/19/sion-jenkins-billiejo-murder-acquitted-compensation

This whole case has a most unsatisfactory feel to it. The person who has been convicted will not be able to receive any compensation unless it is shown beyond a reasonable doubt that there was a miscarriage of justice: Criminal Justice Act 1988 s133.

The decision is taken by the Secretary of State. I am not sure of the actual process used within the MoJ to make this decision but it is surely a "judicial" matter and ought not to be one for the executive?

The Court of Appeal (Criminal Division) is concerned with whether a conviction is safe. That begs the question of - just what is the Court of Appeal saying where it orders a re-trial. One view would be that they are saying that the evidence is such that they cannot be sure of how the case should be decided so it has to be referred back to a jury to decide. Juries are, of course, the constitutional method of trying these cases.

However one looks at this, it would seem unfair to deny compensation in a case where TWO re trials have ended up with juries unable to reach a majority verdict.

The Birmingham Six case showed English criminal justice at its worst. One appeal hearing was just prior to Christmas 1990. Lloyd LJ, when presented with a considerable amount of material to read, said that the court would not let the case "spoil their Christmas" and the matter was adjourned to the New Year. That comment appalled many of us at the time.

I am not so sure that Ivan is entirely right in saying that the CPS are too ready to put cases to a jury. Interestingly, they are often accused of quite the reverse - e.g. the Tomlinson case - discussed on this and other blogs. The worry is that, in these difficult financial times, fewer cases will get to a jury.

ivan said...

aObiterJ, I wasn't saying that CPS is in general too ready to put cases to a jury, I am saying that there is a (probably fairly uncommon but important) class of cases where it is too ready to put it to a jury.

Nick Gordon said...

@MTPT I'm suggesting there's a distinction between errors arising because people, including judges, juries, lawyers, witnesses and the police, cannot guarantee to be correct 100% of the time; and errors arising from wilful or careless neglect.

I'm then asking whether the distinction is material (you obviously think not) and, if it's not, whether that means we should automatically compensate anyone whose conviction is overturned.

I think the distinction is definitely material for some purposes. If it transpires that there was dishonesty or incompetence, then clearly those responsible should be called to account. If the verdict was arrived at in good faith, on the basis of honest evidence objectively examined, then there is no blame to those involved.

My question is whether ti should be material in the question of compensation. I don't know the answer (which is why I posed the question in the first place), but I think it's important that we debate the question and arrive at one.

Times have changed (rightly, IMO) since we had implicit and unquestioning trust in the right-thinkingness of the courts and police. We are readier to accept, on a case by case basis, that the criminal justice process gets it wrong. But we haven't yet thought through in a systematic way how to deal with consequences.

@MTPT - you might be right that the distinction is irrelevant, but I'd like to arrive at that conclusion, rather than being presented with it

John Collins said...

The higher the profile the case is, the more likely it seems that a miscarriage of justice is to occur, witness Birmingham 6, Guildford 4, McGuires, Barry George, Megrahi and so forth.

One of the tricks that the prosecution at these trials seems to be to parade the distress of relatives, the enormity of the crime, the taking of the jury to the crime scene, the photographs of the devastation etc - all highly emotive but irrelevant to whether the guy in the dock actually did it or not.

And let's get rid of the dock too. The defendant should sit with his lawyers able to pass notes to them instead of being pilloried before the trial even starts.

The Justice of the Peace said...

There are certain criticisms that can be made for the verdict in Scotland, "not proven" insofar as a stain remains lingering over the defendant but in the Jenkins case it would seem that had he been tried under Scottish jurisdiction the not proven result would have been a realistic possibility the first time round. I am unaware of the criteria applied in Scotland when a guilty verdict is overturned but it does seem to reduce the possibility of miscarriages of justice when a jury is offered "a way out".

Raj77 said...

Evsie- if the Birmingham Six were so obviously guilty, why was it concluded that none of them had handled explosives, and that the initial forensic conclusions were "wrong, and demonstrably wrong, judged even by the state of forensic science in 1974"?

Yes, they were Irish republicans. That's not evidence.

Mike from Ottawa said...

There's something many here seem to have whiffed on. One conviction and two hung juries is not equal to a determination that Jenkins is outright innocent of the crime.

Beyond reasonable doubt is the highest standard that the law has and, frankly, the highest standard you'll find in use anywhere outside of mathematics (the only place true proof exists) because there is always unreasonable doubt about anything (see Intelligent Design Creationism). The high standard for criminal conviction means that inevitably some of the guilty go free at trial, some are never even charged. That is intentional. The old 'better ten guilty men go free than that one innocent man is convicted'.

The result is that not all who are acquitted are actually innocent of the crime charged, yet people are immediately jumping from objecting to the ‘beyond reasonable doubt’ standard for granting compensation to saying, or very nearly, that compensation should be automatic if a person is not convicted. I’m not keen on a person being compensated for judicial process when they have actually committed the crime even if the process was corrupt, incompetent, or as appears in this case, simply inconclusive. The way I look at it, the person who committed the crime should count himself lucky if he got no worse than Jenkins did. Seems to me that showing, on balance of probability, the person did not commit the crime should be the standard for granting compensation in a case like this. Could that be done?

Folk here and elsewhere have been writing as if a three juries, none of which found Jenkins not guilty, have acquitted him. Jenkins has never even been acquitted by any of the three juries, so on the basis of the court processes it seems to me, literally, to be unreasonable to conclude from them that he’s outright innocent. Let’s face it, the only conclusions that can be drawn from the hung juries is that at least some on those juries thought he had been shown beyond a reasonable doubt to be guilty and some who thought he hadn’t. Unless you can interview the jurors and find out the basis for their views, there is simply no reasonable basis in the trial outcomes for concluding Jenkins did not commit the crime. I’ve read some of the accounts of the evidence looking for something besmirching the Crown’s forensic experts (as we’ve had in Ontario with a pathologist who did send a number of innocents to jail with garbage evidence) but seen none. The evidence I’ve seen written about doesn’t put me in mind of wrongful conviction cases I’m more familiar with (Canada’s Marshall, Morin and Milgaard cases) where the innocence of the convicted man was firmly established.

If you’re getting into compensation, it seems to me the appropriate set up it is to borrow from the civil side of things and grant or refuse compensation on the civil standard of balance of probabilities and with the civil rules of evidence governing things. Let the attorney general make an initial decision with recourse to the claimant of compensation to take it to the civil courts for civil trial de novo if he doesn’t like the AG’s decision.

But Jenkins’ case just does not to me scream ‘injustice’ in such a way as to justify on its own setting the bar to conviction even higher than it is at present by having the Crown have to consider the possibility of the cost of compensation at every acquittal or as some here apparently would have it, hung jury.

[Having some trouble with the comment software, so this may be a double]

ObiterJ said...

Ann Fay makes an excellent observation about the Sion Jenkins interview reported by The Guardian. If I may say so, her post shows considerable decency and humanity.

I have done a post on my blog looking at this worrying angle. The idea that some sort of "rough justice" in prisons is acceptable is utterly wrong. Actually, I believe that most of those in authority within prisons would agree. The real problem may be one of prevention of nasty attacks on one prisoner who, for whatever reason, is not liked by others.

MTPT also makes a pertinent observation. Why does time on remain count against a prison sentence but not against a community order. I would need to think about that. Anyone care to offer an explanation?

Retired said...

Above someone writes about of shortcomings in a murder inquiry emerge.

How ?

We are arguing against an inquiry in progress and it is like drawing teeth. What chance would an appellant have after serving a sentence and trying to make inquiries by hindsight ?

I am helping Dan O'Leary the father of murder victim David O'Leary. David was shot at his home in Margate on 1st March 2008. Police have not solved the case.

What we have found is that there is no test of a murder team for "Insufficiency of Inquiry". The Inquest verdict is inevitable so the test (Section 13 Coroners Act 1988) does not receive deliberation by HM Coroner.

To obtain the simplest facts has required nine upheld complaints to the IPCC. And this route only puts the Old Bill into siege mentality and they have written all sorts of irrational nonsense back to IPCC in support of their denials of negligence.

David and his partner returned to their remote home and, according to partner evidence, entered the house to discover the power was off when they tried the hall light switch. The partner went to consumer unit to switch power back on and heard the two shotgun shots as David was gunned down by an apparent intruder.

It took effort complaining to IPCC to establish that the total extent of police inquiry re power cut was they called the electricity board to establish there had been no area power outage.

Hence the police scenario established at an early stage of an intruder who had switched off power to create a darkened kill zone within the house. Apart from power being off there is no evidence of intrusion.

I traced the previous owners of the house. Power cuts could occur up to four times per evening. Due to an earth fault on the electric gates installation.

The power cut would trigger the alarm system which required code resetting.

And the house was sold to David with this electrical fault still in place.

The electric gate pillars have a lamp on top of each. The grounds have half a dozen PIR movement detector lights mounted around the house.

So the police reliance on a power cut to infer an intruder is cobbler. When power is restored all the PIR lights would come on and then time out individually. Once timed out each light would illuminate any time it detected movement within its range.

David had been dropped off by a taxi. The taxi driver heard the two shots and David died across his bonnet. The whole incident occurred in the time it took the taxi to reverse in a driveway and return past David's pedestrian gate where he had emerged to die on the cab.

Taxi driver phoned police and was told wait for our response. He waited 45 minutes !!!! The Police response time.

The partner evidence is that she ran from the house and tried the electric gate actuator button and the gates opened but too slowly. Hence it can be inferred power had been restored. Hence it can be inferred that the electric gate pillar lights were on plus all the grounds PIR detector lights.

The shooter therefore ran into fully illuminated grounds ?

What happened about the alarm system ?

What lighting sequence did the taxi driver see ? Did he hear an alarm ?

What happened after the IPCC upheld appeal and ordered Kent Police to record complaint ? They report it was "Proportionate" only to have checked the electricity board. And what power does the IPCC have ? Well zilch really.

Try asking the taxi driver just two years after the event what lights he saw and whether the alrm went off and became silent. If the police get the detail wrong at the outset .... no one checks their work.

CwtchCorner said...

As others have pointed out the test in itself may prove a problem here.

The test in the criminal case was beyond reasonable doubt.

Many have commented that there should therefore be some sort of test for the compensation. That compensation is not arbitrary- no conviction would automatically mean compensation. On that basis therefore it has been suggested that compensation would be in the civil court which of course would be the civil standard of proof the balance of probabilities. The question then arises what would we ask him to prove - that he did not commit such crime? The test applied by the Court would therefore be whether more likely than not he is innocent. But this is a far lower standard and we have that gray area between the two standards. The civil court may well conclude that he is not entitled to compensation because on the civil standard he "did it"- it is not more likely than not that he was innocent. This sort of decision undermines both systems, faith in the Courts and means that the person will then be subjected, again, to trial by newspapers not to mention the family of the victims.

It could be argued that there is a case for saying that compensation should be on the basis of "innocence" beyond reasonable doubt, this would ensure that those as referred to in other comments who did "commit" the crime but were not convicted would not receive compensation. The danger with this is that is a very high threshold and whether that is perhaps too high for someone who has already been a victim of the system and is already therefore at a disadvantage.

Gordon Henderson said...

Two points. First Justice of the Peace writes of the Scottish Not Proven verdict. For me, it's 'Not Guilty' which should be scrapped. The job of a jury at a trial is not to decide if the defendant committed the crime, but to decide if the prosecution has successfully proven that beyond reasonable doubt.

This is an important distinction, because it removes (in theory) the ability of Daily Mail reading troglodytes to convict based on their prejudices rather than the evidence presented.

In an ideal system, we would have only two verdicts - 'Proven', and 'Not Proven'

This leads into what Mike from Ottawa said, whereby the courts have not ruled Jenkins to be innocent. this misses the point. if the justice system has imprisoned him and denied him of his liberty without first proving beyond reasonable doubt that he DID commit the crimes, then compensation simply must be due.

This country has an entitlement to a presumption of innocence until guilt is proven, which sadly seems to be slowly eroding in favour of a presumption of innocence until the tabloids decide another twominutes hate is in order.

Schroedinger99 said...

@Evsie

Odd that you should bring up the Birmingham Six here. Not only was the evidence against them convincingly repudiated at the hearing that resulted in their acquittal, one of the elements that contributed to that final acquittal was the leaking to a TV station of documents suggesting that the identities of the real culprits had been know to the authorities since 1975.

What is even stranger is your suggestion that these men were not subjected to brutal treatment before they "confessed". IRA volunteers were trained to resist interrogation and are most unlikely to have signed a confession even under duress. It is very difficult to believe that genuine IRA volunteers would have confessed freely to the bombings.

In other words, your suggestion that the Birmingham Six were not mistreated rather undermines your suggestion that they were really guilty.

Mike from Ottawa said...

@Gordon Henderson,

"if the justice system has imprisoned him and denied him of his liberty without first proving beyond reasonable doubt that he DID commit the crimes, then compensation simply must be due."

Such a confident statement, but it is nothing more than a mere assertion. You provide no argument to support it.

I see no particular injustice in denial of compensation where either the authorities are unable to conclude the accused was, more likely than, not innocent or where the accused cannot show his innocence, again on that civil standard of balance of probabilities. On the other hand, I would see an injustice in paying compensation to a person who did commit a crime but was not convicted because of the high standard of beyond a reasonable doubt (the highest standard known to the law), especially considering that some small part of the money paid can be said to come from the very victims of the crime as taxpayers.

The presumption of innocence, BTW, is part of the criminal law but compensation for injury is, classically, a matter of civil law, where there is no presumption either way.

Deano said...

As someone who lives in Hastings, I found Jenkins explanations for his bizarre behaviour on the day simply not credible. Also his wife and daughters gave evidence as to his violent temper - this was deemed inadmissable at the trial - but after the trial they continued to contradict Jenkins protestions on this matter. I think that was evidence that may have swung those on the jury who couldn't make up their minds.
In my opinion the miscarriage of justice is how a rich family were able to purchase expensive lawyers and expert witnesses to rustle up a media campaign in ways that would not be accessible to the rest of us. Jenkins no doubt scrubs up well, and a supposedly respectable Christian headmaster doesn't fit most people's stereotype of a murderer, but people in Hastings have long come to their own conclusion. Don't forget that Jenkins lied about his qualifications to get the headmaster job, he's not quite the angel he presents himself as.