Friday, 6 January 2012

Sound familiar?

[The first leader (behind the paywall) in today's edition of The Times is headlined "Justice and Answers". It is about the case of Eddie Gilfoyle. The leader reads in part:]

The story of Mrs Gilfoyle’s locked box is thus now a central part of the story of a man’s liberty, of the probity and competence of the police, and of the integrity of the justice system. It could hardly be more important. What happened to that box may be a mystery today, but it cannot possibly be allowed to remain one.

The box joins other critical evidence that was withheld from the defence at moments when it could have made a real difference. (...) There are serious questions about whether flaws in the case against Mr Gilfoyle have been deliberately protected from exposure.

These questions must be asked at a ministerial level and made subject to an urgent new inquiry. Mr Gilfoyle has been released on licence from his prison sentence having served so many years, but his conviction remains. Every day that it continues to do so without inquiry and examination is an affront to justice.  (...)

It is time for some answers and some justice.

[Messrs Salmond, MacAskill, Mulholland and all Members of the Scottish Parliament should read, mark and inwardly digest. And then, without further prevarication, the Scottish Government should institute an independent inquiry into the Megrahi conviction.]


  1. The problem remains that some miscarriages of justice are at the behest of the state, for political reasons.

    The only chance of getting justice in these cases is when it becomes politically expedient for the truth to be told.

    Britain supported a show trial and the conviction of an innocenrt man, as a loyal servant of America.

    It will require a political desire for honour and independence, Scottish or British, before the state will support justice and the truth about Lockerbie.

  2. This case is more like Zeist than is immediately evident from Prof Black's comments. This from the defendant's web site.

    The defence at the conclusion of the prosecution case made an application to the Judge that there was no case to answer. The defence told the Judge that the prosecution had not proved that a murder had taken place. The Judge dismissed the defence application. The defence then, without calling any witnesses to argue against the prosecution case, offered no evidence to the court and they left the case to the Jury to decide whether this was a case of murder or suicide.

    This despite a highly critical letter from the barrister talking about the need for various expert witnesses and the lack of preparation of the defence.

  3. From the 2009 report "Scottish Criminal Cases Review Commission 10th Anniversary Research" by a team from the Universities of Edinburgh and Glasgow:

    "The most common ground for referring convictions to the appeal court is evidence not heard at the original trial, with the next most common grounds being a failure to disclose and defective representation." [...]

    "One issue to emerge quite consistently when we asked about stakeholder perceptions regards disclosure of evidence by the Crown. Defence interviewees were more likely to attribute to the prosecution a slightly negative or hostile attitude towards referred cases. This seemed to be linked to a feeling among the defence agents we spoke with that the Crown is resistant on issues of disclosure. One interviewee saw this less as wilful obstruction than a ‘clash of cultures’, and a possible perception by prosecutors that more extensive disclosure amounts to an increase in workload for them (copying and compiling information for the defence)." [...]

    "We interviewed 12 legal professionals (solicitors and advocates) in order to gain a sense of how the Commission is viewed by the those who have worked on referred cases...

    "...[these recommendations] display what legal professionals felt were the main challenges overall to an effective system for correcting miscarriages of justice. The most common ideas mentioned were:

    "...Improve and expand disclosure.

    "Concerns about disclosure arose again and again in interviews; these began as queries into the status and availability of material turned up by the Commission during the course of its investigation but spread out to complaints about the prosecution’s resistance to disclosure of information during preparation of a case. A few interviewees pointed out that Commission referred appeals had raised problems of disclosure and led to improved practices, but that this was still not seen to be optimal."

    Another excerpt may be of interest:

    "As table 5.10 [sic] shows, the most successful individual appeal grounds in conviction appeals have been those based on an error of law (insufficient evidence) (an 80 per cent success rate) and a failure to disclose (a 71 per cent success rate). In general, appeal grounds relating to errors of law have been more successful (56 per cent succeeding) than those based on irregularities in proceedings (eleven per cent) or misdirections (31 per cent). At the other end of the scale, there are a number of individual grounds of appeal that have never succeeded in referred cases, namely the irregular conduct of the jury or judge; misdirections based on the onus or standard of proof; defective representation or an unreasonable verdict (whether returned by a jury or other adjudicator)."

  4. That Gilfoyle case seems to have a lot to do with incompetent defence, right enough.

    It points up another problem, that appeal courts refuse to look at highly relevant and exculpatory evidence on purely procedural grounds. Evidence was excluded from the appeal because it could have been led at the original trial, even though it was not led. How is this any sort of justice? Evidence was also excluded because a police disciplinary action was still sub judice at the time. That action reported the day after the appeal decision was announced.

    There's something very very wrong about this. Once a court of first instance has got it wrong, everything seems to be biassed and loaded against the defendant. The Innocence Project describe overturning a miscarriage of justice as "like unbaking a cake". One can see what they mean.

  5. Continuing the comparison with other cases, I was reading the opinion of the Italian court of second instance which acquitted Rafaelle Sollecito and Amanda Knox of the murder of Meredith Kercher.

    The condition required by this law to arrive at a verdict of guilty does not, therefore, allow one to formulate a belief in terms of probability: that is, to issue a guilty verdict, it is not sufficient for the probability of the prosecution hypothesis to be greater than that of the defence hypothesis, even when the former is significantly larger [notevolmente più numerose]; but [rather] it is necessary that every explanation other than the prosecution hypothesis not be plausible at all, according to a criterion of reasonability. In any other case, acquittal of the defendant is required.

    This is exactly what Prof. Black has been saying about the Zeist judgement from the get-go, I think.

  6. A more accurate comparison would be with the latest Stephen Lawrence case.

    The State was desperate for a guilty verdict, for political reasons, and changed the law on double jeopardy, retrospectively, (an outrage in itself)and claimed new and compelling evidence, when there was none.

    Then they played a surveillance tape to the court that demonized the two white men as evil racists, but which did not contain any evidence or admission of guilt.

    This at a time when there was a contrived national controversy about racist swearing in football and the need to fight racism.

    The message to the jury was clear. If you think their racist, find them guilty, and if your wrong does it matter, because their racist.

    And if you don't find them guilty, you must be racist too!

    Once you demonize the suspects, like Megrahi, they remain guilty, to the public, even if they are innocent.

    This is why an appeal to justice is not enough. It is also necessary to confront the politics behind the stitch up.

  7. I have deleted a comment because it does not relate to Megrahi or Lockerbie.