One of the most effective things Bob Moles did was to introduce into the discussions the concept of the UK’s Criminal Cases Review Commission. The CCRC, set up in 1997, had its genesis in what were known as the ‘Irish cases’ of the 1970s in the UK. Principal among these were the Guildford Four and the Birmingham Six. Their convictions followed pub bombings in the mid-1970s which took many lives at the height of the terror campaign waged by the IRA against Britain. The public outrage was overwhelming and the authorities were under immense pressure to secure convictions and restore public confidence. The accused, expatriate Irishmen, were subject to the worst abuses the criminal justice system could inflict. As suspects they were tortured, forced to sign false confessions, evidence was withheld, forensics were fabricated or misapplied and their trials were little more than witch-hunts. They were locked away in the harshest British prisons with multiple life sentences.
There was a chilling lesson to be learnt from these cases. There’s no doubt that the police knew that, for both the Guildford Four and the Birmingham Six, they had the wrong people in their early arrests and that they fabricated evidence and extracted confessions by torture. The profound public loathing of the alleged culprits never abated. After the appeals failed, journalist and later MP and government minister Chris Mullins investigated the Birmingham Six’s claims and the conduct of the authorities for Granada TV’s Panorama program. It was an outstanding example of the importance of a fearless fourth estate.
Gradually more and more of the official skulduggery emerged and in 1977 the Birmingham Six attempted to have their convictions overturned, offering compelling proof that the West Midlands Police had blatantly falsified evidence and tortured them into ‘confessions’. In 1980 those charges came before the esteemed and controversial Lord Denning, the Master of the Rolls, who had the power to decide which judge dealt with which appeal. He chose to take the case himself and in rejecting their appeal and any chance of a retrial, he famously remarked:
Just consider the course of events if their action were to proceed to trial … If the six men failed it would mean that much time and money and worry would have been expended by many people to no good purpose. If they won, it would mean that the police were guilty of perjury; that they were guilty of violence and threats; that the confessions were involuntary and improperly admitted in evidence; and that the convictions were erroneous … That was such an appalling vista that every sensible person would say, ‘It cannot be right that these actions should go any further.’62
It’s a most extraordinary statement because it so unashamedly explains many things. It not only places reputation above justice, it decrees that the image of the public institutions of law is unassailable and must be above the law.
Lord Denning was entirely unrepentant and years later went even further in saying:
Hanging ought to be retained for murder most foul. We shouldn’t have all these campaigns to get the Birmingham Six released if they’d been hanged. They’d have been forgotten, and the whole community would be satisfied … It is better that some innocent men remain in jail than that the integrity of the English judicial system be impugned.63
Essentially, Lord Denning was saying that we should bury our mistakes with those we’ve murdered and never look back.
The great thing is that there will always be some who won’t let injustices lie undisturbed. By the time the innocence of the Guildford Four and Birmingham Six was proven, thanks to a brave and tenacious media and some courageous lawyers and journalists, 15 or 16 years had passed. A royal commission report in 1993 recommended the establishment of the CCRC to ensure that there would be a possible remedy for any miscarriage of justice, past or future. The commission is independent of the justice system but when a case is brought to it, it has the power to examine all evidence, subpoena witnesses and if convinced a verdict is ‘unsafe’ can send the matter back to the appeal court. Since its establishment it has been responsible for the quashing of almost 400 serious convictions. For one of the unjustly convicted individuals, Derek Bentley, justice delayed was most definitely justice denied. A CCRC investigation led to Bentley’s acquittal for the murder of a policeman, 46 years after his execution in 1952.
While few now would dare utter the words of Lord Denning, there is the kernel of a common sentiment displayed by those who inhabit our higher offices. The imperative that public confidence be maintained in our law-and-order institutions is fundamental to the purpose they serve. They are there as much for their intimidating presence as they are for their performance. Nothing instils greater fear into the hearts of conservative bureaucrats than the imagined chaos that is bound to be unleashed if the great unwashed loses its faith in, and respect for, their ‘superiors’. There’s a powerful belief that this is the glue that holds it all together.
Nevertheless, it was as a consequence of the Irish cases, distant as they might seem, that Henry Keogh was thrown a genuine lifeline. But that was still a long way off.
I had the opportunity to meet and interview two of the most celebrated survivors of this atrocious episode of British justice. Paddy Joe Hill was one of the Birmingham Six, and Gerry Conlon was a member of the Guilford Four, played by Daniel Day-Lewis in the movie In the Name of the Father. Both men had been irrevocably affected by their experiences and were passionate, fearless and articulate advocates for justice. During their time in Adelaide in 2011 they visited Henry Keogh in jail, giving some momentum to the idea of a CCRC-style body being established in Australia.
Also crucial to the advancement of the idea was Independent Member of the Legislative Council Ann Bressington. Ann looked more like a punk-rock survivor than a politician. Her spiky hair, dark eye make-up and funky wardrobe made quite a statement among the grey suits and tailored dresses of the other MPs. She had replaced the popular Nick Xenophon, who made his move to the federal arena in 2007. Nick had been a champion for open and accountable justice and Ann followed suit. Ann was in parliament largely because her daughter had died of a heroin overdose and she was determined to do something to reduce the spread of this scourge in the community. While she was no professional politician she had a keen sense of justice. She was one of those maverick members who had nothing much to lose and was not swept up in the major-party gladhanding and backslapping.
In November 2010 Ann Bressington introduced a private member’s bill for the establishment of a CCRC in South Australia. It was ambitious but it was a start. During the parliamentary debates that followed, the Law Society backed the idea in one form or another. They wrote to Ann expressing their support, despite some reservations:
Justice, however, lies at the heart of our criminal justice system. Nothing undermines our system of justice more than a substantial miscarriage of justice resulting in the conviction of an innocent person. It is essential, therefore, that our mechanisms for review be equipped to uncover and highlight substantial miscarriages of justice … We believe the system of post-conviction review in this State (Royal Prerogative of Mercy), after all avenues of appeal have been exhausted, is not ideal and will not necessarily uncover and highlight all substantial miscarriages of justice. It is for this reason that we support the establishment of a CCRC.64
The Law Society was an influential ally and likely to have the ear of numerous politicians.
For once, those inside parliament were making more progress than those on the outside. Following the 2010 election Michael Atkinson was relieved of his post as Attorney-General and given a position of even greater influence as Speaker of the House of Representatives. Not long after, in 2011 Mike Rann and Kevin Foley were sent into the sunset with the factional assassin’s smile. I decided it was time for some rapprochement. With the Criminal Cases Review Commission Bill before the parliament I approached the new Attorney-General, John Rau, in the hope of rebuilding the burnt bridges.
By September 2012 Ann Bressington had the numbers to get her CCRC Bill referred to a Legislative Review Committee. The committee would take submissions from all interested parties, including the government, and make recommendations regarding if, and how, the proposal might be advanced. Bob Moles and Bibi Sangha made a significant contribution to the framing of the Bill and appeared before the committee in support of establishing such a body. Bob’s preference was for a state-based CCRC but he also recommended a national body.
Kevin Borick, Harry Harding and lawyer Phillip Scales were next to make their submissions. Borick and Scales offered a useful lawyer’s perspective on the shortcomings of the system and the appeal laws as they existed. There was no doubt, too, that the committee was aware that the use of DNA evidence and other advancements in forensic science were having an impact on clearing up contentious verdicts worldwide. Any possible amendment to the way we dealt with ‘fresh’ evidence was an opportunity to catch up with standards being practised overseas.
I produced a number of stories in this period explaining and promoting the concept of a CCRC. I was able to include an interview with the retired reformist High Court judge Michael Kirby, which added gravitas to the proposal. I felt we were on the cusp of something significant.