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Recently I attended an Inside Justice Live Crime event hosted by Anglia Law School at Anglia Ruskin University. The last speaker for the evening was Kevin Lane who is trying to have his wrongful conviction overturned, during his discussion he mentioned that he was found guilty of murder by a 10-2 majority verdict. It came as quite a shock to me to hear that majority verdicts are used for murder charges in England.
In 1994 Robert Magill was shot dead by a hitman while walking his dog in Hertfordshire, two men fled the scene in a BMW car. In 1995 Lane and a co-accused were charged with the murder of Magill. The prosecution alleged that Lane had received payment for this murder and submitted that fingerprints were found in bin liners in the car. Police were unable to link Lane to the scene of the crime, were unable to prove he had received payment, and he has always maintained his innocence.
There were a number of limitations and concerns in this case – the murder weapon was never recovered, two prime suspects who were brought to the police’s attention soon after the murder were not properly investigated and were later found to have an inappropriate relationship with the investigating police officer, and there were on going disclosure problems. Further, in 2002 the investigating officer was sent to prison for four years of conspiracy to steal £160,000 from the Hertfordshire Police and misconduct in a public office. (This is a very brief summary of a complicated case).
A majority verdict is used when the jury cannot reach a unanimous verdict and where the jury consists of usually 12 jurors and at least 10 or 11 agree (depending on the jurisdiction) – under certain conditions the judge is able to accept the jury’s verdict. The provision of a majority verdict is generally used when a prescribed period of time has elapsed, and the judge is satisfied that the jury are unlikely to reach a unanimous verdict after further deliberation. Majority verdicts have been used in England since 1974 and were originally introduced to prevent the intimidation or bribing of jurors.
While I am aware of majority verdicts, as they are used in Queensland, Australia (where I completed my legal education). Majority verdicts cannot be used for murder trials, for an offence which has mandatory life imprisonment as a penalty, and Commonwealth offences. The overall concern with majority verdicts is that if the jury is unable to reach a unanimous decision then they cannot be said to have reached a decision ‘beyond a reasonable doubt’ which is the standard of proof for criminal matters, and as a consequence have demonstrated reasonable doubt.
Unanimous jury verdicts have been part of the common law since the 14thcentury. Prior to 1866, if a jury could not reach an agreement they could be ‘carried around in a wagon with the court without meat or drink, fire or candle until they were starved or frozen into agreement.’ We have obviously come a long way since the days of locking jurors up and separating them from their family and friends until they reached a decision.
Using unanimous verdicts is argued to reduce the risk of convicting an innocent person, that unanimity is a fundamental feature of a jury trial, it leads to better deliberation, and that disagreement in a jury is not unreasonable. When considering the issue from the perspective of the accused, majority verdicts place them at a great disadvantage when one considers that the prosecution has much more resources. There are already a number of contributors to wrongful convictions which the accused needs to contest with, and the fact that appeals are very difficult.
It can be argued there are benefits for majority verdicts – they reduce the instance of a hung jury (where the accused is neither acquitted or convicted) and the potential for a retrial (and the economic cost associated for a criminal justice system which is already overloaded). Majority verdicts are said to overcome problems with ‘rogue’ jurors, bribery and intimidation. The use of majority verdicts allows there to be finality in the case for the victim/s, the accused, the family and friend of the victim/s and accused, and the community.
Personally, I believe that in the interest of justice majority verdicts should not be used in serious criminal cases – such as murder and offences which carry mandatory life imprisonment penalty. These cases are much too serious and if reasonable doubt is present then this should be recognised. In Kevin Lane’s case he would not have been convicted, served 18 years in prison, and still be trying to overturn his conviction.
Cowdery, N. (2007). Majority jury verdicts. Reform Issue. 90, 18-19.
Garrett, B.L. & Neufeld, P.J. (2009). Invalid forensic science testimony and wrongful convictions. Virginia Law Review. 95(1), 1-97.
Gray, A. (2009). A guarantee right to trial by jury at state level? Australian Journal of Human Rights. 15(1), 97-125.
Roberts, S. & Weathered, L. (2009). Assisting the factually innocent: The contradictions and compatibility of Innocence Projects and the Criminal Cases Review Commission. Oxford Journal of Legal Studies. 29(1), 43-70.
Sankoff, P. (2006). Majority jury verdicts and the Charter of Rights and Freedoms. UBC Law Review. 39(2), 333-369.
In a number of blog posts colleagues and myself (New Beginnings, Modern University or New University? Waterside: What an exciting time to be a student, Park Life, The ever rolling stream rolls on), we talked about the move to a new campus and the pedagogies it will develop for staff and students. Despite being in one of the newest campuses in the country, we also deliver some of our course content in the Sessions House. This is one of the oldest and most historic buildings in town. Sometimes with students we leave the modern to take a plunge in history in a matter of hours. Traditionally the court has been used in education primarily for mooting in the study of law or for reenactment for humanities. On this occasion, criminology occupies the space for learning enhancement that shall go beyond these roles.
The Sessions House is the old court in the centre of Northampton, built 1676 following the great fire of Northampton in 1675. The building was the seat of justice for the town, where the public heard unspeakable crimes from matricide to witchcraft. Justice in the 17th century appear as a drama to be played in public, where all could hear the details of those wicked people, to be judged. Once condemned, their execution at the gallows at the back of the court completed the spectacle of justice. In criminology discourse, at the time this building was founded, Locke was writing about toleration and the constrains of earthy judges. The building for the town became the embodiment of justice and the representation of fairness. How can criminology not be part of this legacy?
There were some of the reasons why we have made this connection with the past but sometimes these connections may not be so apparent or clear. It was in one of those sessions that I began to think of the importance of what we do. This is not just a space; it is a connection to the past that contains part of the history of what we now recognise as criminology. The witch trials of Northampton, among other lessons they can demonstrate, show a society suspicious of those women who are visible. Something that four centuries after we still struggle with, if we were to observe for example the #metoo movement. Furthermore, from the historic trials on those who murdered their partners we can now gain a new understanding, in a room full of students, instead of judges debating the merits of punishment and the boundaries of sentencing.
These are some of the reasons that will take this historic building forward and project it forward reclaiming it for what it was intended to be. A courthouse is a place of arbitration and debate. In the world of pedagogy knowledge is constant and ever evolving but knowing one’s roots allows the exploration of the subject to be anchored in a way that one can identify how debates and issues evolve in the discipline. Academic work can be solitary work, long hours of reading and assignment preparation, but it can also be demonstrative. In this case we a group (or maybe a gang) of criminologists explore how justice and penal policy changes so sitting at the green leather seats of courtroom, whilst tapping notes on a tablet. We are delighted to reclaim this space so that the criminologists of the future to figure out many ethical dilemmas some of whom once may have occupied the mind of the bench and formed legal precedent. History has a lot to teach us and we can project this into the future as new theoretical conventions are to emerge.
Locke J, (1689), A letter Concerning Toleration, assessed 01/11/18 https://en.wikisource.org/wiki/A_Letter_Concerning_Toleration
For those of you who follow changes in the Criminal Justice System (CJS) or have studied Crime and Justice, you will be aware that current probation arrangements are based on the notion of contestability, made possible by the Offender Management Act 2007 and fully enacted under the Offender Rehabilitation Act 2014. What this meant in practice was the auctioning off of probation work to newly formed Community Rehabilitation Companies (CRCs) in 2015 (Davies et al, 2015). This move was highly controversial and was strongly opposed by practitioners and academics alike who were concerned that such arrangements would undermine the CJS, result in a deskilled probation service, and create a postcode lottery of provision (Raynor et al., 2014; Robinson et al., 2016). The government’s decision to ignore those who may be considered experts in the field has had perilous consequences for those receiving the services as well as the service providers themselves.
Picking up on @manosdaskalou’s theme of justice from his June blog and considering the questions overhanging the future sustainability of the CRC arrangements it is timely to consider these provisions in a little more detail. In recent weeks I have found myself sitting on a number of probation or non-CPS courts where I have witnessed first-hand the inadequacies of the CRC arrangements and potential injustices faced by offenders under their supervision. For instance, I have observed a steady increase in applications from probation, or more specifically CRCs, to have community orders adjusted. While such requests are not in themselves unusual, the type of adjustment or more specifically the reason behind the request, are. For example, I have witnessed an increase in requests for the Building Better Relationships (BBR) programme to be removed because there is insufficient time left on the order to complete it, or that the order itself is increased in length to allow the programme to be completed. Such a request raises several questions, firstly why has an offender who is engaged with the Community Order not been able to complete the BBR within a 12-month, or even 24-month timeframe? Secondly, as such programmes are designed to reduce the risk of future domestic abuse, how is rehabilitation going to be achieved if the programme is removed? Thirdly, is it in the interests of justice or fairness to increase the length of the community order by 3 to 6 month to allow the programme to be complete? These are complex questions and have no easy answer, especially if the reason for failing to complete (or start) the programme is not the offenders fault but rather the CRCs lack of management or organisation. Where an application to increase the order is granted by the court the offender faces an injustice in as much as their sentencing is being increased, not based on the severity of the crime or their failure to comply, but because the provider has failed to manage the order efficiently. Equally, where the removal of the BBR programme is granted it is the offender who suffers because the rehabilitative element is removed, making punishment the sole purpose of the order and thus undermining the very reason for the reform in the first place.
Whilst it may appear that I am blaming the CRCs for these failings, that is not my intent. The problems are with the reform itself, not necessarily the CRCs given the contracts. Many of the CRCs awarded contracts were not fully aware of the extent of the workload or pressure that would come with such provisions, which in turn has had a knock-on effect on resources, funding, training, staff morale and so forth. As many of these problems were also those plaguing probation post-reform, it should come as little surprise that the CRCs were in no better a position than probation, to manage the number of offenders involved, or the financial and resource burden that came with it.
My observations are further supported by the growing number of news reports criticising the arrangements, with headlines like ‘Private probation firms criticised for supervising offenders by phone’ (Travis, 2017a), ‘Private probation firms fail to cut rates of reoffending’ (Savage, 2018), ‘Private probation firms face huge losses despite £342m ‘bailout’’ (Travis, 2018), and ‘Private companies could pull out of probation contracts over costs’ (Travis, 2017b). Such reports come as little surprise if you consider the strength of opposition to the reform in the first place and their justifications for it. Reading such reports leaves me rolling my eyes and saying ‘well, what did you expect if you ignore the advice of experts!’, such an outcome was inevitable.
In response to these concerns, the Justice Committee has launched an inquiry into the Government’s Transforming Rehabilitation Programme to look at CRC contracts, amongst other things. Whatever the outcome, the cost of additional reform to the tax payer is likely to be significant, not to mention the impact this will have on the CJS, the NPS, and offenders. All of this begs the question of what the real intention of the Transforming Rehabilitation reform was, that is who was it designed for? If it’s aim was to reduce reoffending rates by providing support to offenders who previously were not eligible for probation support, then the success of this is highly questionable. While it could be argued that more offenders now received support, the nature and quality of the support is debatable. Alternatively, if the aim was to reduce spending on the CJS, the problems encountered by the CRCs and the need for an MoJ ‘bail out’ suggests that this too has been unsuccessful. In short, all that we can say about this reform is that Chris Grayling (the then Home Secretary), and the Conservative Government more generally have left their mark on the CJS.
 Community Orders typically lasts for 12 months but can run for 24 months. The BBR programme runs over a number of weeks and is often used for cases involving domestic abuse.
Davies, M. (2015) Davies, Croall and Tyrer’s Criminal Justice. Harlow: Pearson.
Raynor, P., Ugwudike, P. and Vanstone, M. (2014) The impact of skills in probation work: A reconviction study. Criminology and Criminal Justice, 14(2), pp.235–249.
Robinson, G., Burke, L., and Millings, M. (2016) Criminal Justice Identities in Transition: The Case of Devolved Probation Services in England and Wales. British Journal of Criminology, 56(1), pp.161-178.
Savage, M. (2018) Private probation firms fail to cut rates of reoffending. Guardian [online]. Available from: https://www.theguardian.com/society/2018/feb/03/private-firms-fail-cut-rates-reoffending-low-medium-risk-offenders [Accessed 6 July 2018].
Travis, A. (2017a) Private probation firms criticised for supervising offenders by phone. Guardian [online]. Available from: https://www.theguardian.com/society/2017/dec/14/private-probation-firms-criticised-supervising-offenders-phone [Accessed 6 July 2018].
Travis, A. (2017b) Private companies could pull out of probation contracts over costs. Guardian [online]. Available from: https://www.theguardian.com/society/2017/mar/21/private-companies-could-pull-out-of-probation-contracts-over-costs [Accessed 6 July 2018].
Travis, A. (2018) Private probation firms face huge losses despite £342m ‘bailout’. Guardian [online]. Available from: https://www.theguardian.com/society/2018/jan/17/private-probation-companies-face-huge-losses-despite-342m-bailout [Accessed 6 July 2018].