Selected Articles from Inside Time Issue No 42 Autumn 2022

The Parole Deal by Peter Hill
Cases under Review - by David Brittin

The Parole Deal by Peter Hill

The case of Stephen Downing, who served 27 years for a murder he did not commit, and who refused the 'parole deal' 12 years ago, highlights the pressure certain innocent prisoners come under to participate in a system which rewards admitting guilt. Investigative Journalist Peter Hill questions the morality of the 'parole deal'.

There has been much publicity about the problem of prisoners convicted of serious crimes who claim they are victims of miscarriages of justice and are not able to obtain parole because the authorities demand that they must confess before they can enter the parole process. It seems clear that the Government knows about this 'parole deal' and has no intention of changing the situation. Despair at treatment such as this prompts people to think the unthinkable. There is now a danger that prisoners caught in this situation may try to point up the lack of morality in the 'parole deal' by making false confessions in a manner akin to the custom of crossing fingers when telling a white lie.

Obtaining a parole hearing is not as simple as most people believe. The process is lengthy, with several sections. A prerequisite of entering the parole process is that the prisoner should be Category C. Most prisoners who claim serious miscarriage of justice do not go into prison on that category. At best they find themselves in Category B. Some prisons - high security establishments in particular - do not have Category C, prisoners must first attend courses and demonstrate readiness for Category C. The main requirement is that they address the enormity of the offence for which they are imprisoned - and show contrition for having committed the crime. In practice, this means that those who protest their innocence must confess.

There is an earlier stage. Prisoners on Category B must show a sign of contrition before they are moved to prisons where such courses are taking place. After all, if they will not show contrition, there is little point in them taking the courses. So prisoners in Category B prisons must make a confession in order to get into a prison where they may apply to get on such a course.

If all the people in jail were truly guilty, this might not be cause for concern. But the work of the Criminal Cases Review Commission (CCRC) during the past three years has produced, so far, more than 100 cases where the Commission has believed a prisoner has probably suffered from a wrongful conviction. The Court of Appeal has released prisoners in most of the cases submitted by the CCRC, which the Court has been able to process.

The CCRC has a backlog of some 2,000 cases. If only 10% of them are worthy cases (and the present work would indicate a higher proportion) then at least 200 persons are currently in our jails as a result of a miscarriage of justice. Those 200 persons are currently in the position of having to confess to get any chance of parole.

Stephen Downing was recently released on bail and will appeal before the Court of Appeal within a few months. He has already served 27 years for the murder of Wendy Sewell in Bakewell. He was offered the 'parole deal' 12 years ago, but refused it. His resistance to the pressure may prove worthwhile. Soon, it seems, his conviction will be quashed and the stain on his character lifted. However, whilst he stayed in jail he saw many others go free - prisoners who had genuinely been guilty and who happily confessed that they had committed atrocious crimes.

Others, however, are less strong. Ernie Clarke went into jail five years after Stephen Downing, convicted of the murder of a girl in South Shields. In 1986 the Court of Appeal admitted that a TV reinvestigation completely destroyed the force of the forensic evidence against him. Nevertheless, Clarke's appeal was dismissed - one of the worst of the Court of Appeal's many poor judgements of the mid-80's. Faced with the impossibility of ever getting out of jail, and offered the 'parole deal' Clarke decided to admit that he had known more about the crime than he had told the court. It was not a confession. It did not provide any 'special knowledge', nor any other form of corroboration of his guilt. But it was the end of his chance to clear his name. His solicitor applied successfully for parole and Clarke was freed. Penniless, a convicted murderer, he was left to rue the wisdom of his decision. There was little point in anyone carrying on the reinvestigation of his case.

When faced with these two alternatives, it is not surprising that some may look for a third way. No feasible third way has yet emerged, but desperate situations tend to produce desperate ideas.

The weakest element of the case for the 'parole deal' is its moral base. The Court of Appeal is the final authority with the duty to preserve the morality of the system of justice, so it is likely to be that Court which finds itself faced with finding a solution to the problem. But it is the Courts that initially cause the problem. Most of the parole procedure is determined by the desire of the judicial system to provide finality to cases. All prisoners are guilty as a matter of fact in law. There is no legal possibility that they may be innocent. There is no allowance for the possibility that some of the prisoners in our jails are actually completely innocent.

Most prisoners who are victims of miscarriages of justice regard the 'legal fact' of their guilt as nothing more than an opinion. After all much of the evidence at trial was opinion, particularly from scientific experts. The jury formed an opinion on what they saw in the courtroom. The judge recorded that opinion as a 'legal fact' - but the prevalence of 'biased' summing up in miscarriage of justice cases strengthens the prisoner's view that 'legal facts' are nothing more that prejudiced, even ignorant, opinions.

In most cases there is only one person in the courtroom who knows whether the accused is guilty or innocent. That is the accused - the person perhaps least likely to be believed.

However, when a miscarriage of justice has actually occurred, it is perhaps not surprising that such convicts consider themselves more knowledgeable than the judge and jury. It follows that victims of miscarriage of justice consider the trial process to be essentially arrogant. It enforces a falsity in place of truth. Such prisoners may well already have had two experiences of might overruling right, for many miscarriage cases are the result of false confessions or admissions forced on suspects by unscrupulous police officers. So when such a victim is presented with further pursuance of such a 'might is right' policy - the 'parole deal' - there is a natural reluctance to go along with the idea.

The morality of the 'parole deal' is exactly that of 'plea bargaining'. Both are essentially a deal in which the authorities say: 'We say you are guilty. Admit it and you will get something in return'. Most lawyers disapprove of pre-trial plea bargaining - and would refuse to condone a plea of guilty when they fully believe their client to be innocent. The finality of the trial process persuades them that the morality of the 'parole deal' is somehow different.

Nevertheless, it is clear that the 'parole deal' is extortionate. It attempts to make prisoners conform not only in physical form, but also in mind. If such were done in an attempt to stop prisoners having antisocial attitudes and opinions, it might be condoned. However, it is used here to make the prisoner accept a particular version of history - even if it is at total variance to what the prisoner knows was the truth, or even what the Court of Appeal may ultimately decide was the truth. When we used the law to determine the narrative of history in the minds of individuals, we are approaching tyranny. That is clearly not in the public interest.

If neither the Home Office nor the Court of Appeal will do anything to support the moral foundation of the system of justice in this area, then others of high moral integrity may feel the need to step in to help the victims of this injustice. Such a tactic has already been used in some of the high-profile miscarriage of justice cases - when leading religious personalities and other such persons became involved. The campaigns which used such personalities produced a change in the thinking of the Court of Appeal. The Court of Appeal proved reluctant to doubt the word and sincerity of a person of obvious great moral integrity.

Judges always used to believe that no one confesses to a crime unless they are truly guilty. Culpatory statements always carried more weight than subsequent exculpatory ones. It has never helped an accused to say: 'I only confessed so that I could get a solicitor, so now I retract the confession'. This belief in inherent guilt has largely been destroyed in the past two decades. The Court of Appeal is now fully aware that pressure, such as the 'parole deal' can produce false confessions - for a variety of reasons. This change of attitude may provide the way forward in dealing with the present problem of the 'parole deal'.

If a convict being subjected to such pressure were to contact an independent person on unquestionable integrity, and affirm, perhaps in writing, that he or she was going to make a false confession as a means of entering the parole procedure, the Court of Appeal might find it difficult to accept such a confession as being the truth. As in other miscarriage of justice cases, the false confession could be considered unsafe because it was obtained by the use of undue pressure. The Court of Appeal might disapprove of such prisoners telling lies in order to gain advantage in the parole procedure. But as the guardian of the moral foundation of the system of justice, it might find itself in a moral dilemma if it supported the idea that potentially innocent prisoners should have fewer privileges than genuinely guilty ones.

Peter Hill is an investigative TV journalist specialising in miscarriages of justice. He created the TV series 'Rough Justice' in the early 1980s and is currently working on a film about the 'The Parole Deal'.

Return to top

Cases under Review by David Brittin

Since the Criminal Cases Review Commission was first set up in 1997, more than 50 wrongful convictions have been overturned. David Brittin highlights what prisoners need to know before making an application to the CCRC.

Ten Years ago, six men walked free after the Court of Appeal decided they had been wrongfully convicted of the Birmingham pub bombings, which killed more than 20 people. On that same day the Home Secretary stood up in the House of Commons and announced that a Royal Commission would be set up to look at the problem of the growing number of cases - like the Birmingham Six - where convicted persons claimed they had been the victims of miscarriages of justice.

One of its recommendations was that there should be an independent and impartial organisation responsible for investigating alleged wrongful convictions, which would have the power to send cases back to the Court of Appeal. That organisation is the Criminal Cases Review Commission (CCRC). Since it was set up in 1997, it has dealt with more than 3,000 cases and sent 140 of them back to the Court of Appeal. More than 50 convictions have since been overturned, including some of the most famous miscarriages of justice of recent times, such as that or Derek Bentley who was hanged for murder in 1952.

The Commission is able to help anyone convicted, at either magistrates or crown court, of a criminal offence in England, Wales or Northern Ireland so long as their cases meets two very important criteria:

• It must already have been to appeal or have had leave to appeal refused
• There must be new evidence or argument which as not already been considered at trial or appeal.

Some simple cases may be dealt with fairly quickly, but more complex cases take an average of 11 months to review after a Case Review Manager (CRM) begins work on the case. You can be sure that the review of cases is thorough. At the end of a review the Commission can refer a case if it thinks that there is a real possibility that the Court of Appeal would find that the conviction was unsafe. That decision must be based on new argument, new evidence, or exceptional circumstances. If the Commission does not think a case can be referred than the applicant is told why that is, and is given an opportunity to respond before a final decision is reached.

You do not have to be legally represented to make an application, but you will find it easier if you are. The Commission has a list of solicitors who undertake this sort of work, although you are not restricted to using one of these firms.

An audio-tape about the work of the Commission is available from your prison library or legal services officer, or you can write for an application pack - which contains an application form - to CCRC, Alpha Tower, Suffolk Street, Queensway, Birmingham B1 1TT. Tel: 0121 633 1800.

David Brittin is Acting Head of Information at the CCRC.

Return to top