Miscarriages of justice aren’t always big news involving somebody spending years in prison for a crime they didn’t commit. Often they are the minor cases that nobody but the people involved care about.
I'll let you into a secret... there's almost certainly a good few miscarriages of justice every single day in the English courts. They are usually for relatively "minor" offences and happen to people who either don't care because of they have drink, drug or psychiatric problems. The other big group are those who cannot afford to fight - the justice lacuna.
Most solicitors will have come across the defendant who pleads guilty while maintaining their innocence. The reasons for pleading guilty are as diverse as the people who make “false” guilty pleas. I’ve seen everyone from drug-addicts clucking so badly that all they can think about is getting out of the cells to get another hit and very highly educated professionals pleading guilty simply because they are scared of the court process. I also spent many years dealing with a man for whom making false confessions was practically a hobby – he confessed to arson, well known murders, acts of terrorism and many other things. Worryingly he is still in prison having served 29-years of a life sentence (that was imposed with a 4-year tariff) for arson. He confessed to police and entered a guilty plea in the early 1980s.
I am currently instructed in a case that comes to trial later this week. The defendant is accused of a drink driving offence, in this case failing to provide a specimen of breath for analysis. She insists that she followed the instructions and did her best to provide the breath specimen. I’ve watched the video a number of times and she certainly appears to be co-operating properly, albeit I’m neither a medical nor intoximeter expert.
Because I am not an expert, I advised the client to obtain evidence from expert as to whether there is a medical reason for her failure to provide or a fault with the intoximeter or by the police officers.
Sadly this individual falls into the ever increasing bracket of people – often middle-income families and young-professionals – who do not qualify for legal aid (which will also pay for the expert reports, if you can find an expert for the very low rates paid by the Legal Aid Agency) but who cannot afford to pay the relatively high costs charged by experts. She is only represented at all because I was happy to trust her to pay me by instalment.
There is a rule that if an expert witness is relied upon at trial then the witness becomes the court’s witnesses for the purposes of costs and thus the defendant is able to be reimbursed for the costs of instructing the expert. This still requires the expert’s full fees to be paid up-front, which is where many people have a problem.
This client therefore is about to go to trial lacking vital evidence, which she simply has no way of obtaining.
To give you an idea of this lady’s position, imagine being told that you could take three luxury holidays and all for free… except you have to book and pay for the holidays then claim back the costs later. Best of all it’s not a scam; you’re pretty much guaranteed your money back. You’d be champing at the bit to take those free holidays wouldn’t you? But, if you don’t have the money to put down at the start then it doesn’t matter how badly you want or need the holiday you’re not going to get it.
Is this person innocent or guilty of a crime? I don’t know. I will make sure that she receives the strongest possible defence at the trial but ultimately, she is going to be hamstrung by the lack of evidence supporting her case. There is nothing any solicitor can do about that.