On 21st November 1974 two explosions in Birmingham wrecked the Mulberry Bush and the Tavern in the Town. 21 people were killed and 182 injured. A third explosive device failed to detonate. Six men - (Hugh Callaghan, Patrick Joseph Hill, Gerard Hunter, Richard McIlkenny, William Power and John Walker) - were arrested and subsequently tried in the Shire Hall of Lancaster Castle before Bridge J and a jury.
The trial commenced on 9th June 1975 and the men, having been convicted, were sentenced to life imprisonment on 15th August 1975. Bridge J's career was to go on to the pinnacle of the judiciary. He sat as a Lord of Appeal In Ordinary in the Appellate Committee of the House of Lords from 1980-92 - (Obituary in The Independent). The six convicted men were to spend 16 years in prison. In November 1974 I blogged about the case and its aftermath including the Royal Commission on Criminal Justice which reported in 1993 and the subsequent setting up of the Criminal Cases Review Commission (CCRC).
When the men were convicted, the inquests into the deaths of the pub bombing victims were adjourned and they have not since been resumed. Relatives are currently engaged in an attempt to persuade the Coroner to resume the inquests since they see this as a last opportunity to seek justice for those who died. Resumption of the inquests is opposed by the Police. BBC News England 10th February 2016 and Birmingham Mail 10th February 2016. This BBC report also notes the point that, after the convictions were quashed, the former Director of Public Prosecutions (Barbara Mills) placed a 75-year embargo on files relating to a Devon and Cornwall Police inquiry into the West Midlands Police investigation.
Jon Robins writing at The Justice Gap reports on his interview with Patrick Hill one of the Birmingham Six - "It's not the system that's wrong: it's the bastards on the bench". Hill is highly critical of the Criminal Cases Review Commission which he sees as lacking "the balls to stand up to the Court of Appeal." Hill also expressed the view that the CCRC is a "bastardisation of the original proposals."
The Royal Commission did not envisage anything more than an authority that would be independent of the court structure with a power to refer cases to the Court of Appeal and this is substantially the present day position. The CCRC is empowered only to refer cases to the Court of Appeal and will do so where it considers that there is a "real possibility" that a miscarriage of justice has occurred. The power to quash a conviction therefore remains fully with the Court of Appeal.
The House of Commons Justice Committee has called for the CCRC to be given the resources and powers it needs to be more effective and the Justice Committee also recommended that the Law Commission conduct a review of the Court of Appeal's grounds for allowing appeals. This includes looking at the current application of the constitutional doctrine of the primacy of the jury. If such a review leads to a change then there should be a subsequent review of the 'real possibility' test used by the CCRC in deciding whether to refer a case. In the meantime, the Committee recommends that the CCRC be less cautious in its application of the test. The CCRC should err on the side of making a referral if in doubt about a case. See the Justice Committee report March 2015.
The CCRC has the power to require public bodies to disclose documents for its investigations, but this power has never applied to private bodies. With private bodies performing more functions traditionally performed by public bodies, this lack of power has hindered the CCRC in some of its investigations. An attempt to remedy this defect is currently progressing through Parliament - see the Private Members Criminal Cases Review Commission (Information) Bill 2015-16 and please see this earlier post.
Would it be an easier today for a prisoner to secure a referral to the Court of Appeal?
Paul May writing in The Justice Gap thinks that it would not - 25 years on, and it's harder than ever for innocent prisoners to achieve justice. This article looks at the Birmingham Six appeal in 1987 where the Court of Appeal rejected allegations of ill-treatment by West Midlands Police. (Why is there a 75 year embargo on release of that matter?). The article then expresses the view that the Court of Appeal has traditional obduracy towards those claiming innocence and that this has led to the CCRC progressively adopting an extremely timid approach to referral decisions. The CCRC is also underfunded (as the Justice Committee also noted) and this leads to limited funds for investigation and causes delays in the handling of cases. Limited legal aid also plays a crucial part.
Finally, there is clearly political reluctance at the present day to compensate those who have suffered miscarriage of justice. Under the Antisocial Behaviour, Crime and Policing Act 2014 section 175, in cases of newly discovered evidence, compensation will only be payable if the new evidence shows beyond reasonable doubt that the person did not commit the offence. This is examined further in a previous post - Compensation for Miscarriage of Justice - 14th June 2015.