Wednesday, 30 July 2014

Guilty Until Proven Innocent

When I first started writing this blog a month ago one of my principal aims was to dispel some of the most common myths about prisons and prisoners. A typical – and completely misguided – opinion that often comes up on readers’ comment threads, even in The Guardian online pages, is that all prison inmates ‘claim to be innocent’. It’s simply not true. 

In fact, the vast majority of inmates pleaded guilty at an early stage in order to benefit from the maximum ‘discount’ on their custodial sentences (usually a one-third reduction). This is standard practice as it reduces court costs and spares victims the trauma in our adversarial system of giving evidence under cross-examination. As such, most convicted prisoners acknowledge that they are guilty as charged.  

Of course, there is also a significant number who steadfastly maintain innocence, come what may. They are adamant that they have been wrongly convicted, either because crucial evidence has been withheld from the defence, or because it’s a case of mistaken identity to start with, or because they have been the victim of a malicious and false allegation, or because they have been framed by the police. Based on my own experience, I would always recommend caution before dismissing such claims out of hand, even if the Prison Service always treats convicted prisoners as guilty on the basis that it has to accept the verdict of the court.

During my time in prison I have known prisoners convicted of very serious crimes who have maintained their innocence despite incredible pressure to ‘confess’ to crimes they claim they never committed, who have then had their convictions quashed by the Court of Appeal and even won a retrial when compelling new evidence has come to light. They have walked out of the main gate as free men. In many ways the real struggle starts at that point.

In the balance
As most former prisoners who have won an appeal against conviction will confirm, just walking out of a prison doesn’t turn the clock back. Not only have they lost years of their lives, but some have lost their families. Marriages and relationships have broken down under the pressure of long distance incarceration in prisons that can be hundreds of miles from home. Children have grown up hardly knowing their fathers; elderly family members, especially parents and grandparents, may have died. Nothing can ever be the same again.

One of the great ironies of being a convicted prisoner is that those who serve their sentence do receive some – albeit very limited – support on release. A good probation officer, and there are quite a few of them still around, can be a major help in resettling back into the community. There are also various charities around to help with housing, access to benefits and other practical problems that almost every ex-prisoner will face after serving a custodial sentence, even a fairly short one.

However, for people who have been acquitted at trial after serving months or even years on remand, or for prisoners whose convictions have eventually been quashed by the Court of Appeal or the Supreme Court, there is practically no support available. It’s a case of “pack your kit and clear off”, usually the same hour the court order for release hits the governor’s desk. At that moment, the ex-prisoner becomes no-one’s problem anymore. He – or she – becomes an awkward embarrassment to the system. Screws can’t look them in the eye; other cons can be either jealous or resentful.

For example, when former postman Victor Nealon was released in December 2013 after his appeal was successful and his conviction quashed – having steadfastly maintained his innocence of a rape that had led to a life sentence and nearly 17 years imprisonment – he was kicked out of the prison gate homeless and with just £46 discharge grant in his pocket. He ended up sleeping rough. Last month, the Ministry of Justice (MOJ) decided, in its infinite wisdom, that he isn’t deserving of a single penny in compensation, a decision that his legal team is contesting.
Kicked out of the gate

I’ve often reflected that no-one in their right mind maintains innocence in prison unless they really are a victim of a miscarriage of justice. For prisoners serving a life sentence, an Indeterminate Sentence for Public Protection (IPP) or a lengthy determinate sentence with a parole element, a refusal to acknowledge guilt can result in many, many extra years in prison and repeated knock-backs (refusals) by the Parole Board. 

It can result in being refused re-categorisation to a lower security status – B-cat to C-cat, for example – or transfer to an open prison (D-cat). For some prisoners, their refusal to admit guilt can result in an effective whole life tariff – imprisonment until they die – even when that wasn’t the actual sentence of the court. Why the hell would anyone inflict that on themselves?

Funnily enough, even the National Offender Management Service (NOMS) has had to recognise that some prisoners who are maintaining innocence are actually innocent! Looking at the current text of Prison Service Order (PSO) 4700 / PSI 36/2010 – sometimes known as the Lifer Manual - it is there in black and white: 

4.14.1   Managing prisoners who maintain their innocence or deny all or part of their offence. General principles

There are many reasons an offender may maintain their innocence or deny all or part of their offence, for example: 

they may not be able to accept what they have done, 
they may be trying to protect others, 
they may not want someone close to them (friend or family) to know the truth, 
they may not see what they did as an offence,
they may refute some or all of the evidence, 
they may actually be innocent – some prisoners have been found not guilty following a re-trial; sometime many years after the original conviction. 

Stefan Kiszko: 16 years
Indeed – as the case of Mr Nealon so eloquently demonstrates. And Stephen Downing (after 27 years in prison)… and Andrew Evans (after 25 years in prison)… and Stefan Kiszko (after 16 years in prison)… and solicitor Sally Clark (after over 3 years), and the Birmingham Six and the Maguire Seven and the Guildford Four and the Bridgewater Four… and the dozens of other scandalous miscarriages of justice in the recent history of the British criminal justice system.

Of course, convicted prisoners who maintain innocence are a real headache for the prison system. They are detested by Offender Management Units (OMUs) because they cause problems with sentence planning. Since many offending behaviour courses and programmes require an initial ‘analysis of offence’ as a condition of participation, most prisoners maintaining innocence are ineligible. This puts an effective block on progression, particularly for prisoners who are serving indeterminate sentences (lifers and IPPs), meaning that they are likely to serve many more years in prison, even if they are over the minimum tariff set by the judge.

Really worth your integrity?
Since 1 November 2013, the new Incentives and Earned Privileges (IEP) system via PSI 30/2013 has made it much harder for prisoners who are claiming to be victims of miscarriages of justice to reach or maintain the Enhanced level of privileges. I know a number of inmates who have recently been demoted to Standard level and have had much of the personal property that they have previously purchased – such as DVD players or musical instruments – confiscated. Some are now facing an uphill struggle to even stay on Standard level. 

The alternative is life on the highly punitive Basic regime. This can involve effective solitary confinement for up to 23 hours day, seven days a week – in addition to no personal clothing; no rented TV; hardly any possessions; virtually no access to money to buy telephone credit or stamps; limited opportunities to exercise, to phone family or even take a shower. Enduring that sort of social, mental deprivation and draconian punishment for months – or even years – takes a grim determination to maintain your innocence, or a very strong moral character. Mental deterioration for such prisoners is a real risk.

So the next time you hear or read about a prisoner maintaining innocence, or it’s on the news that someone’s conviction has just been quashed by the Court of Appeal, take a moment to reflect on what that really means. And the high price that the person has probably already paid – and not only in lost years of his or her life – in order to maintain their integrity. Could you do the same? 


  1. Excellent piece of writing well done. As an ex- offender (guilty) this resonates with me as i met a few people in this very position and hold a great deal of admiration for their strength of conviction (no pun intended) and personality.

    1. Thanks for your contribution. It is definitely getting increasingly difficult for prisoners maintaining innocence to progress through their sentences, particularly in view of the revised IEP system. As I've written in the above blog post, in my view there is no benefits to maintaining innocence, unless one actually is the victim of a miscarriage of justice.

  2. Really good article. Interestingly, the Court of Appeal in the case of Oyston, had a few things to say about how the Parole Board should treat prisoners that deny the index offence. Suffice to say the issue of maintaining innocence is one which Politicians repeatedly use to their own ends. Following Gerry Conlon's sad death recently, the Prime Minister himself had this to say: "It is hard to think what 15 years in prison, when you are innocent of a crime of which you have been convicted, would do to somebody. It is absolutely right that a previous Prime Minister apologised as fully as he did when this came to pass".

    But the debate doesn't have to be about who is and isn't guilty. That is one aspect of a broader consideration decision makers ought to give to risk and manageability. Some of the hardest cases I've fought (until legal aid was cut) involved inmates maintaining innocence. The reason they were difficult is the sheer resistance of the establishment to progress on this narrow and - most of the time - unfounded basis.

    1. Thanks for your comment. While I was still a prisoner I put together an application for JR of a Parole Board decision on behalf of another inmate who is maintaining innocence and which was ultimately successful. However, we won because the reasoning on which the decision had been based was ruled to be unreasonable (in the Wednesbury sense).

      In my experience - and I've read of lot of these decisions - what tends to happen is that the Parole Board acknowledges that it would be unlawful to refuse parole solely on the basis the prisoner is maintaining innocence. It then goes on to refuse parole on the ground that there has been no risk reduction work done... for which an admission of guilt is required, followed by an analysis of the (alleged) offence and the circumstances surrounding it. This effectively excludes prisoners maintaining innocence from participation.

      In reality, the prison system simply doesn't have a strategy for dealing with people maintaining innocence, other than to threaten them with demotion through the IEP levels until they hit Basic - which is now happening regularly. The idea of setting realistic and achievable targets in sentence planning really hasn't caught on among Offender Managers and Supervisors!

  3. All true. Furthermore, the insistence that prisoners must confess in order that they can undertake "offending behaviour programmes" is totally senseless. For one thing, the programmes don't work (the evidence on this is widespread and increasing). For another, detailed examination of the index offence is irrelevant to risk assessment, since reoffences are frequently of a different kind from the original, especially in lifer cases. Like generals who are always fighting the last war, risk assessors are often assessing the last risk, not the risk today. In lifer cases, the last offence may be several decades ago; what relevance is there to today? Haven't YOU changed out of all recognition in the last 30 years? I pity you if you haven't.

  4. Thanks for your comment. I have mixed views on OB programmes, mainly because I've never participated in one (as I was on appeal against conviction throughout my sentence), although I have discussed them with many prisoners who have done so. Some express the view that the programmes - especially CALM and TSP - have helped them, others maintain that it was all a complete waste of time. What is certain is that some prisoners learn to 'talk the talk' during programmes, but see them as a means to an end - ie release on parole or re-categorisation. Obviously this strategy is generally not open to inmates who are maintaining innocence.

    One of the main problems with assessing risk is that it is an art, rather than a science and I would agree that the focus tends to be on issues of static risk, rather than dynamic. As you write above, most people change very significantly over the years, particularly in terms of maturity and experience. The challenge lies in how those changes can be properly evaluated as part of a risk assessment process. I don't think there is any easy answer, but it is pretty clear that the present system isn't working.

  5. Very good article and points made , I have been sentenced and served time in the H blocks of long kesh, and can see the very same things and experiences .Although in a political context , the amount of innocent people I met and saw was a scandal, me not being one. People need to put themselves in that situation and imagine how you would cope .It's just not fighting to prove your innocence ,but the whole rotten system. Take for an example someone on a murder or other serious charge, the cps comes and says plead guilty for 10 years or fight the case and get a whole life term or 35 years, what would people risk? You think being in a shit hole maybe for a year or 2 and then told plead guilty or never leave this place! The system is always against the innocent , unless you have money and political connections to see you looked after.

  6. Well written piece in which you make very vivid observations.

    In my own case my conviction was found 'unlawful in 2002 but it was not until 2010 that the Court of Appeal used the words 'unsafe' that my conviction was quashed. Unlike many I can show that elusive standard of 'demonstrable innocence' only I am not allowed to ventilate it in open court --part of the Minister for Justice's appeal to the court went like this: "If Walsh's application succeeds it may gain a higher profile and raise questions over other convictions."

    1. PS: The reason the Minister (and Court) are suppressing me are because before I left the courtroom in 2010 I took possession of one of the Prosecutors files containing evidence he maintain, at my trial in 1992, never existed.

      Initially an attempt was made that I could be punished for 'stealing a prosecutors file' I rose to that challenge by making myself available to the police if they wanted.

      Given the weight of the evidence I recovered my argument of 'just cause' outweighed any criminal offense I might have committed.

    2. Hi Christy, thank you for your very interesting comments. I think I remember your case. I'm only sorry that it took so long for your conviction to be quashed... sometimes our 'justice' system is so fatally flawed that it's a wonder anyone ever gets justice - including real victims of crimes who are conned into believing that the right people have been sent down, when all too often those convicted have been fitted up or vital evidence has been suppressed by the prosecution.

      I must admit that I do sometimes get very angry when people who have little or no personal experience of our criminal (in)justice system seem to believe that no innocent person ever gets wrongly convicted, even though there have been thousands of unsafe convictions quashed by the Court of Appeal. Often, I think it's just wilful blindness to the truth!

      On the other hand, I do think that being wrongly convicted can make the experience of prison easier to bear, precisely because there isn't any feeling of guilt. I certainly found this myself and - hopefully - will walk down the steps of the Court myself in the not too distant future. Thanks for sharing your own story with us.

    3. Hi Alex thanks for your response. You have a very interesting blog and probably a source of help to many.

      Though I would say that having a clear conscience did not make the destruction of my life any easier to bear. In fact for a guilty person they have their answer for why they are in prison -not so for the innocent because there are no answers just stonewalling and unfairness. As you know many innocent people have watched the guilty get shorter sentences or be eligible for parole sooner and other 'privileges' because they accept their guilt -the innocent are faced with a devil's bargain.

      I wish you luck in your upcoming legal hearing. But no matter how long you have been around there is no getting used to how consistently the system continues to get it wrong. 'Quashed' is now an almost meaningless turn of phrase; for anyone still in jail at the time it may bring immediate release, but it does not bring justice for the abuses that might have occurred --especially if it involved willful bad faith throughout. I do not say these things to dampen your enthusiasm but that you guard against any complacency --every appearance in court is a fight for your life because the system never misses an opportunity to fight dirty to save face. So on that note kick the fuck out of them!

    4. Hi Christy, thanks for your response. I do take your very valid point about the pressures of innocence for the wrongly convicted. As we both know only too well, prisons are set up to deal with the guilty. People maintaining innocence don't fit into the scheme of things and life is now getting almost unbearable for the victims of miscarriages of justice.

      I was 'lucky' in that I achieved Enhanced status in the IEP system and managed to keep it (mainly because I was on appeal for almost all my sentence, other than three weeks of judge's remand), although many others weren't so fortunate. Also, I was one of just two prisoners maintaining innocence who got to Cat-D during my time at that prison, so I count myself as being doubly lucky. Interestingly, various governors (and even the regional director of security) expressed their doubts over my conviction, so I think that this helped.

      The people I really feel for at the moment are prisoners serving indeterminate sentences (whether 'in denial' of murder or of other IPP offences). They really do face a terrible dilemma that I, as a determinate sentenced prisoner, didn't face. I was more than ready to serve a few years down the Block rather than make a false 'confession', but I didn't even have to face that fate, so I certainly don't criticise others who have had a much rougher time inside than I did.

      Now that we have new documentary evidence that was wilfully withheld from the defence (and evidence that at least two prosecution witnesses were forced to omit relevant exculpatory evidence of my complete innocence from their statements by police), I think we are in a much stronger position to fight for a quashing. For even more complex legal reasons we are also pursuing the alternative route of a complete nullification on the grounds that my arrest, police interview and charging were all unlawful under both UK and international law. I'm keeping my fingers crossed!

  7. Alex, that sounds interesting and I hope it goes as you believe that it should, I would be interested in hearing how you get on ( If it is an appeal proper that you have then that court can only make 1of 3 decisions --uphold the conviction, order a retrial, or quash the conviction --it will not rule that your conviction was unlawful or that the conviction should be null and void --unsafe will be as far as it will go. The Court might not even hear all of the evidence in your possession --as the verdict of unsafe is as far as it can go then once it is satisfied it has reached that threshold then any other evidence becomes surplus and not necessary to be heard.

  8. Beverley keenan22 June 2015 at 20:16

    Interesting piece. As a.victim as my only brother was murdered i would just like to addall we got as a family was a corpse given to us and told to bury him aa he was aurder victim. Much to the heartache of my mam who wanted him cremating. We were refused crominal injuries and his 3 children were never offered counselling. At court my brother was put on trial not the killer and the.justice we received was 7.years. which he served 4 years 8 months. Since his release he has been back n forth to prison. While we had my brother exhumed and cremated. The cost to this family is immeasurable. Please google joeys story blackpool for the full background. His killer pleaded not guilty and still got a lenient sentence. The justice system is so wrong. Kerping people who have not actually killed anyone behind bars just for being at a scenw as in the joint enterprise cases and allowing dangerous individuals to walk the street.

  9. Thank you for such a detailed look from inside the jail. Too many of us on the outside just swipe a broad brush over anyone in jail, and that post you made really allows us to see that there are in fact people in there that should not. I can not even begin to imagine the frustration of being innocent and locked away.