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On this day the only April fools are my critics: Part 2

It is 4 years today that I put pen to paper and wrote about the Independent Monitoring Board (IMB) from my direct experience and my perspective as a prison monitor. My article “Whistle blower without a whistle” published in The Prisons Handbook 2016, sent shock waves across the criminal justice sector, locally, nationally and internationally.

When you feel so passionately about a cause it is very hard to keep quiet, I couldn’t stay quiet any longer. I was given the opportunity and used my voice.

First, I had to weigh up the risk of possibly causing offence versus the need to speak up in the public interest.

What I didn’t expect was it resulting in a prejudicial character assassination, a fight to clear my name, being gagged by a grooming culture within the IMB, being investigated twice by UK Ministry of Justice, a disciplinary hearing at Petty France and the involvement of not one but two Prison Ministers. I felt that I was on my own against a bastion of chauvinism. Not the last bastion of their kind I would come across. Welcome to the IMB!

Maybe the problem was that the IMB and the MoJ didn’t expect someone like me to put their head above the parapet or to dare voice an opinion. Yet we all have a voice; we all have opinions and we should not feel the need to suppress them. I did, I felt that I couldn’t really express myself, would anyone listen?

Faced with adversity, people either ‘fight, flight or play dead’. I made the decision to fight. I have no regrets.

People started listening, taking notice and lending their support.  Above all, they agreed with me but felt unable to say anything publicly themselves for fear of reprisals.

We all know the saying ‘action speaks louder than words’ but often you have to speak before any action can take place. So, I spoke out and expected results.

Since then I have written on many occasions about the IMB, its lack of effectiveness, lack of diversity and most troubling of all its lack of independence. The IMB Secretariat is staffed by MoJ civil servants, the National Chair is an MoJ employee, the purse strings are held by the Permanent Secretary of the MoJ and Board members expenses are paid by the MoJ.

“I’m finding the working environment intolerable and detrimental to my health, and part of me would like the IMB to recognise this as a symptom of its unsustainable system and the pressure it puts on people (but they probably won’t care)”.

Sadly, when I continue to receive messages such as this one from a serving IMB Chair, I realise very little has changed.

Unchanging. Unchangeable.

Even with a new governance structure, the appointment of its first National Chair and a written protocol between the MoJ and the IMB, none of these has persuaded me that there is enough independence, effectiveness or impact.

If there are concerns and issues that don’t add up, instead of staying silent, ignoring the facts or even dismissing them, it is imperative to ask questions.

As I have seen first-hand with the relationship between the IMB and the MoJ where they appear to be marking their own homework where monitoring of prisons is concerned, I noticed another irregularity.

During 2019 whilst attending sessions of the All Party Parliamentary Group (APPG) on Miscarriages of Justice, I noticed something of vital importance about the composition and scope of the inquiry of the Westminster Commission on Miscarriages of Justice, which states:

“Given that there are serious misgivings expressed in the legal profession, and amongst commentators and academics, about the remit of the Criminal Cases Review Commission (CCRC) and its ability to deal with cases of miscarriages of justice, and given that perceptions of injustice within the criminal justice system are as damaging to public confidence as actual cases of injustice, the WCMJ will inquire into:

1. The ability of the CCRC, as currently set up, to deal effectively with alleged miscarriages of justice;

2. Whether statutory or other changes might be needed to assist the CCRC to carry out is function, including;

(i) The CCRC’s relationship with the Court of Appeal with particular reference to the current test for referring cases to it (the ‘real possibility’ test);

(ii) The remit, composition, structure and funding of the CCRC

3. The extent to which the CCRC’s role is hampered by failings or issues elsewhere in the criminal justice system;

and make recommendations.”

But between 2010 and March 2014 Dame Anne Owers who currently sits on the Westminster Commission on Miscarriages of Justice “established by the All-Party Parliamentary Group on Miscarriages of Justice (APPGMJ) with a brief to investigate the ability of the criminal justice system to identify and rectify miscarriages of justice”, was a non-executive director of the CCRC.

Public purse. Public interest.

I have a problem with a system that allows for a person to occupy a role paid for from the public purse who then later occupies a separate post, albeit as a volunteer with expenses paid from the public purse, which is meant to scrutinise the work that has been done previously by that same person.

This is utterly incompatible because of the risk that the full truth of what was done or was not done previously may never see the light of day. I believe it is in the public interest to ensure that officials never get the opportunity to mark their own homework. This is especially true when it comes to the substantive issues of miscarriages of justice.

We are talking about miscarriages of justice. We are talking about lives that have been ruined. We are talking about lives which have been lost and about families that no longer have their loved ones.

Deciding to ask someone with a link to a current CCRC application, whose opinion I trust, if they would see the APPG on Miscarriages of Justice differently should a member of its commission have had previous links with the CCRC, their response was startling and very revealing:

“I certainly would Faith. A commission looking at the inner workings and efficiency of the CCRC should be totally independent looking at the watchdog with open and unclouded eyes. I dread to think which kinds of bias would come into play if somebody with a past association to the CCRC were allowed to be part of the investigatory commission”

Separately, as a friend once said to me:

Faith has stood her ground where many others have feared to tread and of course I admire this characteristic immensely but more than that, she has survived and continued her quest with renewed vigour”

I am nobody’s fool and the Ministry of Justice has left me with no alternative than to continue to take more robust action in the public interest. This in part means being willing to ask probing questions whenever I discover irregularities in the Criminal Justice System, and fully intend to continue to do so.

 

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Credit

Photo is copyright and used with permission.

Erratum

Paragraph 18. “also paid for from the public purse” deleted and replaced with: “albeit as a volunteer with expenses paid from the public purse,”

 

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2 Comments

  1. Edward Garnier says:

    You are perfectly entitled to express your opinion about the MoJ, the IMB and the Westminster Commission on Miscarriages of Justice but, if your comments are to have any value, you must base them on the facts rather than conjecture. The Westminster Commission was set up under the auspices of the APPG on Miscarriages of Justice, but it is wholly independent of it, to consider the work of the CCRC.

    Baroness Stern and I are the two Co-Chairs. We both have some experience of the criminal justice system, she as a writer and academic and I as a member of the Bar, a sometime Crown Court Recorder and former Solicitor General. We alone chose our fellow commissioners because of their professional expertise and life experience in this field of inquiry: Dr Philip Joseph, an NHS forensic psychiatrist who has given evidence in numerous criminal trials; Michelle Nelson QC, a highly respected Silk who both prosecutes and defends in complex criminal cases and appeals; Erwin James, a former prisoner, a broadcaster and writer on criminal justice issues, and the editor of Inside Time, the newspaper for prisoners; and Dame Anne Owers, who is the first National Chair of the IMB, the former Chair of the IPCC , a former non-executive director of the CCRC, the former HM Inspector of Prisons, and the former Director of Justice.

    None of the commissioners, Anne Owers included, is paid. We are all busy people doing this work voluntarily because we think it important and in the public interest. The fact that Dame Anne was, amongst other things, a CCRC non-executive director between 2010-14 is one of the reasons that Lady Stern and I asked her to join the Commission. Her role as a non-executive director was to challenge and scrutinise its work. We saw that as a positive advantage as it would enable us, and it has, to get a better insight into the work of the CCRC. You will know from your attendance at our public sessions that we have all rigorously questioned the witnesses before us and, to your point, Anne cannot justly be accused of “marking her own homework’.

    Clearly you have issues to resolve with the IMB pre-dating Dame Anne’s appointment as its Chair, but they have nothing whatever to do with the Westminster Commission. We aim to publish our report, based upon our findings of fact, as soon as we can reconvene after the end of the Covid-19 crisis. When you have seen our finished work you can then, from a state of actual knowledge, make such comments on our conclusions as you think fair and appropriate.

    Edward Garnier
    Co-Chair of the Westminster Commission on Miscarriages of Justice
    House of Lords, London SW1A 0PW

    • faithspear says:

      Dear Lord Garnier

      I am grateful for your time to write a comment to my blog. Thank you. It deserves a considered response in reply which I am pleased to set out below.

      First,
      I dispute the independence of the work of the Westminster Commission for Miscarriages of Justice for as long as a commissioner or member of the Secretariat, whoever they may be, is susceptible to parti pris by virtue of their past or present involvement in the CCRC.

      Of course, I am perfectly entitled to express my opinion about MoJ, IMB and the Westminster Commission on Miscarriages of Justice. In writing my blog I neither seek nor require your permission. You are not a moderator of my words or thoughts.

      My comments have value, that is why you have sent this message, if they were of no value you would have ignored them. But obviously something has rattled you.

      Second,
      I am fully aware of who the commissioners are. Listing your credentials makes you sound pompous and could be construed as a tactic to belittle or intimidate. My voice and opinion are just as important and valid as yours. You probably disagree with me but let me repeat myself. My voice and my opinion are just as valid as yours. You see, really, we have the same audience. But it’s not about you and it’s not about me, the focus should be on scrutinising the CCRC.

      It doesn’t matter what your title is or your credentials, what matters is that the public at large, including individuals and families who have cases with CCRC, can have full confidence in your ability to scrutinise, challenge and review the CCRC with true impartiality.

      Some focus must be on those families and individuals but your words to me never even mentioned them. How can you assure them that your work has merit when any recommendations you make have no guarantee whatsoever to make a difference? If you continue to look down on individuals such as myself, then how do you look at the cases that are so desperate to get a response from the CCRC?

      Third,
      To be absolutely clear, I have no issue now or in the past with Dame Anne Owers as an individual. If I did then I would not have met with her on several occasions.

      However, her appointment as commissioner on the Westminster Commission for Miscarriages of Justice provides opportunity to squelch or omit fact, to insert correction, and to obfuscate truth. This exposes the work that Westminster Commission for Miscarriages of Justice is seeking to do in its inquiry into CCRC to public ridicule.

      You use the words challenge and scrutinise. But in reality, how do we know she will not be scrutinising her scrutiny, now say that out loud and see if it makes any sense to you?

      The decision by you and the Baroness Stern to choose a commissioner who as recently as April 2020 is on record as saying:

      “It has certainly been useful to have a look at where the Criminal Cases Review Commission is. I was particularly interested as I was on the body that recommended the creation of the CCRC, so it is something that has always been very close to me.” (‘No quick fixing’ by Ben Leapman. Insidetime, April 2020, p.23)

      means that the findings of the Westminster Commission for Miscarriages of Justice will suffer confirmation bias because there is clearly a strong emotional attachment to the CCRC as an entity on the part of Dame Anne.

      This is partly the reason I believe her position on the CCRC conflicts with the scope of the inquiry which, under ‘Call for Written Evidence’, commences:

      “Given that there are serious misgivings expressed in the legal profession, and amongst commentators and academics, about the remit of the Criminal Cases Review Commission (CCRC) and its ability to deal with cases of miscarriages of justice…”

      Furthermore, documents in the public domain make it abundantly clear that Dame Anne was a paid non-executive director of CCRC during the dates I stipulated in my blog.

      2010-2011 Salary (£1000) = 5-10 Benefits-in-kind to nearest £100 = 800
      2011-2012 = 0-5 = 500
      2012/2013 = 5-10 = 600
      2013-2014 = 0-5 = 400

      If anyone is tempted to think that a paid position as a non-executive director carried little influence, allow me to draw your attention to the CCRC Annual Report 2010-2011, page 40, which confirms that:

      “The non-executive directors have assumed a more active governance role. Both sit on the Executive Scrutiny Committee, and each chairs one of the other main committees. This arrangement helps to ensure a robust challenge environment and provide a useful external perspective to aid decision-making. The new structure was introduced at the beginning of the 2011 calendar year and is now bedding in”.

      Moreover, the CCRC Annual Report 2011-2012, page 40, confirms that Dame Anne Owers was on three committees:

      ESC: Executive Scrutiny
      FRC: Finance and Resources
      PCC: Policy and Casework
      (ESC and FRC merged at the end of 2012 to become FESC)

      and that on page 22:

      “The Commission’s complaints procedure has two stages. The majority of complaints are dealt with at stage one by the Customer Service Manager. If a complainant is not satisfied with the response provided at stage one, there is a second stage where the handling of the complaint at stage one is considered by the Chief Executive (or acting Chief Executive) or by a non-executive director of the Commission. In 2011/12, five complaints (10%) moved to stage two of the procedure. Last year ten complaints (15%) moved to stage two”

      Rather than being a positive advantage to gain a better insight, my blog explores the possibility that having Dame Anne as a commissioner on the Westminster Commission for Miscarriages of Justice actually represents a negative disadvantage.

      Commissioners may not be paid but they are reimbursed for the expenses they incur. Those expenses are paid from the public purse. Their time as volunteers is pro bono. So that this is more prominently reflected in my blog I have made the following amendment:

      Paragraph 18. “also paid for from the public purse” deleted and replaced with:
      “albeit as a volunteer with expenses paid from the public purse,”

      Acknowledging that part of the original sentence was not sufficiently precise I have posted an erratum on the original blog, and must draw your attention back to points which I think have a bearing on the work now being done.

      Fourth,
      My issue is a matter of public interest that a previous serving non-executive director of the CCRC who now sits on the Westminster Commission for Miscarriages of Justice has commissioner-level involvement in an inquiry to look closely at the CCRC is very much “marking her own homework” and any fair minded person would see it as exactly that.

      The fact that I have issues with the IMB is something you should be welcoming because it has led me to see what I believe to be irregularities that the Westminster Commission for Miscarriages of Justice need to face.

      Rather than trying to discredit what I am saying I would have hoped you would leap at the chance to embrace the points I am raising about independence.

      There are many families and individuals who look to the Westminster Commission for Miscarriages of Justice to be a voice for justice, maybe even to give them a fighting chance towards getting their case re-heard. But I believe this can only be done when the Westminster Commission for Miscarriages of Justice is scrupulously impartial and, as I have highlighted, it cannot be with its present composition.

      People eagerly await your report and I most certainly shall make comments on your conclusions as I think fair and appropriate.

      Faith Spear FRSA
      Monday 6th April 2020

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