Innocence projects: a perfect solution for clinical legal education?

In this article from the Autumn 2006 issue of Directions Michael Naughton and Julie Price, managers of the innocence projects at the universities of Bristol and Cardiff respectively, outline the potential role of such projects in clinical legal education and describe the work of the Innocence Network UK.

Over the last decade a growing number of institutions have recognised the potential benefits of clinical legal education and a vibrant pro bono student law clinical movement has developed in the UK, particularly at the vocational stage. The reasons are both pedagogic and shaped by current higher education policy.

It is increasingly accepted that undertaking practical legal/advice tasks whilst learning law provides students with a deeper learning experience, coupled with an opportunity to gain a real insight into the ethical issues that traditional book learning or even simulation cannot provide. Clinic may be used to respond to some of the proposed changes outlined by the Training Framework Review, which increase the emphasis on the teaching and assessment of legal and communication skills. Interest in clinical legal education has also grown in response to the need more generally for universities to provide their students with personal development planning (PDP) opportunities to enhance their career planning and build reflective and enterprise skills into the law curriculum.

A range of different ‘live client’ schemes and activities have already evolved in the UK, ranging from the provision of initial advice and assistance to full representation. Against this background a new and exciting specialist area of clinical legal education is emerging within universities – innocence projects, akin to and emerging out of the experience of Death Row cases in the USA.

The establishment of an innocence movement within the UK is being welcomed by criminal lawyers and campaigning groups in the miscarriages of justice community as filling an advice gap, whilst at the same time providing a unique hands-on educational experience for students. There are currently three innocence projects in the UK – at Bristol, Cardiff and Leeds – and others are in the pipeline.

Whilst innocence projects are still new to the UK, interest from universities is growing and is likely to increase in the wake of a new drama series the BBC is planning for the autumn, The Innocence Project. We do not yet know how sympathetic the BBC interpretation will be to the work we are doing within universities, but given the likely artistic licence and melodrama that will be involved, we would like to harness and steer the anticipated enthusiasm of students in a constructive educational direction.

What is an innocence project?

Innocence projects serve to meet the unmet legal needs of innocent victims of wrongful convictions and those whose cases fall outside the scope of legal aid. An innocence project operates as a live client student-led specialist law clinic, focusing on the study of wrongful convictions. The defining feature of innocence projects is that they involve students in researching real criminal cases. This investigative work may be conducted by undergraduate and/or postgraduate students in conventional academic settings, or by those enrolled on vocational programmes. The students’ work is supervised by academics in conjunction with practising solicitors, who work on the cases pro bono.

The case for innocence projects reflects the complexities and resource constraints of the present criminal appeals system. As is well known some prisoners have spent many years in prison before eventually being exonerated. Despite this the Criminal Cases Review Commission (CCRC), the body set up in the wake of notorious cases such as the Guildford Four and the Birmingham Six, was not designed to rectify the errors of the system and to ensure that wrongful convictions are overturned. Instead, its remit under the 1995 Criminal Appeal Act dictates that it review the cases of alleged or suspected victims of miscarriages of justice to test whether they were obtained in strict accordance with the rules and procedures of the criminal justice system. If it is found that procedures were contravened and that there is a “real possibility” that the Court of Appeal will overturn the conviction, the case is referred back.

Paradoxically the CCRC will, logically, refer the cases of guilty offenders if their convictions were procedurally incorrect, but at the same time it is often helpless to refer the cases of innocent victims of wrongful conviction if they do not meet the requisite criteria of fresh evidence or fresh arguments. Even if the CCRC has evidence indicating that an applicant is innocent, if this evidence was available at the original trial it cannot refer the case to the Court of Appeal.

Innocence projects in England and Wales attempt to find legal grounds, in the hope that alleged innocent victims of wrongful conviction are successful in achieving a referral back to the Court of Appeal (Criminal Division), or, if they are second or ‘out of time’ appeals, via the CCRC.

In this context innocence projects exist not only as a resource for student education about the ills of the criminal justice system but also provide opportunities for researching the various aspects of the problem and the obstacles that innocent victims of wrongful conviction or imprisonment, their families and friends, and even wider society, continue to experience. The lessons learned in undertaking innocence project cases not only educate our students but can also be fed back into the criminal justice system to effect legal reforms that will hopefully reduce the possibility of wrongful convictions in the future.

There are no definitive criteria for innocence projects, other than that they are concerned with allegations of factual innocence as opposed to allegations of technical miscarriages of justice. Existing UK innocence projects have however focused resources on victims of wrongful conviction who received a significant custodial sentence and have enough time remaining on their sentence to allow for student review and investigation. This criterion is the product of a pragmatic decision about which prisoners it was possible to assist, when the Innocence Network UK was faced with a mountain of letters requesting assistance. In time, as more innocence projects are established, it is envisaged that they will also provide assistance to victims of wrongful conviction who have served their prison sentence or who did not receive a custodial sentence but continue to protest their innocence.

What if students are not considering a career in the criminal law?

Students (and staff) should not be put off the concept of an innocence project because they might not ultimately wish to work in the area of criminal law or have little or no knowledge or experience of this area of law. They should be aware that, in addition to being involved with a worthwhile social justice cause and its underlying moral and ethical discussions, the skills they will acquire are highly transferable and attractive to law firms of all sizes and types. They will be sifting through mountains of complex evidence, using analytical and organisational abilities effectively to manage time, work as a team, make oral and written presentations, draft letters, conduct legal research, and so on. Innocence projects can bring depth to legal learning, exploring areas of the subject that students might not otherwise encounter, and introducing them to other (sometimes controversial and political) opinions about a fairly narrow subject. There can of course be a number of different vehicles for this exciting exploration of law and ethics in context, but our experience leads us believe that the innocence project will prove to be a viable alternative methodology.

Innocence Network UK national training programme for innocence projects

In response to the growing number of enquiries about setting up an innocence project, and to facilitate the further expansion of innocence projects in the UK, the Innocence Network UK holds an annual national training programme open to all universities. The programme has been designed to give an overview of the legal aspects of criminal appeals cases, combined with a practical look at the limitations on police investigations of serious crime, the involvement of the Crown Prosecution Service and the CCRC. The training embraces the psychological effects of wrongful imprisonment upon the innocent and their families, and students hear from high profile victims of miscarriages of justice. It encompasses the opinions of both sides the story, and touches upon black letter law and communication and practical skills.

The organisers hope that staff and students will consider forming an innocence project as an effective way of enabling students to experience clinical legal education without many of the resourcing and supervisory constraints of more traditional clinical models. Staff and students attending the training have the advantage of being trained over an intensive three day period early in the academic year. Cases are available from a central bank, ready for investigation, and there is even the possibility of supervising criminal barristers being available from a central source.

In a world of competing demands on scarce resources, where there are so many other pressures on academic and vocational teachers, we hope this package is something that will appeal, and that we can continue to have fruitful discussions and share our experience with other colleagues throughout the country as the movement gains momentum.

Last Modified: 9 July 2010