No verdict in case with unanswered questions

November 17, 2006

The innocence project . BBC One, Thursdays, 8pm

It is a good time for The Innocence Project . The new BBC drama series about miscarriages of justice has been launched in an increasingly punitive political climate, when significant legislative encroachments are being made on the due process rights of the accused in criminal trials.

The central character is charismatic law lecturer Jon Ford (or "Ford", as his students call him). Deep down, every legal academic wants to be like him. He and his students investigate possible wrongful convictions and refer them to the Criminal Cases Review Commission, the independent public body established in 1997.

The work carried out by Ford's team exposes many of the flaws that can occur in the criminal justice system - the lying witness; the undisclosed statement; the unreliable forensic evidence; the convict-at-all-costs prosecutor. All these factors, and more, can and do lead to wrongful convictions - on television and in real life.

In real life, however, it is questionable whether this investigative work should really be left to students to perform on a voluntary basis. Is the exposure of wrongful convictions not too serious and weighty a task for undergraduates? Is it fair to allow students the luxury of dealing with real-life "case studies", in essence to enhance their own educational experience at the expense of their unfortunate "clients" languishing in jail? Is it right to foster what may well be a false hope for the families of those incarcerated that the students will find some miraculous missing link to bring about the immediate release of their loved ones? Now that cuts in legal aid are making the work of defence lawyers increasingly difficult, would it not be preferable to campaign against restrictions on the rights of the accused and to lobby for more resources during the trial process to prevent miscarriages occurring in the first place?

These important questions are left unanswered by the programme. But they are relevant because the concept on which The Innocence Project is based is a reality in many law schools. The original Innocence Project, established at the Cardozo School of Law in New York, has had immense success in reopening cases where people were unjustly convicted. Since the inception of the Cardozo model, clinical legal education programmes have been developed at many other university law schools (in the US, law is taught at postgraduate level). Not only have these projects exposed miscarriages of justice and saved many convicted prisoners from execution, but they have also led to the passing of vital American legal reforms to strengthen the rights of accused persons.

Of course, long before innocence projects were instituted, thousands of convictions were routinely quashed in the courts every year. Most potential miscarriages of justice continue to be resolved through the normal appeal process. Despite this, some wrongful convictions remain undetected - and are increasingly likely to occur the more restrictions are placed on the fundamental rights of accused persons. The Innocence Project does not address the key issues of due process rights and of properly resourced professional legal representation. Nor does it ask the really hard question: whether undergraduates such as Ford's, no matter how hard-working or talented, should really have the job of exposing miscarriages of justice.

Ivana Bacik is Reid professor of criminal law at Trinity College Dublin.

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