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Sensemaker: Substantial injustice

Sensemaker: Substantial injustice

What just happened

Long stories short

  • Germany’s Social Democratic Party narrowly beat the Christian Democrats in parliamentary elections that start the process of forming a post-Merkel government (more below).
  • The UK government planned to enlist army drivers to deliver petrol to petrol stations after admitting it would take weeks to ease the driver shortage by issuing new visas.
  • Switzerland approved same-sex marriage by a two-thirds majority that included majorities in every canton.

Substantial injustice

Last week in our Slow Newscast we told the story of John Crilly, who was convicted of a murder he did not commit. We told John’s story because it shone a light on a wider problem: what happens when the justice system gets something badly wrong but cannot really face the consequences of its mistakes.

Five years ago, it seemed the UK Supreme Court had settled an injustice that had been unfolding for 32 years because of a misinterpretation of the law of joint enterprise.

The Supreme Court ruled that the law had taken a ‘wrong turn’ in 1984, and ever since, juries had been wrongly instructed that individuals could be convicted of murder when the fatal blow had been inflicted by another person, simply on the basis they had foresight that the murder might occur, even if they did not necessarily intend for it to happen.

Campaigners thought the ruling would open the floodgates to hundreds of appeals. But since then, John Crilly is the only person to have successfully had his conviction ruled unsafe.

The problem lies with two words: substantial injustice.

When that Supreme Court judgment was delivered, it contained a little-understood clause that meant cases would not be automatically referred for appeal. Instead, “substantial injustice” would have to be proved.

As a result, cases are being blocked, even though campaigners say no satisfactory explanation has ever been given of what substantial injustice means.

As campaigner Jan Cunliffe told us, in some cases people have been convicted of a murder even though they were not present when the violence happened.

What happens now? 

The new justice secretary, Dominic Raab, could act.

An all-party parliamentary group on miscarriages of justice said earlier this year the ‘substantial injustice’ test in joint enterprise cases should be “reviewed as a matter of urgency by the Law Commission because it poses a real risk that miscarriages of justice remain unidentified or unremedied”. 

The group’s report said “the Court of Appeal has ‘put up a wall’ by refusing to overturn unsafe joint enterprise convictions unless ‘substantial injustice’ is demonstrated”.

Campaigners at JENGbA (Joint Enterprise Not Guilty by Association) are preparing to go to court seeking a judicial review of the Ministry of Justice’s decision not to intervene.

JENGbA, which has 1,500 cases on its books, is also working on a Private Members’ Bill that would aim to change the law to make it easier to launch an appeal more than 28 days after conviction.

The Bill was initially drafted by Charlotte Henry, a lawyer whose brother Alex is serving a murder sentence after being convicted under joint enterprise. She was in our newsroom last week and told us how her brother’s conviction inspired her to become a lawyer.

Where does our reporting go next? We’re interested in examining the joint enterprise cases of women – at least 109 are serving long sentences and a Manchester Metropolitan University study found that 90 per cent of them had no involvement in the violence. And there are unanswered questions about the disproportionate number of young Black men who have been convicted under joint enterprise. 

You can listen to John Crilly’s story in our app or wherever you get your podcasts.

Belonging identity, society, beliefs, countries

German crossroads
Three key things to note from yesterday’s German elections: 1) Merkel has no coat-tails. Her own party’s candidate to succeed her as chancellor, Armin Laschet, was a decent Christian Democrat regional premier in North Rhine Westphalia. But he has failed to inspire nationally, and the CDU’s Bavarian sister party, the CSU, fared worse than in any election since 1949. 2) Olaf Scholz is in pole position for chancellor, but it’s a wobbly pole. Scholz has led the Social Democrats back from the wilderness (20 per cent in the last general election; 25.7 to the CDU-CSU’s 24.1 yesterday), but he’ll need at least two coalition partners to form a government and it’s not clear who they would be. 3) The era of big parties is over, and the Greens and neoliberal Free Democrats are potential kingmakers. “Nothing will work without them,” says Deutsche Welle’s Manuela Kasper-Claridge, “and that’s a good thing.” Complacency under Merkel has seen Germany’s administration and infrastructure age relative to neighbours’. When at last her successor is chosen, the engine of the EU may get a tune-up. 

New things technology, science, engineering

Not falling down
Straight to the top of the things we didn’t know we needed goes Apple’s fall-prevention system, new to its latest iPhone operating system. It monitors your gait and lets you know if you’re in danger of falling over. It doesn’t hazard a risk assessment for your next few seconds, and so presumably doesn’t factor in the dangers associated with staring at your phone while walking. What it does do is pull together various metrics offered by previous operating systems, including the length of your stride, how fast you walk and whether your gait’s asymmetrical, to give you a fall risk assessment for the next 12 months. In all seriousness, for people for whom a fall is a matter of life and death, this could be useful ($). 

The 100-year life health, education, living, public poliCY

A pill for Covid?
Big pharma’s race to produce an effective vaccine has been a success – with a few bumps along the way. (See more in this week’s Slow Newscast). The next race? Antivirals. Perhaps better known for their role in helping HIV positive people live healthy lives and not pass on the infection, a similar goal has been set for Covid. Unlike vaccinations building up antibodies to protect against infection, an antiviral for the coronavirus is designed to stop the virus replicating in your body once it already has taken hold – or is likely to take hold from a close contact. The FT (£) reports that Merck, Pfizer and Roche are all deep into trials for new drugs, with at least one antiviral expected to be approved for emergency use in the next few weeks. Biden and Johnson have both set up funding and task forces so when the drugs are ready, so are they. A caveat: don’t expect a miracle pill. It’s more likely for these antivirals to be used in selective circumstances, for example for immunocompromised people who can’t have the vaccine, rather than being rolled out to the wider public. 

Our planet environment, natural resources, geopolitics

Green H2
We are one day late to this party, but it’s a fascinating one: Andrew Forrest, the Australian iron ore billionaire who’s already put his name to what could become the world’s biggest solar power project, has launched a green hydrogen project aiming to produce 15 million tonnes of it a year by 2030 – and to use it to decarbonise carbon-intensive heavy industries like steel-making, in which he obviously has an interest. The fascinating part is that Forrest is one of several Australian business leaders who’ve decided not to wait for Canberra. Australia is going to be the smelly guest at Cop 26, unrepentant about its vast coal exports and its refusal to phase them out. Scott Morrison, the prime minister, hasn’t even committed to be at Glasgow. But Forrest, along with the software mogul Mike Cannon-Brookes, has plans to connect a huge solar farm in the outback to Singapore, 3,000 miles away, and has bid aggressively for nickel deposits in Canada on the basis that their value will soar given the world’s deepening dependence on batteries (nickel metal hydride as well as lithium-ion). Forrest’s GH2 venture is chaired by a more progressive (ex-)Australian prime minister, Malcolm Turnbull. 

Wealth investment, fairness, prosperity

Sino crypto no-no
A new chapter in the story of how Chinese communism fell out of love with unfettered capitalism closed on Friday when Beijing banned all crypto mining and trading. It wasn’t unexpected. China’s State Council trailed the ban in May and the free conversion of crypto into old-fashioned money and vice versa on Chinese exchanges was banned in 2017. But markets still seemed shocked. Shares in Huobi Tech, which once ran the world’s biggest crypto platform, fell by 23 per cent when the new ban was announced on Friday. Has Xi Jinping insulated himself at a stroke from the volatility of digital currencies and the parallel universe they offer investors who don’t fancy state regulation? Or has he cut himself off at a stroke from a source of investment that’s just going mainstream in the rest of the world and which he’ll look back and wish he’d harnessed? Looks like we’ll find out.

The week ahead

– Boris Johnson chairs Cabinet meeting on fuel crisis; Labour MP Claudia Webbe appears in court charged with harassment; UK Space Conference opens with speech by business secretary Kwasi Kwarteng, 28/09 – Michel Barnier, former chief Brexit negotiator for the EU, speaks at Chatham House on future of Europe and its relationship with UK; Great British Pub Awards, 29/09 – Wayne Couzens faces sentencing for murder, rape and kidnap of Sarah Everard; Keir Starmer speaks at Labour Party conference, 30/09 – UK Coronavirus Job Retention Scheme due to end; NHS Digital publishes hospital A&E figures for 2020/21; Huawei ban in UK 5G networks takes effect; boohoo.com issues half-year results, 01/09 – booster jabs for over 50s begin in Scotland; Fifa 22 video game released, 02/09 – Henley Literary Festival begins in Oxfordshire, 03/09 – Conservative Party annual conference opens; London Marathon

– European Court of Justice hears Google challenge to 2018 fine over Android operating system; US Senate vote to advance government funding bill, 28/09 – arraignment for man charged over Georgia spa shootings, 29/09 – WHO director-general Tedros Adhanom Ghebreyesus gives Columbia University address; conservatorship hearing for Britney Spears, 30/09 – Russia Q2 GDP, 01/10 – Expo 2020, the Middle East’s first world fair, opens in Dubai; China National Day marks establishment of People’s Republic of China, 02/10 – Women’s March takes place in Washington DC

Thanks for reading, and do share this around.

David Taylor

Xavier Greenwood

With additional reporting by Giles Whittell and Phoebe Davis.

Produced by Phoebe Davis and edited by Xavier Greenwood. 

Portrait Tom Pilston for Tortoise, Photographs Getty Images