11 November 2006

Stefan Kiszko story in Guardian

I just received the following note from Nigel:

"Your case was almost mentioned...but not quite (yet!). I hope that in the end, it will be realised how much we all owe to the memory of Charlotte Kiszko - a great woman indeed! As I understand, she planted a tree in her garden for each year her son spent in prison. I wonder if the trees are still there?"

He was referring to a story that was recently shown on the Guardian website. Here is the story...


Stark reminder of how an innocent man can be railroaded into spending years in jail
The context has changed since the case of Stefan Kiszko, but not the risk
Duncan Campbell
Saturday November 11 2006
The Guardian

There is an understatement on the gravestone that marks the burial place in Rochdale cemetery of Charlotte Kiszko and her son, Stefan. "A loving wife and a very devoted mother," reads the inscription commemorating Mrs Kiszko.

No one could possibly have been more devoted than Charlotte Kiszko, who campaigned tirelessly for 16 years to prove the innocence of her son, Stefan, convicted, after a bungled police investigation, of the murder of 11-year-old Lesley Molseed in 1975. This week, many years after both she and her son were buried in the vast old cemetery, a man has been charged with the murder.

It is 30 years since Stefan Kiszko, an Inland Revenue clerk with the mental and emotional age of a 12-year-old, was found guilty, and 13 since he died after a brief taste of freedom. His mother died a few months later. Could a case as shocking happen today?

The man who helped to prove Kiszko's innocence, and who acted as his mother's ally, believes we are now just as much in danger of ignoring equally egregious miscarriages of justice.

"In the current climate more miscarriages will take place," said Campbell Malone, the solicitor who took over the case and saw it through its successful appeal. "It is nonsense to suggest miscarriages of justice are less likely to happen now. We are more at risk - the climate is just as bad as it was in the 1970s when you had all the Irish cases. I am profoundly gloomy about the situation."

Mr Malone accepted that changes in the law through the Police and Criminal Evidence Act (Pace) had removed some of the dangers. Kiszko was, for instance, initially questioned without a lawyer and made his confession after being told that, if he did so, he would be allowed to go home.

In recognition of the large number of potential wrongful convictions, the Criminal Cases Review Commission (CCRC) was established by law in 1995. The commission, which has a staff of around 110, receives more than 900 applications annually and refers about 40 cases to the appeals courts.

"The CCRC are under pressure and have had their resources cut back," said Mr Malone. He cited the government's many attempts to reduce compensation paid to victims of miscarriage of justice. "In the early 1990s there was a willingness to investigate. That is no longer the case."

Two highly regarded television series, the BBC's Rough Justice and Channel 4's Trial and Error, also used to put the resources into researching such miscarriages. "Trial and Error is just a memory and the Rough Justice programmes are as rare as hen's teeth," said Mr Malone. "It's getting harder and harder to have cases reopened. It's scary."

Few new lawyers were entering the field, as such cases were time-consuming and may have been worked pro bono. Michael Mansfield QC, who has acted in many of the best known miscarriage of justice cases, agreed that there were now serious risks of the wrong people being convicted, although the reasons may have changed.

"In the 70s and 80s, there were the usual allegations of fit-up, verbals [alleged admissions] and fabricated confessions. Since Pace, that has dwindled to almost non-existent. But forensic science can be equally suspect because of the desire to convict."

He cited the case of Angela Cannings, cleared on appeal in 2003 of the murder of her two baby sons. "If that had been carefully analysed it should never have led to a conviction," he said. "There are other cases where scientific evidence is not being scrutinised carefully."

The rules on fingerprinting had been loosened rather than tightened. "Most solicitors are very reluctant to get tied up in cases of this kind and a lot of lawyers shy away from this [forensic issues] because it's very specialised," he added. He said television in the past had been able to lay out budgets that led to new information being turned up, as with cases like the Birmingham Six. A new series about miscarriages of justice, The Innocence Project, was, coincidentally, launched this week by the BBC. It is a fictional account of students investigating potential miscarriages of justice, as happens in real life at Cardiff, Bristol and Leeds universities.

A CCRC spokesman acknowledged budget cuts. "As a result of reduced funding the commission has needed to make savings without compromising the quality of the service that we provide. We are working hard to erode our backlog of cases and extra resources would obviously speed that process up."

He added: "New problem areas have emerged in recent years, such as expert evidence, disclosure and critical errors in the directions given by judges. While still rare, miscarriages of justice are still occurring and will continue to do so."

Rochdale is not short of famous sons and daughters: Lord Byron, Gracie Fields, reformer John Bright. Stefan Kiszko will be remembered not for what he did but for what he didn't do - and what was done to him. Along with his modest grave, with its vase of plastic roses, a fitting memorial might be an acknowledgement that a frightened, vengeful society can still lock up the wrong man.

Copyright Guardian News and Media Limited

6 Comments:

Anonymous Elaine Clift said...

Sadly it does appear that the CCRC have gradually turned into the Court of Appeal and are making judgements whether or not they think a conviction will be upheld, rather than referrals to the Court when the case details strongly suggest that a conviction is unsafe. Further, it appears that the law is firmly in place to prevent the Administrative Court granting a Judicial Review against a CCRC decision (does anyone know of a success?). When contesting the claim made by the victim I have been campaigning for, the CCRC quoted The Admin's Court reference to R-v-CCRC ex parte Pearson (1999) 3 AII E.R. 498, which states "Thus the Commission's power to refer under section 9 is exercisable only if it considers that if the reference were made there would a real possibility that the conviction would not be upheld by the Court of Appeal. The exercise of the power to refer accordingly depends on the judgment of the Commission and it cannot be too strongly emphasised that this is a judgment entrusted to the Commission and to no one else." In that same case, the Admin Court concluded "Had the Commission decided to refer this case to the Court of Appeal, that would (if based upon a proper direction and reasoning) have been a reasonable and lawful decision. The decision not to refer was in our view equally reasonable and lawful. The question lay fairly and squarely within the area of judgment entrusted to the Commission. If this court were to hold that a decision one way or the other was objectively right or objectively wrong, it would be exceeding its function. The Divisional Court will ensure that the Commission acts lawfully." So, making an application for Judicial Review is a waste of time. Sadly while injustice exists at the very core of our society, within the most respected of organisations, our society will continue to crumble. Elaine Clift

2:35 pm  
Anonymous Anonymous said...

Sadly it does appear that the CCRC have gradually turned into the Court of Appeal and are making judgements whether or not they think a conviction will be upheld, rather than referrals to the Court when the case details strongly suggest that a conviction is unsafe. Further, it appears that the law is firmly in place to prevent the Administrative Court granting a Judicial Review against a CCRC decision (does anyone know of a success?). When contesting the claim made by the victim I have been campaigning for, the CCRC quoted The Admin's Court reference to R-v-CCRC ex parte Pearson (1999) 3 AII E.R. 498, which states "Thus the Commission's power to refer under section 9 is exercisable only if it considers that if the reference were made there would a real possibility that the conviction would not be upheld by the Court of Appeal. The exercise of the power to refer accordingly depends on the judgment of the Commission and it cannot be too strongly emphasised that this is a judgment entrusted to the Commission and to no one else." In that same case, the Admin Court concluded "Had the Commission decided to refer this case to the Court of Appeal, that would (if based upon a proper direction and reasoning) have been a reasonable and lawful decision. The decision not to refer was in our view equally reasonable and lawful. The question lay fairly and squarely within the area of judgment entrusted to the Commission. If this court were to hold that a decision one way or the other was objectively right or objectively wrong, it would be exceeding its function. The Divisional Court will ensure that the Commission acts lawfully." So, making an application for Judicial Review is a waste of time. Sadly while injustice exists at the very core of our society, within the most respected of organisations, our society will continue to crumble. Elaine Clift

2:36 pm  
Anonymous Nigel said...

I wrote this comment in the Manchester Evening News, in a comment on their recent online article. As a special courtesy to her Austrian origins, I gave Stefan Kiszko's mother the title "Frau":

"Frau Charlotte Kiszko went to her grave with two achievements to her credit. The first was to demonstrate writ large to all who study this sad saga, the true meaning of the word 'Love'. Her second achievement was to destroy what was left of a once-strong belief that I had in the death penalty. Now on the other side of death, may Charlotte Kiszko and her beloved son both rest in peace - and rise to glory".

Whatever the outcome of the trial of the new suspect in the Lesley Molseed case may be, Frau Kiszko will always be an example to us who are fighting for your cause, Susan, of persistence, courage and of refusal to give in - even in the face of the most daunting odds. And thinking of both her and her dear Stefan, as the poet Phillip Larkin wrote: "...what will survive of us is love".

What sad irony it was, though, that in the same year that Stefan's ordeal at the hands of the so-called "fair" English legal system was ending, yours was just beginning, Susan.

2:40 pm  
Blogger Alan said...

Dear Susan,

It is only recently that I realized how ignorant I am of the legal system, and reading the response from Elaine Clift only reinforces this opinion I have of myself! I think I catch the gist of her argument, but I am not exactly sure what the administrative court is or what a judicial review is. (even more so "a Judicial Review against a CCRC decision".)

Only recently did I take the trouble to look up in the Wikipedia what the difference is between a criminal and civil case. This distinction seems fundamental to our society, but I confess that I did not know exactly what this meant. I don't remember ever studying this kind of thing at school, although that is a long time ago.

Of course, these things seem also to vary substantially from country to country. In France, where I normally live, the judicial system seems to be quite different from the UK's (and then there are even differences between England and Scotland!)

However, to come back to the main point, I wonder what will it take for some changes to be made in the law to protect us from these miscarriages of justice, instead of always tightening things up. I suppose this would have to become a sufficiently vote winning issue.

7:42 am  
Blogger Susan said...

I think I am am right in saying Judicial Review is not an appeal as such but a process that allows the court to 'review' a procedure and look at the points of law? A previous decision can be then overturned but the downside can be the costs to go thro' this process. In all of this what is so frustrating is when you know you are right and yet the system refuses to see that(or uses legal precedents to prevent it being shown) and rules against you time and again. As an innocent person, that very fact pushes you to continue going thro' every avenue available because the Injustice hangs over you like a huge black cloud - it is with you 24/7 and until it is legally acknowledged life remains static and quite meaningless!

1:31 pm  
Anonymous Nigel said...

It's over 30 years since I did Law, but one of its cardinal principles is that Parliament is sovereign, and can make any laws that it likes. In such cases of obvious injustice such as Susan's, I have in mind a situation in which Parliament could, at the very least, grant you a retrial by legislation, and correct the system which has ruled against you, Susan?

"This would create a precedent...they'll all want one..." I can hear the nay-sayers bleating. But a precedent HAS been set aleady - the case of Burmah Oil in 1965, in which the House of Lords ruled that the company could recover damages from the government for destruction of their refineries by the retreating British Army in Burma in 1942, in order to deny their use to the Japanese. An Act was promptly passed through Parliament to void the Lords' decision.

So if our rulers have changed the rules to suit their own interests before, then why not change the rules again - at least to give a victim of injustice the opportunity to prove her innocence?

7:18 pm  

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