Just Sentencing for Real Perpetrators Allowing Miscarriages of Justice to Occur

In murder cases where a miscarriage of justice has occurred, there are no consequences for the real perpetrator who allows innocent people to suffer wrongful imprisonment for her/his crime. Nor is there any incentive to encourage such people to correct miscarriages of justice.

I propose a two pronged approach to correct this, which satisfies both the need to punish those perpetrators content to allow the innocent to suffer and reward those who try to correct miscarriages of justice. My preferred option would be to end the mandatory life system of sentencing for murder in favour of sentencing based on the circumstances of the case under consideration. The current system of tariffs cannot reflect the gravity or dire consequences of wrongful imprisonment on the innocent as even after all aggravating circumstances have been taken into account the judge can only impose a maximum of one third of the starting point and even then is obliged to deduct time for mitigating circumstances. I propose the tariff system would become redundant, thereby freeing the judge to set an appropriate sentence as other aggravating circumstances could result in little or no additional time being served for the specific aggravating factor of real perpetrators knowingly allowing an innocent person or people to suffer wrongful imprisonment

Currently, such circumstances cannot be given the weight they deserve even if the judge considers it to be the most important aggravating circumstance. In the case of Jeffrey Gafoor – the real murderer of Lynette White – five entirely innocent men served a total of sixteen years wrongful imprisonment.1 Gafoor received a tariff of just thirteen years. This was significantly less than the tariffs imposed on the Cardiff Three. The judge set a starting point of fifteen years, meaning he could set five years for aggravating circumstances. For allowing men he knew to be innocent to suffer wrongful imprisonment and what was at the time of the murder the most brutal murder of its type in Welsh history the judge set four-and-an-half years for aggravating circumstances. He was then obliged to take one sixth off for Gafoor pleading guilty at the first opportunity.2 He was also credited with six months for assisting police with their investigation into the original inquiry. Gafoor had three-and-an-half years taken off for mitigation. It is an affront to justice that the law says that the aggravating circumstances in this case outweighs the mitigating factors by only one year. Furthermore, the lenient treatment of Gafoor compared with the treatment of the innocent Cardiff Three means that there is no reason for guilty people to prevent miscarriages of justice. The changes proposed below will correct this anomaly and hopefully contribute to avoiding future miscarriages of justice.

If it is decided to retain the tariff system, it could be modified in either of the following ways. The maximum limit on the setting of tariffs should be abolished, allowing all aggravating circumstances to be considered accordingly, especially knowingly allowing the innocent to be convicted of a crime the perpetrator knew that he or she had committed. After all aggravating and mitigating circumstances have been considered and given due weight the final tariff to be served will be set by the judge.

Another possibility would be to calculate the appropriate term to be served for knowingly allowing an innocent person to be wrongfully imprisoned and add it separately to the total tariff imposed for all other considerations. The punishment below should be seen as in addition to any tariff imposed according to current sentencing policy.

Punishment:

In circumstances where the real perpetrator has made no attempt to set the record straight prior to apprehension, such a person shall serve at least one and a half times the total sentence served by those wrongfully accused ? this shall include time served on remand by those subsequently acquitted as well as those wrongfully convicted. In addition to this the judge may at her or his discretion add up to half of the total tariffs imposed upon those wrongfully convicted if there are multiple defendants and one-and-an-half times the tariff if there was only one wrongfully imprisoned defendant. This shall apply particularly in cases where appeals were successful quickly with no contribution to that outcome by the real perpetrator. In cases where the wrongfully accused person was acquitted at trial, at least half of the tariff that would have been applied at that time shall be imposed up to a maximum of the full tariff at the discretion of the judge.3

Incentives:

As nobody is protected by the conviction of the innocent incentives should be offered to the real perpetrator to correct miscarriages of justice. The rewards offered for assistance should depend upon the extent of effort to correct the miscarriage of justice.

A tip off without specifically identifying oneself as the real perpetrator with proof to journalists, lawyers or police shall not in itself attract any reward beyond the judge having the discretion not to impose further punishment for allowing wrongful convictions to occur. Anonymous tip offs shall receive no reward unless the perpetrator can show to the satisfaction of the court that he or she gave the tip. It shall be up to her or him to prove that he or she gave the tip off.

If he or she fails to meet that burden he or she shall be sentenced according to the rules for punishment referred to above.

If the real perpetrator contacts journalists and provides details proving that innocent people have been wrongfully convicted, but without identifying herself, or himself, that person shall receive a discount of 5% from her or his sentence. The burden shall be on her or him to prove that he or she was the source of that information.

If the real perpetrator contacts police and lawyers involved in the case, providing them with information that only the real perpetrator could have known ? thereby proving that a miscarriage of justice has occurred ? but without identifying herself or himself, that person shall receive a discount of 10% from her or his sentence. The burden shall be on that person to prove that they were the source.

If however, the real perpetrator surrenders herself or himself to police or lawyers that person shall be entitled to a discount of at least 20% up to a maximum of 40% at the discretion of the judge. Factors affecting the extent of the reward given by the judge shall include when the perpetrator came forward.

No discount shall be given if police can demonstrate that they had already identified the perpetrator and were about to arrest her or him. In such cases the perpetrator shall be sentenced as if he or she did not provide that information.

Victim Impact Statements and Evidence

In determining the appropriate tariff or sentence that should be served by the real perpetrator the judge shall consider the victims of the miscarriage of justice to be victims in the same sense as the family of the victim of the crime. This shall entitle the victims of the miscarriage of justice – this includes those acquitted at trial – to give victim personal statements as occurs under current legislation for the victim’s family. Such statements shall be considered by the judge when determining the weight that should be given to their suffering as an aggravating circumstance.

If the law is changed to allow the family of victims of the crime to give evidence at sentencing hearings as is occurring currently in a pilot scheme, the same right should be extended to the victims of the miscarriages of justice and arguably their families as well. The proper weight to be given to such testimony shall be decided by the court within the guidelines set out above.

1 Yusef Abdullahi, Steve Miller and Tony Paris were wrongfully convicted of the 1988 murder and served four years each. John and Ronnie Actie were acquitted after serving two years each on remand.

2 Gafoor pleaded guilty after being caught by police fifteen years after the murder and being confronted with compelling evidence of his guilt.

3 The recent conviction of Ricky and Danny Preddie for the manslaughter of Damilola Taylor raises doubts over the prosecution of the original four defendants and therefore suggests the suffering of those acquitted at trial should be considered. A clearer example of this circumstance is John and Ronnie Actie whose ordeal should not be ignored.

© Satish Sekar February 14th 2006