10 December 2015 - looked at the on-going campaign to get the convictions of the "Shrewsbury Pickets" quashed.
The building strike 1972:
In 1972, there was a national strike by the building workers’ trade unions which lasted from late June to mid-September. The strike concerned the long hours and low pay of craftsmen and labourers. The building industry was one where employment was precarious due to the "lump system" by which workers were employed on a job-by-job basis giving them little or no long term security.
Unions organisedflying pickets targeted at building sites in small towns and rural areas. On 6 September 1972 such picketing took place in the Shrewsbury area. The picketing was largely peaceful, and no arrests were made or complaints raised by the police following the strike action on this day.
Charges and trials:
Some months following the conclusion of the strike, a number of the picketers involved in the Shrewsbury action were arrested and charged with unlawful assembly and conspiracy to intimidate.
Three separate trials took place at the Crown Court in Shrewsbury. The 1st trial involved 6 defendants and was held from 3 October 1973 to 19 December 1973 before Mr Justice Mais and a jury. Trial 2 involved 9 defendants and took place from 14 January 1974 to 13 February 1974 before His Honour Judge Chetwynd-Talbot and a jury. Trial 3, of a further 9 defendants, took place from 26 February 1974 to 22 March 1974 before HHJ Chetwynd-Talbot and a different jury.
Reference to Court of Appeal:
The cases were referred to the court by the Criminal Cases Review Commission but this was only achieved after the CCRC agreed during a 2019 judicial review to review the cases - see Shrewsbury 24 succeeds in judicial review against Criminal Cases Review Commission.
In March 2020, the CCRC finally referred 8 cases (CCRC announcement 4 March 2020) and a further 6 cases were referred in May 2020 - (CCRC announcement 26 May 2020). This aspect of the cases shows the value of judicial review. Without that process it is perhaps unlikely that the cases would have ever been referred to the court.
47 years after the conclusion of the trials, convictions were quashed by the Court of Appeal (Criminal Division) - R v Dennis Michael Warren and others  EWCA Crim 413 - Fulford LJ, Andrew Baker and Goose LJ.
At the appeal, 12 of the appellants were represented by Mr Danny Friedman QC and Mr Benjamin Newton. Two appellants were represented by Mr Piers Marquis and Ms Annabel Timan.
See Matrix Chambers - Court of Appeal overturns convictions of Shrewsbury 24
Doughty Street - Court of Appeal quashes convictions of Shrewsbury 24
The convictions were appealed on two grounds:
(1) It appeared that handwritten witness statements made by some of the civilian eyewitnesses were destroyed during the early stages of the proceedings, for which substitute statements were provided. This was not revealed to the accused, who, along with the judge in the first trial, were seemingly reassured that they had had access to all the statements, including those which the prosecution had no obligation to disclose under the law and practice that existed at the time.
Note: Under modern law there is an obligation to disclose prosecution
material that might reasonably be considered capable of undermining the
case for the prosecution or of assisting the case for the accused.
(2) On the same day that the prosecution closed its case in the first trial, a programme entitled "Red under the Bed" was broadcast on national media and it was suggested that this was highly prejudicial to the appellants, thereby undermining the safety of the conviction.
The appellants succeeded on Ground 1 but did not succeed on Ground 2 relating to the Red under the Bed programme.
Mais J directed the jury - simply saying - "You will not be dissuaded or allow your judgment to be influenced by outside considerations."
The court's analysis relating to Red under the Bed is at paragraphs 88 to 98. The court concluded by saying - "Given the political climate of the early 1970s and the clear issues in the case, we are confident that any juror who saw this programme would not have been prejudiced against the appellants as a consequence. They would have understood that it was essentially and avowedly polemical, and that it was unrelated to the decision that had to be made as regards each accused: were they sure the defendant they were considering had been involved in the criminality reflected in one or more of the counts on the indictment."
With respect, based on my own recollections from those distant days, I would be much less sure of this. This programme, shown before the trial had concluded, might well have influenced some jurors to adopt an anti-Trade Union view. In the early 1970s and afterwards, the actions of "flying pickets" received massive publicity and, for many people, it was an unpopular tactic. This article about the tactics used by strking miners is of interest.
The appellants submitted that the judge did
not take sufficient steps to ensure that the adverse publicity did not
undermine the fairness of the proceedings. It was argued that he should
have enquired as to whether any of the jurors had viewed the programme
and, if this was the case, they should either have been discharged or
given robust directions to ensure that they did not allow any prejudice
created by the programme to affect their verdicts - (see para 93).
The Court of Appeal (at para 88) commented - "There is no doubt, in our judgment, that in 2021 the court and the parties would take steps to seek a postponement of the broadcast of a programme such as Red under the Bed until after the trial, given it involved consideration, in an uncompromising format, of some of the political issues underpinning the national building workers' strike that was clearly relevant to the ongoing trial. Alternatively, as with contemporary internet material, the jury would be directed not to view it and they would be given a robust direction not to undertake any research and to disregard any potentially prejudicial material that they might encounter that touched on the issues in the case."
The court ended its judgment with an interesting observation about court records - paras 101-3.
- This trial took place nearly 50 years ago, in the pre-digital era, when the court records (self-evidently in paper form only) were retained for a set period following the convictions and any subsequent appeals, and thereafter destroyed. Serendipity governed what, if anything, survived beyond that date, perhaps in the chambers of counsel, the offices of solicitors, with the relevant investigating police force, at the National Archive, with the accused or with others with an interest in the proceedings. This case provides the clearest example as to why injustice might result when a routine date is set for the deletion and destruction of the papers that founded criminal proceedings (the statements, exhibits, transcripts, grounds of appeal etc.), particularly if they resulted in a conviction. At the point when the record is extinguished by way of destruction of the paper file (as hitherto) or digital deletion (as now), there is no way of predicting whether something may later emerge that casts material doubt over the result of the case.
- Given most, if not all, of the materials in criminal cases are now presented in digital format, with the ability to store them in a compressed format, we suggest that there should be consideration as to whether the present regimen for retaining and deleting digital files is appropriate, given that the absence of relevant court records can make the task of this court markedly difficult when assessing – which is not an uncommon event – whether an historical conviction is safe.
- If it is decided to undertake this
piece of work, it will self-evidently involve reconsideration of the
HMCTS Record Retention and Disposition Schedule dated 19 August 2020.