It’s been one week since Ben’s story appeared in the Independent on Sunday and this website was launched. Since then, articles have appeared in a variety of other newspapers and websites, including the Oxford Mail article entitled ‘Is Banbury nurse a killer or victim of coincidence?’ Included in the article was a quote from a Mr Thorburn, whose father was one of the patients at Horton General Hospital that suffered a collapse.
He said: “To make matters worse, all these hundreds of thousands of pounds that are being spent on his appeals are funded by Legal Aid, so not only are we having to constantly relive this tragic event, I’m having to pay to help my father’s attacker try and walk free… This shouldn’t be happening. Our family would like and should have closure now but we’re not being allowed by Geen or his family. He’s guilty and this should stop.
Going back through some past articles on the Oxford Mail’s website about Ben, I stumbled across this comment made by an anonymous contributor to the article ‘Killer Nurse: Guilty verdict was right‘ from November 2009:
“He knows he’s guilty and probably accepts the original verdict, the trouble is that his legal team saw another opportunity to line their pockets, so an appeal was made… The only reason he needs a ‘legal team’, when one solicitor or lawyer could argue over any debatable points is probably solely down to the very greater fee they can charge the legal aid system.”
Starting with Mr Thorburn’s comments, I am not sure of the exact cost of Ben’s appeal but it is certainly nowhere near “hundreds of thousands of pounds”. The majority of the research for the appeal has been undertaken by the London Innocence Project (LIP) a Pro Bono organisation run by Mark McDonald through the City Law School in London. LIP is staffed by unpaid volunteers who are studying to become solicitors or barristers. They spend a few hours every week looking over papers and investigating possible grounds of appeal in several cases. If it appears that a case has sufficient merit then Mark takes it on, also unpaid, until he is able to obtain legal funding. Ben’s appeal has also been partially funded by his family, who have privately paid for several of the expert reports such as Professor Hutton’s which dismisses the ‘unusual pattern’ evidence that was put before the jury at the original trial.
Mr Thorburn clearly has a problem with the idea that taxpayer’s money in the form of legal aid has been spent on Ben’s appeal. There is no real way to answer that, other that since occasionally the criminal justice system can get it wrong and miscarriages of justice do happen it is necessary that legal aid is extended to criminal appeals.
If you’re in any doubt, then here a few examples; Barry George was convicted of murdering the BBC presenter Jill Dando and spent 7 years in prison before being acquitted. Sean Hodgson had to spend 27 years before the Court of Appeal quashed his conviction in 2009. Both of these pale in comparison to Derek Bentley, who was executed in 1953 and had his conviction posthumously overturned in 1998. If people had been so convinced of their guilt as Mr Thorburn is of Ben’s then these miscarriages would still be occurring.
In response to the second, anonymous comment, this is the product of a very sceptical reader who is not in possession of all the facts. Ben’s legal team (neither of which were involved at the original trial) consisted of Dr Michael Powers QC who was a practicing anaesthetist before becoming a barrister and has vast experience of the drugs that are central to Ben’s case and Mark McDonald, who along being the founder of LIP is also a director of the death row legal charity Reprieve and was awarded Pro Bono Lawyer of the Year in 2009. The case involved over 2500 pages of documents, hence the need for two barristers to be involved, purely due to the huge amount of facts involved and the complexity of the arguments. And as a side note, the Crown Prosecution Service had two QCs at the appeal to Ben’s one.
What Mr Thorburn and the anonymous commentator should be asking themselves is what price is too much to secure an innocent man’s freedom? In the meantime, Ben’s family, his legal team and the volunteers at LIP will carry on to clear his name, whatever the cost.
By James Bromige, trainee barrister and case worker for the London Innocence Project.