1. Defining a miscarriage of justiceHere's another 'thought piece' that may keep you entertained. I would like to pose a question: What is a 'miscarriage of justice'?
We can all look up the technical legal definition. In fact, let's start with that. It's not that easy, as - even within the legal system - the understanding of what amounts to a 'miscarriage of justice' seems to vary depending on whom you ask, and a concrete definition is hard to come by: even the Criminal Appeal Act 1995, which established the Criminal Cases Review Commission as a sort of investigative branch of the Court of Appeal, doesn't explicitly define what a 'miscarriage of justice' is, only referring in section 2 to "unsafe verdicts" of juries as a basis for a successful appeal.
We could begin with section 133 of the Criminal Justice Act 1988, which is the compensation provision for individuals who have suffered a miscarriage of justice. The definition in that section goes like this:
there has been a miscarriage of justice in relation to a person convicted of a criminal offence in England and Wales...if and only if the new or newly discovered fact shows beyond reasonable doubt that the person did not commit the offence...This seems to imply a distinction between, on the one hand, what we might call a 'true' miscarriage of justice, per that section, and on the other, a simple reversal of a conviction, which may not necessarily involve a demonstration of legal innocence.
There's also this policy definition from the Criminal Cases Review Commission, itself:
Our principal role is to investigate cases where people have been convicted and lost an appeal, but believe they have been wrongly convicted of a criminal offence.
...
the legal rules that govern the work of the Commission means that we can only refer a case if we find that there is a ’real possibility’ that an appeal court would quash the conviction or, in the case of an appeal against sentence, change the sentence in question.Source:
https://ccrc.gov.uk/about-us/what-we-do/ At Dictionary.com, we find a more user-friendly definition [if a little vague: what's 'justice'?]:
a failure of a court or judicial system to attain the ends of justice, especially one which results in the conviction of an innocent person.2. Limitations in English lawEnglish law does not normally recognise a "perverse verdict": that is to say, a verdict of a jury based on insufficient evidence. There have been exceptional cases where the Court of Appeal has overturned manifestly erroneous jury verdicts, but this has happened extremely rarely - perhaps only once or twice in the last hundred years. Therefore, even if a person has been convicted on a basis that no reasonable jury could possibly support, that in itself is not usually a basis for appeal. We may note that, in the generality, jury verdicts are treated with great reverence by English judges, and jury deliberations are considered sacrosanct, and in any case, are conducted in secret.
What all this implies is that, as a rule, the appellate court is not concerned with guilt and innocence
per se, rather its concern is with the strength of the evidence and the presence or otherwise of error. There must either be new evidence that brings the safety of the conviction into question, or an error by the trial judge or prosecution, or an irregularity on the part of the jury in coming to its decision.
3. What is admissible at appeal?The test for appeal evidence is contained in section 23(2) of the Criminal Justice Act 1968 (as amended by section 4 of the Criminal Appeal Act 1995).
"New evidence" should be:
- capable of belief;
- may afford any ground for allowing the appeal;
- admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and,
- there should be a reasonable explanation for the failure to adduce the evidence in those proceedings.
There is an important caveat we can add, which is that per the ruling in
R. v. Michael Gilfillan [1998] EWCA Crim 3466, the court can (and I hope, always will) accept evidence that does not meet these requirements where it is thought the interests of justice require it. That's a vital fail-safe.
4. Errors of law or factThe Court of Appeal also has a general role in judicially reviewing any alleged errors of law or fact at trial, whether committed by the judge, prosecution or jury (but not such errors committed by the defence). This arises both from common law and from the relevant criminal appeal statutes.
5. The Pendleton casePerhaps the most significant recent case on English criminal appeals is the 2001 House of Lords case,
R. v. Pendleton [2001] UKHL 66 (see:
http://www.bailii.org/uk/cases/UKHL/2001/66.html), in which the Law Lords considered the role of the Court of Appeal (Criminal Division) in the consideration of "fresh evidence".
In
Pendleton, the Law Lords emphasised that the role of the Court of Appeal is not to re-try the case, but simply to review the conviction. That said, the Law Lords made clear that the interests of justice will always be an overriding consideration, and the appellate judges can and will (and indeed, can only) make their own assessment of any new evidence presented to them.
6. Miscarriages of justiceHere I would like to discuss a broader understanding of what a miscarriage of justice is, albeit rooted in law. My purpose is to demonstrate how things are not always what they appear; that we must never make assumptions and must always approach these cases with a reverence for truth, justice and the integrity of the legal system itself; that law is the ultimate protector against mob-based thinking and injustice; and, that sometimes upholding these ideals requires that we have to adopt positions that we might not privately want to or like, requiring that we resist our base and entirely natural lust for vengeance against wrong-doers.
The bottom-line is: Justice must be blind, always. To my mind (I know not everybody will agree) that means that cold reason produces the best justice, which in turn demands a rational-legal-scientific approach. In my view, there is no room for emotion and tribalism when evaluating facts, evidence and the application of law.
To illuminate things, I will briefly discuss two prominent examples of what I regard as different sorts of miscarriages of justice: the case of the Yorkshire Ripper and the successful second appeal of the Birmingham Six.
7. The Yorkshire RipperPeter Sutcliffe was the Yorkshire Ripper. Nobody doubts that. He therefore committed terrible acts on women, nobody doubts that either. However, I believe he did suffer a two-fold miscarriage of justice.
First, on Sutcliffe's arraignment, the court ordered that he should undergo a psychiatric evaluation. Sutcliffe was promptly examined by some of the country's leading forensic psychiatrists, who unanimously concluded that he was legally insane. At that point, a further hearing should have ordered that all legal proceedings against Sutcliffe would be discontinued and he would be confined indefinitely to a secure psychiatric hospital for treatment, as he could not possibly be held responsible for his actions. Instead, it was decided that Sutcliffe would be treated as a normal criminal defendant and tried for murder, with a lay jury deciding the crucial question of his mental capacity.
Second, it is clear from a close examination of the case that Sutcliffe probably did not commit two or three of the murders for which he was convicted, as the blood signature of the killer excludes him. Indeed, Sutcliffe's entire conviction was based on his confession, a confession that has to be regarded as false in respect of some of the killings.
8. The Birmingham SixThis case became famous during the 1990s, mainly due to support from left-wing journalists and political figures - most notably Paul Foot and Chris Mullin. A melodramatic television documentary, produced by Granada I believe, together with a full-blown television dramatisation, starring (if I recall) John Hurt as a sort of crusading holier-than-thou journalist, added impetus to the campaign against this miscarriage of justice.
To be clear, the Birmingham Six were indeed the victims of a miscarriage of justice, however contrary to popular belief, it has never been established whether they were actually innocent or the case against them was merely technically-flawed. A prominent police officer with West Midlands Police did publicly declare them innocent at the time their conviction was overturned, but this statement was most likely made under political pressure and cannot be regarded as a reliable indicator of the actualities.
In the event, the convictions of the Birmingham Six were quashed on three technicalities:
(i). First, new expert evidence showed that the nitroglycerin tests that supposedly proved that the men had recently handled explosives were shown to be flawed, in that there was a strong potential for false positives.
(ii). Second, documentary analysis revealed that the police had fabricated the custody record, including logs, statements and other documents, in an effort to incriminate the men.
(iii). The police had consistently lied about the fabrication in (ii) above. (This particular point led the Court of Appeal judges to describe the convictions as "both unsafe and unsatisfactory" - classic English understatement!).
None of these points actually exonerated the Birmingham Six, and their actual culpability remains unclear, but as far as the law was concerned, these were enough to overturn the convictions on the basis that they were unsafe. In addition, proof of the police lies meant that, rightly or wrongly, the Birmingham Six would be treated by all and sundry as six innocent Irishman who happened to be in the wrong place at the wrong time and were somehow framed by the West Midlands Serious Crime Squad for no reason beyond sadism and malice.
