Introduction
This chapter introduces the study of miscarriages of justice and attempts to define what a miscarriage of justice is, in the context of England and Wales. The latter, it will be revealed, is no easy task. Definitions are influenced by a number of factors including one’s position, perspective, and perception, all of which can, in turn, be affected by cultural, social, and political change. A key issue explored, is the claim that contrary to popular belief, the notion of ‘innocence’ sits most uncomfortably alongside the notion of a miscarriage of justice. The dimensions, forms, and scale of miscarriages are also
examined, together with their causes, which remain relatively consistent across countries and over time (Huff & Killias, 2010). Formal remedies against miscarriages of justice, such as the Court of Appeal and the CCRC are then discussed. Criticism of the activities and decision-making of these institutions is highlighted, alongside claims that they are by no means infallible in terms of recognising and rectifying miscarriages of justice. Lastly, the informal remedies available to victims are analysed.
The ensuing discussion draws upon a variety of sources from the field of miscarriage of justice scholarship, which is a theoretically impoverished area. This field contains three distinct types of literature (Leo, 2005, p. 210). Firstly, the ‘big-picture studies’ - academic texts (of which there are relatively few in England and Wales), which examine the nature, causes of, and remedies against miscarriages of justice (see for example, Brandon & Davies, 1973; Naughton, 2007). Secondly, the ‘specialised-causes literature’, which includes the works of experts, such as psychologists, and addresses particular causes of miscarriages (see Loftus, 1980; Gudjonsson, 2003). Thirdly, the ‘true-crime literature’, written by those who have either directly (victims) or indirectly (victims’ associates) experienced a miscarriage (see Kennedy, 1961; O’Brien, 2008). All of the aforementioned literature has contributed to our understanding of miscarriages and will be drawn upon throughout this chapter.
What is a Miscarriage of Justice?
Defining exactly what a miscarriage of justice is, can be very difficult. What we view as a
10 (Quirk, 2007). It may also depend upon what we consider the terms ‘criminal justice’ and ‘justice’ to mean. This suggests that we should consider the nature and purpose of the Criminal Justice System (CJS) and its relation to the notion of justice.
William Blackstone’s (1858, n.p.) statement that “It is better that 10 guilty persons escape
than one innocent suffer” forms the foundation of what Herbert Packer (1968) calls the
‘due process’ approach to criminal justice. This approach emphasises the presumption of innocence, individual rights, and the importance of protecting the individual from state power (Packer, 1968). Conversely, Packer’s ‘crime control’ approach stresses the importance of the forces of law, (primarily the police) being able to conduct their role of detecting the guilty without obstruction from excessive legal rules. The UK is said to operate under a due process system, geared towards favouring the innocent. However, McBarnett’s (1981) research examining 105 cases tried in Glaswegian courts, highlighted very high conviction rates in this allegedly due process system. Although the legal rules within the Scottish justice system differ slightly from those in England and Wales, this finding suggests that there is actually a gap between the rhetoric (guiding principle) and
substance of the law (i.e. what actually goes on) (Eady, 2003).
In such a system, what is justice? Hall (1994) notes that where the State seeks to sanction an individual, the process is, by its very nature, coercive and unbalanced. Thus, it is the minimisation of that coercion and imbalance to tolerable levels, which provides a limited but useful working definition of ‘justice’. This suggests that ‘justice’ is determined as much by the integrity of the process, (particularly by according people fair treatment and respecting their rights) as by its end product (Walker, 1999). Arguably, many rights may be affected by the CJS in action. For example, as crime has an adverse effect on people’s enjoyment of their rights, the CJS acts against offenders’ rights so as to protect the rights of others (Walker, 1999).
In the light of this discussion, how might the term ‘miscarriage of justice’ be understood? Although many have highlighted the inconsistencies and contradictions inherent in defining a miscarriage (see, for example, Forst, 2004; Quirk, 2007) one of the few comprehensive definitions, is that of Walker (1999, p. 33-4), who states that just as ‘justice’ should be defined with respect to rights, so should ‘miscarriages of justice’:
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“…a miscarriage…occurs whenever suspects...defendants or convicts are treated by the State in breach of their rights, whether because of deficient processes or, the laws which are applied to them, or because there is no factual justification for the applied treatment or punishment, or whenever [such persons]…are treated adversely by the State to a disproportionate extent in comparison with the need to protect the rights of others, or whenever the rights of others are not effectively or proportionately protected or vindicated by State action against wrongdoers or, by State law itself…”
Evidently then, a miscarriage of justice can occur not only within the confines of the court system, but also when for example: i) police unjustly exercise their powers on the street (Bowling & Delsol, 2010) through gratuitous stop and searches (Edmond, 2002); ii) arrests/detentions made, do not lead to charges (Greer, 1994), iii) there are failures in the application of laws; and iv) injustice is institutionalised within laws (Belloni & Hodgson, 2000).
Walker (1999) also argues that a conviction achieved through pre-trial or trial practices which breach an individual’s rights is a miscarriage, even if they have actually committed a crime. This point is supported by some judicial pronouncements, such as that of Lord Taylor, who in quashing the murder convictions of the Cardiff Three in 1992, declared that whether Steven Miller’s confession was true or not was ‘irrelevant’, it had been improperly obtained (Naughton, 2005a, p. 172). This indicates that just as ‘justice’ is not only a ‘result’ it is also a ‘process’, the term ‘miscarriage of justice’ cannot be restricted to wrongful ‘outcomes’ (Kennedy, 2004). Interestingly Holmes (2002), unlike most of the scholars in this area, distinguishes between a ‘miscarriage of justice’ and a ‘wrongful conviction’, stating that whilst both terms refer to someone who has been illegally convicted, in the former, the individual may/not have committed the crime; whilst in the latter, the person is factually innocent. However, in reality, it is very difficult to identify the wrongly convicted innocent (Bedau & Radelet, 1987).
Some of the problems evident in the definitions above are partly due to the nature of the trial process itself which is not concerned with ‘absolutes’ such as ‘innocence’, but rather pragmatics (Eady, 2003). For example, although the criminal justice process may claim to attempt to uncover the truth about alleged offences, this is arguably not done at all costs (an issue returned to later in this chapter). Prosecutors only have to produce a sufficiency of evidence to establish ‘guilt’ in the legal sense (Edmond, 2002, p. 187). Similarly, as criminal appeals test only whether convictions are ‘un/safe’, a quashed conviction is an acknowledgement of a breach in the ‘carriage of justice’ rather than the appellant’s innocence (Naughton, 2007, p. 17). In this respect, it could be argued that campaigners
12 and the media misconceive successful appeals as indicators of wrongly convicted
innocents (Naughton, 2007).
It is now important to return to Walker’s (1999) category of miscarriages which arise through ‘failure to vindicate the rights of others’ (or rather, victims). This is because, arguably the concern of political, (and indeed public and media) discourse has shifted during the last twenty years, away from wrongful conviction of the innocent and towards wrongful acquittal of guilty defendants (Quirk, 2007). This is exemplified by a statement made in 2002 by then Prime Minister Tony Blair that “the biggest miscarriage of justice
today is when the guilty walk away unpunished” (cited by Robins, 2011, n.p). Indeed,
there are arguably victims of inaction (such as failure to properly investigate a crime or to protect potential victims from known threats), as much as there are of actions which lead to a miscarriage (Savage et al, 2007). This more recent focus upon victims and their place within the CJS, demonstrates how cultural, social, and political change can literally alter one’s perception, and thus definition, of a ‘miscarriage of justice’ (an issue returned to shortly).
The ensuing discussion will primarily use the term ‘miscarriage of justice’ to refer to wrongful conviction, however there are clearly numerous complexities involved in attempting to define a miscarriage and arguably further debate upon this issue is urgently required. This is crucial because how miscarriages are defined “…is important in legal,
analytical, publicity, and political terms” (Quirk, 2007, p. 764) and determines which
appeals will succeed, thereby affecting estimates of their scale.
The Scale and Forms of Miscarriages of Justice in England and Wales
Analysis of the literature concerning the scale of miscarriages in England and Wales suggests that “…the innocent are convicted far more frequently than the
public…and…those who operate the system dare to believe” (Yant, 1991, p. 1). As
previously noted, estimates of the scale of miscarriages may depend upon how a miscarriage of justice is defined, which in turn may depend upon one’s perspective. Whilst a lawyer for example, may claim that a miscarriage only exists once a conviction is quashed (Naughton, 2005a); a campaigner may argue that the CJS is imperfect in terms of recognising miscarriages and thus cannot guarantee that all wrongful convictions will be overturned (Morrell, 1999). From this perspective, estimates of the number of
13 CCRC (2012, n.p) for example, openly admits that it cannot always refer cases to appeal which, after investigation, seem to constitute a wrongful conviction. In addition, it does not consider many others worthy of investigation. Thus, the currently 324 convictions quashed on referral to the Court of Appeal, out of a total of 14,778 applications made to the body since its inception (CCRC, 2012, n.p), are arguably a most conservative estimate of the number of people wrongly convicted since the organisation began work in 1997. Evidently, some victims may never fulfil the criteria of the appeals system and will be unable to overturn their convictions (Naughton, 2006). However, the discussion thus far has concerned wrongful convictions obtained in the Crown Court and, as noted
previously, this is not the only ‘site’ where injustice can occur (Hall, 1994). Magistrates courts, which deal with 98% of criminal adjudications (many of them for serious crimes with most ending in conviction), are arguably the sites of numerous miscarriages (Ewick, 2009). Such miscarriages go unnoticed as individuals may never appeal because their sentence was not severe and/or they are dissuaded by poor legal advice regarding the ‘time loss rule’ (Ashworth & Redmayne, 2004)1.
Appeals achieved via reference from the CCRC (or exceptional miscarriages) represent then, a fraction of the total number of annual successful appeals (Naughton, 2003).
Indeed, if the number of convictions obtained in the Crown Court, routinely overturned by the Court of Appeal (routine miscarriages), is added to convictions obtained in the
magistrates’ courts, successfully appealed against in the Crown Court (mundane
miscarriages), it totals an annual average of 5,000 (Naughton, 2006, n.p.). When added to exceptional miscarriages over the past decade, this amounts to approximately 35,000 miscarriages of justice (Naughton, 2005b, p. 62).
There are also impediments to defendants continuing to maintain their innocence which must be considered in assessing the scale of miscarriage. These include the acts of charge, plea, and sentence bargaining (Sanders and Young, 2010). Research has found that deals offered by prosecutors may induce innocent people to plead guilty to crimes (Baldwin & McConville, 1979) and that most defence practices are geared “towards the routine
production of guilty pleas”, thereby failing to act in an adversarial client-centred way
(McConville, Hodgson, Bridges, & Pavlovic, 1994, p. 71). Lastly, outside of the court setting, ‘invisible injustices’ are regularly experienced by some on the street, including
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14 unjustifiable, discriminatory police stop and search practices (Hall, Critcher, Jefferson, Clarke, & Roberts, 1978).
Although estimating the scale of miscarriages is difficult as most are not the subject of appeal, nor exposed by any other means (Belloni & Hodgson, 2000) arguably the number of undetected errors is far greater than we believe (Woffinden, 2010). We now turn to discuss these errors.
The Causes of Miscarriages of Justice
A single miscarriage of justice usually has multiple causes, starting from an individual’s first contact with the police and continuing to the end of their dealings with the CJS, when ‘problematic judgements’ are not readily rectified by appellate mechanisms (Walker, 1999). Many of the causes to be discussed here are similar across different countries and time periods (see Huff & Killias, 2010). Indeed, in relation to the latter, the causes discussed by Brandon and Davies (1973) in the first systematic study of miscarriages in England and Wales, remain evident in successful appeals today (Naughton, 2007).
i) Eyewitness Identification and Testimony
Within a criminal investigation and trial an important instrument of proof of guilt is that of establishing the culprit’s identity visually by eyewitnesses (Eady, 2003). However, many problems exist regarding the reliability of eyewitness identification and testimony which may lead to wrongful convictions. Wilcock, Bull, and Milne (2008) summarise much of the research on this area, illustrating how distortions in recall can result from: i) social perceptions such as prejudice or stereotyping (see Chance, Goldstein, & Sporer, 1996; Wells & Olsen, 2003); ii) situational factors such as type, complexity, and duration of the event, the level of emotion it arouses, or illumination at the scene; iii) demographic features of witnesses; and iv) interrogative situations including use of identification
parades and photo-fits (see Patterson & Baddeley, 1977; Brigham & Cairns, 2006), despite their more recent replacement with video parades and E-fits (Davies & Griffiths, 2008). Such research, together with the revelation of many miscarriages involving problems with eyewitness identification, led Lord Devlin (1976) to state that eyewitness identification evidence was inherently unreliable and thus convictions should not generally be solely based upon it. Despite such recommendations and changes to procedure, mis-
15 identification remains the major cause of miscarriages today (Davies & Griffiths, 2008) as Table 1.1, Appendix 1 indicates.
ii) Confessions
Police-coerced false confessions (often accompanied by fabricated statements), have featured in many miscarriages of justice (Eady, 2003). In terms of how frequently false confessions arise, Gudjonsson (2003) identifies 22 high-profile cases in England and Wales between 1989 and 2001 where a disputed confession was central to the wrongful conviction. Since this time, a further eight cases have come to light (Milne, Poyser, Savage, & Williamson, 2009). However, as Gudjonsson’s (2003, p. 332) categorisation of false confessions (see Table 2.1) highlights, they do not always result from police
pressure.
Table 2.1: Types of false confession (adapted from Gudjonsson, 2003)
Type of false confession Explanation
Voluntary confession Made by: mentally disordered people
who confuse fantasy & reality; those desiring notoriety; those wishing to protect someone. Suspects may ‘admit’ to offence without adopting/understanding the substance of the admission
Coerced-Compliant confession The suspect knows the confession is false, but confesses for immediate gain/relief, such as the belief that questioning will end
Coerced-Internalised confession The pressure of the situation leads suggestible individuals to temporarily distrust their memory, falsely believing they are guilty
Evidently, false confessions may result from suspects’ psychological vulnerabilities during interrogation, rather than coercive questioning. However, false confessions are not confined to those with mental illness/learning disabilities. Apparently ‘normal’ individuals may also incriminate themselves when interrogated (Gudjonsson, 2003).
16 Many legislative changes have impacted upon some of the issues mentioned above. Between 1912 and 1984, police handling of suspects was governed by safeguards contained within the Judges Rules (Eady, 2003), rules which police often ignored as evidenced by the number of false confessions highlighted in quashed convictions for crimes which occurred during this period (Allison, 2005). The Police and Criminal Evidence Act (PACE) enacted in 1984, aimed to give suspects more rights and made the investigative process more transparent by, for example, tape-recording interviews
(Doward, 2011). However, although PACE, and subsequent initiatives such as the police interviewing approach, PEACE (see Clarke & Milne, 2001) have resulted in police interviews being less likely to result in wrongful conviction, they have still occurred in cases such as the Cardiff Three (Sekar, 2011).
The psychology of false confessions has aided our understanding of the causes of
miscarriages, but so too have studies (which there is not space here to discuss) examining the impact of confession evidence upon the perceptions and decision-making of criminal justice officials and jurors (Drizin & Leo, 2004). Confession evidence is highly regarded within criminal law and appeals to common-sense notions, including the idea that innocent people do not confess (Kassin, 2008).
iii) Cell Confessions/Unreliable Witnesses
Inherently unreliable witnesses who may be suspects themselves, or who seek to gain something from giving evidence, feature as causes in many miscarriages (Eady, 2003). This takes many forms but is arguably most clearly illustrated by claims that suspects held on remand have confessed to fellow prisoners who then agree to testify in exchange for benefits (Innocent, n.d.). Despite this unsubstantiated evidence being inherently unreliable, courts continue to accept it (Bennetto, 2005)2.
Unreliable witnesses have also caused miscarriages as a result of the police investigative method known as ‘trawling’. In 2002, a Home Affairs Select Committee report into the investigation and trial of people accused of sexual abuse in children’s care homes, raised concerns about police ‘trawling’ former residents and giving them opportunities to allege abuse (Eady, 2003). Many allegations made were based on events dating back 20-30 years, thereby seriously undermining the ability to mount a defence (Home Affairs Select Committee, 2002). Such cases demonstrate how victims’ testimony can contribute to
2 A
17 causing a miscarriage depending upon how they are interviewed, and particularly the role of leading questions (which may alter memory) in such interviews (Milne, 1999). This led to recommendations that all victims (and witnesses) should be video-interviewed (Clarke & Milne, 2001) and latterly digitally recorded (Zander, 2010).
iv) Non-Disclosure of Evidence
Some of the most notorious miscarriages in England and Wales have involved non- disclosure of evidence pointing to the innocence of suspects (Eady, 2003). In 1985, the Crown Prosecution Service (CPS) was established to bring an independent prosecutorial review into the system, thereby relieving the police of the dual role of investigating and prosecuting suspects, which some said often led to malpractice (Baldwin, 1986). Despite such changes, together with reform introduced by the Criminal Procedures and
Investigations Act (CPIA) (1996) which sought to ensure advance disclosure, (i.e. ensuring that the prosecution alerts the defence to the existence of any ‘unused material’ gathered during the investigation), commentators continue to note instances of the CPS not acting in an independent manner and sometimes colluding with the police in
withholding exculpatory evidence from the defence (Belloni & Hodgson, 2000).
Certainly, non-disclosure remains a common cause of miscarriages today (Taylor, 2005) as the recent successful appeal of Sam Hallam indicates (Evans, 2012).
v) Police Investigation
The police investigative process bears much of the responsibility for causing miscarriages of justice (Savage & Milne, 2007). Some aspects of this process have already been discussed, however still to note are issues surrounding premature case closure and building the case for conviction (Martin, 2002). The concept of premature closure was first referred to in relation to police interviewing (see Shepherd & Milne, 1999, p. 126) as
“the disposition to draw pre-emptive conclusions from information processed prior to conducting an interview”. However, the notion of premature closure may also be applied
to the investigative process as a whole, so that investigations which start with ‘investigator openness’ to consider many potential lines of inquiry, at some early stage, close around a particular ‘thesis’ and suspect and thereafter “detectives, starting from a premise of guilt,
selectively weave together available pieces of information…to produce a simplified & coherent story of ‘what happened’” (Sanders & Young, 2010, p. 368). Thus, premature
closure operates around the logic of ‘case construction’ in that once a suspect is identified, the investigation alters from being an objective, continuing search, focussed upon ‘What
18 happened?’, to being a search for information that supports suspicions that the suspect is the culprit (Maguire & Norris, 1992). Such problems are recognised by the CPIA (1996,