Court of Appeal vs Juries

Since the introduction of the Court of Criminal Appeal in 1907, there has been something of a battle between two schools of thought as to how much discretion the Court should have in quashing jury verdicts. 

On the one hand, some judges have believed that, as we operate a system of justice based on jury verdicts, we should abide by those verdicts unless there is an extremely good reason for overturning them.

The other school (and I make no apology for stating my opinion that this is the correct one) is that, while juries may work very well most of the time, occasionally, they will inevitably make mistakes and convict someone when there is really insufficient evidence to do so.

These two positions can be summed two statements:

1949, Lord Chief Justice, Lord Goddard said:

“If there is evidence to go to the jury, and there has been no misdirection, and it cannot be said that the verdict is one which a reasonable jury could not arrive at, this court will not set aside the verdict of guilty which has been found by a jury”.

Whereas  in 1964 a JUSTICE Committee said:

“it seems absurd and unjust that verdicts which experienced judges would have thought surprising and not supported by really adequate evidence should be allowed to stand for no other reason than that they were arrived at by a jury.”

The following year The Interdepartmental Committee on the Court of Criminal Appeal (Donovan Committee) agreed and the Criminal Appeal Act 1966 gave the power for the Court to:

…”quash a conviction where the verdict was ‘under all the circumstances of the case unsafe or unsatisfactory’ ”.

What is Lurking Doubt?

In 1968, there was a case referred to as ‘Cooper’, in which the principle of ‘Lurking Doubt’ was introduced. The judge, Lord Widgery, said:

“This is a case in which every issue was before the jury and in which the jury was properly instructed, and, accordingly, a case in which this court will be very reluctant indeed to intervene.

…However, now our powers are somewhat different, and we are indeed charged to allow an appeal against conviction if we think that the verdict of the jury should be set aside on the ground that under all the circumstances of the case it is unsafe or unsatisfactory. 

That means that in cases of this kind the court must in the end ask itself a subjective question, whether we are content to let the matter stand as it is, or whether there is not some lurking doubt in our minds which makes us wonder whether an injustice has been done. 

This is a reaction which may not be based strictly on the evidence as such: it is a reaction which can be produced by the general feel of the case as the court experiences it. “

Such a position was not universally taken by Appeal judges, some feeling that overturning a jury decision should not be taken too lightly.

Lord Chief Justice Bingham, in 2000, also qualified the “lurking doubt” and “uneasiness” terms by adding:

…“If, on consideration of all of the facts and circumstances of the case before it, the Court entertains real doubts whether the appellant was guilty of the offence of which he has been convicted, the Court will consider the conviction unsafe.”

You can see that this stance requires more than a “gut feeling” but includes an examination of the facts of the case, including transcripts of the trial.

This is an eminently sensible approach which I firmly believe should be adopted by the Court of Appeal today.

In 2012, Lord Chief Judge said something similar but with a much more critical slant. After dismissing the more simplistic concept of “lurking doubt”:

…“it is not open to the court to set aside the verdict on the basis of some judicial hunch …”,

he admitted that the application of it:

“requires reasoned analysis the evidence… which leads to the inexorable conclusion that the verdict is unsafe”.

So, while Lord Judge seemed more dismissive of the concept of Lurking Doubt, and set a higher bar (perhaps a little too high) for the level of evidence required, he was still essentially conceding that a reasoned analysis of the evidence is required and, if deemed to be sufficient, the conviction should be quashed. He referred to research by Professor Leonard Leigh which concluded that those cases which had invoked “lurking doubt” had indeed been subject to such scrutiny. And not merely a ‘collective judicial hunch’.

One-sided Hunches

It has to be said, however, that, on the other side of the coin, collective judicial hunches are often what has caused the potential miscarriage of justice. In sexual assault cases, the requirement for corroboration has been abandoned. Now what the jury is often left with are a complainant claiming the defendant’s guilt, and a defendant protesting their innocence – one person’s word against another. In the absence of any other strong evidence either way, the jury is asked to give a verdict based on who they believe. What is this if not a collective judicial hunch? 

If the jury decide they believe the Complainant, a potentially innocent Defendant is faced having been found guilty on the basis of a collective judicial hunch on the part of an inexperienced jury, yet a Court of Appeal refusing to quash a it because the collective judicial hunch of highly experienced judges is deemed insufficient.

Conclusion – more than just a hunch

In spite of the last paragraph, it is easy to understand why the Court of Appeal might be reluctant to overturn a jury verdict on the basis of instinct alone, no matter how accurate the instinct of experienced judges may be. But that has never really been the issue; both the Runciman (Royal) Commission and Lord Bingham accepted that more would be needed, but both (and even Lord Judge) implied that the Court of Appeal should be open to accepting such evidence. 

That means allowing the Claimant and his lawyers, or the CCRC, to present evidence from the trial, together with any new evidence they have managed to gather, and submit to the Court of Appeal such anomalies that they believe make the jury verdict unsafe. 

The instincts of people experienced in their field, when examined, often have a justifiable basis. While that, on its own, may not be sufficient to quash a guilty verdict, if supported by evidence from the trial which suggests that they are right, Court of Appeal Judges should exercise their right, and their duty, to quash it.

n.b. If you would rather watch (or listen to) a video than read a blog post, you can do so at the bottom of this post.

Juries or no juries

With the huge backlog of criminal cases and concomitant long delays suffered by both defendants and victims, there has been increased discussion about the necessity for juries for criminal trials.
(They are not used for civil cases, where a single judge is considered either adequate or even preferable).

Discussion about juries has usually led to lists of pros and cons and a conclusion as to whether we should retain them or ditch them. From what I’ve seen, most lawyers tend to conclude that juries remain the best option – and leave it at that.

What hasn’t been discussed so much is whether the cons could be rectified and the jury system improved? (Of course, by “cons” I mean points against, not “defendants who are convicted”!)

Improve not replace

If we are to keep trial by jury for serious criminal cases, that does not mean they should not be improved. There are a number of ways I can suggest, but foremost among these is that, in my view, Juries should be required to give reasons for their verdicts.

This means that, as in some other countries, jurors should have to explain which bits of evidence, or route to verdict, they relied on to come to their decision.

Little research

Despite the hundreds of years of having a jury system, there has been remarkable little research into this critical facet of justice.

Understanding the detail of how juries arrive at their verdicts is hampered by section 8 of the Contempt of Court Act 1981:

F2(1)Subject to subsection (2) below, it is a contempt of court to obtain, disclose or solicit any particulars of statements made, opinions expressed, arguments advanced or votes cast by members of a jury in the course of their deliberations in any legal proceedings.

In other words, jury members cannot talk about their verdicts or their deliberations, and no-one else is allowed to ask them.

Such research as there is therefore relies on:

1. evidence from other countries where jurors CAN talk about it
2. numerical data – numbers of convictions, under certain conditions etc.
3. Simulated trials where the fake jurors can be quizzed as to their thinking

But each of these methods has its drawbacks.

1. evidence from other countries does not necessarily translate directly to England and Wales
2. You can only draw inferred conclusions from numerical data; you can’t really know why they are as they are
3. Simulated trials can only provide a small amount of data based on the limitations of those trials.

How do we know if Juries work?

Proponents of the jury system will often tell you how successful juries are at finding the right verdict. But how do we know? 

You can’t even look to the number of successful appeals, as the current (dysfunctional) Court of Appeal doesn’t actually consider whether a jury decision was right or not. 

Essentially, juries are treated as infallible and the Court of Appeal only allows appeals where new evidence is presented which the jury did not see (and are therefore excused of blame.)

How do we know there was not discrimination, prejudice, confirmation bias, lack of understanding of the issues, or of the judge’s directions, or whether they understood them but ignored them anyway, bullying of weaker-minded jurors, etc?

Additionally, if a jury initially cannot reach even a majority verdict but, after the judge asks them to continue deliberating, they return a verdict – what happened? 

Who changed their minds, and why? 

[This begs the question about whether we should revert to requiring a unanimous jury verdict to convict (yes, we should) bit that is for another post].

When a defendant’s liberty and future depends on whether jurors are strong-minded or not, easily persuadable or bullyable by other jurors to not, such questions are very important.

Prejudice and Variability of competence

Research presented by Cheryl Thomas (Ministry of Justice Research Series 1/10 February 2010) shows a range of issues which should be of concern, including:

1. wide differences in verdicts when the defendant or alleged victim was of different ethnic origin, 
2. worrying lack of comprehension of judge’s directions
3. jurors who looked at their cases on the internet (despite warnings that they should not), especially if they were higher profile cases
4. confusion about how jurors should report impropriety of fellow jurors

Most or all of these issues would be remedied by the jurors having to explain the reasoning behind their decisions, as they do in some other countries.

Problems with Appeals

The Criminal Cases Review Commission (CCRC) is the (supposedly) independent body charged with discovering miscarriages of justice and sending them back to the Court of Appeal when a first appeal had failed.

I say “supposedly independent” because the cases they refer are bound by the same rules as other cases. 

In other words, the Court of Appeal has to be persuaded that any new evidence presented (which, as I’ve said, is required) would have been sufficient to change a jury’s decision had they known about it at the time.

One of the main problems is that, if you do not on know on what basis the jury arrived at its decision, how is the CCRC or the Court of Appeal to know what would have changed its mind?

If the jury had a number of what is known as ‘routes to verdict’ suggested in the judge’s summing up, the jury may have only taken one of them but it would not be known which one. 

[This is why it is a mistake to suggest that the judge’s summing up provides the jury’s reasons – it does not. At best, it provides options but if the verdict seems strange, it explains nothing.]

Even if the CCRC present fresh evidence which would, in fact, have changed the verdict, the fact that they cannot prove it and the Court of Appeal can simply refer to a different route, means that the appeal is likely to fail. 

Had the jury given its reasons and disclosed its route to verdict, an appeal which was dismissed could have resulted in a true miscarriage of justice being remedied.

An Opposing view

For balance, I will point to a paper by Burd & Hans in Cornell, USA who wrote a paper entitled “Reasoned Verdicts: Oversold?” in which they purport to look at the evidence for and against.

They conclude with a “not sure but probably not” slant, on the basis that there has not been sufficient research into the benefits so better the devil you know.

 However, their reasoning is somewhat bizarre. e.g. this quote:

The procedural difficulties associated with reasoned verdicts may out- weigh the potential benefits. We described the experience in Spain, for example, where substantial numbers of cases have been overturned as the courts found jurors’ written documentation of their reasoning to be inconsistent or insufficient. 

So they seem to find fault with potential miscarriages of justice being overturned because it was discovered that the jurors reasons for convicting were inconsistent or insufficient?

That sounds to me like an excellent argument IN FAVOUR of reasons for verdicts.

Not Guilty?

The argument for jurors having to give reasons is especially strong when the verdict is”Guilty”. However, for those who consider that too many guilty perpetrators of a crime are “getting away with it”, the argument for reasoned verdicts may also help with “Not Guilty” verdicts.

Conclusion

If the discussion is about Juries v Judges, the latter do already give reasons for their verdicts. If it is considered necessary or advisable for them, why should it be different for juries. 

I have not, so far, come across a half-way compelling argument against it.

There is no valid reason why juries should be exempt from the general eagerness for accountability in all other areas of official life. Politicians, judges, lawyers,… are all accountable. In fact, it was notable that in his first speech as Prime Minister Rishi Sunak stressed that his government would be “accountable”. And yet, juries, with a power to radically affect a possibly innocent person’s life, are not. It makes no sense.

Proper research into the effectiveness of the jury system and where further improvements may be made is severely hampered by the secrecy under which verdicts are discussed and delivered.

It could be that it is the very fact of our ignorance about the effectiveness of the jury system that frightens some people who fear that discovering how they came to a perverse decision may unlock a Pandora’s box of problems.

This is no reason to prevent it. If we were to discover that juries were, after all, pretty unreliable, the sooner we know about it, and can fix it, the better.

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Why Juries should give reasons for verdicts – Video version

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For another take on this subject, see “Jury trial – should juries give reasoning for their verdict?” by Spoken Injustice.

A quick search online for “latest scams” will confirm what the ladies on RipOff Britain have been showing us for some time:

“Where there’s money, there are scammers”

Let us look at some examples from a long list

• Council tax refund scam; Energy scams; waterboard scam
• Phone scam; Mobile messaging scams
• Fake Ukraine (or other charity) fundraisers
• Medical alert system scam; Fake NHS Covid-19 PCR text; Covid pass scam; Track and trace scam
• Loft insulation scam; roofing scams
• Pension pot scams
• Fake insurance letters
• Green Homes Grant scam
• Forex trading and brokerage scams 
• Legal scams – letters claiming to be from X & Y Solicitors
• etc. etc….

What makes a scammer?

What characterises and links many of these scams is that they often target vulnerable people, often elderly, and con them into believing the scammer is someone they’re not.

Some of the varied methods they use to extract money are to:

1. scare them into paying – e.g. by pretending to be someone ‘official’ like a lawyer or the local Council and say that if they don’t pay £xxx, they will be punished in some way.

2. con their victim into thinking they need something (e.g. their roof needs mending, or there’s a time-limited Government initiative on some modern heating system) and that they, the scammer, can fix it for them at a very good price.
   
3. con their victim into thinking they are doing a good deed by helping a charity.

Scammers rely on the fact they what they say COULD be genuine. Someone genuinely raising funds for a worthwhile charity may knock at your door. In that case, the victims are not just you but also the real charity.

Such people are happy exploiting the fears and weaknesses of vulnerable people to scam them out of money they may not be able to afford. They have no morals, no sense of right or wrong, no empathy for their victims. They are cold-blooded predators who think only of what they can get out of a situation.

If such a person thought that there was an almost surefire way of obtaining lots of money with very little risk, what do you think they would do?

False Allegations

Sadly, there are many people who have been the victims of rape, sexual assault, and sexual abuse as a child. And anyone with a conscience can only have sympathy with genuine victims of such crimes.

Unfortunately, however, it serves as extremely attractive bait to this type of unscrupulous people that victims (and those who claim to be victims) are able to claim what can be very substantial financial compensation from the Criminal Injuries Compensation Authority (CICA) and /or via a civil case against the alleged perpetrator.

The Payoff

The CICA will generally pay compensation to anyone who claims to have been a victim of sexual assault/abuse and have reported it to the police. It is not necessary for the accused to be convicted for this to happen.

The complainant/scammer will get lifetime anonymity and the support of the police who have been told to “believe the victim” (complainant).

If, by some good fortune (for the false accuser), their victim is found guilty, the scammer has a great chance of getting an even bigger payoff by going to a no-win, no-fee law firm and starting a civil case against his victim.

However, even if the case is dropped and, even if the police suspect that the allegations were fabricated, the chances of the false accuser being prosecuted are very small, unless the police find hard proof that they lied.

As we have seen, scammers are prepared to research, act a role, and go to a great deal of trouble, often for much smaller amounts of money. Why would such people NOT be attracted by making false allegations if the possibility was there?

 The Numbers Game

Whether it concerns rape, other forms of indecent assault or historical abuse, many people will blindly declare that the numbers of genuine victims far outweigh the number of false allegations. Some may even put a figure on it – such as “only 1% or 2% are false.”
There is no justification for these claims and they are wrong.

When so-called ‘evidence’ is quoted, they often cherry-pick the figures to suit their argument. 

For example, they will point to the low number of successful prosecutions of false accusers – and yet the same people complain of the low rate of successful prosecutions of sexual assault as a failing of the justice system. 

Add to this, the reluctance to prosecute former complainants, no matter how dubious their claims and it is easy to see why successful prosecutions are so low.

What little research has been done points to much higher figures of false allegations.

Even from a purely avaricious standpoint (without considering other motives), it would be remarkable if there were not a large number of them.

And yet, it should not even be about numbers. Even if the statistics were as low as those claimed, it should make no difference to the fundamental principle of justice that the protection of the innocent is more important than the prosecution of the guilty. It is exactly why the burden of proof should always be on the prosecution.

Conclusion

This principle should be engraved into the minds of all those working in the justice system. And that applies equally to the Court of Appeal.

Society, the criminal justice system and genuine victims of sex crimes have to accept that making false allegations of sexual assault or abuse is a genuine problem. There are many possible motives for doing so but financial motivation is a big one.

Making false allegations of sexual assault or abuse, whether recent or long ago, against innocent people is considered fair game to unscrupulous people who will go to great lengths to lie and deceive their way to money, while riding on the back of the suffering of genuine victims.

It is not rare; it is common. Considering what is at stake, it would be extraordinary if it were not.

That is also why it is actually in the interests of genuine victims that the police investigate their claims fully and even-handedly. 

If it was much harder and less profitable to make false allegations and get away with it, there would be fewer of them and make it easier for genuine victims to get the justice they deserve.

Of all the iniquitous aspects of the British justice system today, arguably the part most in  need of urgent reform is the system of appeal. [Admittedly, there is no shortage of serious contenders].

While you could argue that there are other areas of the criminal justice system (CJS) where more people may be affected, the Court of Appeal affects those who have been let down by the CJS in the most profound way – namely: innocent people, wrongly convicted.

The effects for an innocent person (and their family) of being wrongly convicted are absolutely devastating, which is why we have traditionally placed such emphasis on the requirement for proof of guilt. I believe that such a commitment to the innocent should not end there and that, where there is evidence of a miscarriage of justice, the CJS should do everything it can to correct it.

Unfortunately, the problem with the Court of Appeal under its current practice, and the reason why it is failing so many innocent people, is that it is geared to making a successful appeal against a guilty verdict nigh on impossible, and thereby tries its best to avoid fulfilling the primary purpose for which it was created.

The purpose of the Court of Appeal

The most important principles of our justice system have always been:

1. the presumption of innocence until proven guilty and that
2. the burden is upon the prosecution to prove guilt (beyond reasonable doubt*)
   

[*The CJS has replaced “beyond reasonable doubt” with “being sure of guilt”, a mistake in my opinion, but the principle is supposed to be essentially the same].

These are the foundation stones of our justice system and should prevail at all times.

It must be understood and accepted that, in any human system, mistakes will be made. The whole idea of a system of appeal is to act as a safety net to catch those mistakes. In the Criminal Justice System it is there to acknowledge the fact that errors will occur and to correct wrongful convictions and miscarriages of justice.

That is why the Court of Criminal Appeal was established in 1907 and was given the power to set aside (“quash” or “overturn”) the jury’s verdict when it was deemed:

“unreasonable or cannot be supported having regard to the evidence”.

Clearly, that phrasing implies that Appeal Judges should be able to tell when a jury has passed a guilty verdict which was not warranted by the level of evidence.

Since then, there has been something of an ongoing tussle between judges who have taken one of two positions on the matter. The first is that juries should be trusted and their verdicts not overturned lightly. Their reasoning is that our system relies on juries rather than judges to reach a verdict and because they have seen and heard the evidence which Appeal judges have not.

This was enunciated by Lord Bingham in the 2002 case of Pendleton:

The Court of Appeal is a court of review, not a court of trial. It may not usurp the role of the jury as the body charged by law to resolve issues of fact and determine guilt. […] Trial by jury does not mean trial by jury in the first instance and trial by Judges of the Court of Appeal in the second.
The Court of Appeal is entrusted with a power of review to guard against the possibility of injustice but it is a power to be exercised with caution, mindful that the Court of Appeal is not privy to the jury’s deliberations and must not intrude into territory which properly belongs to the jury.

Lord Bingham, 2002

However, even those judges who were reluctant to overturn jury decisions used words such as ‘properly’ or ‘reasonable’ with regards to juries and verdicts, and did not necessarily contradict the idea of overturning verdicts which were ‘unreasonable’. Lord Bingham’s quote speaks of exercising their power with caution, not abandoning it completely.

The opposing view is that while juries do indeed give the initial verdict,  they cannot be deemed to be infallible and the mandate of the Court of Appeal is to overturn verdicts which senior judges perceive to have been in error or not justifiable by the evidence. They argue that to do so does not undermine the jury system.

Taking this opposing view, in 1964, A JUSTICE Committee expressed that thought:

it seems absurd and unjust that verdicts which experienced judges would have thought surprising and not supported by really adequate evidence should be allowed to stand for no other reason than that they were arrived at by a jury.

1964 JUSTICE Committee

In other words, it is for a jury to pass the original decision but that does not mean they are infallible and the Court of Appeal is there to correct such errors.

In 1965, The Interdepartmental Committee on the Court of Criminal Appeal (Donovan Committee) agree and said that the previous approach was too narrow.

“If it is strictly construed, there is, in the case of an innocent person…wrongly convicted, virtually no protection conferred by his right to appeal. We think this defect should be remedied”.

Donovan Committee, 1965

It recommended changing the statutory formula and that the Court of Appeal:

“should quash a conviction where the verdict was under all the circumstances of the case unsafe or unsatisfactory”.

Again this implies that experienced Appeal Judges should be able to tell when that has happened.

The 1993 Royal Commission on Criminal Justice stated:

“We are of the opinion that the Court of Appeal should be readier to overturn jury verdicts… [and] …that the court should be more willing to consider arguments that indicate that the jury might have made mistake”

The 1993 Royal Commission on Criminal Justice

Unfortunately, statistics indicate that since then the Court of Appeal has gone in exactly the opposite direction and the number of successful appeals have decreased even further.

In fact, the Court of Appeal has made things far worse by the introduction of new requirements for appeals which are immeasurably more strict and harder to fulfil, in some cases impossibly so.

Grounds for Appeal

Part of the problem in submitting an appeal is that the permitted grounds for appeal are very narrow.

Without replication the published advice, [Appeal a sentence or conviction] the basics are that you can appeal a decision if:

1. Some part of the process has been mishandled. This is called ‘Abuse of Process’.
   • e.g. The Prosecution have failed to Disclose material which could have assisted the case for the Defence, which they are legally obliged to disclose.
2. Some form of incompetence by either the trial judge or your legal representatives
3. If you or those helping or representing you are able to find fresh evidence, not available at the time of the trial, which is significant enough to undermine the verdict (or sentence).

That’s basically it.

Note that there is no provision for the idea that the jury got it wrong and convicted you without sufficient evidence to justify it.

The recommendations of each of the commissions above that the Court should overturn unsafe or unsatisfactory verdicts has been completely bypassed. 

The 3rd point above imbues the jury with the quality of infallibility; a patently absurd notion. It says that unless you come up with some evidence the jury didn’t see which is significant enough to make the difference, there can be no reason to quash it.

The conclusion to be drawn from this is that you CAN launch an appeal on the basis that;

• The highly trained, experienced Judge, an expert in running a criminal trial, was incompetent
• Your highly trained lawyers who represented you were incompetent
  [n.b. the bar for these 2 points is set very high as the justice system is not keen one of their members being blamed.]

But you CANNOT launch an appeal on the basis that a random selection of untrained people from the community might have made a mistake, been subject to confirmation bias (e.g. from undue influence of press reports etc.) or, for some reason, been prejudiced against you, or for the complainant, and given a Guilty verdict on insufficient or highly flawed evidence.

The Requirement for ‘Fresh’ Evidence

The reasons for the current state of affairs are (in my view) down to a baffling and brainless change in policy, contrary to the advice of the numerous commissions into the justice system. There isn’t space in this article to cover how we got here (that’s for another post) but the place where we have ended up at the present time anyway, is that you need to find FRESH evidence, not presented or even known about, at the trial.

Theoretically, a person with a cast-iron alibi could be wrongly convicted due to confusion about dates, times and places by a jury who had already made up its mind about their guilt and the convicted person would not be able to appeal the decision unless they had fresh evidence which the jury did not hear!

You may be able to appeal on the basis that your barrister or the judge screwed up in not making it clear enough to the jury (which the Court of Appeal are also reluctant to allow), but not on the basis that there was insufficient proof of guilt (or even, in that case, when there was proof of innocence).

In my view, the idea that the verdicts of juries should never be questioned, even by experienced judges, should be recognised as absurd to anyone with half a brain.

It is judges who give guidance to juries and set out the rules by which their verdicts are governed; it is surely for senior judges, therefore, to decide whether they have followed that advice and those rules.

The CCRC

This problem is exacerbated by the situation regarding the Criminal Cases Review Commission.

The CCRC is a supposedly independent organisation set up after the 1993 Royal Commission to look at potential miscarriages of justice whose appeals had already been rejected, were given some investigative powers and, if a particular case passed their criteria, could send it back to the Court of Appeal for re-consideration.

The problem is that the CCRC is still subject to the same restrictions as everyone else. So, no matter how strongly the CCRC believe that there has been a wrongful conviction, unless they can provide substantial fresh evidence, on behalf of the applicant, it will not be accepted by the Court of Appeal. Because of that, the independence of the CCRC effectively counts for nothing.

Therefore, because the CCRC’s policy for sending cases back to the Court of Appeal is that there should be a ‘real possibility’ that it will succeed, the CCRC will not submit such cases for re-appeal. In fact, because of that, they operate the same criteria, so that unless you can find fresh evidence yourself, the CCRC are unlikely to consider your case.

How can the ‘independent’ organisation created to examine miscarriages of justice do its job when it is not able to use potentially crucial evidence simply because some of it has already been presented, or had the opportunity of being presented, in court? Of course, it simply cannot.

If an independent organisation is set up to examine miscarriages of justice, it needs to be given the authority to see its job to completion. If, after serious consideration of all the available evidence, which I believe it should consider, the CCRC believes that there is a good chance that an innocent person has been the victim of a wrongful conviction, the Court of Appeal should be compelled to consider the same evidence, regardless of its source, previously used or not.

As recommended by the 1993 Royal Commission, if the Court having seen that evidence believe that the verdict is unsafe or unsatisfactory, they should quash the verdict as they are empowered, in fact required, to do.

What needs to Change

It is time that those who make decisions about the way in which the Court of Appeal operates realise that it has veered way off course from its primary objective.

In the House of Commons Justice Committee’s Twelfth Report of Session 2014–15 review of the CCRC, the difficulties explained above were discussed:

Several contributors were critical of the Court of Appeal’s stance:

“If the Court of Appeal were readier to act on [the Royal Commission’s] recommendation, many of the concerns raised by critics of the CCRC would be resolved.”

Professor Michael Zander

“Much of the criticism levelled at the CCRC would in my view be better directed at the Court of Appeal which remains capable on occasions of quite breath-taking obduracy towards appellants claiming wrongful conviction.”

Paul May

“The overall performance of the Court of Appeal is a significant obstacle to addressing miscarriages of justice.”

Dr Stephen Heaton

In 2021, the Westminster Commission produced a new report, organised by the All Party Parliamentary Group on Miscarriages of Justice. 

Viewed alongside the recommendations of the 2014-15 Twelfth report, the Westminster Commission’s report gave all the appearance of Groundhog Day in its conclusions.

Both concluded that:

1. The CCRC should be bolder in its interpretation of the Real Possibility Test.
2. The Law Commission should review the criteria by which the Court of Appeal will quash verdicts; particularly with regard to the requirement for ‘fresh evidence’ which currently stifles both the CCRC and other appellants due to its overly-strict rules.

But what is the point of setting up these commissions if their carefully considered advice is then ignored? I hope that the recommendations of the new and previous commissions are put into statute because the Court of Appeal has repeatedly ignored them.

There are many reasons why fresh evidence might be difficult to obtain, especially in historic cases where it is particularly difficult to obtain thorough no fault of the defendant.

Refusing to quash unsafe verdicts just because no new evidence is available does not help to instil confidence in the justice system. Furthermore, overturning such verdicts neither reduces confidence in the justice system, nor (as the 1993 Royal Commission affirmed) does the principle that juries occasionally makes mistakes which need to be corrected undermine the jury system as a whole.

Quite the reverse.

Only when it is seen that the Court of Appeal is open to recognising and overturning miscarriages of justice, can we have a justice system we can trust. 

In recent times, discussions about justice regarding allegations of sexual abuse, sexual assault or rape have drawn unfortunate battle lines, with those representing the interests of “victims seeking justice” versus those representing “victims of false allegations”.

Reacting against police policy in the past in which victims (mainly women) justifiably felt that they were disbelieved and badly treated, campaigners who have fought for their rights seem mostly not only against any such progress that has been made being eroded, but insist that much more still needs to be done, such as with newer challenges such as the use of mobile phone data as evidence.

On the other side of the equation there are those who have been victims of false allegations and, though they may have sympathy with genuine victims, they feel that they are now in the position the complainants were before, with police prejudice stacked against them.

In other words, politicians and the criminal justice system, the police in particular, have succumbed to such pressure but, rather than aim for a more balanced approach, have merely switched sides, so that all the former bias is still present but now in favour of the complainant and against the defendant.

See post: Has the Sex Offence pendulum swung too far?

So the battle lines tend to be drawn as follows:

COMPLAINANTS (Genuine victims and False accusers) vs  ACCUSED (Genuine offenders and Falsely accused)

This is sad for several reasons.

1. If there were no such thing as false accusations, it would be easier to believe complainants. The fact that the claims of complainants cannot be always assumed to be true is precisely because there are people who make false accusations.
2. False accusers not only harm those they accuse but also genuine victims. Apart from their abusers, the biggest enemy of genuine victims are therefore the false accusers, not falsely accused people justifiably campaigning for their own rights.
3. False accusers, like sexual abusers, are predators who care nothing for their victims and prepared to do whatever it takes to achieve their objectives.

The true battle lines should be as follows:

VICTIMS (Genuine victims and Falsely accused) vs  OFFENDERS (Genuine offenders and False accusers)

However, until the truth about false accusers and the damage they do is acknowledged, the current situation is unlikely to change. Sadly, while most falsely accused have sympathy for genuine victims, this is not generally reciprocated, and those who represent ‘victims’ rarely seem to show concern for those whose lives are ruined by false allegations. It is therefore difficult for victims of false allegations to fight for their rights without appearing to oppose the rights of genuine victims.

A case in point is the (so-called) Victims Commissioner, Dame Vera Baird, whose concept of the victims she is supposed to represent is so narrow that she seems not to care one jot for victims of false allegations, and chooses to focus solely on the interests of complainants, whether they are genuine or not.

The mobile phone issue

Following the case of Liam Allan in which he narrowly escaped conviction for rape when a late disclosure of text messages on his accuser’s phone proved his innocence, there have been calls for data on accuser’s phones to be handed over as part of the investigation.

Vera Baird and others opposing this policy have termed this request ‘digital rape’. Quite how someone supposedly supporting victims of sexual assault and rape can equate being a victim of such a dreadful crime with a request to hand over one’s phone is something I find not only puzzling but a little shocking…

The fallacy of ‘digital rape”

• Unlike the possessions of the accused, mobile phones are not confiscated – they are requested.
• Only data which is relevant to the case would be used, not irrelevant personal messages.
• If the allegations are genuine, there is nothing to fear, but may deter false allegations.
• If the handing over of such data would help the inquiry and provide a greater chance of conviction, you would think victims would glad do so.
• “Victims groups” complain of a lack of convictions for rape and similar offences but juries cannot be forced to convict.
  • If, either the complainant refuses to hand over their phone, or if the law is changed such that police cannot request it, the defence could argue that data which may have proved the defendant’s innocence was withheld or made unavailable.

The fallacy of ‘rare false allegations’

The claim is often made that false allegations are rare – as if that should make any difference! – but such claims are completely groundless.

While victim groups refer to reported rape as if they were all genuine and complain of the fact that only a small proportion result in a conviction, the same people point to the small numbers of convictions for false allegations as if they were the only ones. Nor do they take into account the fact that false accusers are rarely even prosecuted. It is a claim that is based entirely on double standards. It is impossible to know how many false allegations there are, but more serious research has tended to show that they are very far from rare.

Conclusion

There has been a movement towards ‘victim-centric’ justice but I believe this is wrong. While the suffering of victims is always a factor to be taken into account, the wider principles of justice, from the investigation stage through to sentencing after conviction, should remain paramount – especially the protection of the innocent.

For a more detailed explanation of the importance of this, please read this post:
The First Principle of a Just Legal System

Background History – Bad Treatment of Complainants

In the 1980s, a woman was raped. She was shocked, traumatised and took steps to try to ensure that she would not see the person ever again.

But she did not go to the police. Why not?

The main reason was that the police had a very bad reputation concerning the way that women who reported sexual assaults were treated by them. (Much worse than it is today).

The perception was not only that they were ‘disbelieved’ but that there would be little, if any, sympathy and she would not be taken seriously. 

There was a perception that women who reported such crimes were made to feel that, if it happened at all, then they themselves were probably largely to blame. Furthermore, there was the impression that many men in the police thought that they should “just get over it”.

Naturally, and justifiably, women felt that this was an unacceptable attitude and an intolerable situation but we need to be more specific and ask “What exactly was wrong with the attitude of the police?”

I’ll give my answer to that question a little later but, for now, let’s move on.

Switching sides – “Believe the victim”

Women’s groups’ campaigns against this treatment; a similar trend was happening in the United States and, gradually, the self-described ‘victims’ became a powerful minority group.

Our justice system listened and responded – and made a big mistake.

In 2014, the then Director of Public Prosecutions (DPP) in the UK, Keir Starmer, changed the policy of the Crown Prosecution Service (CPS) of which he was the head, encouraging the them (and by extension the police) to start with the assumption that the complainant is telling the truth. ‘Victims’ were encouraged to come forward with the assurance “you will be believed”. One effect of this change was that complainants were called ‘victims’ from the outset and, by extension, the accused person must therefore be the ‘perpetrator’.

Genuine victims of sexual offences may understandably think that this is a great step forward. However, it creates one huge problem:

The assumption that a complainant is telling the truth which automatically creates the assumption of guilt for the accused person flies in the face of, arguably, THE FIRST Principle of British Justice – the presumption of innocence.
[See my post: The first principle of a just legal system].

Victim or Complainant?

Sir Richard Henriques, in his report of the Met Police handling of Operation Midland concluded:

“I have a clear and concluded view. All ‘complainants’ are not ‘victims’. Some complaints are false and thus those ‘complainants’ are not ‘victims’.  Throughout the judicial process the word ‘complainant’ is deployed up to the moment of conviction where after a ‘complainant’ is properly referred to as a ‘victim’. 

Since the entire judicial process, up to that point, is engaged in determining whether or not a ‘complainant’ is indeed a ‘victim’, such an approach cannot be questioned. No Crown Court judge will permit a ‘complainant’ to be referred to as a ‘victim’ prior to conviction. 

Since the investigative process is similarly engaged in ascertaining facts which will, if proven, establish guilt, the use of the word ‘victim’ at the commencement of an investigation is simply inaccurate and should cease.”

Sir Richard Henriques

Furthermore, it leads inexorably to a condition of Confirmation Bias.

Confirmation bias is the tendency to search for, interpret, favour, and recall information in a way that confirms one’s pre-existing beliefs or hypotheses. It is a type of cognitive bias and a systematic error of inductive reasoning.” – Wikipedia

In other words, the police and the CPS are likely to be led down a path of searching for and finding only evidence which confirms their belief.

So let me return to my earlier question.

Q. What exactly was wrong with the treatment of complainants in the days before the ‘believe the victim’ policy?

A. The police took sides before any investigation had taken place.

If women were correct in thinking that they were disbelieved, then what was wrong was the fact that, before any investigation, a pre-existing prejudice against the complainant led to the police already siding with the accused.

It was the prejudice that was wrong, not which side they picked.

For the police now to ‘believe the victim’ (or rather, the complainant) before any investigation, which automatically means ‘disbelieve the accused’, is to make exactly the same mistake but having switched sides.

That was wrong before and it’s still wrong now.

It is not for the police to decide in advance, before a full, impartial investigation, who is telling the truth and who is not. It is their job to investigate the facts fully on all sides and attempt, through those facts, to discover who is telling the truth.

The Correct Course Of Action

What SHOULD have happened to correct the appalling situation which existed before was for the police to show respect for the people who made allegations; to treat them with the sensitivity that a genuine victim deserves (because they may well be one). 

However, at that point, they must bear in mind that no crime has yet been proven and the suspect also deserves the respect due to someone who may be innocent; in which case, they are actually the victim. That, after all, is the basis of our justice system. A person is deemed innocent until proven guilty.

This applies whether the complainant or accused is female or male and whether the alleged offence is a contemporary one or a historical one.

Therefore, the police should have taken the allegations seriously and made a full, fair and even-handed investigation, exploring all avenues which may lead them to who is actually telling the truth.

If there is sufficient evidence to support the allegations, the case should be handed to the CPS who should also behave in a fair and even-handed way. They have a duty to prosecute only those cases where there is sufficient evidence to suggest a good chance of conviction and a continuing duty to monitor that situation.
(N.B. “a good chance of conviction” is not the same as “a good chance that the accused are guilty”, but more of that in another post),

If there is not sufficient evidence to prove guilt beyond reasonable doubt, the case should NOT proceed, no matter what the pressures are to do so. 

Conclusion

The ‘victim-centric’ justice system that we have in 2022 shows that the pendulum has indeed swung much too far in favour of complainants, which is in conflict with the fundamental principle of the presumption of innocence at the very heart of our justice system.

All complainants should certainly be treated with sensitivity and their accounts taken seriously, but a full and fair investigation of the facts must nonetheless take place, with facts in favour of the accused given as much weight as those for the complainant.

Only if and when the facts point to the truthfulness of the allegations should a prosecution take place.

That is in accordance both with the fundamental principles of our justice system and with the stated principles of the Crown Prosecution Service. 

If, on the other hand, the police find sufficient evidence to believe that the complainant has fabricated the allegations, they should be charged with attempting to pervert the course of justice. As the requirement for sufficient evidence would now be applicable, it should not deter genuine victims from reporting an assault.

The launch of FAIR – Falsely Accused Individuals for Reform – stimulated a debate with passionate views on both sides.

FAIR was created by Daniel Janner QC, son of the late Lord Janner who was falsely accused of sexual crimes, and has the aim of changing the law to prevent the publication of the identity of people accused of sex offences until charged.

FAIR’s campaign is to have the law changed so that those accused of sexual crimes were given anonymity until they are charged by the Police. At present, while complainants claiming to be victims of alleged sexual crimes are given lifelong anonymity, the accused are given no such protection.

The campaign launched a petition and was given added media attention by the support of, among others, Sir Cliff Richard, Paul Gambaccini and Harvey Proctor, well-known people whose lives were ruined by the public disclosure of allegations which were without credible foundation.

The case for…

1. People falsely accused of sexual offences, particularly those involving children can have their lives, careers and reputations permanently damaged, if not completely destroyed, by having their names published merely on the basis of allegations which may have no foundation and, in dome cases, are subsequently dropped by the authorities.
2. As those leading the campaign have said repeatedly, they have suffered significant psychological damage, loss of sleep and much more, due to the media coverage from cases involving allegations for which they were never even charged.
3. The salacious gossip printed in the press and on tv has a stronger tendency to be repeated than other crimes
4. The widely iterated expression “there’s no smoke without fire” is applied more readily to sexual allegations than other alleged crimes.

The case against…

Those who are against the proposed changes include those who campaign for the rights of victims of Sexual Offences. Their arguments may be summarised as follows:

1. They say it is important that the names are able to be published so that other ‘victims’ may come forward
2. They ask “Why should there be a distinction between those accused of sexual offences and other crimes who are not entitled to such protection?”
3. They claim that the numbers of those falsely accused are so low that it would be wrong to change the law on their behalf to the detriment of the majority of genuine victims.
4. In considering the case of Sir Cliff Richard, they say that the fault lies not with the law but with the nature of the Press coverage and that their campaign should directed at that instead.

Refuting the case against

(Numbers relate to the numbered points above).

1. The problem with this argument is that it also encourages more false accusers to come forward, confident in the knowledge that their allegations are even more likely to be believed because of the existing ones. That trend increases and becomes self-fulfilling. False accusers know that each new person that comes forward is more likely to be believed because of the others, which makes the success of their claim for compensation ever more likely, which encourages even more… That’s how you get a number of liars falsely accusing the same person, as has happened with various celebrities.

   Unfortunately, this does not work in reverse. If no one else comes forward despite wide-ranging publicity, or if others come forward in support of the accused, it counts for nothing.

   It also reverses the true priorities of the justice system. It is a fundamental principle of justice that protection of the innocent comes before prosecution of the guilty. (See this post for reasons why).
   
   In my own view, victims should not be ‘encouraged’ to come forward if they have not already done so through their own volition. It does not necessarily help them if they have moved on from their ordeal only to have the whole thing brought back into their lives. If they have been abused and feel strongly that they would like to see their abuser face justice, they should come forward without prompting and not require a bandwagon to jump onto.
   
   Furthermore, the criminal justice system does not have the resources to handle contemporary cases satisfactorily and I see no point in adding historic cases to the burden as well – let alone prioritising them.
   
2. The reason is because there IS already a difference in that complainants of sexual allegations have anonymity and because of the public perception of sex offences compared to other crimes. Even murderers are not subject to the level of bile and hatred aimed at alleged sex offenders, especially where the alleged sex offences concern children. Moreover, one gets the impression that people almost WANT to believe in them – it is as if people like to be shocked, and so the worse the allegations, the more ready to believe them they are likely to be. This is perhaps even more so if the accused is deemed to be successful or important.
   
3. The claim that false allegations are rare is baseless and such claims are only ever justified with nonsensical logic and cherry-picked data. In fact, there is no reason to believe that false allegations are rare and every reason to believe that they are not.
   
   There is simply no way of obtaining accurate figures which indicate how many allegations are false. The figures quoted by those who claim it is rare do not stand up to scrutiny. Research in other countries (which are unlikely to be radically different from the UK) shows that numbers are far higher than claimed.
   
   Nonetheless, truth and justice is not about playing the percentages – the wrecking of innocent people’s lives should not depend on numbers and those who oppose that view would think differently if their loves ones were affected.
   
4. The idea of changing the way the press behave is simply naive. The press will chase whatever is newsworthy and will not change their ways as long as the law permits them, even encourages them, to behave as they do now.

Does the FAIR campaign go far enough?

It is Daniel Janner’s view that the campaign as it stands is difficult enough to persuade the public and the government to change and for this reason has stopped at “before charge” and this would have helped those mentioned above who are supporting the campaign. 

However, there are, of course, many people who have been the victims of false allegations who were charged and for them, the campaign does not go far enough.

Campaigning figures such as (sadly, the now late) Simon Warr argued that, given that the damage suffered by those who are not charged increases dramatically after being charged, and that the protection of anonymity should apply until conviction.

They claim that the lives and careers of innocent people falsely accused and charged would still be ruined even if the policy for which FAIR are campaigning had been in place.

In a Woman’s Hour interview with Emma Barnett, Lady Bourse said:

“I know who accused me but of course I can’t say who accused me.

And this makes conversations … very difficult because I can’t be honest and frank. That’s what makes it so appalling. And makes things like this so difficult because I can’t be truly honest about him…

“What’s been said, what’s been written will live with me forever. And yet the person who has made these accusations walks free, and can continue to say whatever he likes for the rest of his life.”

For cases which make the national press, it is also likely that members of the jury will already have read the allegations and been unduly influenced before having heard any evidence at trial. The salacious nature of such cases makes this far more likely than other crimes, such as armed robbery or murder. Even if the jury was not previously aware of any press coverage, any directions by the judge that members of the jury must not look at them is likely, in many cases, to have the opposite effect, knowing damn well that such an instruction is unenforceable and the breaking of such rules undiscoverable.

The problem with Lady Nourse’s view is that many would say that it can’t be assumed that every time there is no conviction, the complainant must be lying, even if many of them are and that it would prevent many genuine victims reporting it.

I do think that, in a fair system, there would be anonymity until conviction, but I can also see that the FAIR campaign will still be an uphill struggle; adding the extra level might make it impossible.

I also believe that, where there is good reason (evidence) to believe that allegations are false, rather than just unproven, accusers should be prosecuted and lose their anonymity. Genuine accusers should not fear this as there would not be any evidence to suggest they were lying.

To sign the petition visit this link:

FAIR’s website shows a video of Sir Cliff Richard talking about the campaign.

A letter from an MP responding to complaints about our justice system (actually, it was more than one MP as detailed in this post – link), brushed aside such complaints, asserting that we have one of the best justice systems, established over the past 1000 years.

However, it is my contention that it is some of the basic, admirable fundamental principles of that system which have been betrayed in recent years.

In this post, I would like to highlight ONE of those basic principles which I believe has been let down but should be front and foremost of all considerations in our criminal justice system, namely: The Protection of the innocent. 

This principle can be linked to the ethical principle usually quoted as:

“First, do no harm” 

In other words, before you intervene with an action, even one which may be of benefit, make sure that it does not do harm. If a criminal justice system convicts an innocent person, I would suggest it is doing harm.

The protection of innocent people from wrongful conviction is the wider principle behind a number of widely-accepted human rights such as

• The Presumption of Innocence
• Right to a Fair Trial
• Right to legal representation
• The burden of proof being on the prosecution to prove guilt
• …and various others

The importance of this principle is the basis of Sir William Blackstone’s famous comment:

“All presumptive evidence of felony should be admitted cautiously; for the law holds it better that ten guilty persons escape, than that one innocent party suffer.”

Sir William Blackstone (1723 – 1780)

Why protection of the innocent comes before justice for the victim

Thought experiment

Imagine two, equally close loved ones. One has been the victim of the serious crime (A) and the other is accused of a similar crime (B) of which they are entirely innocent.

The alleged perpetrator of crime A and the loved one accused of crime B have both been tried and are awaiting the jury’s decision.

You can choose the outcomes but both must be the same – 

1. both go free or 
2. both are convicted.
   Which do you choose?

Most sensible people would choose a) Why?

Being the victim of a crime but then gaining some satisfaction at seeing the perpetrator brought to justice is still a net negative experience, because seeing justice done does not take away the effect of the crime – it is only compensation for having suffered and may, in some cases, afford some sort of ‘closure’.

However, when people speak of ‘getting justice’ what they usually mean is getting some kind of retribution in which victims want to see the perpetrator suffer. But just as seeing justice done does not fully compensate for the crime, seeing a perpetrator avoid the consequences of his crime is not as bad as the suffering caused by the original crime.

If being a victim of a crime can be viewed as “primary suffering” and not seeing justice done, “secondary suffering”, then primary is far worse than secondary.

In the example, however hard it might be for the loved one who had been a victim to see the perpetrator of their crime go free, most people could not choose to see the life of their other loved one to be completely ruined by a wrongful conviction, because that is the equivalent of the primary suffering of being a victim of a dreadful crime.

In all dealings within the justice system this principle should always be remembered and adhered to at all stages.

Police should be careful to investigate alleged crimes with no agenda other than finding the true criminal, giving equal weight to evidence which does not fit a particular suspect and not just build a case against them and give to the CPS all evidence which should be disclosed to the defence.

The CPS should be true to their criteria, assess police evidence with independent minds, and also disclose ALL relevant information to the defence. Even going to trial can wreck a person’s life, career and reputation – they should not “let the court decide” if the evidence does not justify it.

Just as importantly, the principle of protecting the innocent should not end after conviction. The Appeal system should continue to uphold it.

ALL evidence, including that presented at trial should be taken into account and the burden of proof should not switch to the convicted person to prove their innocence. If there is reason to believe that a conviction is unsafe, for whatever reason, including a wrong decision by the jury who convicted on insufficient evidence, it should be quashed. 

British journalist, Matthew Syed, wrote a very interesting book which I can highly recommend. It’s called ‘Black Box Thinking’ and begins with a comparison in how failures are treated in the British medical profession and the air travel industry.

In looking at 2 comparable tragic incidents the former, unfortunately, tried to gloss over the errors while in the latter there was an open investigation which led to improvements in the way similar situations would be handled in the future.

Perhaps it was thought that admitting that experienced surgeons could make such tragic mistakes would damage confidence in the medical profession. 

Nonetheless, to pretend, or kid oneself – it eventually leads to the same thing – that such circumstances are so rare that it is not worth considering what could be done to prevent it happening again is a very slippery slope to embark on.

It ends up with the conclusion that (false) confidence in the medical profession is more important than the tragic loss of life that occurred on that occasion and may possibly occur again given the failure to make improvements.

Confidence or truth?

Certainly, some have taken this stance in the case of our justice system.

In 1980, one of Britain’s most eminent judges, Lord Denning, in dismissing the civil case against the Police said by the Birmingham Six (whose convictions were quashed in 1991) said:

“If they won, it would mean that the police were guilty of perjury; that they were guilty of violence and threats; that the confessions were involuntary and improperly admitted in evidence; and that the convictions were erroneous… That was such an appalling vista that every sensible person would say, ‘It cannot be right that these actions should go any further’.”

In other words, regardless of the merits of their case, whether those things were true or not (and it turns out that they were) did not matter as much as what the public might think if they were, and that was sufficient reason to dismiss the case.

Lord Denning, an often controversial figure, appeared to be of the opinion that, in protecting (false) confidence in the justice system, some innocent people were expendable. I’m sure he would have taken a different view if one of those people was a member of his family but, given the seniority and influence of Lord Denning, would we be surprised if the justice system followed that stance? The removal of corroboration in alleged sex crimes and the requirement for fresh evidence for an appeal tells us that it did.

I find that attitude not only utterly appalling for its own sake but ultimately counter-productive. Like all cover-ups (for that is what it amounts to), when they’re found out confidence is damaged all the more.

In the air industry, confidence is also paramount. Who would fly if they thought there was a higher than negligible chance of the plane crashing? So when there are crashes, or even near misses, does the air travel industry try to hide them or pretend they were million-to-one accidents and that nothing need be done to improve the system?

It does not. The black box is recovered where possible and a full inquest is made and the results made public.

Faults, whether human or mechanical, are identified and, where deemed necessary, industry-wide improvements are implemented.

No system is flawless but it is the very openness of admitting to mistakes and genuinely seeking to address them which gives us the confidence to board the aeroplane next time we fly.

The justice system in this country is extremely flawed. However, when I and many other people to whom I’ve spoken have written to their MP to complain about it, most have probably received an answer like the one I got:

Basically, it said that our justice system is very old and has worked for a long time and that it is one of the best in the world. 

This kind of churned out nonsense from politicians is a case of sticking their heads in the sand because they don’t want to have to deal with it. It is the equivalent of plugging their ears with their fingers and singing “La la la la…” as soon as they start to hear criticism of it. 

But the criticism will not go away because it is more than justified. Another highly recommended book, The Secret Barrister: Stories of the Law and How It’s Broken highlighted many of its faults.

[You can buy the book on Amazon by the clicking on the book cover below.
n.b. It’s an affiliate link – it makes no difference to you but the few pennies I get can help keep this blog going]

In a letter I received in response to the question of miscarriages of justice, was the response that they had full confidence in the system because:

• the CPS would not prosecute unless there was a reasonable chance of conviction
• the burden of proof was on the prosecution
• at least 10 of a jury of 12 randomly selected people had to be sure of guilt
• there was a safety net of a court of appeal
• there was a further opportunity to correct miscarriages of justice via the CCRC.

This was clearly a standard letter and described how the system SHOULD work. Unfortunately, such responses demonstrate a lack of appreciation that it is precisely the fact that the justice system does not work like that in reality which was the basis of my and others’ criticisms.

Let’s take these one at a time:

Crown Prosecution Service

It is indeed a stated directive of the CPS that they should not proceed with prosecution unless there is a reasonable chance of success. This is often held by lawyers to mean 50% or more. 

Note that there is an inherent trust in the jury system here. In other words, if the CPS realised that juries tended to convict certain crimes more readily, they could lower the evidential bar and achieve their 50% target. For example, some lawyers believe that they are prone to err on the side of prosecuting in cases involving alleged historical sexual abuse and ‘let the courts decide’ rather than risk criticism for not prosecuting such cases. 

Certainly, some decisions seem hard to fathom. Certain high profile cases in which there were allegations from numerous sources have been dropped on the grounds of insufficient evidence, whereas in others where there has been only one complainant and the case has boiled down to their word against that of the suspect, the CPS had decided to prosecute. In such cases, what constitutes ‘sufficient evidence’ to assume a >50% chance of success?

Disclosure problems

Then there is the huge question of disclosure. This, for those who still don’t know what that means, is the term for the obligation by the police and CPS to disclose to the Defence any information which may harm the prosecution’s case or help the defendant’s. The problem is that it is down to the police and the CPS to decide what is relevant and what is not. 

In a survey in 2018, 97% of lawyers said they had experienced problems with disclosure. A significant reason for this may be the huge cuts in funding of the justice system in recent times, leaving little time for the material to be fully examined, but it cannot all be explained away by that. 

My own experience was simply that the CPS did not want to hand over information which had been examined and which the Defence considered may be important.

If the CPS fail to disclose such information and the defendant is found guilty, the CPS will consider their decision to prosecute fully justified. 

A better, more transparent system of disclosure is necessary if we are to avoid the continuation of disclosure problems.

The burden of proof

Traditionally, a suspect is supposed to be regarded as innocent unless and until proven guilty. 

In cases involving sexual allegations this concept has come under significant threat. In response to criticism of the treatment of victims of sex crimes, the police were given instructions to “believe the victim” in the first instance and test the assumption by investigation. 

This policy, however, carries a dangerous corollary. Where an allegation is made and denied, an assumption that the complainant is telling the truth automatically carries with it an assumption that the suspect is lying. This reverses the burden of proof. 

Furthermore, it is clearly unrealistic to expect police to switch seamlessly from a mindset of believing the complainant’s allegations to one which questions them so that investigation can be carried out with sufficient rigour.

Joint Enterprise

The issue of wrongful convictions due to Joint Enterprise in murder cases was thought to have turned a corner in 2016 when the Supreme Court pronounced that the Justice system had taken a wrong turn in the past. The much hoped-for subsequent changes did not, however, materialise and innocent people continue to be imprisoned.

The Jury system

The concept of foresight has weakened the idea of proof in Joint Enterprise cases – it’s hard to actually prove that one person could have foreseen what another would do – and so has the removal of the requirement for corroboration in alleged sex crimes.

Many such cases, especially those involving a single complainant, end up in a ‘one person’s word against another’ scenario in which the jury is asked to decide to choose who they believe, something humans are very poor at, and which flies in the face of real proof.

Cases which depend on pure opinion will inevitably be more decided on pre-formed bias. In cases involving alleged victims who are children (or were at the material time such as in historical sexual abuse cases), for example, jurors who are parents may well be more inclined to submit a guilty verdict even where the evidence does not justify it.

The Court of Appeal

The idea in many people’s minds that the Court of Appeal is there to correct miscarriages of justice is erroneous. The Court of Appeal is not interested in that and one cannot currently apply to the Court on the basis that the jury made a mistake. The Court of Appeal is only interested in whether the procedures have been followed correctly. If they have but the jury DID get it wrong, the Court of Appeal won’t help unless you find brand new evidence which, in the Court’s opinion, might have changed the jury’s mind had they known about it.

The Criminal Cases Review Commission (CCRC)

The CCRC was set up to identify potential miscarriages of justice and re-submit them to the Court of Appeal but there are 2 significant problems:

1. The lack of funding it receives means it does not have the resources to deal with more than a fraction of applicants
2. They are still subject to the same restrictions in sending cases to the Court of Appeal as everyone else – i.e. no new evidence, no appeal. This makes the CCRC essentially toothless.

So the blind confidence shown be the MP, and probably by a large majority of the general public is based on ignorance and is entirely misplaced.

Conclusion

That our current justice system is in a mess is something more and more are starting to recognise. In order to fix the problems in it those with the authority to do so must:

• Recognise and admit that it is currently highly flawed, 
• Decide what kind of justice system we really want. If that means making major changes to the way we have done things in the past, then so be it
• Make the commitment to do what is required and provide the necessary resources.

Do we want a justice system in which more importance is placed on our (misplaced) trust at the expense of wrongly convicted innocent people (and bear in mind that one of the expendable innocents might be anyone of us), or do we want one which will aim for continuous improvement by admitting that mistakes will occasionally be made and honestly seek to do everything it can to rectify them and try to prevent similar errors in the future?

This includes dealing with those who have already suffered under the present system. We cannot honestly talk about future safeguards while abandoning those people to an unjust fate. The Court of Appeal and the CCRC must deal fairly and honestly with those innocent people who have been wrongly convicted.

A major function of the justice system is of course to punish the guilty and we should seek to do this as accurately as possible. It can be extremely frustrating for victims of crime to see the perpetrators walk free. But ensuring that the guilty are punished must not be at the expense of the innocent being wrongly convicted.

Finally, there must be the will to do what is necessary to improve it. This inevitably means not only an end to the enormous cuts to the budget, but a sufficient increase to rectify the weaknesses such cuts have caused.

But it also requires the will and strength of purpose to develop our justice system into one fit for the 21st Century so that future Brits can again genuinely proclaim that we have a justice system of which we can be proud.