• Lurking Doubt – more than a hunch?

    July 3, 2023

    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.

    Viscount Runciman, Chair of the 1993 Royal Commission on Criminal Justice

    The Royal Commission on Criminal Justice of 1993, chaired by Viscount Runciman, took a more sensible approach than dismissing it out of hand, encouraging the Court of Appeal to be more ready to overturn guilty verdicts, and concluding:

    “Where, however, on reading the transcript and hearing argument the Court of Appeal has a serious doubt about the verdict, it should exercise its power to quash. We do not think that quashing the jury’s verdict where the court believes it to be unsafe undermines the system of jury trial.”

    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.

  • The Court of Appeal – Furthering Injustice

    August 26, 2019

    It’s now harder than ever for the wrongly convicted to get justice

    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.