Of all the iniquitous aspects of the British justice system in 2019, 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, with some validity, that the treatment of suspects by the police, particularly those accused of sexual offences, or the charging of suspects by the CPS without sufficient genuine evidence, are areas where more people people would be affected, being earlier in the process, my vote goes to the Court of Appeal because it affects the people who have been let down by it in the most profound way.
With each step from arrest to conviction, things get worse for the suspect, but up until conviction there is always the chance of the case being dropped or being found not guilty. But when you are convicted, the devastation goes to a whole new level.
You will have a criminal record; your loved ones will be devastated; you may go to prison and not see home for years; your career might well be over. If it is for sexual offences, you will be on the SO Register with all the restrictions that puts on your life. If it is for something even more serious, like murder, you could spend decades in prison.
For an innocent person, your only hope of reducing or cutting short your punishment and clearing your name lies with the Appeal system. If that fails, the already dreadful injustice is magnified a ten-fold. If that hope is without foundation, all hope is lost for both you and our justice system.
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:
- the presumption of innocence until proven guilty and that
- the burden is upon the prosecution to prove guilt beyond reasonable doubt*
[*The CJS has replaced “beyond reasonable doubt” with “sure”, a mistake in my opinion, but the sentiment 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”.
Since then, there has been something of an ongoing tussle between judges who believe 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”;
- …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.
In the 20th century, 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 ‘unreasonable’ verdicts.
Confirming this notion, in 1964, A JUSTICE Committee expressed as much:
In other words, it is for a jury to pass the original decision but that does not mean they are infallible.
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”.
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”.
In 1993 there was another review.
The 1993 Royal Commission on Criminal Justice stated:
Unfortunately, statistics indicate that since then the Court of Appeal has gone in exactly the opposite direction for the number of successful appeals have decreased even further.
This is in spite of the fact that 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:
- 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.
- Some form of incompetence by either the trial judge or your legal representatives
- 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.
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 or, for some reason, been prejudiced against you 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 ‘wrong turn’ in policy, contrary to the advice of numerous commissions into the justice system. There isn’t space in this article to cover that sequence of events but the place where we seem to 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.
To give an exaggerated example of the absurdity of this:
Imagine you were a defendant for a crime but, towards the end of the trial, a cast iron alibi was discovered that you were the other side of the world when the crime is known to have taken place. Your barrister presents this evidence in his closing speech but, for some reason* the jury did not take it sufficiently into consideration and found you guilty.
[*This is possible if the case is complex with a confusing array of dates, times and places. It is also possible if the jury are prejudiced or have already decided, for whatever reason, on your guilt before the alibi is discovered.]
Believe it or not, your lawyer could not go to the court of appeal and point out that you could not possibly have been there and the jury made a mistake. You would have to find NEW, FRESH EVIDENCE of your innocence that has not been presented at trial nor had the opportunity of being presented.
I other words, an even more exaggerated version of the thinking of the ‘reluctant’ judges referred to above about “juries having seen and heard the evidence” is what currently holds sway, against the overwhelming advice of the various commissions.
The problem with this view is that it makes a number of assumptions about juries which cannot be relied upon.
In my view, the idea that the verdicts of juries should never be questioned, even by experienced judges, and that therefore the only justification for quashing a verdict is when some new evidence that the jury didn’t see is presented, should be seen as absurd to anyone with a brain. See the 1964 Justice Committee’s statement above.
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.
Even trial judges can make mistakes. In addition to guiding the jury, it is the job of the trial judge to pass sentence where appropriate. That does not mean the the Court of Appeal should not overrule the trial judge’s sentencing decision if they disagree with it.
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 the rest of us. So, no matter how strong the overall evidence that there has been a wrongful conviction, unless the applicant can provide substantial fresh evidence, it will not be accepted by the Court of Appeal.
Because the CCRC’s policy for sending cases back 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.
There is currently a new commission – the Westminster Commission on Miscarriages of Justice. I sincerely hope that it too makes strong recommendations along the lines of the previous ones – mainly that the Court of Appeal abandon its ridiculously unjust requirement for fresh evidence and be more prepared to quash verdicts than it is at present.
However, 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.
Refusing to quash unsafe verdicts just because no new evidence can be found does not help to instil confidence in the justice system and overturning such verdicts neither reduces confidence in the justice system, nor (as the 1993 Royal Commission affirmed) does it undermine the jury system.
Quite the reverse. Only when miscarriages of justice are recognised and overturned, can we have a justice system we can trust.