August 26, 2019
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:
- 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 “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.Lord Bingham, 2002
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.
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:
- 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 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.
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:
- The CCRC should be bolder in its interpretation of the Real Possibility Test.
- 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.
May 13, 2019
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)
This statement was not intended to be quantitative. He did not mean that it would be different if there were eleven instead of ten. It was a statement of principle – that the protection of the innocent from wrongful conviction is sacrosanct and far more important than punishment of the guilty.
There has been a marked move in recent times towards so-called ‘victim-centric justice’. We hear of “victims getting the justice they deserve” meaning punishment of the people who allegedly harmed them in some way. The danger of this approach is that, in the rush to support alleged victims, we can weaken the provisions to protect the innocent.
Why protection of the innocent comes before justice for the victim
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 –
- both go free or
- 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.
April 25, 2019
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?
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.
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:
- The lack of funding it receives means it does not have the resources to deal with more than a fraction of applicants
- 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.
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.