Welcome to this week’s Weekly Constitutional, where a judgment or other formal document is used as a basis of a discussion about law and policy. This week’s legal text is section 13 of the Criminal Appeal Act 1995.
The justice system of England and Wales makes it easier to impose convictions than to remove them. One would think that a system of justice—symbolised, of course, by a set of balanced scales—would make it as straightforward to remedy a miscarriage of justice as it is to convict and punish a wrongdoer. Both are—or should be—necessary aspects of justice being done and being seen to be done.
But no. Our criminal justice system—which routinely establishes the culpability of others—is singularly unable to accept that it also gets things wrong. Harsh on the misjudgements and mistakes of others, the courts find it difficult to admit it when they themselves make misjudgements and mistakes. Errors are very difficult to correct.
Take, for example, the cases of Oliver Campbell (previously featured in this column), Andrew Malkinson, Victor Nealon and now Peter Sullivan. Consider also the cases of Sally Clark and Angela Cannings and the Birmingham Six and the Post Office sub-post masters and mistresses. You may know of others, and indeed there are many more miscarriages of justice than can be listed in a short article.
In many of these cases people who pride themselves on their “common sense” thought that the suspects and defendants “must be guilty”. Some of those convicted may well have hanged but for the abolition of the death penalty. There was frequently a media clamour and a public monstering of those convicted.
Yet in all these cases, the defendant was not guilty. But in their attempts to show that they were not guilty, those wrongly convicted faced renewed media monstering and legal delays and obstruction. Malkinson’s requests to have his case reviewed were repeatedly turned down, as were those of Sullivan. Indeed, Malkinson’s case has been the subject of a damning report on how the system let him down. The head of the Criminal Cases Review Commission (CCRC) resigned following the report, though they protested that the misjudgements and mistakes were not their responsibility.
There are many reasons why the legal system is tardy in reversing miscarriages of justice. But two in particular stand out. The first is a cultural stubbornness to accept that juries can get anything wrong. Generally speaking, if a defence or a piece of evidence has been placed before a jury and tested in court then the appeal courts will be highly reluctant to reverse the decision of the jury.
If there is fresh evidence which was not (and could not) have been placed before a jury then that makes an appeal easier. But if it is something a jury has already decided on, then only in exceptional circumstances will an appeal court revisit the question even if, in the views of experts, the evidence was flawed. The jury has spoken and they get the final word.
The second, connected reason is that this cultural refusal to recognise the fallibility of juries is written into the law. Here, section 13 of the Criminal Appeal Act 1995 sets out as one of the conditions of any referral that it should be about a matter that was not raised in the original proceedings.
But in addition to these two reasons there is a further problem of excessive self-restraint by the CCRC. Section 13(1)(a) of the 1995 Act provides that the CCRC must “consider that there is a real possibility” that the conviction would not be upheld were the reference to be made.
The impression formed by the Malkinson and other cases is that the CCRC takes a very strict view on what constitutes a “real possibility”. Indeed, it seems to form a view so extreme that it is effectively pre-empting the appeal court’s function in assessing that appeal. And even when the references are made, the court of appeal will err on the side of there not being an error. Sullivan had lost an earlier request to have his case reviewed when reference had been made to the court of appeal.
Of course, the verdict of a jury should be paramount. Juries are an essential part of our criminal justice system, not least for the powers they prevent others in the justice system from having. The executive-minded would much prefer the decision of guilt and innocence to not be made by juries.
But giving priority to the decisions of juries should not be at the cost of justice itself. Jury trials are a means to the ends of justice, and not the end in and of themselves. But until our criminal justice system both culturally and legally admits more freely that juries cause miscarriages, then such mistakes and misjudgements will continue to be made. And the list of those wrongly convicted will keep on getting significantly longer.
