3 July 2001
As concern mounts over the low number of convictions being overturned, Bob Woffinden asks if the court of appeal is failing to do its job
During the 1986 reinvestigation of a murder committed 15 years earlier, Donald Pendleton, a suggestible, compliant man, was questioned by police over three days without a solicitor. He broke down and "confessed", and on the basis of that evidence was sentenced to life imprisonment.
What the prosecution did not tell the jury was that, during the original investigation into the murder of Bradford newspaper seller Bernard Clark in 1971, Pendleton had given an alibi that had been checked out and, as a result, he had been eliminated from inquiries. Other contemporary statements from police officers made it clear that their prime suspect was a different man.
The original alibi statements were "lost" and only resurfaced when the case was re-examined by the criminal cases review commission in 1998. One of the CCRC commissioners is James MacKeith who, with his colleague Gisli Gudjonsen, has done much to draw judicial attention to the unreliability of confessions made under duress in police custody.
Altogether, when the CCRC referred the case back to appeal, it seemed that it must be successful. Yet, when it was heard last year, the judges determined that the confession was reliable and the alibi was not. They dismissed the appeal.
In retrospect, this was the point at which lawyers began to get seriously worried about the court of appeal. Since then, a number of other seemingly meritorious appeals have been turned down, among them the case of Stephen Craven.
Craven's has been a cause célèbre in the north-east for some years. He was convicted of the murder of a young girl after a fracas in a Newcastle nightclub. During the CCRC reinvestigation, it emerged that the murder weapon - a shard of glass - had a fingerprint on it. The fingerprint was not Craven's, but police had never disclosed this information to the defence.
This appeal, too, was turned down. The judges said they would have allowed it on the basis of the undisclosed fingerprint, were it not for newly obtained DNA evidence (from a blood smear on Craven's shirt) which, in their view, indicated that he was guilty.
"The court said that the DNA was somehow more scientific and overrode the fingerprint, which is really a ridiculous observation," explained Dr Zakaria Erzinçlioglu, former director of the forensic science research centre at the University of Durham. "You have to touch something to leave your fingerprint; you don't have to touch something to leave your DNA, especially when there's a severed artery and blood spurting all over the place."
Among other cases that lawyers had expected to succeed but which in the event failed were those of Brian Parsons (convicted of the murder of Ivy Batten in Devon) and Eddie Gilfoyle (convicted of the murder of his wife on the Wirral).
"A number of practitioners have recognised a trend within the court of appeal over the last 12 months," explained Campbell Malone, solicitor for Gilfoyle and many other suspected wrongly convicted prisoners. "This seems to suggest that certainly among some judges the pendulum has swung back in favour of an approach where convictions are sustained in the face of compelling fresh evidence or new arguments never before the jury."
Such knockbacks have a domino effect. The CCRC is legally obliged to refer to appeal cases which have a "real possibility" of being allowed by the appeal court. Accordingly, if the court of appeal is seen to be raising the threshold for a successful appeal, then logically the CCRC must also raise its threshold, and refer fewer cases to appeal.
There have almost always been misgivings about the role of the appeal court. Originally, it was only with the greatest reluctance, at the start of the last century, that the judiciary sanctioned the institution of a formal appeal process. It was hardly surprising that the court rapidly became characterised as an intransigent tribunal, since any appeal that was allowed was either an implicit or explicit criticism of the system which had conferred on the judges such power and privilege.
In the late 1980s, when the cases of the Birmingham Six and other major injustices led to a storm of public protest about the criminal justice system, there were two areas of criticism: the feeble and dilatory performance of the Home Office in identifying potential miscarriages of justice; and the subsequent inability of the appeal court to recognise (or, at least, to respond appropriately to) cases of wrongful conviction.
The 1995 Criminal Appeal Act remedied the former problem - by removing the supervisory role from the Home Office and setting up the CCRC - and exacerbated the latter by changing the grounds on which appeals were to be allowed from "unsafe and unsatisfactory" simply to "unsafe". In the case of R v Chalkley and Jeffries, the appeal court determined that "the former tests of 'unsatisfactoriness' and 'material irregularity' were no longer available"; appeal court judges could allow an appeal only if they were convinced that it was "unsafe" in its totality.
To some extent, the appeal court always had substituted itself for the jury, by allowing convictions to stand in cases where there had been a material irregularity, but in which the court deemed that no injustice had occurred because the jury would have convicted anyway. However, the "unsafe" test gave the judges far greater scope to reach their own conclusions on the merits of a case.
"There was fresh evidence in each of the two Gilfoyle appeals, so the case by the end was unrecognisable from the one heard by the jury," said Malone. "I was prompted by that case to look at a number of other worthy appeals, and there seemed to be a worrying pattern of the court, even after admitting new evidence, substituting its own views for what the jury might have made of the case. In the case of Condron, the European court of human rights had said specifically that the appeal court should not put itself in the position of second-guessing what the jury might have done. Many of those preparing applications for the CCRC are truly alarmed at the current situation."
This is how the court is seen to be dealing with second and subsequent appeals; yet first appeals stand even less chance. They can seem like little more than a confidence trick on appellants, most of whom end up criticising the performance of their own counsel. They do not understand, as their lawyers do, that the court will not entertain any recapitulation of the facts of the case, and so any appeal has to be argued on very narrow grounds. It will almost inevitably fail.
In the past 10 years, there have been very few successful first appeals: the Winchester Three case (a conspiracy against Tom King, then the Northern Ireland secretary); Michelle and Lisa Taylor (the sisters wrongly convicted of the murder of Alison Shaughnessy in Battersea); Ivan Fergus, a 13-year-old schoolboy who was the victim of mistaken identity; Jonathan Jones (wrongly convicted of murdering the parents of his partner, Cheryl Tooze, in South Wales); and the Merthyr Tydfil arson case (two young women wrongly convicted of causing the deaths of a young mother and her two children). In all those cases, the wrongful convictions had been delineated for the appeal court judges beforehand by an extensive series of media reports.
More recently, however, even against a background of media concern, judges have refused to countenance the possibility of error. In the appeals of both Sion Jenkins (the deputy headmaster jailed for killing his foster daughter, Billie-Jo) and Sally Clark (the solicitor jailed for killing two of her baby sons), new evidence was presented by lawyers, but rejected by the court.
No doubt these cases will be heard again at appeal in due course. Yet will the chances of success improve? There is a gathering perception that the appeal court has not come to terms with the growth of prosecution power, and that there are now more wrongful convictions, fewer of which are being rectified at the court of appeal. "I have lost faith in the court's ability and willingness to rectify miscarriages of justice", said Erzinçlioglu.
In October, the Pendleton case will be heard by the House of Lords. The approach that the court of appeal should adopt in deciding the safety of a conviction where fresh evidence has come to light will be the principal question for the law lords. "Where the court has accepted fresh factors, and all the criteria for admissibility have been satisfied, then the court should address whether this would have impacted on the jury and, if so, either quash the conviction outright or quash it and order a retrial," said Malone.
"I think the appeal court can sort itself out, but if it can't, then it's up to the House of Lords or Europe, or the government. The 1995 appeal act will need to be amended, so that the role of the appeal court is clarified."