28 July 2002
Miscarriages of justice are an everyday occurence. As the government plans a thorough overhaul of criminal justice, it needs to ask why so many unsafe convictions are overturned. The wrongly convicted are victims too.
By Michael Naughton
The government's criminal justice reforms, proposed in the recently published White Paper, are based on a 'single clear priority' to 'rebalance' the criminal justice system 'in favour of the victims of crime' and to 'bring more offenders to justice'. The explicit goal is to make it easier for the prosecution to secure guilty verdicts and to convict more people. This would seem to be at odds with the reality of criminal justice in England and Wales. The prison population stands at an all time high of over 70 thousand and the prosecution already achieves the conviction of over 95 per cent of defendants at magistrates' courts and 87 per cent of defendants in the Crown Court.
The White Paper seems to be to forget that that not all of those brought to trial will be guilty. A reform agenda framed in a language of 'putting the victim first' overlooks the fact that there are many victims of the present criminal justice system. Any human system can make mistakes, and that miscarriages of justice can and do occur. But, just how many miscarriages of justice victims of the present system are there?
We tend to think about miscarriages of justice as rare and exceptional occurrences. Prominent cases such as the Birmingham Six, Guildford Four, Bridgewater Four, M25 Three, Cardiff Three, Stephen Downing, and so on create the impression that miscarriages of justice are seen as very much an intermittent, high profile and small scale problem; that there are very few victims in the context of the statistics of all criminal convictions. But there are many more cases than those which receive prominent coverage in the media. Those cases of criminal conviction that are routinely quashed by the Court of Appeal (Criminal Division), or by the Crown Court for convictions previously obtained in the magistrates' court have received no attention at all.
If we pay more attention to these routinely quashed convictions, we find a scale of miscarriage of justice to fundamentally challenges any notion that the current system of criminal justice is weighted too much in favour of the defendant. The Lord Chancellor's Department's statistics on successful appeals against criminal conviction show that in the decade 1989-1999 the Court of Appeal (Criminal Division) abated over 8,470 criminal convictions - a yearly average of 770. In addition, there are around 3,500 quashed criminal convictions a year at the Crown Court for convictions obtained at the magistrates' courts. Contrary to popular perceptions, then, wrongful criminal convictions are a normal, everyday feature of the criminal justice system - the system doesn't just sometimes get it wrong, it gets it wrong everyday, of every week, of every month of every year. With the result that thousands of innocent people experience a whole variety of harmful consequences that wrongful criminal convictions engender.
Justice for All also states that there is an 'absolute determination to create a system that meets the needs of society', 'wins the trust of citizens' and 'acquits the innocent'. Accordingly, the government might think about proposing reforms that would counter the causes of the thousands of routine wrongful criminal convictions that occur each year under the present criminal justice system. These (still) include misdirection by judges which is the most common cause of routine successful appeals; unreliable confessions such as in the cases of Stephen Downing, the Cardiff Newsagent Three, Andrew Evans, and King and Waugh who between them spent almost a century of wrongful imprisonment based on the unreliable confessions of the vulnerable.
Financial and other incentives which created unreliable 'cell confession evidence' that featured most recently in the case of Reg Dudley and Robert Maynard who each served over 20 years of wrongful imprisonment as a consequence of a 'bargain' between the police and an informant who received a reduced sentence for his part in a robbery in exchange for the necessary evidence for conviction; non-disclosure of vital evidence as in the case of John Kamara who also spent 20 years of wrongful imprisonment because over 200 statements were withheld from his defence team; malicious accusations such as in the case of Roy Burnett who spent 15 years of wrongful imprisonment for a rape that the Court of Appeal said 'almost certainly never happened', or Roger Beardmore who spent three years in prison (of a nine year sentence) for the paedophile rape of a young girl who later admitted that she had lied to get her mother's attention; badly conducted defences such as in the case of Mark Day who was convicted for murder with two others despite the fact that he did not know his co-defendants, a fact that his defence failed to bring to the court's attention; and, 'racism' such as in the case of the M25 three, the case in which three black men were wrongly imprisoned for 10 years despite the fact that witnesses had claimed that two of the offenders were white and four of six victims had referred to at least one of the offenders as white. And this is by no means exhaustive list of the causes of injustice.
When thinking about proposing reforms of the criminal justice system to reduce the conviction of the innocent it might also be pertinent to include some of the possible causes of miscarriages of justice that might never feature in the official statistics of successful appeals. Likely candidates include the 'time loss rule', under which when the wrongly imprisoned apply for an appeal they are advised that if their appeal is ultimately unsuccessful it could result in substantial increases to their sentence. The effect of this is to transform what was intended as a minor check on groundless applications into a major barrier in some meritorious cases. There are also the miscarriages of justice that can result from charge, plea and sentence 'bargaining' and the 'parole deal'. All of these induce innocent people to plead guilty to criminal offences that they have not committed and present a 'dark figure' of miscarriages of justice that can never be fully quantified.
It is clear that the present system of criminal justice is, indeed, in urgent need of reform. But this should not be in the direction of a relaxation of the system in favour of obtaining more guilty verdicts and convicting more people. Rather, the present system needs to a reformed in the direction of 're-balancing' it with its stated aims, namely, to safeguard against convicting of the innocent. The present system makes far too many mistakes. Convicting more of those brought to trial will undoubtedly mean making even more mistakes and convicting even more innocent victims.
Michael Naughton is a postgraduate researcher looking at the harmful consequences of miscarriages of justice in the Department of Sociology, University of Bristol.