Miscarriages of Justice talk by Professor Michael Zander

What is a miscarriage of justice?

Three types:

• The innocent person being convicted – “the criminal justice system doesn’t actually concern itself with innocence” – when you are put on trial you are trying to prove that you are not guilty – never innocent
• The guilty person who is convicted as a result of serious malpractice by the prosecution on faulty evidence.
• The guilty person who is acquitted

No such thing as magicking away this problem – "we will always have miscarriages of justice", 'The problem is unavoidable.'

If innocence were the test as to whether you would be acquitted very few people would be acquitted. Very few people are able to establish that they are innocent.

If we were to change the test at the Court of Appeal (Test of whether it was unsafe) and change it to (is the defendant innocent) no one would qualify as it’s hard to establish that you have evidence.

Why do they occur?

• Police wickedness – Guildford 4 Birmingham 6 – all cases where the police had behaved very badly, and the police fabricated evidence.
• Police incompetence - based on their habit of rounding up the usual suspects – pursue it relentlessly without listening to the defendant.
• Prosecution failure – failing to disclose evidence that could be helpful towards the defence – going at the case in a way that is misconceived
• Defence failures – more common – failing the suspect, not listening to them, too often guilty of not bothering – defence lawyers may not be doing their job – lack of ability, resources – all these things play into the problem of  MCoJ

Eyewitness – question the credibility – it is ‘notoriously unreliable’ and ‘pretty shaky’ – persuades the jury based on their shaky recollection and personal experience – think how unreliable our observations are.  People try to report on what happened months ago – danger of falsified evidence -  “everyone is fallible, alarmingly fallible” the crucial witness that fails to turn up and loses their memory on the day.

What systems can be put in place to mitigate the danger of a victim of MCoJ?

Legal aid system

Legal aid system which provides resources for defence lawyers to defend the suspect at every stage –starting from the police station right up to the court of appeal and beyond if they go to the CCRC.

“We are at the moment in the throws of terrible cuts to the legal aid system, including the criminal legal aid system but that doesn’t detract away from the fact our legal aid system even with the cuts is amazing” if you take it internationally the extraordinary thing about our criminal legal aid system is it’s not just young lawyers cutting their teeth into criminal cases it is everyone who is involved in criminal defence work does legal aid work including all the top QCs they spend most of their time year in year out doing criminal defence work  and that’s unique there isn’t a country in the world that does that.

Public money is being cut drastically cut – but it will still be better then practically any other country in the world – so to that extent we should be grateful

Tax money is there to support the defendant – there are elaborate rules and codes of practice about the system and handling of the suspect starting in the police station  - very important part of the system

Prior to the establishment of PACE – we had the judges rules – in 1984 involved in training the police – middle management of the police took on board what was happening to them with the new system and made it clear to the constable – the ordinary rooting of handling.

Stop and search for example doesn’t work as well. The whole apparatus of PACE and the rules constructed around PACE are vital safeguards and protection for the defendant.

Tape recording in the police station – we are one of the few countries to have every interview recorded – although the police hugely rejected the idea of tape recording they pretty quickly discovered it helped the prosecution as much as it helped the defence because once the defendant has confessed in the police station and many of them do confess once it is on tape that is the end of it. And arguments about bad treatment about police went away and happened much less. Tape recording in the police station is an enormous safeguard for everyone.

Trail by jury is a wonderful safeguard – Concept of the jury is rightly cherished

Appeal court –It took over 100 years to get an appeal court – it took a famous miscarriage of justice case – before that court was established 1907 previously there was 37 attempts to set up a court of appeal – 100 years of campaigning to get it – It is there to set matters right when things go wrong.

Criminal Case Review Commission [CCRC] 

On top of or beyond the Court of Appeal.

The Home Secretary was where you went previously if you thought you had been wrongfully convicted – mobilise public opinion and write to the home secretary – this is still available despite the CCRC – it is there as a possible final resource.

CCRC announced on the day Birmingham 6 were released – a decade of concern on the way the court dealt with terrorism cases and recognition that something terrible was amidst. That all these people had been convicted of terrible crimes – extraordinary acknowledgement that something needed to be done about MCoJ – The Runciman Royal Commission was set up – but it wasn’t just about miscarriages of justice – it also required the examination of the criminal justice system – in securing the conviction of those guilty of criminal offences – ‘make sure that the guilty get convicted’ – ensuring that the innocence are also not convicted. Try and find out who committed the crime and try and put them on trial. Set up for two years – 11 people all of whom were very busy and had all other jobs – 43 full day meetings plus endless other meetings, visits abroad ‘studying mountains of evidence’ very time consuming business. From my perspective I was the academic – we had to spend our time worrying about the whole system how to gear it the best we could to make sure the guilty were convicted, the innocent are not convicted and there is efficient use of resources.

Judges, barristers, solicitors, police officers, lay people – wonderful combinations of professionals involved.

Came up with 352 recommendations – 3 proved to be controversial

In fact what happened in regard to the recommendations – main ones were implemented which were designed to help the defence, to prevent the innocent getting convicted. (About 80 designed to help the defence) Most important of all the recommendations was the CCRC, which was then set up – everybody agreed. 

One or two current issues – firstly is the Court of Appeal fit for purpose in dealing with the defendants who think they are wrongfully convicted. – The problem is we all believe so passionately in the jury and the Court of Appeal worked on the basis that the jury is the fact finding body and it’s not our job as judges to over turn the jury’s verdict – they will simply say ‘we are the judges not the jury’ – the responsibility of deciding these cases is the jury – problem the defence has is to persuade the judge that the jury got it wrong, need to find a new strong point that might persuade them but ‘if there is nothing new you almost certainly won’t succeed.’

You can’t be convicted unless the majority of the jury agrees 10-2 – the jury must be beyond reasonable doubt. The prosecution has to satisfy three judges as well, if the three judges are doubtful then they ought to quash the convictions, but I don’t think we would ever reach that. There is this concept of the ‘lurking doubt’ – famous case known ‘The Cooper Case’ quashed on grounds that the Court of Appeal found a lurking doubt. In reality they have come to the view that there was something wrong with this case and we cannot let the jury’s verdict stand.

From the judges point of view they are reluctant to engage in the process that is involves reviewing all the evidence, and then make up their mind. ‘It’s a tricky area’ one can understand why the system is geared the way it is geared. The Court of Appeal do not like this lurking doubt approach at all – it’s very difficult unless there is something significant that is new. The answer is that it’s very unlikely to happen.

There are rules that are very severe about fresh evidence. They will not be easily persuaded because they see it as you have had your trial and you have had your time – if it was available at the time of the trial and it was not produced then tough you had the chance. The argument is that you should have done it at the first trial – very tough and difficult to get a re-trial at the Court of Appeal.

The Court of Appeal is not always as tough as it’s practice suggests – practice is variable – do the rules need to change? No – it just depends on the individual judges sitting on the day – they are influenced by the facts but not always in the right direction.

CCRC is limited in referring the case to the Court of Appeal by the test ‘is it probable’ is there a real possibility that the conviction could be quashed if we refer it? CCRC have to second guess if it’s enough for the Court of Appeal, therefore the Court of the Appeal are ‘in the driving seat’ when they decide to investigate the case they select the most promising and then sometimes present the results of this to the Court of Appeal. Should the test be different? I can’t see how it could be different. The formula is – Has there been a miscarriage of justice? Research that has been done is that the Scottish equivalent of the CCRC here is the same, the CCRC do not want to get into the position of investigating hopeless cases, they want the attitude that there is something seriously wrong with a case, anything else would be a disaster. No alternative to this assessment that could work any better.

Of course the CCRC should get more resources, amazingly it is one of the few institutions that has got more resources, which is amazing.

In summary we are left with a situation that will always be unsatisfactory, problematic and worrying. Any one with an interest in this subject will always be concerned – some people will have been wrongly convicted. There are some people that we believe to be innocent – that’s the main cause of concern, and they should not be convicted. ‘All one can do is tinker with the system and adjust it here and adjust it there to help reduce the problem.’ Over the last 20 years we probably have reduced the problem, the Runciman commission certainly played a role. It’s an on going issue.

Q + A Session

Q: Looking at the media there is not a lot of coverage in the media anymore, before we had programmes such as Rough Justice etc – is there a reason why the media has moved on, they are no longer as interested in MCoJ as they were in the good old days.

A: Absence of interest from the media is lack of resources, and the setting up of the CCRC. The organisation ‘Justice’ was run by Tom Sargent with the help of many lawyers and supports – Justice did great work, and they pressed for the setting up of the body like the CCRC years before Runciman – when it was set up Justice stopped investigating MCoJ cases because they said they were a tiny little outfit without many resources and now we have a big body set up so they will do the job – in Birmingham. They no longer bothered to investigate miscarriages because there was a big body set up to do the job, and the news papers likewise and the BBC thought ‘oh well we now have a big body set up to deal with miscarriages specifically so we won’t bother anymore’ – and some of that has now been taken on by innocent projects around the country which is good but an innocence project cannot do what a TV programme can do.

Q: You mentioned the cut backs occurring and in recent weeks Mansfield chambers announced it would be closing – do you perceive this as something the legal profession will adjust to and the level of service will be retained despite the legal aid cut backs?

A: I am as worried as anybody about this development it’s ‘terrible’ we have been living in the belief that this would not happen – Chris grayling – he is not a lawyer and probably doesn’t even like lawyers – will it lead to declining in the quality and quantity of legal aid – yes but will it be the end of the world – no. People will still get defended and do very well – will they earn as much? Clearly not. QCs making a lot of money on criminal legal aid - will they drift off to do any other work? If you look at the crown court virtually everybody has been represented on criminal legal aid – some of them will put hands in their pockets to pay the lawyers and they will.

There will obviously be serious short comings ‘I am gloomy but not in despair’ If I was the Secretary of state and the Treasury said I have to achieve a 20% cut would I have done the same? Possibly because you cannot say no to the treasury you have to do what the treasury says and criminal legal aid is one of the these- ‘we live in difficult times’.

Q: Crime and Justice Research Centre opening in the university benefits the people studying in the discipline, but how much benefit will it have for anyone walking on the street?

A: ‘None’ – it’s not for the benefit of someone walking on the street its for your benefit – ‘the chances of actually helping them are not very great so you have to start off with the assumption that it is going to be a lot of work that will probably lead no where’

It’s much better then being in the pub – grinding work may seem incredibly boring but when you look back after your experience on working on the programme – ‘a real life human drama’ – it was interesting and you did your best, ‘you made an inch of progress and there is a mile to go.’ ‘The world will not be grateful’. Only people that will be grateful are the families you are supporting – there is the possibility that you will ‘strike gold’ and find that ‘nugget’ but it is a lot of hard work.  

Q: Do you think the media applying pressure to the police for a conviction is still a significant problem?

A: The danger to a rush to judgment has happened, but can you do anything about that to help? No you cannot stop the press publishing stuff to grab the publics imagination – will that generate pressure on the police? Yes that’s just the fact of life that one will have to deal with. But the jury can be relied upon to listen to the evidence. In England there is no jury selection process it is genuinely random and over and done with in 5 minutes. And I think you can rely on the jury even if they have some vague idea of the case from the press as they will be so focused by being in the jury box as one of the most important and interesting things they have had to do. Experience of listening to the evidence is very vivid, people take it very serious. That’s my feeling for what it is worth.