Families at war? Relationships between ‘survivors’ of wrongful conviction and ‘survivors’ of serious crime
| DOI | 10.1177/0269758014521739 |
| Published date | 01 May 2014 |
| Date | 01 May 2014 |
| Author | Siôn Jenkins |
| Subject Matter | Articles |
Article
Families at war?
Relationships between
‘survivors’ of wrongful
conviction and ‘survivors’
of serious crime
Sio
ˆn Jenkins
University of Portsmouth, Portsmouth, UK
Abstract
Following the quashing of an unsafe conviction, the appellant and their supporters often rejoice
that their quest for justice has been successful and that the appellant has been released from their
wrongful imprisonment. For the survivors of crime involved in the criminal case, including those
suffering bereavement after homicide, the appellant’s release from the Court of Appeal (Criminal
Division) can engender feelings of resentment and hostility. This article will examine relationships
between survivors of wrongful conviction and survivors of crime often involved in the same
criminal case. The article argues that the antipathy between the families contributes to under-
mining both parties’ desire for emotional healing and recovery.
Keywords
Families, survivors, trauma, victims, wrongful conviction
Introduction
A particular dilemma within miscarriages of justice discourse, and one not examined in previous
literature, concerns the relationship of the wrongly convicted and their supporters with the
‘survivor’ of crime (where alive) and secondary victims, often suffering bereavement following
homicide. For survivors of crime, the conviction of the defendant represents the achievement of
justice and an opportunity to begin the long process of healing and recovery. When the defendant’s
conviction is subsequently quashed by the Court of Appeal (Criminal Division) (CACD), many
Corresponding author:
Dr Sio
ˆn Jenkins, University of Portsmouth, Institute of Criminal Justice Studies, Ravelin House, Museum Road, Portsmouth,
PO1 2QQ, UK.
Email: sionjenkins@btinternet.com
International Review of Victimology
2014, Vol. 20(2) 243–261
ªThe Author(s) 2014
Reprints and permission:
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DOI: 10.1177/0269758014521739
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243
survivors come to believe that the Court of Appeal has robbed their family of justice and under-
mined their emotional equilibrium. The problems are often exacerbated when the wrongfully con-
victed then seek to persuade the investigating police force to reopen the case and seek
compensation.
Appellants claiming wrongful conviction in England and Wales have at their disposal the
appeals process by which they hope to see their convictions quashed. A subsequent development
established by the Criminal Appeal Act (1995) is the Criminal Cases Review Commission (CCRC
or the ‘Commission’), which has the power to order reinvestigations of alleged miscarriages of jus-
tice and to send cases back to the CACD under s. 17 of the Criminal Appeal Act (1968). The Com-
mission was formally established on 1 January 1997 and is an independent public body able to
receive applications from appellants whose claims of wrongful conviction emanate from England,
Wales and Northern Ireland (Hungerford-Welch, 2009). The Commission considers the applica-
tions of appellants whose previous appeals against conviction have failed but where they continue
to challenge the validity of the conviction. The CCRC, however, operates under a number of con-
straints, including that referrals are dependent on new evidence or arguments not heard at trial or an
earlier appeal (Criminal Appeal Act 1995). When weighing up the likelihood of a referred case
being upheld by the CACD, the Commission only refers where there is a ‘real possibility’ of suc-
cess, which again is dependent on the quality of any new evidence (Hungerford-Welch, 2009: 702).
The issue of what constitutes a ‘real possibility’ has been discussed in the Divisional Court during a
judicial review hearing regarding a CCRC decision in R v Criminal Cases Review Commission, ex
Pearson [2000] 1 Cr App R 141. The Lord Chief Justice, in relation to the ‘real possibility test’,
indicated that it ‘plainly denotes a contingency which in the Commission’s judgement is more than
an outside chance or bare possibility but which may be less than a probability or likelihood or
racing certainty’.
For some factually innocent appellants the appeal process appears designed to hinder rather than
facilitate examination of an alleged miscarriage of justice (Naughton, 2010). The process by which
a citizen appeals against wrongful conviction means that during any hearings prior to submitting an
application to the CCRC, the appellant has usually used their new arguments or evidence, thus
making a fresh application to the Commission on the basis of additional new evidence or argument
even more problematic. A recent Open Meeting at the House of Commons on 30 November 2010,
chaired by John McDonnell, MP for Hayes and Harlington, debated the question of whether the
CCRC is fit for purpose in light of the numbers of cases being refused a referral by the Commis-
sion. As of December 2012 the Commission has received 15,710 applications. The number of cases
referred by the CCRC to the CACD following a reinvestigation currently stands at 512 referrals,
with 328 referred cases being quashed at the Court of Appeal (CCRC, 2012). A general concern
with the approach being taken by the CACD and CCRC led to the formation of the Criminal
Appeal Lawyers Association (CALA), a body which seeks to promote ‘better representation for
those persons seeking to appeal their convictions’ (CALA, 2010). Despite criticism of the CCRC
from isolated quarters (Naughton, 2012; Woffinden, 2010), the Commission remains the only body
with the authority to send suspected cases of miscarriage of justice back to the Court of Appeal.
The response of many alleged victims of miscarriages of justice is to set up a campaign group
against the alleged wrongful conviction. For those appellants who are refused an appeal or a refer-
ral by the CCRC, the role and function of their campaign can change, with some campaigners cam-
paigning against criminal justice legislation, in addition to campaigning against the conviction.
The decision to campaign can be viewed as a symbolic act of counter discourse where the appellant
and their family refuse to accept the Court’s decision to convict. What follows is a campaign
244 International Review of Victimology 20(2)
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