Fresh Evidence and Factual Innocence in the Criminal Division of the Court of Appeal

DOI10.1177/0022018317713567
Published date01 August 2017
Date01 August 2017
Subject MatterArticles
Article
Fresh Evidence and Factual
Innocence in the Criminal
Division of the Court
of Appeal
Stephanie Roberts
University of Westminster, London, UK
Abstract
One of the main criticisms of the Criminal Division of the Court of Appeal has been
that it is deficient at identifying and correcting the wrongful convictions of the factually
innocent. These criticisms stem from the court’s perceived difficulties in relation to
appeals based on factual error. The main ground of appeal for errors of fact is fresh
evidence, and these appeals are particularly problematic because they require the court
to trespass on the role of the jury somewhat in assessing new evidence on appeal
against the evidence at trial in order to determine whether the conviction is unsafe.
The broad consensus is that the court’s difficulties are caused by three main issues: its
deference to the jury verdict; its reverence for the principle of finality; and a lack of
resources to deal with huge numbers appealing. There is less agreement in identifying
the source of the problems because it is not clear whether they derive from legislative
powers or the interpretation of those powers by the judiciary. This article uses both
qualitative and quantitative empirical research in order to try to determine what the
court’s approach is in fresh evidence appeals and, if there are problems, whether it is
the law or the interpretation of the law by the judiciary which is to blame. It also
proposes reforms designed to make it easier for the court to rectify miscarriages
of justice.
Keywords
Fresh evidence, criminal appeals, miscarriages of justice, factual innocence
Corresponding author:
Stephanie Roberts, University of Westminster, 4-12 Little Titchfield Street, London W1W 7UW, UK.
E-mail: s.roberts02@westminster.ac.uk
The Journal of Criminal Law
2017, Vol. 81(4) 303–327
ªThe Author(s) 2017
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DOI: 10.1177/0022018317713567
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Introduction
One of the consistent criticisms of the criminal division of the Court of Appeal has been that it is
deficient at rectifying the wrongful convictions of the factually innocent.
1
The role of the Court of
Appeal is not to declare people innocent as the Criminal Appeal Act (CAA) 1995 (amending the CAA
1968) gives the Court of Appeal the power to quash a conviction if it thinks it is ‘unsafe’.
2
There are two
interpretations of ‘unsafe’, and one interpretation has applied to a factually innocent person who has
been, or may be, wrongfully convicted.
3
There are various judgments where the court has expressed a
view that it felt that an innocent person had been wrongly convicted, or at the very least that an injustice
had occurred,
4
but as this is not part of its legally defined role, these pronouncements are rare. There is a
presumption of innocence in the English and Welsh legal system,
5
but this is a technical term which
requires the prosecution to prove its case beyond reasonable doubt; if the prosecution case fails, the
defendant is legally but not necessarily factually innocent.
6
The main criticisms of the court stem from its perceived difficulties in relation to appeals based on
factual error. The main ground of appeal for errors of fact is fresh evidence, and these appeals are
particularly problematic because they require the court to trespass on the fact-finding role of the jury
somewhat in assessing new evidence on appeal against the evidence presented at trial in order to
determine whether the conviction is unsafe.
7
There appears to be a broad consensus that the court’s
problems in determining factual error appeals are caused by too much deference being shown to the jury
1. See, for example, R. Pattenden, English Criminal Appeals 1844–1994 (Oxford University Press: Oxford, 1999) 77; R. Nobles
and D. Schiff, Understanding Miscarriages of Justice (Oxford University Press: Oxford, 2000) 83; K. Malleson, ‘Appeals
Against Conviction and the Principle of Finality’ (1994) Journal of Law and Society 15 at 163; K. Malleson, ‘Miscarriages of
Justice and the Court of Appeal’ (1993) 109 LQR 66; R. Nobles, D. Schiff and N. Shaldon, ‘The Inevitability of Crisis in
Criminal Appeals’ (1993) The International Journal of the Sociology of Law 1; JUSTICE, Miscarriages of Justice (Justice:
London, 1989) at para. 4.21; M. Knight, Criminal Appeals (Stevens and Sons: London, 1970) 1; M. Knight, Criminal Appeals
Supplement 1969–1973 (Stevens and Sons: London, 1975); G. Williams, Proof of Guilt, 3rd edn (Stevens and Sons: London,
1963) 330; A. Samuels, ‘Appeals Against Conviction: Reform’ [1984] Crim LR 337; J.R. Spencer, ‘Criminal Law and Criminal
Appeals: The Tail That Wags The Dog’ [1982] Crim LR 260; The Runciman Royal Commission on Criminal Justice (RCCJ)
Report, Cmnd 2263 (HMSO: London, 1993), ch. 10, at para. 3; S. Roberts and L. Weathered, ‘Assisting the Factually Innocent:
The Contradictions and Compatibility of Innocence Projects and the Criminal Cases Review Commission’ (2009) 1 Oxford
Journal of Legal Studies 43; C. McCartney and S. Roberts, ‘Building Institutions to Address Miscarriages of Justice in England
and Wales: ‘Mission Accomplished?’ (2012) 80 University of Cincinnati Law Review 1333; C. McCartney and C. Walker,
‘Criminal Justice and Miscarriages of Justice in England and Wales,’ in C. Ronald Huff and Martin Killias (eds), Wrongful
Conviction International Perspectives on Miscarriages of Justice (Temple University Press: Philadelphia, 2008) 183–211;
House of Commons Justice Committee, 12th Report – Criminal Cases Review Commission, HC850 (25 March 2015). Available
at: http://www.publications.parliament.uk/pa/cm201415/cmselect/cmjust/850/85002.htm (accessed 20 February 2017); JUS-
TICE, Criminal Appeals (Stevens and Sons: London, 1964) 6. The term ‘factually innocent’ in this article is used to describe
those appellants who were wrongly convicted because they did not commit the crime.
2. In RvA(D), Lord Bingham stated ‘the Court is in no position to declare that the appellant is innocent.. .That is not the function
of this court. Our function is to consider whether in the light of all the material before us this conviction is unsafe’. [CA,
unreported, transcript 14 March 2000].
3. For a discussion on the two interpretations of ‘unsafe’, see Lord Woolf’s judgment in RvHanratty [2002] 2 Cr App R 30. See
also S. Roberts, ‘“Unsafe” Convictions: Defining and Compensating Miscarriages of Justice’ (2003) 66(3) Modern Law Review
441.
4. See, for example, RvFell [2001] EWCA Crim 696; RvWard [1993] 96 Cr App R 1; RvKelly [2003] EWCA Crim 2957; Rv
Martin C [2003] EWCA Crim 1246; RvMattan The Times, 5 March 1998; RvRoberts [1998] EWCA Crim 998.
5. This is also enshrined in Art. 6(2) of the ECHR: ‘everyone charged with a criminal offence shall be presumed innocent until
proven guilty according to law’.
6. See Michael Zander: ‘The presumption of innocence exists quite independently of whether the defendant is innocent or guilty,
and indeed has nothing to do with the question of guilt or otherwise’. The Times, 20 August 1994.
7. Criminal Appeal Act 1995, s. 1(1): ‘The Court of Appeal (a) shall allow an appeal against conviction if they think that the
conviction is unsafe and (b) shall dismiss such an appeal in any other case’.
304 The Journal of Criminal Law 81(4)

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