Identifying Miscarriages of Justice: Why Innocence in the UK is Not the Answer
| Published date | 01 September 2007 |
| DOI | http://doi.org/10.1111/j.1468-2230.2007.00662.x |
| Author | Hannah Quirk |
| Date | 01 September 2007 |
Identifying Miscarriages of Justice:Why Innocence in the
UK is Not the Answer
Hannah Quirk
n
This article examines two contrasting proposals for the reform of criminal appeals: the govern-
ment’s recent proposal thatthe gui lty should nolonger have their convictions quashed on‘tech-
nicalities’; and calls by campaignersfor the Court of Appeal to consider i nnocence rathertha n the
‘safetyof the conviction,’together with their associatedattempts to establish Innocence Projects in
the UK. Despite the rhetoricalpower of ‘innocence’ as a campaigning tool,it is contended that to
import such a standardi ntothe legal system would be retrogressive and counter-productive, both
as a safeguard against wrongful convictions and in protecting the integrity of the system. In order
to be meaningful, due process protections must apply to al l.The government’s proposals attack
this principle directly; innocence campaigners risk u nwittinglyassisting their endeavours.
INTRODUCTION
In any criminal justice system, mistakes are bound to occur; the factually guilty
will escape conviction and the innocent will be judged falsely. Errors of justice
1
can have devastati ngcons equences for the individuals wronglyc onvicted, as well
as existing and future victims of perpetrators who avoid conviction. They may
also a¡ect the attitudes and e⁄ciency of practitioners, the beliefs and policies of
politicians, and public con¢dence in the administration of justice. As with art or
beauty, while most people believe they would recognise a miscarriage of justice if
they saw it, the expression lacks an agreed de¢nition, and can vary in meaning
depending on the context in which it is used. How errors of justice are de¢ned is
important in legal, analytical, publicity and political terms. It determines which
appealswill succeed and calculations of the extent of the problem: too restrictive a
de¢nition will underestimate the scale of the issue; too broad a characterisation
dilutes the meaning of the term and may diminish the credibility of critics of
the system.
2
How the media reports the issue in£uences public con¢dence in the
criminal justice system and resulting political reforms.
3
Essentially, the de¢nition
n
School of Law, University of Manchester.The author worked for three and a half years as a Case
Review Managerat the CCRC, followed by a six month research sabbatical at the Innocence Project
New Orleans.The British Academy,Socio -Legal Studies Association and the Ford Foundation pro-
vided the funding for this. I wouldl ike totha nk all of these organisations for their generousass istance.
I am also gratefulto my colleagues, Neil Allen and Graham Smith for their helpful comments, and to
the anonymous referees for their thoughtfulrecommendations.
1 B. Forst, Errors of Justice: Nature, Sources and Remedies (Cambridge: Cambridge University Press,
2004).
2 See for example,The GovernmentReply to the Fourth Report from the HomeA¡airs Commit-
tee Session 2001^2002 HC 836, The Conduct of Investigations into Past Cases of Abuse in Children’s
HomesCm 5799 (2003) 4.
3 R. Nobles and D. Schi¡, Understanding Miscarriages of Justice: Law,t he Media, an d the Inevitability of
Crisis (Oxford: Oxford UniversityPress, 2000).
r2007 The Author.Journal Compilation r2007 The Modern Law ReviewLimited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2007) 70(5)MLR 759^777
of whatconstitutes a miscarriage of justice and the extent of the safeguards imple-
mented to minimise their occurrence ‘depend[s] critically upon what ‘‘criminal
justice’’ is said to mean’
4
(the nature and purpose of the system),
5
and the resulting
balance struck between deciding whether it is better that ‘ten guilty persons
escape,than that one innocent su¡er,’
6
or thatthe acquittal of the guilty is as much
a miscarriage of justice as the conviction of the innocent’.
7
This de¢nitional issue is of topical, practical importance as well as scholarly
interest. The due process approach to assessing wrongful convictions is currently
under attack from opposing trajectories. The government recently published a
consultation document on changing the appellate test so that the‘guilty’ will not
have their convictions quashed on the basis of legal or procedural errors.
8
Others
have called for the introduction of an‘innocence’ or‘miscarriage of justice’ test in
order to assistthose whom theyargue are left with no means of legal exculpation
by the overly restrictive tests applied by theCourt of Appeal.
9
The recentlyestab-
lished Innocence Network UK (INUK)
10
is encouraging the establishment of
Innocence Projects in UK
11
universities, modelled on those in the United States
of America,
12
to search for evidence to exonerate the wrongly convicted. The
decline in interest shown by the media in miscarriages of justice observed by
Nobles and Schi¡
13
has continued. Channel 4 apparently abandoned miscarriages
of justice programmes as they were ‘a bit 1980s’
14
and print journalists have found
it increasingly hard to publish such stories as ‘miscarriages of justice no longer
command the mainstream of political debate’.
15
Recent activity in this area has
been driven instead by government and campaigners.
There are many reasons, pragmatic and principled, for resisting the introduc-
tion of an innocence criterion for appeals. Almost every measure introduced by
successive governments to curtail the rights of defendants has been based upon
claims of ‘criminals’ escaping justice.
16
As ‘rebalancing’the criminal justice system
has become a modish aim of policy making, the duties of the prosecution are
4 S. Greer,‘Miscarriage s of Justice Reco nsidered’ (1994) 57MLR 58, 59.
5 See Packer’s archetypes of crime control and due processsystems: H. Packer,TheLimits of the Crim-
inal Sanction (Stanford, CA:Stanford University Press,1968).
6 Sir William Blackstone, Commentaries on the Laws of England,Book IV; Of PublicWrongs (1769)
(Oxford:Clarendon Press 1765^1769)352.
7 As implied byThe Royal Commission on Criminal Justice, Report Cm 2263 (1993) 2.
8 Quashing Convictions: Reportof a Review bythe Home Secretary,Lord Chancellor and Attor-
ney General (London: O⁄ce forCrimi nalJustice Reform, September 2006).
9 B.Wo⁄nden,‘Injustice Act Needs Changing’TheTimes 20 February 2001; F. Gibb,‘A systemwith
questionable appeal’TheTimes30 April 2002; the Fourth Reportfrom the Home A¡airs Commit-
tee Session 2001^2002 HC 836 The Conduct of Investigations into Past Cases of Abuse in Children’s
Homes(2002), n 2 aboverecommendation 21, para137.
10 See http://www.i nnocencenetwork.org.uk (last vi sited 25 May 2007); C. McCartney and
M. Naughton,‘The Innocence NetworkUK’ (2004) 7 Legal Ethics15 0.
11 The Innocence Project is UK-wide; the CCRC covers England, Wales a nd Northern Ireland,
although Northern Ireland has a separate Court of Appeal. Scotland has a separate legal system
and its own CCRC.UK is used for convenience in this article.
12 Se e n 10 above.There are also innocence projects in Australia.
13 n 3 a bov e, 149.
14 D. Jessel,‘Turninga blind eye’The Guardian13 July 2004.
15 D. Ro se, In the Name of theLaw:The Collapseof CriminalJustice(London: Cape, 1996) 34.
16 This includes the i ntroduction of the jury-less ‘Diplock’Courts in Northern Ireland, the curtail-
ing of the right of silence (Criminal Justice and Public Order Act 1994, ss 34^8), the pre-trial
Identifying Miscarriages of Justice
760 r2007 The Author. Journal Compilation r2007 The Modern LawReview Limited.
(2007) 70(5)MLR 759^777
To continue reading
Request your trial