Miscarriages of Criminal Justice Reconsidered
| Published date | 01 January 1994 |
| Author | Steven Greer |
| DOI | http://doi.org/10.1111/j.1468-2230.1994.tb01921.x |
| Date | 01 January 1994 |
Miscarriages of Criminal Justice Reconsidered
Steven
Greer
*
Introduction
Public controversies often lead chequered lives. In the late
1980s
media exposure
of a series of high profile wrongful convictions provoked considerable public
concern.
A
Royal Commission, the first of the Thatcher and post-Thatcher eras,
was appointed in the summer of
1991
under the chairmanship of Lord Runciman to
‘examine the effectiveness of the criminal justice system in England and Wales in
securing the conviction of those guilty of criminal offences and the acquittal of
those who are innocent, having regard to the efficient use of resources.” The
terms of reference also contained a list of the principal issues which had emerged
in the public debate.2 Yet when the Commission’s report was published in July
1993
it was warmly welcomed by the police, the agency most criticised for its role
in the miscarriage cases, and heavily criticised by lawyers, civil libertarians,
academics and others for having increased rather than decreased the risk of
convicting the inn~cent.~ To add insult to injury, one of the first concrete
political commitments made since the Commission’s proposals became public, the
abolition
of
the right to silence, was in defiance of a central recommendation in the
report, against the weight of considerable research evidence, and aimed at
increasing the prospects of conviction rather than offering the innocent better
pr~tection.~ The scope of the post-Runciman debate has also broadened to such
an extent that scarcely any branch of the criminal justice system is now considered
too remote for inclusion.
The purpose of this article is to return to the central issue which has hitherto
received almost no consideration: what precisely constitutes a ‘miscarriage of
criminal j~stice’?~ Regrettably, the Runciman Commission itself offers little
assistance beyond observing that miscarriages include the acquittal of the guilty as
well as the conviction of the innocent.6 The report even suggests, in the absence
of any concrete evidence one way or the other, that the former may be more
prevalent than the latter.’ The discussion of theoretical issues is also expressly
eschewed, and sustained analysis of issues of principle avoided, in preference for
the detailed examination of ‘practical considerations,
’
apparently in the mistaken
belief that such measures are somehow theoretically neutral or unambiguously
*Faculty of Law, University of Bristol.
I
am
grateful for the encouraging reception which a paper based on this material received at a staff-student
seminar at the Department of Sociology at the University of Essex on
11
March 1993, and for the
comments on an earlier draft of this article from GWYM Davis.
1
7%e Report
of
the
Royal
Commission
on
Criminal Justice
(London: HMSO, 1993) Cm 2263, p
i
(‘the
Commission’).
2
ibid
pp i-ii.
3 See, for example,
Re Guardian,
7
July 1993.
4
The announcement was made by the Home Secretary, Michael Howard, at the Conservative Party
conference at Blackpool on
6
October 1993.
5
One of the few exceptions is the brief outline of a rights-based theory suggested by Walker in the
introductory chapter to C. Walker and
K.
Starrner
(eds),
Justice in Error
(London: Blackstone Press,
1993).
6
The Commission,
op
cir
n
1,
p
1,
para 2.
7
ibid
p
2,
para 9.
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Miscarriages
of
Criminal
Justice Reconsidered
related to uncontroversial values.8 However, in spite of this, some impression of
the Commission’s implicit typology of miscarriages of justice can be gleaned from
its discussion of grounds for appeal in the tenth chapter of the report. This suggests
three sources of wrongful conviction
-
error, malpractice, and procedural
irregularity
-
and two kinds of wrongful acquittal
-
error and jury bias (whether
inherent or due to external interference).
As
this article will seek to show, these
distinctions are incomplete and problematic.
It is understandable that the bulk of the contributions to the debate about
miscarriages of justice have
so
far focused upon the need to correct the flaws in the
current system which allowed the series of high profile wrongful convictions to go
unchecked for
so
long.9 This approach is, however, limited on two counts. First,
since the public controversy was largely media-led, it was virtually inevitable that
there would be a gulf between image (miscarriages of criminal justice are
convictions of the innocent secured by serious official impropriety) and reality
(there are various kinds of miscarriage of criminal justice, some of which derive
from mistake rather than malpractice)
.lo
Second, discussion of procedural and
institutional reforms designed to redress the fact-finding flaws exposed in the
current system by the
cause
cd2bbre
will be at best incomplete, and may even be
misguided, unless and until the question of what constitutes a miscarriage of
criminal justice is adequately considered first.
A
The Nature
of
Criminal
Justice
Obviously, what counts as a miscarriage of justice will depend critically upon what
‘criminal justice’ is said to mean.12 There is, however, no universally accepted
understanding of the nature or purpose of criminal justice systems. Besides
8
ibid
p
3,
para
12.
9
See,
for example, P. Thornton, A. Mallalieu and A. Scrivener,
Justice on Trial: Report
of
the
Independent Civil Liberty Panel
on
Criminal Justice
(London: Civil Liberties Trust,
1992);
J. Rozenberg, ‘Miscamages of Justice’ in
E.
Stockdale and
S.
Casale (eds),
Criminal Justice Under
Stress
(London: Blackstone Press,
1992);
Sir George Waller,
Miscarriages
of
Justice
(London:
Justice,
1989);
B. Woffinden,
Miscarriages
of
Justice
(London: Coronet, 2nd edn,
1989);
A. Zuckerman, ‘Miscarriage of. Justice and Judicial Responsibility’
(1991)
CLR
492,
and
‘Miscarriage of Justice a Root Treatment’
(1992)
CLR
323.
Although Zuckerman begins the first of
these two articles by considering fundamental issues of principle and purpose in the criminal justice
system, the subsequent discussion proceeds on the premise that ‘miscarriage of justice’ means
‘wrongful conviction.’
10
Some commentators have recognised that these cases may not
be
typical of wrongful convictions in
general. See eg Waller,
op cit
n
9;
R. Brandon and C. Davies,
Wron&l Imprisonment: Mistaken
Convictions and Their Consequences
(London: Allen
&
Unwin,
1973).
Both of these studies discuss
problems surrounding identification evidence which have generally not featured in the current debate.
Little attempt will be made in what follows to add to the already voluminous literature
on
the
advantages and disadvantages of various possible reforms of current practice or procedure. While the
bulk of this is to be found in the report of the Commission and in the periodical literature,
two
recently
published
books
provide useful guides to the issues: Walker and Starrner,
op cit
n
5,
and
M. Mansfield,
Presumed Guilty: The British Legal System Exposed
(London: Heinemann,
1993).
12
Although an integrated theory of the criminal justice and penal processes is undoubtedly desirable,
‘miscarriages’ in sentencing and in the
penal
system raise a host of separate questions which will not be
pursued further here. For a recent attempt to construct an integrated theory,
see
J. Braithwaite and
P. Pettit,
Not Just Deserts:
A
Republican Theory
of
Criminal Justice
(Oxford: Clarendon Press,
1990).
For the sake of clarity, the notion of a miscarriage of criminal justice will
be
confined
to
decisions
regarding the determination of guilt or innocence for specific offences. Wrongs which occur in
relevant processes geared to other purposes, for example, stops and searches, may amount to
violations of rights but are not strictly miscamages.
11
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