Miscarriages of Justice and the Discourse of Innocence: Perspectives from Appellants, Campaigners, Journalists, and Legal Practitioners
| Date | 01 September 2013 |
| Author | Siôn Jenkins |
| DOI | http://doi.org/10.1111/j.1467-6478.2013.00629.x |
| Published date | 01 September 2013 |
JOURNAL OF LAW AND SOCIETY
VOLUME 40, NUMBER 3, SEPTEMBER 2013
ISSN: 0263-323X, pp. 329±55
Miscarriages of Justice and the Discourse of Innocence:
Perspectives from Appellants, Campaigners, Journalists,
and Legal Practitioners
Sio
ªn Jenkins*
This article problematizes the discourse of innocence in relation to
victims of wrongful conviction operating within the criminal justice
system. For appellants whose convictions have been quashed by the
Court of Appeal, notions of innocence are often at odds with how
others perceive and understand the purpose of criminal trials and
appeals. This article will examine the views of legal practitioners,
journalists, and victims of wrongful conviction and their supporters
regarding factual innocence and how misunderstanding can sometimes
lead to miscommunication by actors operating within the same system.
The article will further examine the issue of compensation in light of
the recent ruling by the Supreme Court and conclude that the current
debate regarding what constitutes a miscarriage of justice continues to
confuse legal practitioners and prolong the anxiety suffered by victims
recovering from the trauma of wrongful imprisonment and subsequent
losses.
INTRODUCTION
Scenes of jubilation on the steps of the Royal Courts of Justice when an
appellant is freed are often framed by narratives that prioritize the appel-
lant's innocence and wrongful imprisonment. Following the appeal,
campaigners and family supporters often discuss the case in terms of factual
innocence and of their personal quest to `prove' the innocence of a wrong-
fully convicted appellant. The rhetoric of innocence is similarly used by
news media that often portray successful appeals as the correction of judicial
errors in which an innocent appellant has been freed or, alternatively, that a
factually guilty defendant or appellant has walked free. Legal practitioners,
329
ß2013 The Author. Journal of Law and Society ß2013 Cardiff University Law School. Published by Blackwell Publishing
Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
* sionjenkins@btinternet.com
however, usually have other priorities when representing their clients. While
defendants should be accorded the presumption of innocence during legal
proceedings, innocence is rarely a feature of criminal trials or appeals.
1
In
the case of decisions made by the Court of Appeal (Criminal Division)
(CACD), a successful appeal is one where the conviction is ruled as `unsafe',
not that the appellant has been proved innocent.
2
For appellants claiming
factual innocence, however, the discourse of innocence, appears to be the
`glue' which sustains them through wrongful imprisonment. Most appellants
in this study are serving or have served significant prison sentences for
offences which they state they did not commit and of which they are
factually innocent. During imprisonment appellants often indicate they have
been intimidated to `admit guilt' and to begin offence-focused courses aimed
at contributing to their rehabilitation.
3
Other appellants and their families
describe the stigma of being convicted for a serious offence and the fact that
the strain of coping with the psychological effects of wrongful imprisonment
often continues post-release.
4
During the conflict of fighting their conviction
or during the process of rebuilding their lives, often trying to persuade the
investigating police force to reopen the investigation, engagement with the
discourse of innocence provides many appellants and their families with the
motivation and resilience to continue seeking justice. In fact, most appellants
in this study appeared to understand notions of personal identity in terms of
their factual innocence.
For defence teams representing an alleged victim of wrongful conviction,
the appellant's claims of factual innocence are only relevant in as much as
the case will be fought on the basis of the appellant's plea. For the client's
solicitor preparing for an application to the Criminal Cases Review Com-
mission (CCRC) or preparing for appeal, the defence take a legal procedural
view of miscarriages of justice and seek to win the case by persuading the
Court of Appeal that the conviction is unsafe. Yet the relationship between
defence teams and appellants can sometimes falter over their respective
abilities to understand each other's position in relation to how miscarriage of
justice is conceptualized. For appellants coping with the negative effects of
wrongful imprisonment, wrongful conviction and factual innocence are
synonymous with being a victim of miscarriages of justice. The appellant's
330
1 S. Roberts, `Unsafe Convictions: Defining and Compensating Miscarriages of Justice'
(2003) 3 Modern Law Rev. 441; A. Ashworth and M. Redmayne, The Criminal
Process (2005).
2 Criminal Appeal Act 1995; J.C. Smith, `The Criminal Appeal Act 1995: Appeals
Against Conviction' (1995) 12 Criminal Law Rev. 920.
3 M. Naughton, `Why the Failure of the Prison Service and Parole Board to
Acknowledge Wrongful Imprisonment Is Untenable' (2005) 44 Howard J. 1.
4 A. Grounds and R. Jamieson, `No sense of an ending: Researching the experience of
imprisonment and release among Republican ex-prisoners' (2003) 7 Theoretical
Criminology 165.
ß2013 The Author. Journal of Law and Society ß2013 Cardiff University Law School
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