Networked Knowledge
The Law of the UK - Miscarriages of Justice

This article has been prepared by: Dr Robert N Moles and Bibi Sangha
Underlining where it occurs is for editorial emphasis]

Part Two - References

Article on Australian miscarriage of justice cases

Bibi Sangha: BA Law (Hons), LLM (Lond), Barrister-at-law ( Lincoln’s Inn), Barrister and Solicitor (SA and ACT), Advocate and Solicitor ( Malaysia), Lecturer, Law School , Flinders University of South Australia

The current provisions with regard to the reception of new evidence apply four criteria:

1. Is it capable of belief?
2. Does it provide any ground for allowing the appeal?
3. Would it have been admissible in the trial?
4. Is there a reasonable explanation for failing to produce the evidence at trial? [1]

However, the Court has taken the view that it can admit the evidence even if the requirements in Section 23(2) are not all complied with. [2] For example, as the court pointed out in R v Gilfillan:

"Even if, however, it should be found that there is no reasonable explanation for the failure to adduce the evidence at the proceedings, our duty is nonetheless to have regard to what we consider necessary or expedient in the interests of justice." [3]

The principle provision which was contained in the 1907 Act is now expressed succinctly in the Criminal Justice Act 1968:

"(1)  Subject to the provisions of this Act, 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."

In considering whether or not the court should receive evidence, usually called "fresh evidence", the court must have regard to the factors listed above. [9] When considering such an application, the court will have before it a written statement of the evidence which the witness will give. If the statement does not appear to the court on reading it to be even capable of belief, there will be little purpose in proceeding further. The statement may be obvious nonsense. If the evidence appears to have no bearing on the proceedings, then why waste the courts time looking at it?

While in practice the Court is unlikely to receive evidence if the requirements are not met, it is worth bearing in mind that it has an overriding discretion to do so if it thinks it necessary or expedient in the interests of justice. As the court said in Pendleton, in practice, and often with the consent of the Crown, the court will hear de bene esse the evidence of the witness whose evidence it is sought to adduce, without preliminary argument as to whether the requirements set out above have been met or not, as was done in Parks. [10] The House of Lords in Pendleton said that it had no objection to this practice. However, if the court receives the evidence, or hears it de bene esse, it must then undertake its second task, of deciding whether or not to allow the appeal. What are the legal principles which should govern the court's approach to this task?

Appellate principles

The House of Lords in Pendleton said it was right to emphasise the central role of the jury in a trial on indictment. They said that this is an important and greatly-prized feature of the common law system. As they pointed out:

"trial by jury does not mean trial by jury in the first instance and trial by judges of the Court of Appeal in the second. [11]

The Court of Appeal is entrusted with a power of review to guard against the possibility of injustice - but it is a power to be exercised with caution, mindful that the Court of Appeal is not privy to the jury's deliberations and must not intrude into territory which properly belongs to the jury.

It is clearly correct to say that the opportunity for an appeal is not to be seen as an opportunity for the appeal court judges to substitute their own opinions for that of the members of the jury. On the other hand, it would not be possible to separate entirely their judgment from the judgment of the jury. It would be anomalous for the court to say that the evidence raised no doubt whatever in their minds - but might have raised a reasonable doubt in the minds of the jury. Pendleton stands for the principle that the Court of Appeal must consider whether the conviction is safe and not whether the accused is guilty. This means that there are two important points to be borne in mind:
First - the Court of Appeal is not and should never become the primary decision-maker. Secondly - the Court of Appeal has an imperfect and incomplete understanding of the processes which led the jury to convict.

So, the Court of Appeal can make its own assessment of the reliability and significance of the fresh evidence it has heard. What it cannot do is to then relate that evidence to the rest of the evidence which the jury had heard. That means that where there is any case of difficulty, the proper test is to ask whether the new or additional evidence, if given at the trial, might reasonably have affected the decision of the trial jury to convict. If it might have done, then the conviction must be thought to be unsafe.

Clearly, the objective of the appellate process is to conduct reviews of trial procedures to ensure that it can be said that every person who has been convicted has had a fair trial. “A fair trial is the birthright of every … citizen”. [12] Indeed, the duty to ensure a fair trial is not just the duty of the judge, but the duty of everyone associated with the criminal justice system, be they prosecutors, defence counsel or judges:

"… no one associated with the criminal justice system can afford to be complacent.
… injustices of this kind can only be avoided if all concerned in the investigation of crime, and the preparation and presentation of criminal prosecutions, observe the very highest standards of integrity, conscientiousness and professional skill. [13]

It is clear that in some cases such as those of Bentley and Mattan, the trial procedure was less than rigorous – possibly because of the lack of intelligence or social standing of those accused. In many of the other cases reviewed here, the trial was no doubt overcast by the appalling nature of the crimes involved, or the desire to hold someone accountable. Clearly, it is the job of both judge and counsel to ensure that the rigorous nature of the trial process is not compromised by the desire to apportion blame.

The UK, unlike Australia, has the added protection of external review to ensure the maintenance of those standards:

"Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms confers on everyone the right to a fair trial.

In Campbell, the Court made it clear that it was in no position to make findings of fact about what happened:

It is important to appreciate that the Court disavowed any ability to be determinative as to what the outcome would have been if all of the relevant information had been available.

The new evidence in Dudley and Maynard was to the effect that the statement said to have been taken by the police could not have been written within the times stated. The Court was invited to accept that either the commencement time of the interview or the finishing time must have been noted down incorrectly. Whilst they accepted that could well have been a possibility, they also accepted that there could have been less innocent explanations. It was not for them to determine which one of them was correct.

In assessing the criticisms of the trial, the Court does not have to evaluate each of the criticisms in isolation. An assessment has to be made of them in combination, “… all the evidence now available has to be looked at as a whole…”. [21] “It is the cumulative effect of the criticisms we have to consider…”. [22]

"Exceptional circumstances may exist where, for example, there was some cogent argument advanced, but not properly developed at the previous appellate hearing, but which as now developed could persuade the Court that the conviction was unsafe. [25]

Importantly, the standard which is to be applied in making any such assessment at the appeal, is the current standard of good investigation or good practice – not the standard which might have prevailed at the time of the trial. In R v O’Brien, Hall and Sherwood, the court said:

In R v Bentley, it said:

"Where, between conviction and appeal, there have been significant changes in the … standards of fairness, the approach indicated requires the court to apply legal rules and procedural criteria which were not and could not reasonably have been applied at the time." [27]

The Court has also made it clear that once it has formed the view that it has identified a sufficient basis upon which to allow the appeal, it is not necessarily required to continue to consider all of the other issues or arguments which have or could be raised.

Of course, one of the points emphasised by the Court of Appeal in its decisions is the fact that in criminal trials the burden of proof is on the prosecution, and the onus of proof is “beyond reasonable doubt”. These are simple things to say and any first year law student will be able to recite them on demand. But ensuring that it is applied in difficult cases, where there is a good deal of public outrage is not always so simple.

The issue of ambiguity is one that frequently arises in this context. A possible explanation of circumstance arises which does not quite fit with the rest of the explanations available and which might well be incriminatory. In such circumstances, it is often tempting to overlook the one piece of inconsistent evidence. But again, it only takes a moment’s reflection to realise that just one piece of exculpatory evidence might well be sufficient to determine the case. As Professor Pounder has stated, “you only need one item of evidence which says it couldn't have happened to prove it didn't happen.”. [32]

Without witnesses to what had happened, we have what is called a “circumstantial” case. With such cases, it is often said that the circumstances must be such as to be inconsistent with any rational hypothesis in support of the innocence of the accused. The reason for this is clear. Once we have such a rational hypothesis, then we have an explanation of the known facts consistent with the innocence of the accused, and no way of determining between the hypotheses which support the innocence or guilt of the accused. It took nearly 25 years to recognise that a circumstantial case can be no stronger than the circumstance which is determinative of the cause of death. Unless the cause of death can be determined – beyond reasonable doubt (as being homicidal) – then no combination of surrounding circumstances can overcome that weakness. A suspicious death, clearly has to be determined to be an unlawful death, before anyone can be held to account for it in a criminal sense. As the court said in Nicholls:

"… there was still a very strong circumstantial case against the appellant which was true once it was accepted that this was an unlawful killing." [35]

Once it has been determined that there is an unlawful killing, then it has to be explained and the evidence will be construed within that context. However, if the unlawful killing is in doubt, or it is established that it did not occur, then the evidence will have be viewed differently.

Of course, where the accused has made a clear strategic decision at trial not to pursue a line of defence, the Court of Appeal is not willing to allow that defence to be pursued after a finding of guilty. However, different considerations apply when the failure to explore a defence, or to expose a weakness in the prosecution case, results from the failure of trial counsel.

Sometimes the failure of counsel can arise from either inadvertence or perhaps a form of misplaced “paternalism”. This is more likely in those cases where the accused is intellectually or mentally challenged. However, the key point is that so long as the failure to challenge did not arise from a specific decision of the accused, then that failure cannot be fatal to the success of the appeal.

Of course, there may well have been a quite proper basis for the way in which defence counsel acted, and which was not known to the Court of Appeal. Without intimate knowledge of the instructions from the client, it is often difficult to be determinative of such things. But clearly, that is not the focus of the court on the appeal. 

One issue which has arisen in several of these cases, has been subsequent disclosure of issues related to the unreliability of witnesses, and which had occurred prior to trial. The important issue is that if such information had been available to defence counsel at the time of the trial, then it could have been used to undermine the credibility of the witness.

At the trial of Trevor Campbell he made allegations of improper conduct on the part of some of the police officers who had interviewed him. At the time he was unaware that those officers had been the subject of prior disciplinary proceedings. As the court pointed out: 

"Counsel relies on that as one instance in which the reliability of these two officers who worked in tandem has been very seriously undermined.[45]

As the court said in R v Dudley:

"… if chicanery of that kind had taken place who is to say that other members of the team … had not resorted to the same dishonest technique?" [47]

A deficiency in the information concerning the antecedents of police and other prosecution witnesses can arise without there being any conscious awareness of that by the prosecution:

"The prosecution says that if the material had been known they would have been obliged not only to disclose it but also to consider whether in the light of that evidence they ought to rely upon [the witness]. Because they knew nothing of the background, that process never actually took place." [49]

Prosecution Concessions and non-disclosure

Interestingly for present purposes, the court then went on to say that:

"The prosecution has accepted that there ought to be a regular practice, for an inquiry to be made by the prosecution…" [51]

One of the most interesting factors in the recent UK cases is the number of occasions where the Crown has accepted the evidence or the arguments put forward by the defence without objection. The role of the prosecution is often misunderstood. It is frequently thought that they must fight tooth-and-nail to maintain a conviction, but that is not so. The duty of the Crown is to ensure a fair trial. Once they are in possession of compelling evidence that the trial process was inappropriately compromised then it is their duty to ensure that remedial steps are taken.

In R v Bentley, some 50 years after Bentley had been hanged, the Crown decided to make no objection to the reception of the fresh evidence. In R v Kelly, where George Kelly had also been hanged, the Crown accepted that even under the duties of disclosure which applied in 1949 the statement should have been disclosed and was not. The implication of this was of fundamental importance to the case. “The Crown therefore did not seek to uphold the conviction of Kelly for murder”. [52] The case of Mr Mattan was equally unfortunate as he also had been hanged:

"…the Crown, had indicated, some weeks ago, that the prosecution no longer relied on the evidence of Mrs Gray as credible." [53]

It is of course appalling to think that people could have been subjected to trials and appeals and then have been executed in error. However, I think that we also have to recognise that it must take some degree of courage to be able to face up to the obvious errors without requiring a fight to the bitter end on every point.

Clearly, the Crown in the UK have acted with responsibility and fairness in not putting appellants to further and unnecessary stresses and strains, when in their judgment, recognisable and reviewable error had been detected.

The UK Court of Appeal took a dim view of a situation where the non-disclosure of highly relevant material was due to deliberate concealment. [68]

In R v Downing the CCRC obtained further independent forensic reports. They decided that because, “the scientific evidence is as consistent with innocence as with guilt” the conviction had to be overturned. [69] Of course, when detailed reports have been prepared by eminent experts, the UK Court has not infrequently taken the view that there is little need to cross-examine those who have prepared them. In Samra they said (in relation to psychiatric evidence):

"We, in our judgment, do not need to hear the evidence orally from those who have written the reports in order to conclude at this stage that the conviction of murder can no longer be regarded as safe. [70]

In the UK proper investigations have been regarded as an essential part of the road to justice:

"The code of practice pursuant to the Criminal Procedure and Investigations Act 1996 requires:
In conducting an investigation the investigator should pursue all reasonable lines of inquiry, whether these point towards or away from the suspect. What is reasonable in each case will depend upon the particular circumstances. [78]

In R v Cooper and McMahon the court expressed their concern in this way:

"… it has become increasingly apparent that there are serious grounds for concern about the way in which the police investigated the matter, and put the prosecution case together…" [79]

Judicial review of investigative techniques must clearly be the basis upon which a judgment can be made about whether there exists any reasonable doubt as to the guilt of the accused. Clearly it would be inappropriate to try to shore up a weak case by failing to investigate matters which might be exculpatory.

As we have seen, one of the most frequent concerns expressed throughout these cases has been with the issue of non-disclosure of relevant material.

"Even under the disclosure procedures operative in 1991–1992 … these items should have been disclosed, because they had “some bearing” on the offence charged and the surrounding circumstances of the case. We do not find the points now made on behalf of the Crown generally persuasive." [81]

As was explained in Brannan and Murphy the reason for disclosure is to enable the defence to utilise such material as part of their cross-examination of the witness.

One of the most interesting aspects of the UK judgments is their willingness to accept what they call the “knock-on” effect. This means that once one piece of evidence is seen to be suspect, they are willing to concede that it might have led the jury to have doubts about other, otherwise unquestioned aspects of the evidence. The most obvious example of this was in Cooper and McMahon.

"…once it is accepted that there is credible evidence  which might have caused the jury to be unsure whether Mathew’s  evidence against Murphy was reliable, it is undeniable that such evidence might reasonably have affected its view of Mathews’ evidence against Cooper and McMahon.
….
If his credibility was seriously undermined then none of the convictions could be regarded as safe. [87]

"Almost inevitably, if the appellant or anyone else had been charged with murder at that time, the defence would have instructed their own pathologist. However, in the absence of a suspect there was no such second post-mortem. Procedures, which may require an independent second post-mortem in those circumstances before release of the body, were not at that date in place." [92]

In our work on miscarriages of justice, we are frequently told by those in authority, that “everyone in prison says that they are innocent”. Clearly that is not true. However, what we do know is that occasionally, people who have been incarcerated have maintained their innocence over long periods of time – and sometimes at great cost to themselves. We have now learned through these cases that those who have continued to press for justice – sometimes for decades - have now been vindicated in their search for the truth.

Clearly there are some who would wish to turn a blind eye to injustice in the hope that it will not be noticed. Our experience is that the response to injustice will be transmitted from one generation to the next more surely than titles or property. It could not be more clearly demonstrated than through these cases that “justice delayed” – is “justice denied”.

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