There is an unjustifiably little known text book called Miscarriages of Justice: a review of justice in error. Its editors were the esteemed Professor Clive Walker and (then) junior barrister Keir Starmer, now the Director of Public Prosecutions. A review of its pages ought to make uncomfortable reading for British judges since it includes references to various cases that were then considered on appeal to be safe convictions but which later, sometimes much later, resulted in those convictions being quashed.
The paradigm example is R v Mills and Poole where in 1997 the Court of Appeal recognised ‘a risk of injustice’ as a result of material non-disclosure but upheld the convictions. What followed was an appeal to the House of Lords, a reference to the Criminal Cases Review Commission, a partially successful judicial review, a reconsideration of the application for a reference, a reference and eventually, in 2003, a successful appeal.
There was a period from around the late 1980s and lasting for about two decades where the British criminal justice system seemed to enter a renaissance. This article is not the place to examine its causes. However I was struck by the characteristic eloquence of Geoffrey Robertson QC who (in a foreword to his biography of Sir William Garrow) lamented that in the 1970s ‘ferocious judges would intimidate counsel who defended aggressively by describing them as “loud speakers for a maladjusted set”, whilst those barristers who accepted briefs for bomb trials (were) described as “members of the alternative Bar”’. Perhaps this was a metaphorical flapping of a butterfly’s wings and a hurricane of sorts was coming.
But the renaissance that witnessed such unforgettable moments such as the release of the Birmingham Six, Guildford 4 and many other wrongly convicted individuals, it seems is like the passing of an emperor.
In those moments when those freed kissed the pavement outside the Royal Courts of Justice there was a sense that the system worked because it reflected on itself and recognised that it was vulnerable to letting down those it served. Now, an observer could be forgiven for thinking that the system is at times more like a naughty child issuing an insincere apology whilst conjuring up its next act of mischief.
Last week the High Court rejected, on the papers at least, an application by Jeremy Bamber, convicted in 1986 of the murder of his entire family. The reasons included a rejection that the often cited authority of R v Criminal Cases Review Commission, ex parte Pearson did not create a two-staged approach to considering miscarriage of justice cases and in any event even if it did, the CCRC did not have to follow it. It was also critical of a throw away remark Mr Bamber made to a journalist several years ago that he may not have been showing all of his hand.
Mr Bamber relied on what appeared to be an unambiguous statement of the Court of Appeal in ex parte Pearson and which he says the CCRC did not apply where it said:
‘… the Commission must ask itself a double question: do we consider that if the reference is made there is a real possibility that the Court of Appeal will receive the fresh evidence? If so, do we consider there is a real possibility that the Court will not uphold the conviction?’
He has renewed his application for permission to be one of the first to successfully judicially review the Commission but, perhaps understandably, is not optimistic.
Criticisms of the CCRC (see HERE on the JusticeGap), particularly its failure to use its investigatory powers effectively, will continue. There is a very serious tension emerging between this failure and the recent decision in Nunn v Suffolk Constabulary which constrained the need for the police to make available exhibits and other evidence to defence lawyers for the purposes of conducting their own inquiries. The Administrative Court is a blunt instrument in terms of challenging the Commission’s decision-making leaving applicants little choice but to investigate cases with, following Nunn, one hand tied behind their backs.
It is difficult not to reflect on the case of Stefan Kiszko wrongly convicted for the murder of Lesley Molseed in 1975 and freed in 1993. He died the later same year, living less than half as many months after his release as he served in years for a crime he did not commit. His mother who had campaigned doggedly to prove her son’s innocence said on his death that there were certain people she could not forgive for the way they treated her son. There is no greater indictment of a system’s failings than this case and no more compelling case that legal challenges against the body created to refer cases back ought to be capable of effective review by the courts. It is, as Tennyson wrote, a case of ‘authority forgets a dying king’.
A natural ending to this brief article would be to look elsewhere for a system of justice that works better than ours. The successful appeal of Amanda Knox for the murder of Meredith Kercher seemed a good recent example. It is rueful that it took her Italian lawyer to quote a quintessential Englishman, Sir Isaac Newton in his final submissions to the court saying, with the eloquence of an aged past, that ‘truth is ever to be found in simplicity and not in the multiplicity and confusion of things’. That was of course before a court sitting in the ancient city of L’Aquila found three scientists criminally culpable of failing to predict the unpredictable. The only hope is that somewhere, in some distant place, a butterfly gently flaps its wings.
Simon McKay is a barrister specialising in criminal, human rights and regulatory law