Criminal Justice, Miscarriages of justice

Criminal Justice in England and Wales

Miscarriages of justice

Everyone agrees that the aim of the law is to achieve justice. Many argue that justice is the ultimate goal to which the law should strive. But what does the word ‘justice’ mean? Kelson, whose theories were first published in 1911 and further developed in his General Theory of Law and State published in 1945, suggested that it is not scientifically possible to define justice because it is simply a matter of individual preferences and values.

However in simple terms, ‘justice’ means ‘fairness’. Clearly what is ‘fair’ to one person may be regarded as unfair to another but, although it is impossible to agree everything, it is hoped consensus can be reached in a society on many features of a ‘just’ legal system.

There are two basic definitions of justice within the law- formal (or procedural) justice substantive justice.

Any state has a legal system through which justice is dispensed. The whole process of enforcing legal rules is formal justice. If someone breaks the legal rules the state takes action. The state dispensing ‘justice.’ Formal justice may be defined as:

‘The following of legal rules and treating like cases alike.’

Formal justice is about applying the rules fairly to everyone. It is a fundamental principle that one should be above the law and those who administer the law should do so without prejudice, bias or fear. Those who administer the law must do so impartially without preference for the rich, the powerful, or members of elite.

Formal justice says nothing about the content of the law. Formal justice will be achieved if the rules are followed no matter how harsh or unfair the result. Formal justice would be achieved no matter how immoral the law so as it was applied equally to all people. It is therefore a very narrow definition of justice.

The case of Steven Downing illustrates miscarriages of formal justice very well.

Formal justice includes:-

Provision of public funding for a civil or criminal case and access to law
The operation of the doctrine of precedent
The process of statutory interpretation
Sentencing procedures
Provision of appeals

On Friday 18 August, 2000, BBC news published an article ‘fight to clear murder convict’. This reported of campaigners fighting for the release of a man jailed 27 years ago for murdering a woman in a cemetery have suggested the crime could be linked to an unsolved killing in 1970.

Steven downing, who was educationally sub-normal, was serving a life sentence for the murder of 32 year old typist Wendy Sewell in Bakewell, Derbyshire in 1973.

Downing, who was 17 at the time and a groundsman at the cemetery, discovered Mrs Sewell’s body after returning from a lunch break. He was charged with murder when she died in hospital without revealing who killed her.

After serious doubts about his guilt were raised the case was referred to the Criminal Cases Review Commission (CCRC).

Downing, who had the reading age of an 11-year-old, signed a statement confessing to the attack only hours after Mrs Sewell was found. But the statement, made before Mrs Sewell died, contained several inaccuracies. In it Downing said he had hit her twice over the head- she had actually been hit seven or eight times- and had sexually assaulted her. There was no evidence of sexual assault. However there were two prime suspects, one of them was a suspect in the Mayo case- a similar unsolved killing in October 1970. He was a driver in the area and was known to pick up hitchhikers.

Mr Hale (local journalist) stated that ‘Barbara Mayo was hitchhiking when she was abducted and Wendy Sewell occasionally did’. In this case the jury was not told all the facts, the confession could not be relied upon, and there was also fabrication of evidence. Downing had spent his adulthood in prison.

Miscarriages of justice are primarily the conviction and punishment of a person for a crime they did not commit. Most criminal justice systems have some means to overturn, or ‘quash’, a wrongful conviction, but this is often hard to achieve. The most serious instances occur when a wrongful conviction is not overturned for several years, or until after the innocent person has been executed or died in jail. Wrongful convictions are frequently cited by death penalty opponents as cause to eliminate death penalties to avoid executing innocent persons. DNA evidence has also been used to clear many people falsely convicted. ...

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Confirmation bias on the part of the investigators may lead to miscarriages of justice. Other causes of miscarriages of justice include withholding or destruction of evidence by police or prosecution and fabrication of evidence. If the evidence is edited contaminated, this may lead to problems. Poor identification, faulty forensic tests and also the overestimation/underestimation of the evidential value of expert testimony may lead to miscarriages of justice. False confessions due to police pressure or psychological instability and also misdirection by a judge during trial often cause miscarriages of justice.

Formal justice is the ‘following of rules’ to reach a decision and substantive justice, much broader, considers, whether the rules themselves are fair. In many cases, the rules are the issue, rather than whether they have been applied equally. The basic problem with substantive justice is ‘what does the word ‘fair’ mean in any situation? How are we to decide what are is ‘just’ or ‘fair’?

The decision in R v R (1991) criminalised rape within marriage and illustrates substantive justice well. When the judges changed the law in this case, their decision was generally welcomed. Substantive justice was achieved. However, it is worth considering whether formal justice was applied. Because the doctrine of precedent makes retrospective law reform, the Defendant was convicted of an offence that did not exist when he engaged in the act of raping his wife. It could be said therefore, that changing the law may have promoted justice within society but was an injustice for him.

Formal justice is about applying the rules equally and substantive justice is about achieving fair rules. The difficulty with definitions of justice is deciding what is ‘fair’. There are many theories on this. Each theory is slightly different, reflecting both the legal and social environment in which the theory was developed. The question of abstract justice seems as much a political one as philosophical one.

The Greek Philosopher Aristotle (384-312BC) developed the ‘distributive justice theory’. Justice he said was ensuring that all like cases were treated alike. The benefits and burdens of society should be distributed in an equal way. Examples of benefits include the right to vote, welfare benefits, legal aid and hospital treatment. An example of a burden is the obligation to pay tax. Aristotle argued that the rules of distribution of benefits and burdens amongst members of society must be applied equally, irrespective of, for example, sex, race and religion. However justice, as viewed by Aristotle is a narrow, formal requirement. It says nothing about the content of the law; it merely requires that the laws should be applied equally to all people. Therefore, to Aristotle, an immoral law would still be just if it were applied equally to all people. Such a narrow definition amounts to no more than procedural aspects of justice and tells us nothing about how we are to assess whether the actual rules of distribution in themselves are just.

Examples of Aristotle’s theory of justice can be found where the doctrine of precedent is followed rigidly even if the judge believes it results in an injustice. Another example is where judges interpret an Act using the literal rule even if it results in absurdity and injustice such as in the case of LNER v Berriman.

Natural law theories assume that there is a higher order of law, and if the laws of society follow this order they will be just. Aristotle supported this view and believed that the higher law could be discovered from nature (natural law). Others, such as the medieval scholar Aquinas (1225-1274), thought that the higher law derived from God as set out in the Catholic Doctrine, stating the fundamental criteria if justice. Natural law theories have been criticised heavily. It has been argued that natural rights are meaningless. They cannot be ‘discovered’ but must be interpreted, and who is to interpret what they are? Aquinas based his natural rights on the catholic religion, but these may conflict with other religions. It is difficult to see how this theory of justice can apply in a pluralistic society such as ours.

An example of the application of natural rights theories can be found in relation to international declarations of human rights such as the United Nations Declaration (1948) and the European Convention on Human Rights (1953).

Bentham’s Utilitarianism theory of justice was based on the idea that society should work towards the greatest happiness for the greatest number, at the expense of the minority. A law could therefore be just even it created social inequalities. The main criticism of the utilitarian movement is the willingness to trade the unhappiness of the minority against the happiness of the majority. The approach focuses only for the community as a whole and leaves out justice for individuals or minority groups. Other theories included Rawl’s theory of justice and also Nozicks’s market value theory.

The mandatory life sentence has been accused of leading to miscarriages of justice. For murder, a life sentence is mandatory. The historical exploration is that it replaced the mandatory death penalty. Home secretaries have successfully defended it on the ground that, unlike the discretionary life sentence, it symbolises the unique gravity of the crime.

Before the enactment of the CJA 2003, the Home Secretary determined the minimum sentence for any offender convicted of murder, rather than the judges. Similarly the Home Secretary had to refer the offender to the Parole Board before he/she could be considered for release. This was reviewed by the House of Lords in November 2002 in R v Secretary of state for the Home Department (ex parte Anderson and others) (2002). Anthony Anderson was convicted of murder in 1998 and the trial judge recommended he serve a minimum tariff of 15 years to meet the requirements of retribution and general deterrence. This was increase to 20 years by the Home Secretary of the day. He bought a judicial review hearing against the Home Secretary claiming that fixing minimum tariffs was the job of judges not politicians. The House of Lords agreed. They held that the Secretary of State should not play any part in fixing the tariff of a convicted murderer. His role was objectionable because he was not independent of the executive. The complete functional separation of the judiciary from the executive was fundamental. The Secretary of States practice of setting the tariff for convicted murderers was incompatible with Article 6 of the European Convention on Human Rights (as incorporated by the Human Rights Act 1998).

The mandatory life sentence has been discussed by many. Just one of the committees has supported it (The Home Affairs Committee of the House of Commons, 1995). Most have condemned it. The mandatory life sentence was under review again by the Law Commission in their murder review (commenced in August 2004).

The various committees have, between them, offered four possible solutions of muder;

To make ‘life’ discretionary for all sorts of murder;
To make it discretionary- or even rule it out- for some defined categories of murder (eg. ‘second degree murders’-an offence in some states in the USA, referring to where Defendant but only intends to cause serious bodily harm, or ‘mercy killings’)
To supplement provocation and diminished responsibility with another defence which would reduce murder to manslaughter; a defence of ‘reduced culpability (which could incidentally include cases of the sort that are nowadays straining the provocation defence);
To enact the mandatory ‘life’ should be ‘appealable’. It would be mandatory for the trial judge to pass it but would allow the Court of Appeal to vary it.

In 1997 the was established specifically in order to examine possible miscarriages of justice. Gilbert ‘Danny’ McNamee is a former electronic engineer from Crossmaglen, Northern Ireland, who was wrongly convicted in 1987 of conspiracy to cause explosions, including the Provisional Irish Republican Army’s (IRA) Hyde Park bombing in 1982. McNamee was arrested on 16 August 1986 at his in Crossmaglen by the and , then flown to and charged with conspiracy to cause explosions. At his trial at the he denied even having sympathy for the IRA, and no evidence was presented at his original trial that he had any paramilitary links. However, his was found on circuits in an arms cache that was linked to the Hyde Park bombing. At his trial he explained that he may have handled the circuits when working for a previous , which he did not know had IRA connections. After five fours of deliberation by the jury, McNamee was found guilty on all charges and sentenced to 25 years in prison.In September 1994, McNamee was of five IRA men who escaped from , shooting and wounding a prison warder as they did so, before being captured two hours later. In 1997 his case was referred to the by the , and his conviction was overturned on because of other, much more prominent, fingerprints on the same circuits, belonging to known IRA bomb-maker Desmond Ellis, which were not disclosed at McNamee's original trial. The retrial judges also stated “the Crown makes a strong case that the appellant [McNamee] was guilty of a conspiracy to cause explosions.” They added that despite the quashing of convictions, “It does not follow that the appellant is innocent of the charge brought against him or that he has served 11 years’ imprisonment for a crime which it has been found he did not commit.” Supporters of the campaign to clear his name included the . In February 1999, McNamee read the IRA Roll of Honour at the Burns and Moley commemoration and the following month he sat with the Caraher family during the trial of Michael Caraher and other members of the team.

The M25 Three are Raphael Rowe, Michael Davis, and Randolph Johnson, who were incorrectly jailed for life, following a of justice at the in March for a series of attacks and robberies around the , 's orbital motorway, on a night in December, . Michael Davis has always protested his innocence.They were incorrectly found guilty of the of hairdresser Peter Hurburgh, who was dragged from his at gunpoint with his homosexual lover, tied up and beaten, and then suffered a fatal .Eventually, the went to the , who ruled that the three men had not been given a fair trial under of the , stating that their trial had been "compromised" by the prosecution's use of the certificates to withhold evidence useful to the defence.Raphael Rowe is now an investigative journalist for the and he is a member of the Advisory Council of the .

INNOCENT is a Manchester-based organisation which supports and campaigns for innocent people in prison.
INNOCENT is made up of families, friends and supporters of wrongly convicted prisoners who have come together in order to help each other. It is an independent organisation. On the INNOCENT website, there can be found hundreds of cases of miscarriages of justice. ()

This shows that there has been numerous miscarriages of justice over the years, but have changes to the law made fresh tragedies impossible or is there a need for a more radical and fundamental reform of the criminal justice system?

The phrase ‘miscarriage of justice’ was crystallised around two big cases- the Birmingham Six and the Guildford four. Other campaigns sprung up and gradually. Many of these succeeded - including the Guildford Four, Judith Ward, the Darvell brothers, the Cardiff Three, Danny McNamee, the M25 Three and the Bridgewater Four. Even cases from beyond the grave, such as Derek Bentley and Hussein Mattan, have been revisited and names cleared. But there are still many people in prison proclaiming their innocence. Since 1984 two pieces of legislation have been introduced in an attempt to prevent further miscarriages. The Police And Criminal Evidence Act (PACE) gave detectives rigid rules on how long they could question suspects for and insisted interviews be taped to ensure there was no mistreatment or undue intimidation. The Criminal Procedure and Investigations Act was also introduced in an attempt to make sure police or the Crown Prosecution Service (CPS) disclose to the defence everything which could be relevant to their case. However a recent review of disclosure undertaken by the Crown Prosecution Service Inspectorate found the CPIA did not have the ‘confidence of criminal practitioners’. Paddy Hill, who was one of the Birmingham Six, is sceptical such legislation is enough. Mr Hill has sat up his own pressure group Miscarriages Of Justice Organisation (MOJO), has said that ‘justice is something that is not on this government’s curriculum.’ He said the criminal justice system needed a radical overhaul to make it ‘more open and accountable’. He also suggested that there should be changes in the law to ensure police officers who break the law are concvicted and sent to prison. Chris Mullin MP,stated that, ‘We should never be complacent. The system has improved considerably since the big miscarriages of the mid-1970s. PACE, which came in in 1983, had regulated interviews and improved the treatment of suspects and just about all interrogations are now recorded. But the most important change is that people who believe they are the victims of miscarriages of justice have somewhere to go: the CCRC."

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REFERENCES:

Slapper & Kelly, The English Legal System, 7th edition

Smith & Hogan, Criminal Law, 11th edition

Clive Walker & Keir Starmer, Miscarriages Of Justice, A Review Of Justice In Error.

WEBSITES:

http://www.mojoscotland.com/