The nature of the crime for which these eleven hypothetical men were convicted could be seen to have some relevance to the abstract discussion, on the general premise that the more serious crimes can constitute a significant danger to society and so society has the right to the utmost possible protection from their perpetrators, while others lower down the scale could be broadly described by a tolerant commentator as little more than a nuisance, with which society is better equipped to cope and therefore from which society does not need such stringent protection. Shoplifting, for example, would fall into the second category, with mass-murder marking the opposite extreme. Neither constitutes behaviour to be encouraged, but the latter is generally accepted as the one from which society requires more protection; and therefore, while the release of ten shoplifters in order to protect the freedom of one innocent is not a particularly healthy bargain from the point of view of the shopkeepers whose takings suffer as a direct consequence of the offence and the consumers who have to pay the increased prices that result from the shopkeeper’s legitimate attempt to make good his loss, it is at least not so unhealthy as the release of, for example, ten terrorist bombers to protect the freedom of the one unfortunate individual unable to prove his innocence in the first instance3.
It can logically and justifiably - if not inevitably - be suggested that deciding whether the interests of justice are better served by the release of ten guilty men or the mistaken imprisonment of one innocent man is entirely a question of perspective.
As noted above, it is not in the jurisdiction of the CA to decide upon the factual guilt or innocence of any given individual. If, following a CA decision that an individual’s conviction is unsafe, there remains a need for his guilt or innocence to be judged, a re-trial can be ordered under section 7 of the Criminal Appeal Act 19684.
In R v McIlkenny and Others5 Lloyd, Mustill and Farquharson LJJ provide, together with a detailed explanation of the function, limits and powers of the CA, a description and explanation of their approach to the case in question, and its basis in case law:
“There is House of Lords authority, binding on us, as to the approach we should adopt: see Stafford v DPP, Luvaglio v DPP [1973] 3 All ER 762, [1974] AC 878. It was summarised by the Court of Appeal in the 1988 judgment in this case as follows:
‘Although the court may choose to test its views by asking itself what the original jury might have concluded, the question which in the end we have to decide is whether in our judgment, in all the circumstances of the case including both the verdict of the jury at trial upon the evidence they heard and the fresh evidence before this court that we have heard, the convictions were safe and satisfactory. If so the convictions must stand. If not the convictions must be quashed.’
A court comprising Lord Lane CJ, Russell and Taylor JJ had previously applied the same test in R v Mycock (5 December 1985, unreported). Since 1988 the same test has been applied by differently constituted courts, with Lord Lane CJ presiding, in R v Richardson, R v Conlon, R v Armstrong, R v Hill (1989) Times, 20 October (‘the Guildford Four’), R v Khan (1990) Independent, 2 March and, most recently, R v Edwards [1991] 2 All ER 266, [1991] 1 WLR 207. In each case the convictions were quashed. So there is no doubt as to the test we must apply. Indeed it was common ground between the parties. Thus we start by asking ourselves what sort of impact the fresh evidence would have had on the trial, as a step towards answering the essential question, whether we think that in all the circumstances the convictions are unsafe or unsatisfactory.”6
Since the CA is not concerned with establishing the guilt or innocence of its appellants in criminal cases, it can be suggested that its views on the relative merits of imprisoning an innocent man in order to ensure the incarceration of ten guilty men or of releasing ten guilty men in order to ensure the freedom of one innocent man are wholly immaterial; this kind of philosophical debate is more relevant to the trial judge in the convicting court, to the prosecutors, and to the police force. The object of the CJS should be to render the criminal arm of the CA redundant: to ensure that there is no need to trade off the just imprisonment of lawbreakers against the wrongful imprisonment of the innocent. It is a regrettable truth, however, that the circumstances surrounding the investigation of crime and the prosecution of alleged criminals are usually extremely complicated, and this can have a range of lamentable results. In the most innocuous cases, an officer simply makes a mistake - though this is more likely to result in no arrest at all rather than the arrest, trial and conviction of a blameless individual7. In other instances, desperation may be such that the police resort to questionable methods in order to obtain evidence against a suspect or secure his/her arrest: in such cases, the likelihood is that the suspect genuinely is guilty, and equally likely is the probability that his/her lawyer will be able to persuade a court to find that the evidence is unsafe or inadmissible and thereby either prevent or overturn a conviction. Some might argue that since criminals are disinclined to behave fairly, demonstrating a proper concern for the rights and freedoms of others, and respectful submission to the rule of law, the police force should be allowed a little latitude in conducting its investigations, but this is an attitude of which the courts should show themselves wary.
However, there is a distressingly noticeable history of CA judges declining to label ‘unsafe’ and so overturn convictions reached following a trial compromised by factors such as, for example, the adducing of illegally obtained evidence (such as R v Chalkley R v Jefferies [1998] 2 All ER 155; R v Kennedy [1998] Crim LR 739; et al) that could be construed as prejudicial to their fairness where it seems to the judges that the appellants factually guilty. In R v Lambert8, Lord Clyde goes so far as to state that “…if there is no doubt about guilt it is not every case where an unfairness can be identified that will necessarily and inevitably lead to the quashing of a conviction”9, a view which is widely accepted as representative of the current position. These particular cases are subsequent to the coming into force of the Criminal Appeal Act 1995, specifically section 2 thereof, one purpose of which was to remove ambiguity from the section 2 of the Criminal Appeal Act 1968 and revoke the notorious ‘proviso’ contained therein, which essentially permitted judges to dismiss appeals if, in their view, the correct verdict had been reached. It does not appear to have achieved any notable success: if anything, it can be argued from an examination of recent case law that it is encouraging the trend of equating factual guilt with safety of conviction. Whether or not this constitutes a fair dispensation of justice is a debatable point; whether or not it constitutes furtherance of the best interests of justice (a significantly different proposition) is a matter of opinion.
Irrespective of this apparent trend towards encroachment on the territory of the convicting court and the decisions of the jury, the fact remains that the CA is a court of essentially procedural review, and not a breeding-ground of policy. Criminal appeals are examined on their individual merits, precedent can in any event be circumvented, and despite the inclination to disallow appeals where it seems that the verdict was appropriate even if the trial was somehow flawed, the CA is capable of repeating the volte face that ultimately released McIlkenny and his co-appellants, and other victims of miscarried justice who appealed successfully in the same era10. The approach of the CA to hearing criminal trials is not remotely reflected in the statement discussed above. The entire criminal justice system would be undermined if it were. The approach of the CA to hearing criminal appeals is more moderate, if significantly less dramatic: merely, one could suggest, ‘it is better that the guilty are imprisoned, and the innocent released.’
1 CJS Aims and Objectives, www.cjsonline.gov.uk
2 Little Oxford Dictionary
3 This, of course, presumes that the guilty men released will re-offend. Given the high incidence of recidivism, this seems to be a reasonable supposition.
4 See Halsbury’s Laws Direct: Criminal Law, Evidence & Procedure, ch 15 Appeals, sect 1 Appeal to the CA following trial on indictment, subsect vi Venire de Novo and Retrial, paras 1405 - 1407
5 R v McIlkenny and Others, [1992] All ER 417; p430 and pp423-6
6 This quotation discusses specifically appeals involving the production of fresh evidence, but the basic principle can be extrapolated.
7 Indeed, in the MkIlkenny judgment (above) at p425 the judges acknowledge that “[n]o system is better than its human input… No human system can expect to be perfect”. This is specifically in relation to the susceptibility of the adversarial system of criminal trials to abuse, but the observation can readily be extrapolated to the criminal justice system in its entirety.
8 [2001] 3 All ER 577 at p 627
9 The impression seems to be that, far from forcing judges to be more willing to allow appeals, the new legislation encourages them to hold the view that where there is a finding of factual guilt, the ‘safety’ of the conviction is immaterial: see inter alia R v Mullen [1999] Crim LR 561
10 Indeed, there is scope to suggest that convictions connected with ‘shaken baby syndrome’, a medical diagnosis under increasing suspicion, may soon require investigation. See “The Child Abuse Myths Unravel” (Driscoll, The Times, 1 February 2004) for brief comment.
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