Criminal Justice, Miscarriages of justice

Authors Avatar

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.

Join now!

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. ...

This is a preview of the whole essay

Here's what a teacher thought of this essay


Good. What proposals for reform have been advanced in 2013? 4 Stars.