f6-LiLt 401, A Report by JUSTICE Miscarriages of Justice Chairman of Committee Sir George Waller London JUSTICE 1989 JUSTICE / 989 This Report has been prepared and published under the auspices of the JUSTICE Educational and Research Trust ISBN 0 907247 11 3 Printed in Great Britain by E. & E. Plumridge Limited of Linton, Cambridge, England. JUSTICE British Section of the International Commission of Jurists CHAIRMAN OF COUNCIL Lord Foot VICE-CHAIRMEN Peter Archer QC, MP Lord Carlisle QC CHAIRMAN OF EXECUTIVE COMMITTEE Sir William Goodhart QC VICE-CHAIRMAN Prof Roy Goode OBE HONORARY TREASURER Philip English HONORARY MEMBERS OF COUNCIL Stanley Clinton Davis Percy Grieve QC Anthony Cripps DSO QC Sir Desmond Heap Lord Elwyn-Jones CH Muir Hunter QC Lord Gardiner CH Sir Jack Jacob QC Prof Jack Gardner Edward Lyons QC Lord Wigoder QC COUNCIL David Ashby MP Anthony Lester QC Patrick Bucknell Allan Levy QC Peter Carter-Ruck Blanche Lucas Beryl Cooper QC Sir Brian MacKenna Diana Cornforth Norman Marsh CBE, QC Prof Aubrey Diamond Gavin McKenzie Sir Denis Dobson KCB, OBE, QC John Morris QC, MP David Edwards Ainslie Nairn WS Michael Ellman Penelope Pearce Richard Fernyhough QC Anthony Pugh-Thomas Sir Edward Gardner QC Lord Rippon QC David Graham QC Michael Sherrard QC Stephanie Grant Laurence Shurman Joanna Greenberg Charles Wegg-Prosser Joe Harper David Widdicombe QC Greville Janner QC, MP Prof David Williams Ivan Lawrence QC, MP DIRECTOR Leah Levin DIRECTOR OF RESEARCH Alec Samuels JP 95a Chancery Lane, London WC2A 1DT 01-405 6018/9 JUSTICE Extracts from the Constitution PREAMBLE Wheareas JUSTICE was formed through a common endeavour of lawyers representing the three main political parties to uphold the principles of justice and the right to a fair trial, it is hereby agreed and declared by us. the Founder Members of the Council, that we will faithfully pursue the objects set out in the Constitution of the Society without regard to consideration of party or creed or the political character of governments whose actions may be under review. We further declare it to be our intention that a fair representation of the main political parties be maintained on the Council in perpetuity and we enjoin our successors and all members of the Society to accept and fulfil this aim. OBJECTS The objects of JUSTICE, as set out in the Constitution, are: to uphold and strengthen the principles of the Rule of Law in the territories for which the British Parliament is directly or ultimately responsible; in particular to assist in the maintenance of the highest standards of the administration of justice and in the preservation of the fundamental liberties of the individual; to assist the International Commission of Jurists as and when requested in giving help to peoples to whom the Rule of Law is denied and in giving advice and encouragement to those who are seeking to secure the fundamental liberties of the individual; to keep under review all aspects of the Rule of Law and to publish such material as will be of assistance to lawyers in strengthening it; to co-operate with any national or international body which pursues the aforementioned objects. JUSTICE THE COMMITTEE Sir George Waller Chairman Former Lord Justice of Appeal Sir Brian MacKenna Vice-Chairman Former High Court Judge Michael Birnbaum Barrister Graham Cooke Barrister Peter Danbury (Until his death in March 1988) Barrister Jerry Hayes MP Barrister; Member of Parliament Stephen Hedley Fellow in Law, Christ's College, Cambridge Margaret Goodhart JP Magistrate William MacDonald Solicitor practising in Scotland Alexandra Marks Solicitor Ebraham Mooncey Barrister Sir David Napley Solicitor Con O'Beirne QC Barrister; former Attorney-General Botswana, Lesotho, Swaziland, Gibraltar Brian Pryor QC Circuit Judge Alec Samuels JP Barrister, Magistrate former Lecturer in Law A.T.H. Smith Professor of Law in the University of Reading Martin Walsh Solicitor Charles Wegg-Prosser Solicitor Peter Ashman Secretary Barrister; Legal Officer of JUSTICE This report has been endorsed and approved for publication by the Council of JUSTICE It is dedicated to the memory of Tom Sargant OBE, JP, Secretary of JUSTICE for its first 25 years, who was passionately committed to remedying miscarriages of justice. CONTENTS page Chapter 1 Introduction x Chapter 2 The Investigation of Offences xx Chapter 3 The Trial xx Chapter 4 The Appeal xx Chapter 5 After the Appeal xx Summary of Recommendations xx Appendix One - Cases xx Appendix Two - Example of Sheriffs Examination xx LIST OF ABBREVIATIONS USED IN THE REPORT RCCP Royal Commission on Criminal Procedure in England and Wales 1979 PACE Police and Criminal Evidence Act 1984 CJ(S)A 75 Criminal Justice (Scotland) Act 1975 CJ(S)A 80 Criminal Justice (Scotland) Act 1980 CHAPTER ONE INTRODUCTION 1.1 Almost from its beginning in 1957, JUSTICE has received from all parts of the United Kingdom requests for help by, and on behalf of, prisoners alleging miscarriages of justice in their cases (i.e. they have been convicted after a trial by jury and they have been unable to mount a successful appeal). The voluntary nature of the society, and the lack of staff and resources, had prompted an initial policy of not investigating such claims. However, their volume and the common elements in many of them soon persuaded Tom Sargant, the society's secretary for its first 25 years, to investigate where he could and assist with appeals and petitions to the Secretary of State. 1.2 These cases sometimes provided the spur to setting up committees of investigation into the criminal justice system which resulted in reports urging reform e.g. Criminal Appeals (1964), Home Office Reviews of Criminal Convictions (1968), The Prosecution Process in England and Wales (1970), Evidence of Identity (1974), and Compensation for Wrongful Imprisonment (1982). Several reforms have taken place, often influenced by these JUSTICE reports. In recent years, the major ones in England and Wales have been the reform of police powers under the Police and Criminal Evidence Act 1984, and the institution of a national prosecution service under the Prosecution of Offences Act 1985. 1.3 These changes have not resulted in any reduction in the volume of allegations of miscarriage of justice made to the JUSTICE office. Over the past ten years, some 200-300 requests for help have been received each year. Even with a full-time legal case-worker since 1984, and the invaluable help of retired judges, lawyers and laymen, it has been necessary to limit investigations to cases where: lengthy terms of imprisonment of four years or more are being served; no other legal help is available to the prisoner; the allegation is of actual, rather than technical, innocence: an investigation might achieve something, given the present operation of the appellate courts and the Home Office and Scottish Office; and a complaint about sentence involves an important point of principle; assistance is not given where the sole complaint is that the sentence is too long. 1.4 Such a policy therefore excludes all cases in summary courts (where over 90% 1 of all criminal cases are dealt with), as well as most cases involving a straight issue of disputed fact which depends on the credibility of the witness (e.g. a trial for rape where the sole issue is whether or not the complainant consented). In any one year, therefore, JUSTICE investigates about 50 cases in some depth. In about five of these the investigation leads to the preparation of grounds of appeal and/or petition to the Secretary of State. These five can take between two to three years to investigate from start to finish, although some can take five or more years. In addition to this work, much time is spent by JUSTICE staff in giving advice to prisoners, as well as assisting members of the legal profession, the media and the general public. 1.5 JUSTICE is the only organisation in the United Kingdom which regularly carries out such investigations. There are a number of reasons why this has come about:- Legal aid for appeals is very limited. Most prisoners have little or no money and continuing to investigate the correctness of a convicton is very time- consuming. Few lawyers can afford to devote unpaid time to continue to assist a client. Most prisoners are not well-educated and need help to present their arguments, whether to the Court of Appeal or to the Government Departments responsible for investigating petitions. Moreover, their own ability to carry out investigations is severely restricted by imprisonment. Few other organisations are as fortunate as JUSTICE in having access to the legal and forensic help which makes the investigation of cases possible. 1.6 The experience of investigating allegations of miscarriage of justice over 30 years has thus given JUSTICE an unrivalled experience in this field. This report is based on that experience, as well as that of the members of the Committee who each, in his or her own way, has seen the criminal justice system in operation over many years. 1.7 The three questions always asked of JUSTICE are how do such miscarriages of justice occur, given the extent of legal aid and rules of evidence and procedure designed to ensure that such things do not happen? what sort of cases are they? how many cases are there? (i) How do miscarriages of justice occur? There is a variety of possible causes. Each element is dealt with in greater 2 depth in the body of the report, but in summary they are:- Pre-trial Poor work by some defence lawyers. Cases involving poor police investigation of the offence and/or police misconduct. Trial Poor work by some defence counsel, often caused by the "late brief"; inadequate preparaton; bad tactical decisions and the failure to call witnesses.