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When referring to this work, full bibliographic details including the author, title, awarding institution and date of the thesis must be given e.g. AUTHOR (year of submission) "Full thesis title", University of Southampton, name of the University School or Department, PhD Thesis, pagination http://eprints.soton.ac.uk UNIVERSITY OF SOUTHAMPTON FACULTY OF BUSINESS, LAW AND ART Wrongful Convictions/Miscarriages of Justice, Law as a System, and the story of the Little Girl by Ebenezer Laryea Thesis for the degree of Doctor of Philosophy April 2016 1 Academic Thesis: Declaration Of Authorship I, EBENEZER NINII LARYEA declare that this thesis and the work presented in it are my own and has been generated by me as the result of my own original research. Title of thesis: WRONGFUL CONVICTIONS/MISCARRIAGES OF JUSTICE, LAW AS A SYSTEM, AND THE STORY OF THE LITTLE GIRL …………………………………………………………………………………………………………………………………… I confirm that: 1. This work was done wholly or mainly while in candidature for a research degree at this University; 2. Where any part of this thesis has previously been submitted for a degree or any other qualification at this University or any other institution, this has been clearly stated; 3. Where I have consulted the published work of others, this is always clearly attributed; 4. Where I have quoted from the work of others, the source is always given. With the exception of such quotations, this thesis is entirely my own work; 5. I have acknowledged all main sources of help; 6. Where the thesis is based on work done by myself jointly with others, I have made clear exactly what was done by others and what I have contributed myself; 7. Either none of this work has been published before submission, or parts of this work have been published as: [please list references below]: Signed: ………………………………………………………………………… Date: 13/04/2016 2 ABSTRACT As one of humanity’s most vital social systems, Law plays a pivotal role in being the glue which keeps society functioning. Law’s function in society is to prescribe the rules by which we can all live safe, decent, fulfilling and just lives. The way Law relates and applies to us therefore, becomes extremely important. Wrongful Convictions/Miscarriages of Justice are very opposite to what we expect to see after Law’s processes have run their course, and they are very opposite to the achievements that we envisage for Law. Yet, they do occur - and their problematic occurrence poses certain questions for Law; chief among them, the question of how we address wrongful convictions/miscarriages of justice. Wrongful convictions/Miscarriages of Justice occur when decision making gets locked up within extremes. Addressing wrongful convictions/miscarriages thus requires that we avoid extremes in Legal decision making. The manner in which Judges conduct Legal decision- making therefore becomes quite central in the effort to address wrongful convictions/miscarriages of justice. Middle decision-making, through the striking of a mean, is argued as most yielding in avoiding extremes, as well as most yielding in addressing the issue of wrongful convictions/miscarriages of justice. Judges must re-train themselves to think and act in a manner which allows for Middle Legal Decision making. Judges must be flexible, abandon their default and traditional modes of Legal decision-making when necessary, take note of circumstance, pay attention to the stories of the individuals that are placed before them, and be willing to act as every set of facts exclusively demand. 3 INTRODUCTION The Problem Presents Itself Very much like most Post Graduate Researchers, the path to my research presented itself quite early in my legal studies in the form of a problem – one which I felt raised certain issues about Law – a problem which struck me as being at the very heart of what Law is, how it operates and what it does – a problem which raises significant questions about the functionality of Law. My story begins with my very first Criminal Law tutorial at the University of Southampton. I had just began what would turn out to be a roller coaster of legal study and was eager to learn about a Law made for people by people. The tutorial was focused on the scenario of a little girl who was of diminished responsibility – for the purpose of this thesis, I will from now on refer to her as Ginger. Due to her state of mental incapacity, Ginger woke up in the middle of the night and wondered onto her neighbour’s land. She entered a barn belonging to that neighbour – in there she found a box full of matchsticks. Not appreciating the fact that there were stacks of hay in the barn she begins the dangerous thing of playing with the matchstick by lighting them. She unfortunately ended up setting the entire barn on fire causing damage worth thousands of pounds. At trial, the Judge found Ginger guilty of recklessness. Applying the test of the reasonable man, the Judge reasoned that a reasonable person in such a situation as Ginger’s would have appreciated the risk that playing with matchsticks could well set the entire barn on fire. Ginger did not do as a reasonable person would in the given circumstance (appreciate the risk) - therefore, she would be guilty of recklessness. 4 Anyone who has studied Criminal Law, even at the most basic level, will recognise these facts to be that of the case of Elliot v C1. Whiles this thesis will not at all be focused on a discussion of Elliot v C, or the merits/demerits of the legal test for recklessness laid out in R v Caldwell2, it must be understood that the facts surrounding Ginger served as a catalyst for me. It motivated me to consider questions of Law (for instance, why had Law treated her in that way?) – and it is the consideration of such questions which has led to the writing of this thesis. The conclusion of Ginger’s case bothered me a lot and left me puzzled as I headed out of the tutorial and to the library. I disagreed with the Judge’s decision - but most importantly, I disagreed with how the Judge had made the decision. It seemed to me that the Judge had neglected Ginger’s condition completely, was holding her to a standard which she naturally could not satisfy, and punished her once she did not meet the standard. This raised for me the spectre of a whole new range of considerations; not least, the question of why had Law treated her this way. Law’s treatment of Ginger, in my view, was not in the least equitable – it looked to me at the time to be a wrongful conviction/miscarriage of justice and I felt Law had been complicit in this. As I was to become only too aware, there are problems with Law which result in wrongful convictions/miscarriages of justice – problems which result in the painting of an image of injustice. One of such problems, I found, is what I see as the black-and-white nature/approach which Law had taken to Ginger’s case i.e the Law was there to be applied, and the technical standards for applying the Law having been met, the Law was applied regardless of any other factors which ought to have been taken into consideration (her diminished responsibility). But life is not straight forward as that – life doesn’t happen in black-and-white, life happens in colour. 1 [1983] 1 WLR 939 2 [1981] 1 All ER 961 5 The black-and-white nature of Law presents us with a problem. We can gain some idea of the nature or type of problem presented here by reference to a much-reported description provided by the Snooker commentating icon Ted Lowe. In the 1960’s and early 1970’s, when black-and- white television sets were common, Lowe frequently sought to help the viewing of his television audience watching on black-and-white television sets by explaining which coloured ball was where on the snooker table. In this regard, he is famously quoted to having once commented; “For those of you watching in black-and-white, the pink ball is right next to green.”3 Such a statement undoubtedly left all his black-and-white television viewers in a state of bewilderment; without a more detailed knowledge of the rules of the game of snooker, and how they worked together within the game, and further ceteris paribus assumptions about the current positions of other balls in the game, how were they to know which ball was green and by such reference locate the pink ball? I felt such similar bewilderment when I thought of the Judge’s decision in Ginger’s case; how could the Judge reach the conclusion of guilty without considering further questions concerning the form and context of Ginger’s condition? This raised for me a serious question; what was a wrongful conviction/miscarriage of justice? How do they arise and why? How do we address them? In Chapter 2 of this thesis, I discuss differing definitions of wrongful convictions/miscarriages of justice – different perspectives that seek to explain how wrongful convictions/miscarriages of justice might be understood and how they occur.