Bibi Sangha, Robert Moles, Flinders University, Miscarriages of Justice Sem 3 MOJ Britain Link to Miscarriages of Justice Course Homepage

Seminar three – Law on Miscarriages of Justice – Britain

Group A: Miscarriages Chapter 3 pp 65-67 and 93-98 ‘Reopening criminal appeals in Australia’

Group B: Forensic Investigations Chapter 3 ‘Law on Miscarriages of Justice: Britain’

Read one of the following: Mattan [1998] – Bentley [1998] – Maynard [2002]

History of Appeals

It is a relatively modern development that an accused person has been able to have a lawyer speak in their defence, or indeed that they be allowed to give on their own behalf.

The adversarial process, it has been suggested, has rules of admissibility which suppress the truth rather than reveal it – a useful comparison can be made with the inquisitorial process in Europe - see Evan Whitton Homepage on NetK which includes the full text of a number of his books, Our Corrupt Legal System (2009) - Serial Liars (2005) – The Cartel (1998) – by Voodoo (1994).

Prior to 1907 there was a process called the ‘writ of error’ whereby the decision of an inferior court could be challenged for ‘error on the face of the record’. The circumstances in which this could occur were limited and sometimes a decision was set aside for unmeritorious technical error. See Roger J. Traynor, The Riddle of Harmless Error (1970) Ohio State University Press. The “case-stated” procedure was also used sparingly and gave the trial judge the sole discretion to refer points of law to the Court of Crown Cases Reserved (CCR). The court could either affirm or the of the trial judge but had no power to direct a new trial. The ‘’ cases which led to pressure for reform included Adolph Beck – fraud and mistaken identity – pardoned Edalji - harming and killing animals - Sir Arthur Conan Doyle involved – pardoned. The Criminal Appeal Act 1907 set up the Court of Criminal Appeal and abolished the writ of error and the CCR.

The New appeal right

The 1907 Act provided that on an appeal the verdict of guilty could be set aside where: - the verdict was unreasonable and not supported by the evidence

1 Bibi Sangha, Robert Moles, Flinders University, Miscarriages of Justice Sem 3 MOJ Britain Link to Miscarriages of Justice Course Homepage

- there was a wrong decision on any question of law - on any other ground there was a miscarriage of justice.

Those provisions are subject to the ‘proviso’ which states that when a point is decided in the appellant’s favour the appeal can be dismissed where the court thinks that there has been no substantial miscarriage of justice.

In appeals under the 1907 Act “fresh evidence” may be admitted if it is necessary or expedient in the interest of justice. As you will see, the courts have taken a flexible view of what amounts to “fresh” evidence.

Interesting issues arise where the problems with the trial and do not come to light until after the person has had an unsuccessful appeal – see Sangha / Moles “Post-Appeal Review Rights” (2012) – there is a section of the article on UK law. The position in the UK (with some possible exceptions in Northern Ireland) and Australia is that a person is only entitled to one appeal. A right to a second or further appeal was thought to be unnecessary as the process could deal with it. In the UK that proved to be unsatisfactory, and the issue has been addressed to some extent by the establishment of the Criminal Cases Review Commission which we come to later.

Summary of UK provisions

Important to note that in the UK initially there was no power to order a retrial. Note that when the Australian states adopted the provisions of the 1907 Act, they did make provision for a retrial.

In 1964 the UK introduced a limited power to order retrial In 1968 Court of Criminal Appeal changed name to Court of Appeal (Criminal Division) In 1988 they extended it to an unconditional power to order a retrial In 1995 the referral power and cases to the Home Secretary (the pardon provision) were transferred to the CCRC and the proviso was abolished.

More detail: the UK Transition to ‘Unsafe’

The standard legislative provisions derived from the British Criminal Appeal Act 1907 state that the court shall allow an appeal if:

It is of opinion that the verdict of the should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence; or

2 Bibi Sangha, Robert Moles, Flinders University, Miscarriages of Justice Sem 3 MOJ Britain Link to Miscarriages of Justice Course Homepage

the judgment of the court of trial should be set aside on the ground of a wrong decision of any question of law; or on any other ground whatsoever there was a miscarriage of justice.1 If it is decided that any of the above grounds apply, then the court has to consider the ‘proviso’ which states that:

the court may dismiss the appeal, notwithstanding it is of the opinion that the point or points raised by the appeal may be decided in the appellant’s favour, if it considers that no substantial miscarriage of justice has actually occurred.2 In 1964 the UK introduced a limited power to order a retrial based upon fresh evidence presented at appeal.3 In 1968 further changes were introduced which allowed for an appeal against conviction where the Court of Appeal finds:4 (a) the jury verdict to be unsafe or unsatisfactory (b) a wrong decision on any point of law was made at trial (c) a material irregularity had occurred in the course of the trial (instead of the general MOJ provision)

It still maintained, at that time, the proviso to enable the court to dismiss the appeal if it thought that no substantial miscarriage of justice had occurred.

So, the ‘error of law’ principle was continued; the ‘miscarriage of justice’ provision was replaced with one which referred to ‘a material irregularity in the course of the trial’; there was a change from a verdict of a jury which was ‘unreasonable or cannot be supported having regard to the evidence’, to one which was ‘unsafe or unsatisfactory’.

1 Consolidation Act 1935 (SA) s.353; Criminal Appeal Act 1912 (NSW) s.6; Criminal Code Act 1899 (Qld) s.668E; Criminal Code (NT) s411; Criminal Code Act Compilation Act 1913 (WA) s.689; Criminal Code Act 1924 (Tas) s.404(1); Act 2009 (Vic) s.276 but see following footnote.

2 It should be noted that in Victoria, the Criminal Procedure Act 2009 (Vic) s 276 removes the proviso and incorporates the requirement to establish a substantial miscarriage of justice into the substantive grounds of appeal for the second and third grounds of appeal: (b) as the result of an error or an irregularity in, or in relation to, the trial there has been a substantial miscarriage of justice: or, (c) for any other reason there has been a substantial miscarriage of justice.

3 Criminal Appeal Act 1964 (UK) s 1.

4 Criminal Appeal Act 1968 (UK) s 2(1).

3 Bibi Sangha, Robert Moles, Flinders University, Miscarriages of Justice Sem 3 MOJ Britain Link to Miscarriages of Justice Course Homepage

It was only in 1988 that the UK granted an unconditional power to order retrial.5 It was not long before they realised that this really meant that the continuation of a proviso was then unnecessary.

In 1993, the Runciman Royal Commission concluded that the Court of Appeal seldom distinguished between which were ‘unsafe’ and those which were ‘unsatisfactory’. It also thought that this ground could also cover a wrong decision on any question of law as well as a material irregularity in the course of the trial.

A majority therefore recommended a simpler test, ‘whether the conviction is or maybe unsafe’. They said that a clearly unsafe conviction could result in a verdict of and a lesser degree of confidence could result in an order for a retrial. There would be no need for a proviso.6

The recommendation of the majority of the Runciman Royal Commission was partly taken up in the Criminal Appeal Act 1995 amending S 2(1) of the Criminal Appeal Act 1968 (UK) which now reads: Subject to the provisions of the Act, the Court of Appeal - (a) shall allow an appeal against conviction if they think the conviction is unsafe; and (b) shall dismiss such an appeal in any other case.

Scope of Appeal Provisions

Leave to appeal for a conviction for indictable offences: there is a right of appeal on an issue of law as of right – no leave to appeal is required. Where there is an issue of fact or one of mixed law and fact the leave of the trial judge or the CCA is required. Deference to the jury is emphasised throughout the cases as the trier of fact. But note that in recent cases in UK and Australia there is emphasis on the fact that the appeal judge must be satisfied that there is appealable error. The judge is not to second-guess what a hypothetical jury (or the jury at trial) might think.

‘Unsatisfactory’ meaning due-process error: Prior to 1995 the statutory criteria was ‘unsafe or unsatisfactory’. Unsatisfactory was thought to mean that the person may well be guilty but

5 Criminal Justice Act 1988 (UK) s 43.

6 Viscount Runciman, The Report of the Royal Commission on Criminal Justice, (Cmnd 2263, 1993) 168-9.

4 Bibi Sangha, Robert Moles, Flinders University, Miscarriages of Justice Sem 3 MOJ Britain Link to Miscarriages of Justice Course Homepage had not received a fair trial. When the test changed to the “safety” of the conviction, people were concerned about whether technical errors at trial, which didn’t necessarily undermine the merits of the conviction, would satisfy the ‘safety’ test. The doubts were resolved in the following case.

R v Patrick Joseph Smith (1999) – “Now that the test for allowing an appeal is simply the safety or otherwise of the conviction, is it competent for the court to consider evidence entertained after the wrongful rejection of a submission of no case to answer?” The answer was clear, “To allow the trial to continue beyond the end of the prosecution case would be an abuse of process and fundamentally unfair.”

There had been holdups of post offices – Smith and others had been seen in the area looking at the outside of the buildings. The appeal judge said, “ .. a dispassionate observer might have thought it all looked a bit fishy. He might even have entertained the notion that the men were looking at the post office with a view to committing a crime. But this at best would be speculative and at worst fanciful.” The judge said the case should have been thrown out at that stage.

The ‘proviso’ was not continued after 1995, but it is said that those factors can still be considered in determining whether the verdict was safe.

The Process of Appeal

An appeal is not a rehearing of the case. The appeal court can order production of documents, exhibits, or any other thing which appears necessary for the determination of the case. Witnesses can be examined whether or not they were called at the trial. The jury does not give reasons for the decision. One can infer that the factual ingredients for guilt have been established.

Pendleton said it was right to emphasise the role of the jury in a trial. “Trial by jury does not mean trial by jury in the first instance and trial by judges of the Court of Appeal in the second.” The Court of Appeal is to review for possible injustice.

On an appeal there is need to show procedural error (a material irregularity in the course of a trial) or fresh or new evidence. Be sure you know the difference between the two.

The issue of acquittal or retrial is a very important distinction and could well affect any right to compensation.

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Should the appeal consider issues related to a possible retrial? Pendleton said that the temptation to do so was understandable but wrong.

In Pendleton it was said that if the court thinks a conviction is unsafe, then its clear duty is to allow the appeal and quash the conviction. Whether or not there can be a retrial is a separate issue and must not be allowed to influence the decision about the safety of the verdict. It would be wrong to say that a conviction can be thought to be unsafe -- so long as a retrial is available. Otherwise it will be taken to be safe. It is only when an appeal has been allowed, that any question of a retrial can properly arise.

Before 1988 there was a right to a retrial only if the appeal was allowed by fresh evidence and “justice so required’. Now there is a complete discretion to order a retrial which will consider the offence for which convicted when first tried – the strength of evidence – the seriousness of the case – the issue of delay – and whether witnesses are still available.

Crown Appeals are possible following an acquittal. The Criminal Justice Act 1972 s36(b) allows for a referral on point of law – for benefit of future cases. The acquittal stands.

Prosecution can apply for a retrial where there has been a ‘tainted acquittal’ – and there is provision for the matter to be retried. This is an important derogation from the “double- jeopardy” provisions.

From 2003 there can be a retrial following where there is “new and compelling” evidence for serious offences including murder, manslaughter, kidnapping, rape, armed robbery and other “life ” offences. The request has to be approved in writing by DPP and the Court of Appeal must agree to quash the acquittal and prefer the indictment.

Where Appeals Have Been Exhausted

Before 1995 the procedure required a petition to the Home Office Dept “C3”.

In 1995 legislation was passed to establish the Criminal Cases Review Commission.

Procedural Error: The

R v Bentley: In 1952 PC Miles was shot dead - Craig (the shooter) was (16) and Bentley who was said to have shouted “let him have it” was (19). Note the ambiguity in the words said to have been uttered. The jury gave a “recommendation of mercy” but he was executed on 28 January 1953. 40 years later he was given a “posthumous pardon”. In 1998 his conviction

6 Bibi Sangha, Robert Moles, Flinders University, Miscarriages of Justice Sem 3 MOJ Britain Link to Miscarriages of Justice Course Homepage was overturned. The appeal court found the trial judge had been unfair and stated: “a fair trial is the birthright of every citizen”.

R v Mattan: In 1952 Mr Mattan (a Somali man) was convicted of murder and was hanged. In 1998 his conviction was overturned. The appeal court said that the duty to ensure fair trial belongs to everyone involved with the criminal justice system – they must all observe highest standards of integrity, conscientiousness and professional skill.

The objective of an appeal is not to do justice -- but to prevent injustice being done at trial.

The most difficult cases arise where there has been an irregularity at trial, yet evidence of guilt is strong – see the case of David Eastman in Australia. Compare these with the so-called “factual innocence” cases.

Davis Johnson and Rowe (2000) - Unless there is a fair trial the conviction is quashed even when evidence as to guilt is overwhelming.

A conviction can never be safe if there is doubt about guilt. However, the converse is not true. A conviction may be unsafe even where there is no doubt about guilt but the trial process has been “vitiated by serious unfairness or significant legal misdirection”.

Even a potentially guilty person is entitled, before being found guilty, to have a fair trial. They should not be disparaged as “technicalities”. In Davis Johnson and Rowe it was said “We are required to review the safety of resulting from a trial which the European Court of Human Rights [ECHR] has adjudged to have been unfair. It may be the first case of its kind; it will certainly not be the last.”

Criminal Appeal Act 1968 s23(1)(c) allows the appeal court to receive evidence not adduced at trial. s.23(2):(a) Is it capable of belief? (b) Does it provide any ground for allowing the appeal? (c) Would it have been admissible in the trial? (d) Is there a reasonable explanation for failing to produce the evidence at trial? It is said there must be a “flexible approach”.

In R v Gilfillan (1998): there was loud music at night, a fight ensued leading to a murder conviction. Gilfillan claimed he suffered from some “abnormality of mind” and should only have been convicted of manslaughter. At trial, he did not make disclosure of information which would have alerted his legal team to this possible . The appeal court said “even if, however, it should be found that there is no reasonable explanation for the failure to adduce

7 Bibi Sangha, Robert Moles, Flinders University, Miscarriages of Justice Sem 3 MOJ Britain Link to Miscarriages of Justice Course Homepage the evidence at the proceedings, our duty is nonetheless to have regard to what we consider necessary or expedient in the interests of justice.”

In Pendleton the court said it would hear de bene esse the evidence of the witness. [de bene esse "conditionally," "provisionally," or "in anticipation of future need."]

The court can appoint someone to interview witness on its behalf – a special commissioner to investigate scientific or other issues and to report back or an expert assessor to assist the court. In R v Patrick Nicholls (1998) he spent 23 years in jail. On the appeal evidence was taken “on commission” as the witness was suffering from a terminal illness. It is interesting to note the court also said “the pathological evidence that this was an unlawful killing, and natural causes could be excluded, has now been shown to be unreliable.” R v Kelly and Connolly (2003) Kelly had been hanged – on appeal the court found “all that evidence was false and probably deliberately so”. The Crown did not seek to uphold the conviction.

Psychiatry and psychology has been an area where new expert evidence has opened up an important area relating to “false confessions” which often involve the mental state of the accused and motivations such as to gain favour with the investigators.

We need to consider whether the fresh evidence would have been admissible at the trial – and whether there was a tactical decision not to lead it. What difference does this make?

The cases state that if the fresh evidence might have made a difference, then conviction must be unsafe.

R v Hanratty (2002) was a problematic case. Material had been withheld at trial. However, the new DNA evidence supported guilt – there had been considerable publicity and speculation about this case. The court said the new evidence had not undermined confidence in the verdict of the jury. As to “trespassing upon the function of the jury?” The court said that was an “inevitable consequence” in any fresh evidence case.

R v Campbell (1999) An 84-year-old widow had been brutally murdered in 1984. Police officers involved had been the subject of adverse findings in previous cases – “if that had been known at trial, they could have been cross-examined on it” – “the jury did not know of matters which threw severe doubt on the honesty and professional integrity of those officers”.

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The Court of Appeal said it was “in no position to make findings of fact about what happened. That is simply not our function.”

R v Maynard, Dudley, Bailey and Clarke (2002) They were convicted in 1977 of murder - body parts had been washed up along the beach. A statement taken by the police could not have been written within the times stated. Once there had been a defect in the evidence - not disclosed at trial - and that defect might have affected the decision of the jury - then they were obliged to overturn the verdict. The court overturned all 4 convictions. The evidence had to be looked at as a whole – to consider its cumulative effect. Once there was a sufficient basis upon which to allow the appeal it was not necessary to consider all the other issues.

Contemporary Standards

Development in scientific or investigatory standards may affect the safety of the verdict. A change of legal standards may or may not have that effect. Hanratty.

Bentley: In considering the direction to the jury it has to be assessed according to contemporary standards of fairness. The court might well apply legal rules which could not have applied at the time.

R v O’Brien, Hall and Sherwood (2000) involved a confession by the co-accused Hall. The fresh evidence showed he suffered from a mental abnormality - he would fabricate / fantasise / improperly implicate himself and others. The court said, the conduct of the investigation / trial / directions to the jury / reliability of evidence must be judged by “present” standards. But note that in Hanratty the court said it does not mean that a trial conducted many years ago must be judged on the false assumption it was tried yesterday.

‘Beyond Reasonable Doubt’

Burden of proof is on the prosecution Onus of proof is “beyond reasonable doubt”. Appeal – the burden is on the appellant

Public outrage – might it sometimes influence the outcome of cases?

Professor Pounder, a forensic pathologist from Scotland interviewed for Today Tonight stated “you only need one item of evidence which says it couldn't have happened - to prove it didn't happen.”

9 Bibi Sangha, Robert Moles, Flinders University, Miscarriages of Justice Sem 3 MOJ Britain Link to Miscarriages of Justice Course Homepage

Circumstantial case

R v David James (1998) Was the death a suicide or a murder? After conviction a note was found in a magazine thought to be in the wife’s handwriting – it was just two sentences and may have been suggestive of suicide. The court said the possibility that the accused is guilty has to be more than just a hypothesis. The circumstances must be such as to be inconsistent with any rational hypothesis in support of innocence. Unless the cause of death can be established beyond reasonable doubt as being homicidal -- then no combination of surrounding circumstances can overcome that weakness. A suspicious death clearly has to be determined to be an unlawful death, before anyone can be held to account for it in a criminal sense.

R v Downing (2002) on appeal it was found that the pattern of blood-staining on the clothing of the purported assailant was as consistent with innocence as it was with guilt. The conviction had to be overturned.

Expert reports

R v Samra (2004) – involved new psychiatric evidence. It said, there may be no need to cross-examine those who have prepared them.

R v Josephine Smith (2002) Involved the shooting of her husband. On the appeal a new view was taken by the same psychiatrist who had given evidence at trial with regard to the state of mind of the accused.

R v Maynard et al The new evidence showed that the police lied – or made a mistake. The appeal court said, “deciding between those alternatives would require hearing all the relevant witnesses and is the exclusive territory of the jury into which we must not and do not enter.” The new evidence involved “Independent, expert evidence of unquestioned integrity”. It demonstrated a basic flaw in the system - then all the other evidence generated by that same system must be taken to be defective.

Defence Lawyers - Ineffective

Incompetent representation is not in itself a basis for appeal – but it may lead to a trial which has become unfair and so the verdict would be unsafe.

R v Brannan and Murphy (2002) This was a shooting death, said to involve “self-defence”. The legal advisers had been told about Pollitt (the deceased) having had a gun but said it was

10 Bibi Sangha, Robert Moles, Flinders University, Miscarriages of Justice Sem 3 MOJ Britain Link to Miscarriages of Justice Course Homepage irrelevant to the defence. Brannan was a “difficult person”. He did not give evidence / call witnesses / used the right of silence / refused to answer questions / had not waived legal privilege. On latest appeal the privilege was waived – it was shown that he had mentioned the issue to his legal advisors from the outset.

Failure of counsel can sometimes arise from inadvertence or a misplaced ‘paternalism’ – especially where an accused is intellectually or mentally challenged. So long as the failure to challenge did not arise from a specific decision of the accused, then that failure cannot be fatal to the success of the appeal.

R v Charlie Smith (2002) The accused had beaten a man who had made homosexual advances to him. Some two years later he killed his cell mate. It was then found that he suffered from a serious psychopathic disorder which meant that he had a substantial impairment which could have amounted to “diminished responsibility” which was not raised at his trial.

R v Kamara (2000) A co-accused during the trial had changed his plea to guilty. Should the matter relating to his co-accused have gone to a fresh jury? The legal advisors discussed the issue in the absence of their client and determined to press ahead with the trial.

R v Mills and Poole (2003) – a police officer’s statement contained a comment from a witness in which it was suggested that Mills had intended to ‘beat up’ the deceased. This was “ hearsay” and inadmissible. It was surprising that the defence did not seek the exclusion of the evidence. However, the appeal court is not a professional conduct tribunal – its only concern was what effect it would have had on the jury. “To put before the jury a document containing a graphically phrased, inaccurate, damning and inadmissible account which was central to the case was improper and prejudicial.”

Disclosure

Code of Practice “the investigator should pursue all reasonable lines of inquiry, whether these point towards or away from the suspect.”

R v Cooper and McMahon (2003) – This case was well-known as the Luton post office shooting. The appeal court said it would have been important to know the status of the witness. He was in fact a police informant who obtained financial reward and gave evidence which was deliberately misleading. There has also been non-disclosure of large number of witness statements – which disclosed a “prior inconsistent statement”.

11 Bibi Sangha, Robert Moles, Flinders University, Miscarriages of Justice Sem 3 MOJ Britain Link to Miscarriages of Justice Course Homepage

In R v Nicholls (1998) The cause of death was misleading and incorrectly stated. There was a “strong circumstantial case against the appellant” – if it was accepted it was an unlawful killing. If the unlawful killing is in doubt, then the evidence will have to be viewed differently.

R v Wickens (2003) If anyone is suspected or charged with murder at an early stage of an investigation, they would have been allowed to instruct their own autopsy to be done. The appeal court was surprised that independent (pathological) evidence was not obtained.

R v Trevor Campbell (1999) There were allegations of improper conduct on the part of some of the police officers who had interviewed him. The defence was unaware that the officers had been subject to prior disciplinary proceedings. The police had engaged in “an unorthodox method”. They “engaged in fabricating evidence”. The papers on the case were sent to the DPP.

R v Maynard (2002) The appeal court said “if chicanery of that kind had taken place who is to say that other members of the team … had not resorted to the same dishonest technique?”

Prosecutorial Concessions

R v Bentley (1998) There was “no objection” by the prosecution to the reception of the fresh evidence on the appeal.

R v Kelly (2003) The previous statement of the informant should have been disclosed, “The Crown therefore did not seek to uphold the conviction of Kelly for murder”. He had been hanged!

R v Mattan (1998) The prosecution no longer relied on the evidence of Mrs Gray and the chief prosecution witness at the trial as credible. It appeared that the “chief prosecution witness” another Somali man may well have committed the murder.

R v Causley (2003) The court accepted that Causley had told lies over a long period of time, had forged insurances, fraudulently transferred title of property and engaged in a relationship with another woman. However, there was evidence that the jailhouse informant had done the same previously. The Crown conceded that the failure to disclose this was wrong and they conceded that the conviction should be overturned:

Note: there is only one decision here from the Supreme Court in the UK. All the others are from the appeal court. The situation in Australia is very different.

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Bear in mind the role of the CCRC and its ability and willingness to refer cases to the court for reconsideration and in doing so it effectively grants leave to appeal.

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