Contemporary Comment MISCARRIAGES - WHAT IS THE PROBLEM?* Any attempt to deal with wrongful convictions requires a thorough understanding of their causes. A common and tempting response to perceived flaws in any system is to jump in rapidly with a reform, an adjustment or a refinement but, often as not, such changes fail to address the problem at its root. Dealing with the legal system - in which perceptions are considered as significant, if not as flighty, as those in the money markets - we have an additional, semi-religious peculiarity known as the doctrine of sustaining the integrity of the system. This notion implies several things: first, that the reputation of the legal system has a precious, perhaps supreme value; second, that any perceived flaws in the system must be rapidly seen to be dealt with and disposed of; and third, that any such flaws can only be admitted at the periphery of a system which owes its integrity, or wholeness, to the coherence, trustworthiness and bona fides of its component parts. Justice being seen to be done looms as large in the minds of most judges and senior barristers as justice actually being done. The best recent example of this in recent times was the expressed horror of the British Judge Alfred Denning, that the wrongful convictions of some unfortunate Irish people known as the Birmingham Six and Guildford Four might be overturned. In 1980 Denning expressed the matter starkly, in a judgement dismissing a civil action for assault brought against arresting police by the Birmingham Six: If the six men win, it will mean that the police were guilty of perjury, that they were guilty of violence and threats, that the confessions were involuntary and were improperly admitted into evidence and that the convictions were erroneous ... This is such an appalling vista that every sensible person in the land would say: it cannot be right that these actions should go any further. 1 This was the leading argument in a unanimous judgement. Denning was later quoted as saying that, if the Guildford Four had been hanged, there would not have been "all this fuss". To Denning, preservation of the reputation of, and consequent public confidence in, the British Justice System was more important than innocent Irish people being wrongfully jailed for decades. Denning's attitude was not a marginal, eccentric one; as a judge's opinion it was unusual only in its frankness. This judicial deference to the reputation of the criminal justice system presents an additional obstacle to any serious self-examination or self-criticism, by the legal profession. * Presented at a seminar entitled "A Just Result: Extracurial Inquiries and Unsafe Verdicts" convened by the Institute of Criminology and held at the State Library of New South Wales on 28 October 1992. Mcllkenny v Chief Con.stable [1980] 1 QB 383. July 1993 Contemporary Comment 73 In line with the general desire to marginalise flaws in the system, miscarriages of justice have traditionally been defined narrowly. They have been limited to those situations where there is an apparent total failure of all review mechanisms of what might be called the due process: that is, those wrongs done which are not righted by any of the avenues of appeal. The tradition has then been that miscarriages are declared and compensation is paid only to those who have been convicted, who have lost alJ possible appeals, and who have been exonerated after a Royal Commission or, in the case of New South Wales, an Inquiry under Section 475 of the New South Wales Crimes Act. This is despite the fact that those acquitted through a trial, or after appeal - perhaps after spending many months or years in prison, having been wrongly accused by police and pilloried by prosecutors of the state and in the mass media - are no less wronged than those who have secured their acquittal through more extraordinary measures. In my opinion it is an entirely artificial distinction, to suggest that acquittal by special inquiry warrants the badge of "miscarriage" and therefore also warrants compensation, while acquittal by collapse of a prosecution, by magistrate, by judge, by jury or by appeal court does not. A miscarriage cannot sensibly be limited to a total failure of the legal process; any substantial failure within the process is a similar travesty, for those involved. The case of Harry Blackburn, wrongly charged with rape but cleared before a court hearing, has alerted many people to the fact that miscarriages can mean something much wider than the traditional definition. Even a wrongful conviction is not an essential component of a miscarriage; and miscarriages are not just the province of the courts. If a miscarriage of justice is regarded as a failure to attain the correct result, with serious adverse consequences for a person wrongly accused, then we have to broaden the traditional definition. Former Sergeant Roger Rogerson' s recent appeals in the Supreme and High Courts, over a conspiracy to pervert the course of justice charge, saw debate over the legal definition of the course of justice, but all sides agreed that this term includes police activity, even prior to a charge being laid. Miscarriages of justice at this stage, however, generally only come to light through the public court process. For instance, the police accusations against a Canberra public servant during an inquest into the murder of Federal Police Superintendent Colin Winchester, seemed to me to be a gross abuse without remedy. The public servant was repeatedly accused of being a "suspect" for the murder, while police admitted they had insufficient evidence to charge him. While he would not want to be charged, unlike a person charged, he has no prospect of acquittal. 2 So misguided or malicious police activity both before charge (as in the Winchester suspect case) and after charge (as in the Blackburn case) may be fairly seen to also contribute to miscarriages of justice. 2 Now he does. The Australian Federal Police more recently sought to 'remedy' this problem by producing an amended statement of an inquest witness. The public servant has now been charged over the Winchester killing. 74 Current Issues in Criminal Justice Volume 5 Number 1 Police have significant summary power of official accusation, of galvanising the mass media behind them, and of requiring that people take time out of their lives and expend exorbitant resources to secure legal representation. This power can and does lead to miscarriages of justice. I would complete the argument: a course of justice encompasses the police intervention, the court process, and the penalty or corrective measure. A person given a penalty, unjustly jailed, or seriously maltreated in jail, even if guilty of an offence, has also been subjected to an abuse for which the justice system is responsible. It is not justice, for instance, that a person convicted of a relatively petty property crime is then jailed for many years, totally dispossessed, brutalised, abused, raped, in the process having his or her life and that of his or her family shattered. This must also be recognised as a miscarriage, and we must therefore recognise that miscarriages of justice may also be inflicted on those who are "guilty". The most useful definition of a miscarriage of justice, it seems to me, would be: a serious wrong within the justice system involving any or all three of the following: (a) wrongful accusation or arrest by police, (b) wrongful treatment by the courts, most often including wrongful conviction, and (c) wrongful penalty or serious abuse in prison. So if we want to restrict ourselves to talking about how to deal with wrongful convictions that are not corrected on appeal - a far more limited form of miscarriage - let's define the argument in that way and not pretend that these occasions are the only serious wrongs committed by the criminal justice system. There is a good reason for widening the definition of a miscarriage to include a1l serious wrongs: the most serious injustices in the criminal justice system come not from the aberrations but from the perfectly normal process of drawing certain classes of people, as institutional fodder, into the criminal justice system. This is the first and most important of eight causes, which I have been able to identify, of miscarriages of justice. 1 TARGETING DISADVANTAGED COMMUNITIES It is important to consider at least the basics of how the criminal justice system deals with "guilty" people, before attempting to understand how wrongs are committed against the innocent. The selection of "guilty" people, or the effective recruitment of a so-called "criminal class'', largely involves the police process of targeting marginalised, Aboriginal and working-class communities. These people go on to comprise the great bulk of those imprisoned by what are considered rightful convictions for property crime. Australian prisons are filled with mostly young, uneducated, unemployed males: 95 per cent of all prisoners are male and 95 per cent also have not completed their secondary education; 65 per cent were unemployed at the time of imprisonment; 57 per cent have been imprisoned before, and 15 per cent are AboriginaI.3 Seventy-two per cent are between the ages of 17 and 34,4 while 63 per cent are imprisoned primarily for property or July 1993 Contemporary Comment 75 driving offences.5 Aboriginal people in Australia, scandalously, are twenty times more likely to be imprisoned than non-Aboriginal people.6 These prison figures reflect the nature of Australian policing. Informed opinion has it that a very large majority of young people commit offences which could land them in jail. These youth offences are typically: theft, shop theft, car theft, vandalism and arson.