The London School of Economics and Political Science The Decision Making Process of Appeals Against Conviction in the Court of Appeal (Criminal Division) Stephanie Roberts A thesis submitted to the Department of Law of the London School of Economics for the degree of Doctor of Philosophy, London, April 2009 UMI Number: U615707 All rights reserved INFORMATION TO ALL USERS The quality of this reproduction is dependent upon the quality of the copy submitted. In the unlikely event that the author did not send a complete manuscript and there are missing pages, these will be noted. Also, if material had to be removed, a note will indicate the deletion. Dissertation Publishing UMI U615707 Published by ProQuest LLC 2014. Copyright in the Dissertation held by the Author. Microform Edition © ProQuest LLC. All rights reserved. This work is protected against unauthorized copying under Title 17, United States Code. ProQuest LLC 789 East Eisenhower Parkway P.O. Box 1346 Ann Arbor, Ml 48106-1346 DECLARATION I certify that the thesis I have presented for examination for the MPhil/PhD degree of the London School of Economics and Political Science is solely my own work other than where I have clearly indicated that it is the work of others (in which case the extent of any work carried out jointly by me and any other person is clearly identified in it). The copyright of this thesis rests with the author. Quotation from it is permitted, provided that full acknowledgement is made. This thesis may not be reproduced without the prior written consent of the author. I warrant that this authorization does not, to the best of my belief, infringe the rights of any third party. Stephanie Roberts 3 April 2009 2 ABSTRACT This study seeks to find an explanation for the two main problems associated with the Criminal Division of the Court of Appeal which are, its problems in identifying and correcting the wrongful convictions of the factually innocent, and its inconsistent, unpredictable and contradictory decision making. This study uses empirical data collected from the judgments of the Court to analyse the decision making process of the Court in relation to the powers given to it in the Criminal Appeal Act 1995. The data collected is used to analyse the Court’s powers in four main areas which are appeals where the appellant wishes to adduce fresh evidence, appeals where there is a ‘lurking doubt’, appeals where the appellant is arguing an error occurred either pre-trial or during the trial and the Court’s approach to the issue of ordering a retrial. The research conducted for this thesis is a replication study of previous research carried out for the Royal Commission on Criminal Justice which proposed reforms to the Court's powers and ultimately led to the Criminal Appeal Act 1995. The aim of the research is to analyse whether the Court uses an identifiable approach to its various powers, in order to find an explanation as to why the Court has proved so deficient at identifying and correcting the wrongful convictions of the factually innocent, and why its decision making is so inconsistent and unpredictable. 3 ACKNOWLEDGEMENTS Firstly, I would like to thank my first supervisor, Professor Kate Malleson, for her efforts to help me get this completed and for caring about my finances and my career. Secondly, I would like to thank my second supervisor, Professor David Schiff, and Professor Richard Nobles, for their kind assistance. Thirdly, I would like to thank Andrew Murray and Alain Pottage in their respective roles of Ph.D Program Director at the LSE for helping me to get this thesis to submission. Fourthly, I would like to thank Lisa Webley, for her help with methods and proof reading. Finally, I would like to thank my family and friends for putting up with me talking about this for so long. 4 TABLE OF CONTENTS DECLARATION 2 ABSTRACT 3 ACKNOWLEDGEMENTS 4 TABLE OF CONTENTS 5 LIST OF ABBREVIATIONS 8 CHAPTER ONE: INTRODUCTION 9 Defining ‘miscarriages of justice’ 9 Powers of the Court of Appeal 16 Background to the Criminal Appeal Act 1995 18 Research conducted for this thesis 21 Summary 24 CHAPTER TWO: METHODOLOGY 25 Replication, Verification, Change over Time and Originality 25 Data Collection and Data Analysis 27 Summary 30 CHAPTER THREE: LITERATURE REVIEW 31 Deference to the jury verdict 31 Undue reverence to the principle of finality ' 35 The reluctance o f the Court to admit fresh evidence 36 The reluctance o f the Home Secretary to refer cases back to the Court 38 Statute or attitude? 41 The process of review 47 The preparation o f appeals 47 The hearing o f appeals 49 The burden and standard of proof 51 Summary 52 CHAPTER FOUR: GENERAL APPROACHES OF THE COURT OF APPEAL 55 5 The workload and success rate of the Court of Appeal 56 Table 4.1: Workload and success rate of the Court of Appeal in 1990 and 2002 57 Table 4.2: Workload and success rate of the Court of Appeal in 1990, 2002 and 2006 58 Graph 4.1: Appeals allowed 1990 to 2006 (percentages of appeals decided by the Court) 60 Graph 4.2: Applications for leave to appeal 1990 to 2006 61 The 1990 and 2002 sample findings 62 Table 4.3: Grounds of appeal of cases before the Court of Appeal (Criminal Division) January to July 1990 63 Table 4.4: Grounds of appeal of available cases before the Court of Appeal (Criminal Division) January to May 2002 64 The general approaches of the Court of Appeal to determining appeals against conviction 68 Diagram 4.1: The Decision Making Process 69 Summary 71 CHAPTER FIVE: APPEALS BASED ON THE CORRECTNESS OF THE JURY VERDICT: FRESH EVIDENCE 73 The historical approach to fresh evidence appeals 73 The Royal Commission on Criminal Justice 77 The 1990 and 2002 samples of judgments 80 Table 5.1: Type of fresh evidence cases before the Court of Appeal (Criminal Division) January to July 1990 80 Table 5.2: Type of fresh evidence cases before the Court of Appeal (Criminal Division) January to May 2002 81 Fresh evidence rejected 85 Fresh evidence admitted 88 Pendleton and the decision making process 89 Fresh evidence after 2002 95 The Stafford approach 96 The jury impact test 99 Summary 103 CHAPTER SIX: APPEALS BASED ON THE CORRECTNESS OF THE JURY VERDICT: ‘LURKING DOUBT’ 107 The historical approach to lurking doubt appeals 107 The Royal Commission on Criminal Justice 111 The 1990 and 2002 sample of judgments 113 Lurking doubt after 2002 116 Summary 129 CHAPTER SEVEN: APPEALS BASED ON PROCEDURAL IRREGULARITIES 132 6 The historical approach to deciding procedural irregularity appeals 133 The Royal Commission on Criminal Justice 136 The new interpretation of ‘unsafe’ 137 The Human Rights Act and 'unsafe' 139 The 1990 and 2002 sample of judgments 146 The Court’s approaches to determining the appeal 149 The Court thinks the irregularity made the conviction unsafe 150 The Court thinks the irregularity may have had an impact on the jury 153 If the error had not occurred would the jury have inevitably convicted? 155 The irregularity did occur but there was strong prosecution evidence 157 Minor irregularity which did not impact on the safety o f the conviction 163 The Court thinks the irregularity did not occur 166 Procedural Irregularities after 2002 178 Summary 184 CHAPTER EIGHT: THE POWER TO ORDER A RETRIAL 188 The historical approach to retrials 188 The 1990 sample of judgments 189 Graph 8.1: Retrials ordered 1990 to 2006 190 Graph 8.2: Retrials ordered and appeals allowed 1990 - 2006 191 The Royal Commission on Criminal Justice 192 The 2002 sample of judgments 193 Retrial ordered 193 Retrials discussed but not ordered 196 The Court’s approach to retrials after 2002 199 Summary 205 CHAPTER NINE: CONCLUSIONS 207 Evidence of a more liberal approach? 208 The review function 214 Review to rehearing? 218 REFERENCES 222 APPENDIX ONE: DATA COLLECTION 228 APPENDIX TWO: CODING FRAME 230 7 LIST OF ABBREVIATIONS C M Criminal Appeal Act CCRC Criminal Cases Review Commission CJA Criminal Justice Act CPS Crown Prosecution Service ECHR European Convention on Human Rights HRA Human Rights Act PACE Police and Criminal Evidence Act Pll Public Interest Immunity RCCJ Royal Commission on Criminal Justice 8 CHAPTER ONE: INTRODUCTION In his report, Access to Justice, Lord Woolf stated (1996, p. 153) that there are two main purposes of appeals. The first is the private one of doing justice in individual cases by correcting wrong decisions. The second is the public one of engendering public confidence in the administration of justice by correcting wrongs and in clarifying and developing the law. If this is an accurate assessment of the purposes of appeals, it would appear that since the Court of Criminal Appeal1 was created in 1907, the Criminal Division of the Court of Appeal has been criticised for being defective on both fronts. The two main criticisms of the Court have been its deficiencies in identifying and correcting miscarriages of justice and its inconsistent, unpredictable and contradictory decision making. Whilst these may appear to be separate issues they are in fact connected and this thesis will argue that these problems are an inevitable result of the Court’s decision making process and in particular, its function as a court of review. In short, the study has concluded that a court of rehearing would be much more effective at rectifying miscarriages of justice. In order to define these problems in more detail, it is necessary to discuss the meaning of the term ‘miscarriage of justice’ to illustrate where the Court’s problems lie.