MISCARRIAGES OF JUSTICE: The Uncertainty Principle Dennis Eady This thesis is submitted in candidature for the degree of Doctor of Philosophy School of Social Sciences Cardiff University July 2009 UMI Number: U585226 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 U585226 Published by ProQuest LLC 2013. 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 This work has not previously been accepted in substance for any degree and is not concurrently submitted in candidature for any degree. Signed ......................(Candidate) Date. / - J / V / ^ 9 STATEMENT 1 This thesis is being submitted in partial fulfilment of the requirements for the degree of PhD Signed .....................(Candidate) Date ..... STATEMENT 2 This thesis is the result of my own independent work/investigation, except where otherwise stated. Other sources are acknowledged by footnotes giving explicit references. Signed ......................... (Candidate) Date... STATEMENT 3 I hereby give consent for my thesis, if accepted, to be available for photocopying and for inter-library loan, and for the title and summary to be made available to outside organisations. Signed ................................(Candidate) Date ...... ACKNOWLEDGEMENTS My appreciation is extended to the following people: - ■ My supervisors Professor Mike Maguire and Dr Lesley Noaks who promoted the academic freedom to develop this project combined with encouragement, interest and wise, helpful advice at the right times. ■ Liz Renton for her good humoured and reliable guidance through the administrative maze. ■ All the participants who gave their time and personal experiences to provide insights and information for this research. ■ All at “Press”, in particular Steve, Kathy and Leanne for taking all the pressure and giving me space, support and refreshments to undertake this project. ■ Paul Sweeney for his support, ideas and for proof reading the document. ■ Angela for her encouragement, passion for justice and inspirational ideas. ■ Christiane for being always around and ever interested despite the distances. ■ Mike Slevin for his support and humour and for keeping the wheels of industry turning to help pay for academic indulgencies. ■ Julie Price and Mike Naughton for providing valuable links with the Innocence Network and help with contacts. ■ Liz and Colin Green for their interest and help with contacts. ■ My Mother and late Father for their unquestioning love, support and belief and for their immaculate example of humanity. ABSTRACT The thesis examines in detail the potential for error and distortion in the criminal justice process and the concept of case construction which may contribute to wrongful convictions. The effectiveness of post conviction procedures is then also considered. Three detailed case studies are utilised to illustrate case construction, post conviction issues and current social/cultural factors that may impact on miscarriages of justice. The thesis argues that the “Uncertainty Principle” permeates the criminal justice process such that wrongful convictions are an inevitable risk and moreover that, while there are certain safeguards that protect from some of the problems of the past, there remains a high potential for such events to occur. This potential is exacerbated by the current political “convictionist” rhetoric and policy framework and by trends and developments in the media world and the consequent social influence of this. Further concerns are expressed at the continuing reluctance of post conviction agencies, most notably the Court of Appeal, to fully recognise the risks inherent in the system. Consequently post-conviction procedures continue to function on the principle of finality within the system and prioritise the protection of the decisions of the lower courts. It is argued that the principle should not be finality but uncertainty and that the protection of the innocent rather than the protection of the image of the system should be the paramount concern. The thesis considers the often illusory nature of some of the principles of the criminal justice system and utilises notions of “magical legalism” (Cohen 2001) and other psychological processes that may be involved in maintaining the illusions. Some recommendations for change are proposed, focusing primarily on the philosophical change that is required to change the principles originally designed to protect the innocent from illusion into reality. CONTENTS Page Acknowledgements i Abstract ii Contents iii List of Tables and Charts and List of Appendices viii List of Abbreviations ix INTRODUCTION 1 - Overall Aim of the Research 2 - Structure of the Thesis 5 PARTI THE RISK OF WRONGFUL CONVICTION 9 Chapter 1 Defining and Quantifying Miscarriages of Justice 10 - The Problem of Definition 10 - The Problem of Measuring the Incidence of Miscarriages of 12 Justice Chapter 2 The Criminal Justice System and the Potential for Error 19 - Introduction 19 - The Police and Investigative Context: - 24 > Police Culture and Experience 24 > Confessions and the Police and Criminal Evidence Act 26 > The Complexity o f Major Crime Investigation 30 > External and Internal Pressure 32 > Policing Styles and the Merging of Moral Boundaries 33 > Conclusion 38 - The Evidential Context: - 39 > The Evidence o f People 39 > Physical and Scientific Evidence 43 > Conclusion 50 - The Legal and Adversarial Context: - 51 > Adversarial ism 51 > Witnesses and Demeanour 55 > Judges, Juries and the Rules o f Evidence 57 > Conclusion 63 iii PART 2 METHODOLOGY and OUALITATITIVE ISSUES 66 Chapter 3 Justifying the Research Position 67 - The Rationale for the Study 67 - The Objectivity/Subjectivity Debate 70 Chapter 4 Methodological Issues 75 - The Professional Participants and the Eleven Case Studies: - 75 > The Professional Participants 76 > Case Studies 79 > Validity and Reliability 84 - Methods used: - 85 > The Semi-Structured Interview 85 > Use o f Documents and Broadcasts 89 > Court Observation 89 > On-going Voluntary Work 90 > Dissemination 90 - Ethics 90 PART 3 CASE CONSTRUCTION 93 Introduction 94 Chapter 5 The Llanharry Murder Mystery:Case Study Jonathan Jones 99 - The Close Perpetrator Assumption 100 - The 4 Agatha Christie’ Syndrome 101 - The Case Construction: A Sample from the‘Shoal of Red 102 Herrings’ > Financial and Jealousy Motives 102 > Taking an Extra Hour to Travel back to Wales 103 > Creating the Hour and a'Lie'in Witness Statements 104 > The Thumb Print on the Saucer and the Changing 105 Police Statements > The Trench Coat: the Prize Red Herring 107 > Fudging the Alibi 109 > Assorted Other Red Herrings 110 > The Existence o f Other leads 112 - The Judicial Responses 113 > The Trial Judge 113 > The Court o f Appeal 113 iv Corruption and the Merging of Moral Boundaries 116 ‘The Cardiff Newsagent Three’ 116 - Other Examples in this Study 122 Informers 125 Conclusion 130 Misleading Information and Human Error 131 - Problems with Witnesses 131 - The Problem of Disclosure 136 > Disclosure Rules 137 > Professional Views on Disclosure 139 - Problems with Science 142 > The Susan May Case: Collusion and Confusion 144 y Professional Views on Science Issues 146 - Conclusion 147 Assumptions, Interpretations and Selectivity 149 - The ‘Close Perpetrator5 and the ‘Agatha Christie Syndrome5 149 - Reversing the Positive: Re-constructing Identity 153 - Losing Control in the Face of Case Construction 157 - Case Construction and Co-incidence 161 - Selectivity 165 - Conclusion 167 Summary Conclusion of Part 3 168 POST CONVICTION PROCEDURES 170 The Court of Appeal and the Criminal Cases Review Commission 171 (CCRC) - The Court of Appeal 172 ‘Quashing Convictions’ - The Dangers of Current Thinking 185 - The Criminal Cases Review Commission: Role and Context 188 Ten Long Years at the CCRC: Case Study John Roden and Mike 196 Attwooll - Outline of the Case 196 > Timings and Sightings 197 > Blood Traces in Mike Attwooll5s Car 198 > The Gun and the Evidence of Vincent Price and Carl 199 Perkins > The Evidence of David Eaves 201 v - Chronological Outline of CCRC Involvement 202 - Analysis of the CCRC Involvement 204 > Transparency (Openness) and Accountability 204 > Thorough and Investigative (Integrity and 206 Professionalism) > Independence and Impartiality 221 - The Appeal 17th March 2007 223 - Conclusion 228 Chapter 11 Views and Reflections on the Appeal System 230 - Views on the Court of Appeal 230 > Intellectual Dishonesty? 230 > Additional Views of “Focused Case” Participants on 232 the Court of Appeal > Additional Professional Views on the Court of Appeal 233 - Views on the CCRC 237 > “Focused Case” Participants Views on the CCRC 237 > Professional Perspectives on the CCRC 240 Summary Conclusion of Part 4 243 PART 5 COULD IT HAPPEN NOW: POLITICAL AND CULTURAL 245 CONTEXTS AND CURRENT RISKS Chapter 12 The Political Context: From principles to “Efficiency” 246 - The Royal; Commission on Criminal Justice 247 - The Growth of Managerial Justice 249 - Legal Aid: A Case in Point 253 - Conclusion 256 Chapter 13