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There will always be cases of wrongful [conviction] … no matter how many emendations are made to any legal system. (Brandon and Davies, 1973: 256–8)
Miscarriages of justice have been an enduring feature of all legal systems since their inception. However, over time, we have become more aware of them, in part, due to periods of increased media coverage of, and in some cases exposure of, particularly onerous cases (Poyser, 2012). This has, in turn, had a major impact upon public confidence in the criminal justice system (CJS) and has acted as a driver in prompting official responses to the problem (Nobles and Schiff, 2009). Such responses have included reforms to criminal justice policy, practice and/or legislation (Poyser and Milne, 2015). The efficacy of these reforms is discussed in detail in Chapter Six. However, as Brandon and Davies (1973) note earlier, they have clearly not completely rid the CJS of wrongful convictions.
The focus in this chapter is upon specific cases that might be considered to have contributed at the very least to social thinking about miscarriages, with some playing a significant role in the history of criminal justice reform. A complete chronology of all such cases is impossible within the space constraints of this chapter. Therefore, the ensuing discussion focuses primarily on miscarriages relating to murder cases as it is the exposure of wrongful convictions in these cases that has arguably had the most influence in prompting criminal justice reform (Brandon and Davies, 1973).
The chapter primarily addresses key cases leading up to four important moments of criminal justice reform in England and Wales.
That utter feeling of helplessness … the system has taken over … a burning feeling of injustice. (Victim of a miscarriage of justice)
This statement, taken from the author’s own empirical research, provides some insight into the experience of a victim of a miscarriage of justice and highlights, in particular, the sense of powerlessness and injustice felt by almost everyone who suffers a wrongful conviction. Miscarriages of justice cause wide-ranging and enduring harm, leaving victims with the ‘ashes’ of what they once had. Despite these often irreversible impacts, victims typically receive little support from the state upon release from prison (Tan, 2010). Virtually every victim of a miscarriage, or exoneree, loses respect for the criminal justice system (CJS), in part, because their offender – the state and its representatives – are rarely punished (Poyser, 2012), and this feeling can percolate outwards through indirect victims, such as relatives and communities (Jenkins, 2013a; 2013b). In addition, victims of the crimes at the centre of the miscarriage of justice become doubly victimised – first, by the crime itself and, second, by the exposure of the miscarriage – which returns them to the limbotic state of ‘not knowing’ experienced immediately after the crime occurred (Poyser, 2012). Miscarriages of justice are hugely damaging to society and costly in terms of the financial burden of imprisoning the wrong people (Naughton, 2001). Put simply, they devastate lives, undermine citizens’ support for the CJS and damage wider society, their effects often still being felt decades after their exposure (Yant, 1991).
Informal remedies are needed because the … process that convicts people is fallible [and] the formal mechanisms for reviewing convictions fail to adequately recognise this … someone has to challenge the injustice perpetuated by the system. (Eady, 2016)
This statement, made by a veteran miscarriage of justice campaigner, provides some insight into why informal remedies are required to help rectify some miscarriages and to support those fighting such injustice. It suggests that when the pre-trial system fails, the post-trial appellate system in place to remedy miscarriages also sometimes fails to recognise and rectify them. This ‘double failure of justice’ is problematic as it is effectively the ‘end of the line’ for the wrongly imprisoned individual. The formal remedies in place, namely, the Court of Appeal and the Criminal Cases Review Commission (CCRC) have proved ineffectual, leaving victims of injustice seemingly without hope. Informal remedies, then, are often the last resort for individuals who have been failed at every stage of the criminal justice process, including the appellate system (Poyser, 2012).
Informal remedies are vital in providing support to victims. In some cases, where it is impossible to reveal the wrongful conviction, they may even provide a form of ‘palliative care’ (Eady, 2016) for the wrongly convicted and their family (as no formal mechanism exists to do this). Furthermore, just occasionally, informal remedies may be a significant factor in overturning a wrongful conviction. Indeed, just as many miscarriages have multiple causes, many are remedied by multiple factors, with victims dependent upon the hard work of others in helping to overturn their conviction (Poyser, 2012).
In 2015, Eric Allison, a journalist who has investigated numerous miscarriages of justice in England and Wales, stated: ‘I am convinced that there are more miscarriages of justice now, than at any time since I have been a student of the system – a study going back over half a century’ (Allison, 2015). Despite such statements, we do not, indeed cannot, know the true scale of the miscarriage of justice problem because most cases are not the subject of appeal, or exposed by any other means (Belloni and Hodgson, 2000). What we do know is that miscarriages of justice have occurred throughout history and in all countries, and that they will continue to do so (Huff and Killias, 2013). We can never entirely eliminate them from the Criminal Justice System (CJS) because it is a system run by humans – and humans are fallible. However, the latter does not mean that we have not successfully reduced the likelihood of certain factors being involved in the genesis of miscarriages of justice. For example, changes to policy, practice and legislation surrounding policing in England and Wales over the past 30 years or so have resulted in the improvement and professionalisation of techniques and standards relating to the interviewing of suspects. These have, in turn, reduced (what was in our not-too-distant history) a strong drive by police officers to gain a confession in the interview room and have meant that the interview process is now more likely to be viewed by officers as an opportunity to gather information (in the UK, see, for example, Clark and Milne, 2001).
Criminal investigation and miscarriages of justice are … joined at the hip. (Savage and Milne, 2007: 610)
Miscarriages of justice injure individuals and society (see Chapter Five); however, they can also have constructive consequences by providing lessons that we can learn from. As Chapter Two noted, England and Wales have, over the last century, seen reforms that have made positive impacts through, for example, altering the practice of criminal justice professionals. These reforms were connected to critical failures that occurred in specific cases. Some were also connected to the results of research conducted into the causes of miscarriages. This research has been invaluable in revealing that many of the lessons taught by miscarriages relate to the processes and procedures involved in criminal investigation (Poyser and Milne, 2015). Furthermore, researchers have advised upon, and aided the implementation of, improvements to those processes and procedures, with the aim of reducing the occurrence of miscarriages (Stelfox, 2007; Williams, 2015).
This chapter will consider the role of criminal investigation in causing miscarriages in England and Wales and how research has contributed to change agendas, which have, in turn, influenced legislative, policy and practice reforms. As the chapter progresses, it will become evident that not only do processes and procedures associated with criminal investigation contribute to miscarriages, but the lessons learnt from miscarriages and from research relating to them have also contributed enormously to the ways in which criminal investigations are conducted. The chapter will begin by very briefly revisiting research that has revealed the causes of miscarriages (see Chapter Three), demonstrating, as it does, that many are linked to criminal investigation.
Miscarriages of justice occur far more frequently than we realise and have the power to ruin people’s lives. It is crucial for criminal justice practitioners to understand them, given significant developments in recent years in law and police codes of practice.
This text, part of the Key themes in policing textbook series, is written by three highly experienced authors with expertise in the fields of criminal investigation, forensic psychology and law and provides an up-to-date and comprehensive analysis of miscarriages of justice. They highlight difficulties in defining miscarriages of justice, examine their dimensions, forms, scale and impact and explore key cases and their causes. Discussing informal and formal remedies against miscarriages of justice, such as campaigns and the role of the media and the Court of Appeal and the Criminal Cases Review Commission (CCRC), they highlight criticism of the activities and decision-making of the latter and examine changes to police investigation in this area.
Designed to incorporate ‘evidence-based policing’, each chapter provides questions reflecting on the issues raised in the text and suggestions for further reading.
