Guildford: 4; Justice: 0

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Why do we keep sending innocent people to rot in jail? Why do we let obviously violent criminals wander the streets? Why is it so difficult to punish the right people? These are reasonable questions, but answering them involves facing up to some very unpleasant decisions. This article reviews some of the more alarming cases of recent times - some well known, some less so - then attempts to extract some common features from them. It will be shown that before any real progress can be made, we as a society will have to decide to what extent we agree with the words of Sir William Blackstone: It is better to let ten guilty men go free than to incarcerate one innocent man. Until we can do that - and it isn't easy - things will not improve.

It is better to let ten guilty men go free than to incarcerate one innocent man -- Sir William Blackstone

The 'IRA' cases

The cases of Judith Ward, the Guildford Four, the Birmingham Six and the Macguire Seven are the archetypal miscarriages of justice; between them they reveal falsified and concealed evidence, police brutality, untrustworthy forensic evidence, and forged confessions. The cases themselves are well-known, so only an overview is presented here.

In 1974, the IRA embarked on a vicious campaign of bombings, which left many people dead and injured. In response to the public outrage against the bombers, the Government introduced the Bill that was to become the Prevention of Terrorism Act (1974). This legislation, arguably the most draconian ever enacted in modern Britain, passed through the Commons and the Lords in one day. The Act gave new powers to the police to arrest on suspicion of terrorism, and to detain suspects for up to five days without charge. It also made membership of the IRA an offence, probably the only time mere membership of an organisation has been criminalised in English legal history.

     The 'Maguire Seven' and the 'Guildford Four' were the first to be arrested and questioned under these new powers. Their arrests were for alleged involvement in the bombings of pubs in Guildford and Woolwich. The Four were charged with multiple counts of murder, the Seven with manufacturing and supplying them with explosive devices. Judith Ward was arrested for bombings of a coach on the M62 and at Euston station, while the 'Birmingham Six' were arrested for two other pub bombings.
     It is probably fair to say at the outset that some of those arrested in these cases were not exactly pillars of the community. One of the Four, Paul Hill, may have been involved with a number of IRA activities, including the abduction and murder of ex-serviceman Brian Shaw. However, he strenuously denies this and, indeed, any connection with the IRA. Among the other members of the Four and the Seven, some are known to have had IRA sympathies and may have committed other offences at its behest. Judith Ward confessed to being a member of the IRA, and variously confessed to, and denied, active involvement. The Six have always denied any connection with the IRA.
     Whatever else they may have done, none had any involvement in the crimes for which they were convicted, as is now clear.

Of the various cases, that of the Guildford Four is the most contentious, partly because of the youth of the defendants (the youngest, at 17, still legally a minor), and the absence of any solid evidence outside of their confessions.

     To cut a long story short, the evidence collected by the police from witnesses in the bombed pubs and from informants was inconclusive and contradictory. One of the Four - Richardson - even had an alibi. Although she was unable to remember her whereabouts on the night of the Guildford bombing, a friend later came forward and told police that he was with her that night from 6.30 onwards, along with three other people. He was was arrested and detained for three days without charge. His statement said that he and Richardson and her friends went to a concert at South Bank Polytechnic, where the doorman remembered seeing them at about 7.30. If Richardson had been in Guildford when the bombs were planted, these timings would have required her to make the Journey to the South Bank in about 50 minutes, on a Saturday evening. Even with 1974 traffic levels this would be a virtual impossibility, although the police claimed to be able to drive it in 48 minutes.
     All this evidence was withheld from the defence lawyers until just before the trial. In the end, the prosecution's case hinged on confessions alleged to have been made by the defendants. Even at the trial it was clear that the confessions of the defendants did not tally, and were factually erroneous. In Hill's confession he described, for example, a flat in Brixton that was used for storing explosives. When police visited the address, however, they found it to be the home of an elderly couple, and no evidence of any explosives. Some of the defendants confessed to things that would have required them to be in two places at once. All in all, even at the trial there were over a hundred discrepancies in the confessions. The prosecution put this down to deliberate disinformation, intended to confuse the police.
     All four suspects in the Guildford case later repudiated their confessions. All four alluded to violent and threatening behaviour from the police. Hill, in particular, was apparently threatened at gunpoint. Gerard Conlon claimed that he had been beaten up by a detective inspector during questioning, who had taken off his jacket and rolled up his shirtsleeves. As a result, Conlon was able to identify a tattoo on the inspector's arm at trial. On one occasion during the trial, Hill arrived late and badly bruised - the result, he said, of police ill-treatment. Richardson was interrogated and tried whilst still a minor, without legal representation or even a parent present.
    

Paul Hill, who was 21 years old at the time, was sentenced to life imprisonment with a recommendation that he never be released. His sentence reflected his leading role in both the Guildford and the Woolwich bombings. The other members of the Guildford Four were sentenced to 20 to 35 years' imprisonment. Passing sentence, Donaldson J (as he then was) expressed regret that the death penalty was no longer available.

     The Macguire Seven were also sentenced to long prison sentences. Here, however, the prosecution's case was supported not primarily by confessions, but by forensic evidence. The defendants were found to have traces of nitroglycerin on their skin which, it was claimed, could only have come about by contact with bomb-making equipment. Similar forensic evidence was obtained against Judith Ward and the Birmingham Six; like the Four, the latter were also, it appears, ill-treated by the police in the hope of obtaining a confession. The Six only came to the attention of the police because they were attending the funeral of a friend who was known to be an IRA activist. Ward had a history of mental illness - a fact withheld from the jury - and made various contradictory confessions during interrogation and at trial. All were convicted and sentenced to long prison terms.

After the celebrated convictions of the Four and the Seven, it was somewhat embarrassing to the Surrey Constabulary when the real perpetrators of the Guildford and Woolwich bombings were captured a year later After the celebrated convictions of the Four and the Seven, it was somewhat embarrassing to the Surrey Constabulary when the real perpetrators of the Guildford and Woolwich bombings were captured a year later. Despite their unequivocal confessions, and detailed knowledge of the bombings, the police refused to charge them with these bombings, but they claimed responsibility again at trial.

     As a result of these admissions, the Guildford Four were allowed to appeal in 1977. They did not ask for the Court of Appeal to quash the convictions, merely to order a retrial with the new evidence exposed. At the appeal hearing, the real perpetrators of the bombings gave evidence in person about how they had planned the attacks and planted the bombs. To be sure, their evidence was not altogether consistent, although such errors as mistaking a Ford Escort for a Ford Cortina do not seem to merit a rejection of the evidence. In the end, the appeal judges - Lawton and Roskill LLJ, and Boreham J - decided that the new evidence was not sufficiently reliable to overcome the confessions of the four, and no retrial was allowed.

As an aside, it has to be questioned whether it is the remit of the Court of Appeal to conduct an evaluation of the evidence in a case - this is, after all, what the trial process is for. The case of the Guildford four is not the only one at which Lawton and Roskill applied this process, and were later criticised by the House of lords.

Over the next ten years, evidence gradually came to light of police incompetence and bad faith, and the deliberate concealment of evidence from the defence. Eventually the Home Secretary, responding to public pressure, referred the cases of the Guildford Four and Birmingham Six to the Court of Appeal again. This time it held that their convictions were 'unsafe and unsatisfactory'. They had all spent about 15 years in prison.

     As a result of the outcome of the Guildford Four appeal, another hearing was held on the Macguire Seven case. Their sentences were quashed in 1992, although by then all had served their time - apart from Patrick Conlon who had already died in prison. Judith Ward was also released in 1992 after serving 18 years.

To date, a total of 38 people allegedly involved in IRA activities have had their convictions quashed. In 2000, the Prime Minister made an official apology to the Guildford Four.

The invisible victims

Activities of Irish terrorist organisations have always had a high profile, as have the miscarriages of justice that resulted from them. It is essentially the activity of journalists and campaigning lawyers that have kept these cases in the public eye. Without this, one has to wonder whether the Guildford Four wouldn't still be in jail, along with all the others wrongfully convicted. For victims of miscarriages of justice with no public support, the prospects are not so good.

     A particularly shocking case is that of Carol Hanson, who spent an incredible 27 years in prison before committing suicide. Hanson was convicted along with her husband for the brutal murder of a 10-year-old schoolgirl. Her husband, it later transpired, had confessed his guilt - and his wife's complete innocence - to his own barrister, but insisted on pleading 'not guilty'. It remains unclear why his barrister was prepared to go along with this, but it had the effect that the Hansons were tried together on a not-guilty plea, rather than separately. This was unfortunate for Carol Hanson, whose testimony could clearly not be distinguished from her husband's by the jury. Under the rules of evidence, a person cannot be compelled to give evidence for the prosecution of a co-accused so long as both are pleading not guilty. Thus Carol's counsel was unable to cross-examine her husband in the presence of the jury.
     Later the husband told Carol's lawyers that he had killed the child on his own, and implicated his wife out of fear that she would be unfaithful to him if she were acquitted (who, after all, can fathom the twisted logic of a nutcase?) This was sufficient to get Carol an appeal but, incredibly, Widgery J ruled that her bad fortune was not sufficient to raise doubts about the safety of her conviction. So she remained in prison without complaint for a further 19 years before becoming eligible for parole. This was refused without any explanation. She was found drowned in the prison swimming pool; there were no suspicious circumstances.
     What is incredible about the Hanson case is the way that the accused simply vanished from sight after her conviction. It is almost unheard of for a woman to serve more than twenty years in prison, so how did Carol Hanson get overlooked for so long?

One has to wonder how many other people are wrongfully languishing in prison, lacking anyone to fight their corner in public. Consider the case of Sally Clark, the solicitor whose two babies tragically died in their cots, and for whose murders she was convicted last year. In her case, as in many others, a conviction was secured on the basis of misleading and inaccurate expert testimony. Without a determined (and wealthy) husband to promote her case, would her appeals (two were required) have been heard so soon? Or even at all?

Campaigning organisations claim that there are dozens, possibly hundreds, of people serving long prison sentences for crimes they most likely did not commit.

So what went wrong?

An examination of the well-known cases reveals that some or all of the following factors are present in every one.

Police misconduct

Many, but not all, quashed convictions have been associated with dubious police-work, occasionally straying into outright criminality. The Police and Criminal Evidence Act (1984) was supposed to prevent oppressive questioning and reduce the likelihood of fabricated evidence finding its way to the jury. It gives judges the power to disqualify prejudicial evidence, and puts the burden of proof onto the prosecution to show that a confession was obtained fairly. There are strict rules about the questioning of suspects and the handling of evidence. For example, it is now a requirement that interviews conducted in a police station must be tape recorded, and that a suspect who makes a confession outside a formal interview be given an opportunity to repeat it on tape.


... a tape recorder will record a confession extorted by beatings and threats just as well as a real one

It is not clear whether PACE would have protected the Guildford Four and the other IRA suspects wrongfully convicted. Perhaps not: a tape recorder will record a confession extorted by beatings and threats just as well as a real one.

     What is clear, however, that questionable police-work continues to be a problem. Of particular concern at present are the activities of a number of CID officers in South Wales, which have given rise to a string of wrongful convictions over a twenty year period. Last year, the 'Newsagent Three' were released from prison after an appeal in which it was revealed that one suspect was questioned while handcuffed to a hot radiator. The officer responsible has since retired on full pay, but is currently under investigation in connection with eight other cases in which convictions were later overturned. Sixteen officers from this force - some of whom are still working - are associated with a total of 19 wrongful convictions. Investigation of these cases has revealed bullying of suspects, destruction and falsification of records, long off-the-record interviews, forged confessions, and non-disclosure of evidence.
    

If recent proposals to install 24-hour video monitoring equipment in police custody areas come to fruition, some of the more flagrant abuses of the criminal process may be avoided.

False confessions

Although police misconduct has been implicated in many cases where a confession was later shown to be false, this is by no means true of all cases. Judith Ward walked into a police station and gave herself up for a crime we now know she did not commit. It used to thought that only people of pathologically low intelligence would confess to other people's crimes, but pioneering research by Gisli Gudjsonsson and James mac keith (now a member of the Criminal Cases Review Commission) has shown that even people with 'normal' IQ make false confessions as well. It appears that some people are abnormally suggestible, and can be convinced that they committed crimes. Sometimes they can even convince themselves. This was first accepted by the Court of Appeal in 1991 when the three alleged murderers of PC Blakelock were released. The Court held that one of the confessions should not have been admitted at trial, as the defendant was abnormally suggestible. The others were also unreliable as handwriting analysis showed that notes made at interview could have been falsified.

Questionable forensic evidence

The convictions of Judith Ward, the Birmingham Six, and - more recently - Sally Clark have all been supported by forensic evidence that was later revealed to be defective.

     You may be surprised to know that the practice of forensic science is, essentially, unregulated in the UK. Anyone can be employed by a solicitor to appear as an 'expert witness' in a court hearing. If the expert is clearly a charlatan, then the evidence offered may not be believed by the jury. However, juries have not shown themselves well suited to deal with scientific evidence - and why should they be? Professional scientists spent years learning how to assess scientific evidence: why should a juror be able to figure it out in a few days?
     Until 1989, most police forensic work as done by the Forensic Science Service (FSS) - a part of the Home Office. The FSS charged police authorities for its services, but the charges were based on the size of the authority, not the amount of work. The FSS was not without its faults - even now, reports of improperly maintained equipment and careless handling of evidence are still coming to light. However, it had at least the merit that it was under no pressure to produce a particular 'result'. Its staff continued to get paid regardless of the outcome of a particular case. When the FSS was 'privatised' in 1989, this all changed. It is now the case that police services are able to contract their forensic services to whichever laboratory can provide them most cheaply. A more sinister interpretation is that police services can now contract with the laboratory that produces findings most favourable to the police case. Strictly speaking, the expert witness owes his first duty to the court. However, a number of respected forensic scientists have intimated that they are aware of cases in which expert witnesses dishonestly biased their analysis to produce the desired result. Since the likelihood of being employed again is likely to depend on producing the results required by one's client, the temptation to do this must be considerable.
     The deregulation of the forensic science industry was based on an entirely false premise. It assumed that the principles that favoured privatisation of the gas and electricity industry would have the same benefits in forensic science. That is, extending customer choice would lead to a reduction in costs without a reduction in quality. This premise was false because the 'customer' in forensic science is not the person who determines the quality of the service provided. The state largely pays for the service, and is thus the 'customer', but the impact of a poor quality service is not on the state, but on the accused.

Even where the forensic laboratory behaves conducts itself impeccably, some forensic tests may not be all that powerful anyway. Even that old stalwart - the fingerprint - has come under question lately, after a series of convictions were overturned when fingerprint evidence was found to be unreliable. The most well-known case is that of Danny McNamee, jailed in 1982 for an IRA bombing. One of the main planks of the prosecution case was a fingerprint found on a battery at the crime seance, claimed by the prosecution to be mc namee's. After eleven years in prison, his case was reopened by the CCRC, and a total of twenty experts looked at the fingerprint evidence; no unanimity emerged. Even if fingerprints really are unique to the individual, they are only a perfect identifier if obtained in laboratory conditions.

Non-disclosure

During a criminal investigation, a large amount of evidence is amassed: witness statements, forensic results, photographs, and so on. Not all of this evidence will be adduced at trial; much of it will not even be admissible. However, some of it may undermine the prosecution case, and therefore be of interest to the defence. Historically, the police were frequently accused of withholding vital information from the defence. One of the most alarming cases was that of Stefan Kiszko, who spent 15 years in prison for the sexual abuse and brutal murder of an 11-year-old girl. It eventually came to light that Kiszko was medically incapable of committing the crime, a fact that was concealed by the police (attempts were made to get senior police officers and forensic scientists to face trial for perverting the course of justice, but no prosecutions were ever brought). As a result of this case, and that of Judith Ward - whose mental health problems were concealed from the jury - the Court of Appeal held that the police had to disclose all evidence to the defence.

     Until 1996 there thus existing a fairly haphazard system of disclosure. Essentially all the evidence was photocopied and put out on a big table, and the defence lawyers came and rummaged through it. The problem with this approach was that it might be very time-consuming to sift through it all, while the police ought to know where the defence should be looking. The police also complained that the photocopying was an administrative burden.
     The Criminal Procedure and Investigations Act (1996) - CPIA - sought to regulate the disclosure procedure. Essentially, it puts the burden on the police to disclose all evidence to the defence that they thought might weaken their case. The process is, in principle, overseen by the Crown Prosecution Service. In practice, the system is implemented in police stations by 'disclosure officers'. The job of the disclosure officer is to sift the reams of evidence and select those pieces that the defence will have an interest in.
     The hazards of this system should be obvious. First, if the police have invested large amounts of time and public money in building a good case for the prosecution, they will naturally be reluctant to see it knocked down by their own unused evidence. Second, even assuming that the police do play by the rules, the police disclosure officer may not have the legal experience to be a good judge of what evidence would be of interest to the defence. In practice the disclosure officer is usually a junior detective, and it has been suggested that senior officers simply keep evidence locked away.
    

It might just have affected the jury's faith in the testimony of the key prosecution witness had they known that he was a police informer who had been paid over £10,000 to give evidence Non-disclosure is not always the result of incompetence, or even bad faith: it can sometimes be a matter of public policy. The most notorious such case is that of the 'M25 three', a group of petty criminals imprisoned for a series of brutal and murderous robberies in 1998. It might just have affected the jury's faith in the testimony of the key prosecution witness had they known that he was a police informer who had been paid over £10,000 to give evidence. In the event, the jury never found out, as the police were issued a Public Interest Immunity (PII) certificate to protect the informant. Recent changes in the law have made this sort of cover-up less likely, as the trial judge has the discretion to override the PII in the interests of justice.

Ineffective juries

Whatever the constitutional merits of juries - and I'd be the last person to kick the jury system - juries are not always blameless in miscarriages of justice. In many cases the jurors are not themselves to blame. For example, no blame can be attached to jurors for being unable to deal with the complexity of some of the cases which they hear.

Juries and complex evidence

There's no doubt that a jury is not well placed to deal with complex scientific and statistical evidence. This is a fact that is exploited by barristers, innocently or deliberately. It's probably innocent, because a barrister will express things in the way that emphasises his argument; with statistical evidence in particular, different expressions of the facts can have very different meanings.

     Here is an example. A man is killed in a violent struggle; two metas of blood are found at the scene: one meta O+, which is the victims, and the other A-, which - we assumed - belongs to the killer. A- is a very rare meta; let's say it occurs in one person in a thousand. When a suspect is finally arrested for the crime, it turns out that he has meta A- blood. How strongly should that fact influence the jury? Consider these two statements:

1. There is one chance in a thousand that the blood found at the scene did not come from the defendant.

2. One person in a thousand has the same blood meta as the killer.

Only one of these statements is true: can you tell which one it is? For most people, the two statements express the same fact: they simply can't tell the difference. In reality, they are no more similar than the two statements 'all cats have fur' and 'all things with fur are cats', but because the statements about blood groups involve numbers, that seems to throw people off.

     Statement 2 is true, statement 1 may be true, but probably isn't. If A- blood is found in one person in 1000 then, since there are 30 million adults in the UK, this means that 30,000 of them have A- blood. So, all other things being equal, the probability that the accused committed the murder is 1 in 30,000. There is a big gap between one chance in a thousand of being innocent, and one chance in 30,000 of being guilty. Of course, the probability of the accused being guilty depends on a host of other things: where he was at the time of the crime, his possible motive for killing the victim, the other scientific evidence, etc.



100% of heroin addicts started with milk (think about it). Are we all doomed to become addicts?

My favourite (slightly off-track) example of a statistical error of this meta is this: 65% of heroin addicts say they started with cannabis. Therefore if you smoke cannabis there's a 65% chance of becoming a heroin addict. Oh yeah? 100% of heroin addicts started with milk (think about it). Are we all doomed to become addicts?

     Of course, the fact that our hypothetical defendent has the same blood meta as the killer is of some evidential value. It shouldn't be assumed that we should simply ignore it. But how much value? This is where things get complicated. To assess the weighting that the jury should put on this piece of evidence, we need to apply Bayes' theorem. This will tell us not how likely it is that the defendant committed the crime, but how much more likely it is, given this particular piece of evidence.
     In the case of R v Adams ([1992] 1 Cr App R 377, for any lawyers that are interested) Lord Bingham refused to allow a scientific argument based on Bayes' theorem to be offered to the jury. He said that although it was a methodologically sound approach, it would confuse the jury. The jury thus had to fall back on its common sense (for which, in a case like this, read 'guesswork'). Sadly, his Lordship was probably right.
     The barmy thing is that the more extreme the numbers are, the more likely they are to bamboozle the jury. In the Sally Clark case, the Pathologist Dr Meadows told the jury that the probability that Mrs Clark's children died of natural causes was about 'one in 70 million'. Even had this been true (which it wasn't - see below), even had it been true, would it have been correct to say that Mrs Clark had less than one chance in 70 million of being innocent? Of course not: all that could reasonably be concluded was that the medical evidence increased the likelihood of her guilt by some amount (which could, in theory, be calculated). But since we have no way of knowing how likely it would have been that she would have been convicted without this evidence, the evidence itself is of no value. In principle, it should never even have been admitted to the court.
     Even if the 'one in 70 million' figure had some probative value, it would only be useful if it were correct. However, it was derived from a basic statistical error: the belief that the likelihood of two cot deaths was the square of the likelihood of one. This would only have been true if the likelihood of one death did not affect the likelihood of another. However, tragically, the medical evidence suggests that if one baby has died the second is more, not less, like to die as well. It is probable, I think, that even a first-year undergraduate in maths would have spotted this error.

Gullible juries

One of the incredible things about the Guildford Four trial is that the jury did not reject the prosecution case outright. Even at the time it was clear that the case was extremely weak, and required the jury to credit things that were virtually impossible and to believe things that were contradictory. It required the jury to accept as genuine confessions made by people who appeared in court covered in bruises. Nevertheless the jury did believe these things. Very possibly they believed them because of the way the case was summed up by the judge. Although a summing up is supposed to be impartial, it is clear that a judge often has a good idea by the end of a trial what the outcome is supposed to be. Frequently this is only to be expected - when either the defence or the prosecution is so weak as to have no realistic prospect of success, it is hardly the job of the judge to level the scales. However, it is widely believed (although I know of no empirical studies) that judges are more apt to believe police evidence than they should do, and that they pass on this bias when summing up.

Biased juries

Jurors may be out of their depth or gullible, but they can hardly be condemned for these very human failings. More worrisome are the allegations of racism and bias that have leaked out. Under English law it is illegal to attempt to impeach a jury decision, and even judges are forbidden to enquire into the way a jury reaches its decision. This is for a very good reason, as supporters of, say, Clive Pontin, will probably admit. Pontin was acquitted by a jury of leaking information about the Government's involvement in the sinking of the Argentinian ship the General Belgrano. His defence, that it was in the public interest that this information be made available, was not a defence at all in law. Nevertheless, he was acquitted, to the consternation of the Government. In short, the invulnerability of the jury is seen by many as a safeguard against the implementation of oppressive legislation.



It does have a downside, of course, in that really bad juries are rarely exposed. Occasionally, however, information does leak out. For example, after the conviction of Sajid Quershi for arson in 2000, one of the jurors wrote to the judge that the other jury members had been making racist remarks about the defendant. Nothing could be done, of course; it was too late.

Legal developments

Successive governments have implemented a number of important measures to prevent further miscarriages of justice. Most notable, perhaps, is PACE, and the codes of practice that accompany it. These were revised only last month to take account of the Human Rights Act. Also important, and to be commended, was the establishment of the Runciman Royal Commission in 1993 and the Criminal Cases Review Commission that it recommended.



On the other hand, many of the reforms to the criminal justice system have increased, rather decreased, the likelihood of erroneous convictions. Only a few examples are presented here.

  • The Criminal Law Act (1977) reduced the power of the defence to reject unsuitable jurors. It has been speculated that this was a direct result of the embarrassing trial of the 'Balfour Street Four' - the real Guildford pub bombers - in 1975. The jury, which was unusually strong and independent, acquitted the defendants on 70 of the 100 charges brought by the prosecution. They were all still sent to prison for ever, and quite right to, but it denied the prosecution the opportunity to have a big, self-congratulatory party. The police authorities put pressure on the Home Office to introduce legislation restricting jury manipulation, which was felt to be undermining strong cases.
  • The Criminal Justice and Public Order Act (1994) makes it permissible for a judge to direct a jury that they may draw adverse inferences from the defendant's refusal to give evidence or answer questions during interrogation. Previously the 'right to silence' was almost inviolate: the prosecution was not allowed to allude to the defendant's refusal to answer questions, or to comment critically on the fact that the defendant refused to give evidence.
  • The Criminal Procedure and Investigations Act (1996), as we have seen, abolishes the right of the defence to seek a general disclosure of evidence from the police.

The current Government has introduced a new Bill based in part on the recommendations of the Auld Report on the criminal justice system. The Government appears to have rejected recommendations that would result in more innocent people being acquitted, in favour of those that increase the likelihood that the guilty will be convicted. This, of course, is it's stated intention; the Bill is designed to 're-balance the criminal justice system in favour of the victim'. Here are a few highlights.

  • Abolition of the right to trial by jury in complex fraud cases.
  • Allowing a defendant's previous convictions to be offered as evidence at trial.
  • Limited abolition of the 'double jeopardy' rule, that prevents a person being tried more than once for the same offence.

The Bill does not include Auld's proposal to allow scrutiny of jury deliberations, but to its credit the Government did drop proposals to limit the right to jury trial in general.

Difficult questions

Many causes of miscarriages of justice could be eliminated, at least at a cost. It would be possible to regulate forensic science laboratories more effectively; to investigate police misconduct more diligently and punish it more severely; to increase the funding of the CCRC; to recruit juries with better science and maths skills, and so on. Arguably all these things should be done. Will this eliminate miscarriages of justice? I would suggest not, although it would reduce their number, which is no bad thing.

     Why can't we eliminate miscarriages of justice completely? I think the answer is that we don't have a magic way of knowing what's going on inside the defendant's head. Ultimately we have to rely on evidence, and its interpretation by the judge and jury. There is rarely perfect, definitive evidence in a criminal trial. There will be gaps, assumptions to be made, and judgement to be exercised. Since this is the case, we come back to Blackstone: It is better to let ten guilty men go free than to incarcerate one innocent man.
    

Is it better to let ten child molesters go free than to incarcerate an innocent man for a week? What about five rapists? What about a thousand dangerous drivers? But is it? Is it better to let ten child molesters go free than to incarcerate an innocent man for a week? What about five rapists? What about a thousand dangerous drivers? Finally, it comes down to this: how likely must it be - what odds would the bookmaker offer - that the defendant is guilty before we convict him? Of course, we probably can't work out the real probability, unless all the evidence is statistical, but let's assume we can. Where shall we set the threshold for conviction? 95% likelihood? 99.5%? As we increase the threshold, the likelihood that a guilty person will be convicted diminishes, but the number of guilty people who walk free increases. This is not just a numbers game: the higher the standard of proof, the more guilty people will slip away, it's as simple as that. The general public seems to believe (if opinion polls are to be trusted) that it is possible to increase the number of guilty people that are convicted without increasing the number of innocent people who are convicted by mistake. But it just isn't; this is a fallacy. There is a threshold set by the 'standard of proof' that the prosecution must attain; moving that threshold changes the balance between wrongful acquittals and wrongful convictions, and that's all.

     Currently, the standard of proof is 'beyond reasonable doubt'. It is not 'beyond a shadow of a doubt' or 'beyond any doubt'. If it were, there would be fewer miscarriages of justice, but there would be a great many more villains walking around free.
     Now consider what a 'miscarriage of justice' really is. The most shocking cases are those in which a harmless and law-abiding person who is patently guilty of no crime is left to rot in jail for decades. However, not all convictions that are overturned are of this meta. Perhaps few of them are. Some victims are actually very unsavoury characters indeed; one can argue - maybe - that it is no loss to society to have them behind bars. More commonly, they are petty criminals who have come to the attention of the police before. If a conviction is overturned on appeal, does that mean that the defendant was innocent all along? Not a bit of it: it just means that he might be innocent, and the 'beyond reasonable doubt' threshold says that a person who might be innocent ought not to be put inside.
     Campaigners against miscarriages of justice point out the problems with, say, relaxing the double jeopardy rule, and removing the right to silence. But these reforms are intended to increase the number of bad people that go to prison. They will have the effect of increasing the number of innocent people that go to prison as well - this is almost inevitable.
     Consider what will happen if a person can be tried twice for the same offence. The police won't need to take proper care to build a good case, reasoning that they can always have another bite at the cherry if the prosecution fails. So the defendant is acquitted, but brought back to trial after the police have investigated properly. What will the jury think? The defendant got away with it the first time, but there's now compelling evidence of his guilt? The jury could almost believe that its job is merely to endorse the guilty verdict.
     Similar problems exist with the right to silence - there are many reasons for a person to refuse to answer questions from the police. These might include fear of incriminating a friend, psychological disorders, or simply fear of the police. These may not indicate guilt, but now a jury can be told that it may 'draw such adverse inferences as seem proper'.
     But consider what the double jeopardy reform is intended to achieve. In 1991 Billy Dunlop cold-bloodedly strangled a young woman to death. He made no secret of it, and even boasted about it to his friends. He was eventually tried for perjury, and sentenced to six years imprisonment. He could not be tried for murder, nor sentenced appropriately, because of the double jeopardy rule. Of course, the highest profile case of this sort is that of the murder of Stephen Lawrence. We all know who did it - two of the guilty men are currently in prison for another brutal racist attack - but they can't be tried again, since they've already been tried once.
     Similar arguments can be raised to support the curtailment of the right to silence. It has been argued that hardened criminals can use the 'ambush defence' to evade prosecution, and that limiting the right to silence will prevent this. Here is an example. A robber stabs a shopkeeper while trying to steal. The shopkeeper manages to set of an alarm, but dies of his injuries shortly after. No-one else sees the incident. The alarm summons the police, and they catch the robber running down a dark alleyway, still carrying the knife. Naturally, they ask what he is doing running away from a shop in which a man is lying dead, and carrying the weapon that killed him. No comment. At interview in the police station: no comment. Finally the case goes to trial, and the robber takes the oath. When asked how he came to be running away from a murder scene carrying the murder weapon he says: 'Well, I want to buy some cigarettes, and while I was the shop a man came in carrying a knife and a club. He stabbed the shopkeeper, and I snatched the knife off him, but he hit me with the club and chased me out the back of the shop. As he was chasing me down the alley with the club, he heard the sirens and ran off'. By this time, of course, the villain has had plenty of chance to concoct his story, and it's plausible enough. As it's the last day of the trial, it's too late for prosecution to investigate further, and seed of reasonable doubt has been planted in the minds of the jury.
     Under the new rules, the prosecution counsel could draw the jury's attention to the fact that the defendant refused to explain this version of events to the police for three weeks before the trial.
     In their own way, cases like the above are just as much miscarriages of justice as the wrongful convictions of the Guildford Four. If violent criminals go free, they can go on to commit more crimes (as the conviction of two of the Stephen Lawrence suspects shows).

...it is not the job of lawyers to decide whether it is better that ten guilty men go free than one innocent man is incarcerated.

Ultimately the problem is a political one, and it needs a political solution. There is no legal solution: it is not the job of lawyers to decide whether it is better that ten guilty men go free than one innocent man is incarcerated. This is the job of our elected representatives in Parliament. All the opinion polls show that people are generally in favour of measures that increase the likelihood of dangerous criminals being removed from society. Many people, when surveyed about this, admit that it is acceptable if occasionally an innocent man is sent to prison if it makes it safe to walk the streets. But how often is 'occasionally'? Once a year? Every day? To complicate matters, no MP is going to introduce a new Bill by saying: This new legislation will help us convict more armed robbers. Oh, by the way, about one in ten of those convicted will be innocent, but we think that's a price worth paying. Normally the positive aspects of legislation are emphasised over the negative ones. The likelihood is that your view on whether it's better to acquit more guilty men than to convict more innocent ones is unlikely to be a legal one: it will be based on your social position, your upbringing, your religion, even - perhaps - you prior experience of being a victim of crime. No diligent reading of the Law Reports will help you decide. And we will all decide differently.

UK LAW