This blog post has been contributed by Ms Amber Marks, Module Convenor for Evidence.
Miscarriages of justice have featured a great deal in the news in 2024. Such cases illustrate how far we have come in understanding and addressing the causes of wrongful convictions but also of the challenges that remain in avoiding and addressing them.
In terms of protecting defendants from convictions based on false confessions, we have come a long way. In 2024 Oliver Campbell was successful in his appeal against conviction, and the Court of Appeal took the opportunity to reflect on how much more knowledgeable we are today of the risks of false confession evidence than in the past. The narrow grounds on which the appeal was granted, however, and the length of time and protracted process involved in quashing his conviction, were subject to much criticism in the media, with social commentators drawing attention to the relative ease with which an innocent person can be wrongly convicted compared to the immense hurdles that must be overcome to overturn a conviction.
In recent years several organisations have argued that the law in relation to criminal appeals is in need of reform. Concerns have been expressed around requirements for new evidence and the tests used by the Court of Appeal and the Criminal Cases Review Commission (CCRC) – the body responsible for investigating potential miscarriages of justice. Some groups have claimed that the current system can make it difficult for wrongly convicted people to appeal where exculpatory evidence was available but not used at trial, and/or to obtain and analyse evidence which might suggest a person’s innocence. This led the government to call upon the Law Commission to review the law relating to criminal appeals in criminal cases, with a view to ensuring that courts have powers that enable the effective, efficient and appropriate resolution of appeals. It is expected to report in 2025. Meanwhile criticism of the Criminal Cases Review Commission (the only body with the power to send cases which have been heard by the Court of Appeal back to the Court of Appeal to be heard again) has also reached new heights in 2024 and there is concern about its growing backlog of cases.
In April 2024 the Criminal Cases Review Commission apologised to Andrew Malkinson, who spent 17 years in prison after being wrongfully convicted of rape in 2004. His conviction was overturned by the Court of Appeal in 2023.
Solicitor Katie Wheatley, partner at Bindmans, said of the case:
Andrew Malkinson’s case is a bitterly poignant reminder of the risks associated with eyewitness identification evidence, which courts have long recognised can be unreliable. Safeguards include capture of all first descriptions provided by witnesses, scrutiny of the duration of observation, quality of lighting and view and any factors that may have influenced a witness’s recollection as well as strict adherence to authorised forms of identification procedure. However awful the crime, justice can never be served by a less than rigorous approach to such evidence during investigation and trial.
Because a mistaken eyewitness can be convincing at trial, the judge must warn the jury of the special need for caution before convicting a defendant on the basis of disputed identification evidence.
Miscarriages of justice show us how and where the trial process can go wrong and demonstrates the importance of evidential safeguards. An interesting resource that you might enjoy exploring is the webpage of the University of Exeter´s ´Evidence-Based Justice Lab.´ It contains a searchable miscarriages of justice registry which contains details of miscarriages of justice over the last fifty years. You can use it to search for miscarriages of justice with a particular cause or involving a particular offence using their interactive graph, or case table. The database is referred to in Rebecca Helm´s article (essential reading in the Module Guide, 2.1)
