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Should we be worried about the fact that we don't have an agreed definition of what a miscarriag
There may not be a single, agreed definition of a miscarriage of justice; however, there are various different conceptions of miscarriages of justice that appear in our criminal justice system.
Perhaps looking at our error correction mechanisms could give us a clue as to what definition of miscarriages of justice our criminal justice system is running on. The test the Court of Appeal Criminal Division (CACD) applies when considering whether to allow an appeal is one of safety; if the conviction is unsafe then the appeal will be allowed and presumably then that means that there was a miscarriage of justice in that they were convicted in the first place. A conviction could be held to be unsafe for a number of reasons; for example because key evidence was found to be wrong (as in R v Asbury) or the key evidence should have been excluded as having no probative value (as in R v George (Barry)). Our criminal justice system also allows for appeals on the basis of technicalities of abuse of due process rights; for example, in R v Mullen a conviction was quashed because the defendant was illegally kidnapped from Zimbabwe in order to be tried in the UK and the CACD held that this was a ‘blatant and extremely serious failure to adhere to the rule of law and involved a clear abuse of process’. Even less serious breaches of due process have led to convictions being quashed; in R v Clarke an appeal was allowed on the basis that the indictment papers had not been signed by an official of the Court. If we took when appeals were allowed as an indicator of the definition of a miscarriage of justice, then this would mean that innocence is not a prerequisite for there being a miscarriage of justice. This could be seen as worrying to people who think that allowing guilty people walking free is the most serious mistake that our criminal justice system can make - which is possibly a lot of people.
If guilty people walking free is to be part of our definition of miscarriages of justice, then it may be worrying that retrials after acquittal are not allowed. This means that even if there is evidence that the person once acquitted of a crime is actually guilty of it, that person cannot be tried again for that crime. On what basis is this justifiable? It is worrying that there is no agreed definition of miscarriages of justice that serves as a basis for this rule. The only rationale for this rule appears to be the principle of finality, but that principle is limited enough to allow appeals after conviction. I think it is worrying to have a definition of miscarriages of justice that doesn't include when guilty people are acquitted and thus to have a system that doesn't allow for people to be retried when there is new evidence that shows that they are guilty.
Looking at when compensation is granted muddies the water even more in our search for a definition of a miscarriage of justice from within the criminal justice system itself. If we looked at when compensation is granted to find a definition of miscarriages of justice, the definition we would get would be extremely narrow. The government approach to compensation is set out in s133 of the Criminal Justice Act 1988 as amended, which states ‘when a person has been convicted of an offence and when subsequently his conviction had been reversed or he has been pardoned on the ground that a new or newly discovered fact shows beyond a reasonable doubt that there has been a miscarriage of justice the Secretary of State shall pay compensation for the miscarriage of justice to the person who has suffered punishment as a result of the conviction … unless the non-disclosure of the unknown fact was wholly or partly attributable to the person convicted.’ In 2014 the government amended this to specify that there has been a miscarriage of justice for these purposes ‘if and only if the new or newly discovered fact shows beyond a reasonable doubt that the person did not commit the offence.’ This means that only people who are demonstrably factually innocent of the offence they were convicted of can be said to be victims of a miscarriage of justice deserving of compensation.
It is worrying that the laws in the criminal justice system are so contradictory when it comes to what a miscarriage of justice is. Perhaps the reason the system is so inconsistent in this sense is precisely because there is no accepted definition of a miscarriage of justice underlying the system.
So we need a definition, but what definition should be adopted?
The public conception of what a miscarriage of justice is seems to be that a miscarriage of justice occurs when an innocent person is convicted of a crime they did not commit. Perhaps then this is the definition we should accept. However, just because an idea is popular doesn't mean that it is right.
Schiff and Nobles agree that the conception of what a miscarriage of justice is within the media and the public is different to the concept within the legal profession. They characterise the difference as being concern for truth (with a focus on guilt and innocence) compared with a concern for due process. Schiff and Nobles think that both concerns have value in the Criminal Justice System.
However, it is not just the public that think that miscarriages of justice involve only the factually innocent; Michael Naughton also takes this view. He is not interested in technical innocence and so is a real critic of due process appeals. It is his primary criticism of the CCRC that it is solely concerned with due process and should instead focus on the factually innocent. This view is too simplistic and much too narrow.
Walker espouses a much broader definition of miscarriages of justice. He thinks that a miscarriage of justice is a failure to reach the desired end result of our criminal justice system - justice. He includes not only situations where there is no factual justification for the punishment, but also where suspects or defendants or convicts are treated adversely by the State to a disproportionate extent in comparison with the need to protect the rights of others - this could mean abuse of due process rights. He also says that a miscarriage of justice has occurred whenever the rights of others are not effectively protected or vindicated by state action against wrongdoers - this could be interpreted to mean that there should be retrials for guilty people who have been acquitted because leaving them unpunished would not protect the rights of others, especially not the victims.
In 2002 Tony Blair made a speech declaring that ‘it is a miscarriage of justice when delays and time wasting deny victims justice for months on end. It’s a miscarriage of justice when the police see their hard work and bravery thrown away by courts who let a mugger out on bail for the seventh or eighth time to offend again; or when courts don't have the secure places to put people. And it’s perhaps the biggest miscarriage of justice in today’s system when the guilty walk away unpunished.’ This speech was signalling a move in the system towards crime control, under Packer’s model. If the Prime Minister at the time thought that the guilty going unpunished is the biggest miscarriage of justice, then it is rather surprising that no move was made to allow for retrials from acquittal when it becomes clear that the acquitted person was indeed guilty. This speech also signalled a more victim-focussed criminal justice system. Over the past 20 years or so there has indeed been a much greater recognition to the rights of victims; for example, victim impact statements are now taken into account at sentencing. Of course, this does not fit into Packers model, where the criminal justice system is seen as consisting merely of the two limbs of crime control and due process models, but it could be seen as a legitimate move. More focus victims’ rights will bring us closer for justice to all. So perhaps the definition of miscarriages of justice should be in line with victims’ interests. This would also bolster claims that the guilty being acquitted should be seen as a miscarriage of justice that should be solved by allowing retrial from acquittal.
One thing that, unfortunately, none of these definitions include is when a person has been accused of committing an offence and is consequently incarcerated pending trial. If that person is innocent, then surely it is not just to have deprived them of their liberty and reputation in this way, even if they are found not guilty at trial. Think of the case of Colin Stagg… I think it is a weakness of all the definitions that this is not included.
My suggestion would be to adopt a broad definition such as Walker’s, but with the addition of people who have been accused and incarcerated for a crime they are innocent of even if they were not convicted of that offence and also with the addition of the recognition of victim’s rights. I would then suggest that the laws of the criminal justice system should be brought in line with this definition, to ensure that the system is consistent, especially so that everybody who has been the victim of a miscarriage of justice gets some form of compensation, even if it is just minimal as a way of apology. Our criminal justice system would benefit from the clarity, the certainty and the consistency. Having an agreed definition would be beneficial in another way too. Without one, making a convincing case to the government about what changes should be made the criminal justice system in order to lessen the risk of there being miscarriages of justice is extremely difficult.