The perversion of convictions for crimes that never occurred

 

Michael Naughton

 

Overview of on-going research

 

Before I talk specifically about the causes of miscarriages of justice, I have been asked to say a little about my on-going project. In a nutshell, my work over the last three or four years has been a sustained attempt to calculate the likely scale of England and Wales’ miscarriage of justice problem – you might say the size of the miscarriage of justice ‘iceberg’. Despite being variously told that this is very much a hopeless and impossible endeavour, I continue with what I see as a very constructive task because I believe that the more miscarriages of justice that can be legitimately shown to be occurring, the more forceful the criticism of the criminal justice system and the likelihood that something will have to be done in response.

 

So far, the main thrust of my published research has mainly been directed against existing definitions of miscarriages of justice. As I see it, the main problem with existing definitions is that they have been focused on cases of successful appeals that derive from a referral back to the Court of Appeal (Criminal Division) (CACD) by the Criminal Cases Review Commission (CCRC). The problem with this is not that such cases are not miscarriages of justice, for they certainly are. Rather, such a narrow view of criminal justice system error only captures a handful of cases, and, thus, causes little disruption to the criminal justice system in the context all of the criminal trials that take place each year.

 

Against this, my contention is that to begin to get a more adequate picture of the true scale of the miscarriage of justice problem we have, at the very least, to include all routine successful appeals as well. By so doing, the scale of the miscarriage of justice problem increases from around 7 cases each year that were successful in appeal following a referral back to the Court of Appeal by the CCRC in its first five years to around 3,750 cases per year.

 

This argument for including all successful appeals is strengthened by an analysis of the harmful consequences of miscarriages of justice that also includes the 37,000 or so direct victims who have managed to overturn their wrongful convictions over the last decade through routine appeals. By so doing, you not only get an idea of the social, psychological and physical devastation of wrongful imprisonment in inhumane and degrading conditions, you get a more adequate image of the real scale of harm that the criminal justice system causes. This includes suicides and attempted suicides for what might be considered fairly trivial wrongful convictions for such things as drink-driving offences, and the breakdown of family relations, loss of homes, jobs and businesses when people are wrongly convicted following false allegations of abuse.

 

The argument is even further strengthened when the harm caused to the many more tens of thousands of indirect victims – wives, husbands, partners, parents, children, friends and wider communities – of people wrongly convicted are also considered.

 

In addition, there are the financial costs of miscarriages of justice. These include routine compensation awards to victims of wrongful convictions that result from judicial error, which amounts to an annual average of £6 million over the last five years. They include the estimated £85 million a year that it costs publicly funded legal services in terms of supporting victims of miscarriages of justice when they are wrongly convicted and then funding them again to routinely overturn their wrongful convictions. And, they include the estimated £65 million a year in terms of containing the wrongfully convicted in prison. In these three areas alone, then, wrongful convictions are currently costing in excess of £180 million per year. When other relevant financial costs are also considered such as the running of the CCRC, the Police Complaints Authority (PCA), the costs to the welfare system in terms of supporting families when victims are wrongly imprisoned, and so on, the total costs of wrongful convictions run into many hundreds of millions of pounds each year.

 

Although this analysis does extend existing accounts of the scale and harm of miscarriages of justice many hundreds of times, it is, itself, extremely limited as an indicator of all the miscarriages of justice that are currently occurring as it is an entirely legalistic view of miscarriages of justice based solely upon the official statistics of successful appeals. In an attempt to account for this and to provide a more adequate depiction of the real scale of miscarriages of justice, I also include in my analysis various procedures of the criminal justice system that act as barriers or disincentives to achieving successful appeals in cases of wrongful conviction.

 

Here I am thinking about such things as the ‘time loss rule’, under which convicted prisoners are advised that if they make an appeal which is ultimately unsuccessful it could result in substantial increases to their sentence. The effect of this is to transform what was said to be a minor check on wholly groundless applications into a major barrier in some meritorious cases.

 

Another example is the Criminal Procedure and Investigations Act (1996) (CPIA) which can be conceived to have introduced a regime for advance disclosure that is at odds with the operational practices of police officers, the Crown Prosecution Service (CPS) and defence solicitors. The most obvious consequence of this is that no one knows how many miscarriages of justice are being caused simply because no one knows how much material is not being disclosed.

 

There are also the potential miscarriages of justice that result from charge, plea and sentence ‘bargaining’ and the so-called ‘parole deal’ that induce innocent people to accept their guilt for criminal offences that they have not committed. Once such a ‘bargains’ have been struck, it will be virtually impossible to achieve a successful appeal.

 

I also include such things as the ‘predictive test’ of the CCRC when they try to second-guess what the appeal courts might make of fresh evidence in appeals, especially when they reject applications. At such times, the CCRC can be conceived to act as a tribunal of the fresh evidence and in contravention of Article 6 of the European Convention on Human Rights and the Human Rights Act by denying applicants the Right to a fair trial. As an entirely legally focused body, the CCRC also take no account whatever of the possibility that some applicants may be innocent. The only concern is whether there is a ‘real possibility that the conviction will not be upheld’, inevitably this will mean that some factually guilty applicants will pass the CCRC’s test and that not all innocent victims will be able to overturn their wrongful convictions.

 

I could go on, and on, but I think that I have provided more than enough of an insight into my research and areas of interest. What I want to do now is turn to the specific issue of the causes of miscarriages of justice and contribute something productive by drawing your attention to a category that has not previously received any acknowledgement – wrongful convictions for crimes that never occurred.

 

 

The perversion of convictions for crimes that never occurred

 

The common view of a miscarriage of justice victim is of a person who is wrongly convicted for a crime that they did not, in fact, commit. In line with this, existing accounts of the causes of miscarriages of justice have, generally, focused upon cases of successful appeal against criminal conviction and charted the reasons given by the appeal courts for the wrongful conviction. From such a perspective, the most significant causes highlighted include the perennial problem of prosecution non-disclosure, police error or misconduct, problems with identification, false confessions, perjury and poor defence.

 

One of the most popular reasons given for miscarriages of justice is that the police and prosecution services are under an enormous pressure, not only from the government but also from the public, to tackle rising crime rates. The argument goes that because the criminal justice system is a human system this leads to inevitable mistakes where innocent victims are unintended casualties in the battle for law and order. This might seem to have at least some theoretical merit when a crime has actually been committed. But what about the untold number of innocent people who are currently being convicted for crimes that have never occurred?

 

This is not as far-fetched as it might seem. Recent cases of successful appeal have documented the problem that juries have in adjudicating between competing and conflicting expert forensic scientific evidence. These include the cases of Sally Clark who spent three years of a mandatory life sentence for the murder of two of her children who died of natural causes; Sheila Bowler who served four years of a life sentence for the murder of her aunt, Florence Jackson, who died of accidental drowning; Patrick Nichols who spent 23 years of wrongful imprisonment for the murder of Gladys Heath, a family friend, who had accidentally fallen down a flight of stairs; and, Kevin Callan who served three years for the murder of his four-year-old step-daughter Amanda Allman who died as a result of a fall from a playground slide. These are just a small sample of such cases that have been overturned over the last five years following new forensic evidence.

 

A difficulty arises in trying to calculate the possible scale of the problem with forensic science evidence as none of the above cases were officially attributed or recorded as wrongful convictions for crimes that never occurred. On the contrary, they were all put down to the failures of individual expert forensic scientists who either through error or deceit corrupted the course of justice. But, by individualising the issue all sight is lost of the full extent to which forensic science causes miscarriages of justice. And, the victims in the many similar cases that might never be successfully overturned are rendered invisible.

 

As this relates to convicted prisoners who are currently serving life sentences in cases of contested forensic science who continue to allege their innocence, Nick Tucker is currently serving a life sentence for the murder of his wife who died following a tragic road traffic accident. This case is particularly pertinent as five separate pathologist reports into the case all agree that Carol Tucker died of accidental causes; Jong Rhee is also claiming his innocence following the death of his wife in what contesting forensic science evidence holds to have been an accidental guest house fire; Eddie Guilfoyle is serving a life sentence for the murder of his wife who, more than likely, committed suicide; and Angela Canning, like Sally Clark, is currently serving a double life sentence for the murder of her two children who were, probably, the tragic victims of ‘cot death’.

 

In an attempt to make sense of convictions for crimes that never occurred, it is instructive to consider the current climate of criminal justice in England and Wales. An important insight into which is the recent Criminal Justice Bill, which proposed wide ranging reforms of the entire criminal justice system, including the abolition of many safeguards against miscarriages of justice, e.g. the abolition of the ‘double jeopardy’ rule and the introduction of hearsay evidence and previous criminal records. Tony Blair has said that these changes are necessary because the present system is ineffectual in obtaining guilty verdicts and too many guilty offenders are said to be escaping their just deserts. This depiction is misleading. Whilst it is true to say that far too many crimes go undetected and police clear up rates are generally low, the present system is very effective in obtaining guilty verdicts once criminal suspects have been charged - around 95 per cent in Magistrates’ Courts and 87 per cent in the Crown Court.

 

Despite this, the Criminal Justice Bill represents a reversal of the principle that it is better that ten guilty offenders are acquitted than one innocent person wrongly convicted, which has long been a cornerstone of the criminal justice system. On the contrary, the operational principle of the criminal justice system now seems to be that the excessive conviction of the innocent is a necessary and palatable fact. Indeed, it can be argued that with the creation of the Criminal Cases Review Commission the system not only officially recognised that miscarriages of justice can and do occur, they have become a necessary requirement. An indicator of a criminal justice system that is truly tough on crime to the extent that it now needs an official body to overturn an increasing number of miscarriages of justice.

 

As this relates to the issue of the victims of crimes that never occurred, the juries in the various cases, whether already overturned or not, were faced with the impossible task of adjudicating upon highly complex and conflicting expert forensic scientific evidence about which they were not suitably qualified to properly understand. Faced with such a dilemma, and fuelled with the misleading rhetoric that too many guilty offenders are being acquitted, what else could they do except find the defendants guilty? The alternative, that no crime occurred, was a step to far, for it meant risking the release of alleged murderers back into the community with the potential to kill again.

 

At the same time, the victims of crimes that never occurred also illustrate a category of perverse jury verdicts that has also not previously been acknowledged. Conventionally, perverse jury verdicts are defined as occasions when juries do not comply with the direction or guidance of the courts and return not guilty verdicts in cases where defendants are believed to be guilty. Victims who are convicted of crimes that never occurred turn this on its head and show that juries can be equally perverse when they comply with judicial misunderstandings of forensic scientific evidence and legitimate the wrongful conviction of innocent people.

October 2003