A new definition of miscarriages of justice.

There are many different interpretations of miscarriages of justice. For instance Naughton (2012) stated that a legal definition of a miscarriage of justice is that a miscarriage of justice occurs when a case is successful in an appeal out of time and after the routine appeal system is exhausted. However, he argues that routine appeals from the Crown Court and the Court of Appeal should also be considered due to the time innocent people spent in prison while waiting their appeals. Target times at Criminal Appeal Office (2014) website state that straightforward cases should be heard by the Court of Appeal within 10 or 13 months when a permission to appeal is granted by a single judge or a full court respectively. Such target times back up Naughton’s claim that people who are successful in routine appeals are still victims of a miscarriage of justice due to spending a year in prison.

Criminal Justice Act (1988) on the other hand, states that to be considered as a victim of a miscarriage of justice, a person has to not only win an appeal out of time, but also prove “beyond a reasonable doubt” that a miscarriage of justice has occurred. However, the application of the Act’s definition was widened by the Supreme Court and the new definition states that “A new or newly discovered fact will show conclusively that a miscarriage of justice has occurred when it so undermines the evidence against the defendant that no conviction could possibly be based upon it’ (The Supreme Court, 2011). Although this Supreme Court’s definition only applies for compensation purposes, some may argue that there is no middle ground between guilty and innocent, therefore if a person is released after an appeal, he or she should be treated in the same way as if he or she was never convicted. Hence such people would not be proven guilty in the first place, they would all be presumed innocent and should receive compensation (Bates, 2015; Equality and Human Rights Commission, 2012; The Supreme Court, 2011). However, such approach may seem wrong due to cases where operational errors, for instance, would cast enough doubt on a conviction to call it unsafe without looking into the rest of evidence. For instance in a case of M25 Three Lord Justice Mantell said: “In our view the case against all three appellants was formidable… However we are bound to follow the approach set out earlier in this judgment, namely assuming the irregularities which we have identified had not occurred would a reasonable jury have been bound to return verdicts of guilty? In all conscience we cannot say that it would. At this distance we simply cannot assess the impact… on the case… Accordingly we cannot say that any of these convictions is safe. They must be quashed and the appeals allowed… For the better understanding of those who have listened to this judgment and of those who may report it hereafter this is not a finding of innocence, far from it” (R v Davis, Rowe, Johnson, 2000). Although operational errors do occur, should a court that previously stated that it is not concerned with factual guilt or innocence come to a conclusion that guilty offenders got away (R v Hickey & Ors [1997] EWCA Crim 2028)? Raphael Rowe later said that he believes that Lord Justice Mantell’s statement was made to limit damages after a successful appeal out of time and states that he is an innocent man. He also said that he feels like he is still in prison due to lack of belief in his innocence (Hopkins, 2000). Should people who win such appeals receive compensation and be called victims of a miscarriage of justice just for winning an appeal or should they be treated as ‘in the middle’ – not completely innocent, but also not guilty?

After considering two commonly discussed types of miscarriages of justice, let’s have a look at two different definitions. Cambridge Dictionaries Online (No year) explains a miscarriage of justice as “a situation in which someone is punished by the law courts for a crime they have not committed”. Such definition would fit both of the discussed types of miscarriages of justice perfectly; however another definition describes them as “a failure of a court or a judicial system to attain the ends of justice, especially one which results in the conviction of an innocent person” (Oxford Dictionaries, no year).

Although the definition states “especially one which results in the conviction of an innocent person”, it includes a possibility of other types of miscarriages of justice. For example, how about victims of crime in cases where the police or other officials knew that multiple offences took place before, but failed to act on the information they had? Or how about cases where an offender was never caught? Should we consider such cases as miscarriages of justice too? For example, Rotherham abuse scandal, which revealed an estimate that 1400 children were sexually exploited between 1997 and 2013 (Jay, 2014). The authorities and the police received three detailed reports stating that child sexual exploitation took place in and around Rotherham in this time period, but the information was ignored and one researcher was accused of making it up (Jay, 2014). Chief Superintendent Jason Harwin later made an apology to all victims and admitted that the Police Service failed to deal with the offences (BBC, 2014). Should such cases deserve to be called miscarriages of justice, because of the failure to act to help victims?

Similarly to Rotherham child abuse scandal, friends and families of 21 people who died during Birmingham pub bombings in 1974 have not seen justice till this day (Justice For The 21, no year). Chris Mullin, a former MP and an investigative journalist, said that without confessions, nobody will ever be brought to justice for the bombings 40 years after it happened, and it has only been so long because of the mistreatment of Birmingham 6, which led to their false confessions and imprisonment (BBC, 1991; Bell, 2014). Is failure to prosecute anyone for a crime due to police misconduct a miscarriage of justice?

Considering example cases and current definitions of miscarriages of justice, I would like everyone who is reading this article to consider a new, revised definition which is as follows: “A miscarriage of justice occurs when a court, police or a judicial system fails to attain the ends of justice in a timely manner, resulting in either a failure to prosecute an offender or in a conviction of an innocent person.”

Although such definition would include both, the existing miscarriages of justice cases and newly proposed cases where the offender gets away, it also has some downsides. For instance, such definition does not specify what a ‘timely manner’ is, leaving my readers wondering how long the society should wait before stating that the offender did not get caught. Currently there is no interpretation of a ‘timely manner’ in Naughton’s (2012) argument about routine appeals either, meaning that such appeals still might be discarded by many, because they might consider Criminal Appeal Office’s (2014) timelines mentioned above as reasonable.

The revised definition also fails to determine whether to include all cases as miscarriages of justice or only the ones that occur due to negligence or misconduct of the authorities. This point could eventually divide miscarriages of justice in two sub-categories – 1) miscarriages of justice occurring due to negligence or misconduct, and 2) miscarriages of justice revealed due to the advancement of technology.

The same failure also applies to the understanding of the middle ground between guilty and innocent, leaving space for a discussion on who should be treated as victims and what they need to prove before they can describe themselves as such.

There are endless amounts of questions still to be answered; however nobody has time to read forever, therefore I will  finish the article here and let everyone come up with their own ideas and answers to all these questions for now. I will keep researching and answer these questions one by one in due course. However, if you want to ask me anything, please do not hesitate to do so!

Thank you for reading!

References

Bates, M. (2015) Innocent – But Not Innocent Enough, The Justice Gap [Online]. Available at: http://thejusticegap.com/2015/02/innocent-innocent-enough/ (Accessed: 22 April 2016).

BBC (1991) 1991: Birmingham Six Freed after 16 Years, BBC [Online]. Available at: http://news.bbc.co.uk/onthisday/hi/dates/stories/march/14/newsid_2543000/2543613.stm (Accessed: 03 November 2015).

BBC (2014) Rotherham child abuse scandal: 1,400 children exploited, report finds, BBC [Online]. Available at: http://www.bbc.co.uk/news/uk-england-south-yorkshire-28939089 (Accessed: 04 May 2016).

Bell, B. (2014) Birmingham Pub Bombings: Why Has No-One Been Brought to Justice?, BBC [Online]. Available at: http://www.bbc.co.uk/news/uk-england-birmingham-30118137 (Accessed: 04 November 2015).

Cambridge Dictionaries Online (No year) Miscarriage of justice, Cambridge Dictionaries Online [Online]. Available at: http://dictionary.cambridge.org/dictionary/british/miscarriage-of-justice (Accessed: 01June 2015).

Criminal Appeal Office (2014) Frequently asked questions, Criminal Appeal Office [Online]. Available at: http://www.justice.gov.uk/downloads/courts/court-of-appeal/criminal-division/cao-information-questions-answers.pdf (Accessed: 13 March 2015).

Criminal Justice Act 1988, Ch 33. London: The Stationery Office.

Equality and Human Rights Commission (2012) Human Rights Review 2012: How Fair is Britain? An Assessment of How Well Public Authorities Protect Human Rights. Equality and Human Rights Commission [Online]. Available at: http://www.equalityhumanrights.com/sites/default/files/documents/humanrights/ehrc_hrr_full_v1.pdf (Accessed: 22 June 2015).

Hopkins, N. (2000) Raphael Rowe was freed as one of the M25 Three. But his fight for justice goes on, The Guardian [Online]. Available at: http://www.theguardian.com/uk/2000/jul/22/race.world (Accessed: 28 April 2016).

Jay, A. (2014) Independent Inquiry into Child Sexual Exploitation in Rotherham, Rotherham Metropolitan Borough Council [Online]. Available at: http://www.rotherham.gov.uk/downloads/file/1407/independent_inquiry_cse_in_rotherham (Accessed: 04 May 2016).

Justice For The 21 (No year) Justice 4 the 21 innocent victims of the Birmingham Pub Bombings 21st November 1974, Justice For The 21 [Online]. Available at: http://justice4the21.co.uk/ (Accessed: 04 May 2016.

Naughton, M. (2012) The official Miscarriage of justice iceberg, in: Rethinking Miscarriages of Justice: Beyond the Tip of the Iceberg. Basingstoke: Palgrave Macmillan, pp. 37-52.

Oxford Dictionaries (No year) Miscarriage of justice, Oxford Dictionaries [Online]. Available at: http://www.oxforddictionaries.com/definition/english/miscarriage-of-justice (Accessed: 01 June 2015).

R v Davis (Michael George), Rowe (Raphael George) and Johnson (Randolph Egbert). Court of Appeal Criminal Division. 17 July 2000 (Unreported).

R v Hickey & Ors [1997] EWCA Crim 2028

The Supreme Court (2011) Press Summary. R (on the application of Adams) (Appellant) v Secretary of State for Justice (Respondent); In the Matter of an Application by Eamonn MacDermott for Judicial Review (Northern Ireland); In the Matter of an Application by Raymond Pius McCartney for Judicial Review (Northern Ireland) [2011] UKSC 18, Bailii [Online]. Available at: http://www.bailii.org/uk/cases/UKSC/2011/18.(image1).pdf (Accessed: 01 June 2015).

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