Classification of miscarriages of justice

Following one of my earlier articles about a broader definition of miscarriages of justice, a new understanding of different types of miscarriages of justice is necessary (Berzins, 2016). As miscarriages of justice were not described as such a broad term before, classification was unnecessary. However, as the understanding broadens and different types of miscarriages of justice surface, categories may be useful for further analysis. Although it was originally suggested to use different criteria, this article will separate miscarriages of justice by using two main factors – who the victim is and who caused the miscarriage of justice.

Many different interpretations of miscarriages of justice exist. Naughton (2012), for instance stated that both, routine appeals and appeals out of time should be considered as miscarriages of justice, while Criminal Justice Act (1988) only considers cases where the appellant can conclusively show that a miscarriage of justice occurred. Unlike many others, Berzins (2016) also included cases were offender was never caught, while Walker (1999 cited in Eady, 2009) included acquittals on technicality in miscarriages of justice definition due to high number of professionals who showed the importance of the matter. Such decision is partially in line with the Criminal Justice Act’s 1988 definition and also follows Berzins (2016) definition. This article will, therefore, discuss routine and exceptional appeals, followed by crimes that were never solved or were solved after unacceptably long time. The paper will then look into miscarriages of justice that do not belong to any other category and, as the last category, the article will analyse appeals allowed on technicality and were they fit in miscarriages of justice classification. For a conclusion, the article will compare these categories and analyse links between them.

When someone mentions miscarriages of justice, the first thing many people will think about is people who got sent to prison for something they did not do. However, not many will realise that not all appeals are the same, because some convictions are overturned after roughly one year from the sentence and are considered as routine appeals, which do not currently count towards official statistics, while others take years and even decades before innocent people walk free and the latter is the only type that makes official miscarriages of justice statistics (Criminal Appeal Office, 2014; Naughton, 2012). Naughton (2012) considers them all as miscarriages of justice and not without a reason. If we think back to the early 20th century, we can see that the Court of Criminal Appeal was created because of several innocent people in prison, who rose public awareness on how courts can make mistakes, the same reason as why the Criminal Cases Review Commission was created 19 years ago (Roberts and Weathered, 2009; Whiteway, 2008). When you think about it this way, it seems reasonable to agree that all successful appeals represent a failure of the system, and should be considered as such regardless of time spent to right them. Although time is essential when talking about exceptional miscarriages of justice, it will be proportional to the harm an individual has suffered, meaning that the range of harmful effects between all miscarriages of justice where an innocent individual has been sent to prison would differ more greatly if all appeals would be included, comparing to current statistics. Such miscarriages of justice are most often corrected by exploiting an error at trial; however the same result can be achieved by using an error during the investigation or unreliable expert evidence (McCartney and Roberts, 2013; O’Sullivan, 2014; Runciman, 1993).

For the next part of this article, miscarriages of justice where offender was never caught or was not caught in a timely manner will be discussed. Opposing the previous category, this one is based on crime victims instead of a fact that an innocent person was sent to prison (Berzins, 2016; Jay, 2014; Justice For The 21, no year). It, therefore, means that harmful effects of this category will differ greatly, depending on the number of victims in a particular time frame as well as on type of crime and whether the offender re-visits previous victims and re-victimise them after the initial crime, like it happened in Rotherham abuse scandal (Jay, 2014; Justice For The 21, no year). Unlike the previous type of miscarriages of justice, such errors in justice will rarely be caused by an error at trial, and, instead they could be caused by an error during an investigation or by lack of investigation (Eady, 2009; Jay, 2014). They could also be caused by a simple lack of evidence (BBC, 2014) without any errors, which leads us to the next category of miscarriages of justice.

Lack of evidence can probably lead to some of the most dangerous miscarriages of justice, where nobody is at fault. Such cases can include victims from both previous categories, but the difference is that these cases are initially caused by lack of scientific capabilities or lack of research. Analysing such cases can provide information on underdeveloped research areas within Criminal Justice System for future development; however, some cases will simply lack laboratory equipment capable to carry out tests or to obtain usable samples of evidence. As a result, these cases are unlikely to be corrected in near future, meaning that victims have to live with a thought that either they will stay in prison, because all scientific evidence supports their conviction, or the offender who attacked them will not get caught, because it is simply impossible to obtain enough evidence. This category of miscarriages of justice is the only category where nobody is at fault, because, unlike the last category, no error occurred.

The final category discussed by this article includes cases where a factually guilty prisoner finds a flaw in the case and the Court of Appeal is forced to quash a conviction where evidence suggest that the appellant is guilty (R v Davis, Rowe Johnson, 2000). It is obvious that the appeal system was introduced to help factually innocent prisoners fight for their legal freedom, however, if a serious error at trial or investigation occurs, the factually guilty can sometimes exploit the system and gain freedom (Roberts and Weathered, 2009; Runciman, 1993; The Bristol Post, 2012). As Walker (1999 cited in Eday, 2009) stated, police and prosecution staff has to work hard for prolonged time in order to achieve a conviction, but then defence solicitors find an error and all prosecution work goes to waste and the guilty person walks free. This category of miscarriages of justice is similar to the first category discussed, where factually innocent people are sent to prison and eventually released, however an important difference between the two categories is that victims of the first category are innocent people, while the only victims of this one are the same as victims of the actual crime.

These are the four categories that describe miscarriages of justice by victims and responsible parties (Chart no 1). Each one of them follows Berzins (2016) definition of the matter; however some miscarriages of justice can belong to more than 1 category and some others can shift categories after certain events. Also, different methods to correct each category apply as well as different treatments for their victims are necessary.

Moj classification chart

For instance, category 1 seems to be based solely on factually innocent prisoners, meaning that the jury reached a wrong decision. Even though the jury made the decision based on the evidence presented, some evidence might be missing or undisclosed with the defence team, meaning that jurors did not hear all possible facts; therefore such cases can be corrected by exploiting a procedural error from either trial or investigation. As it is often easier to use a technicality to overturn a conviction, many factually innocent people do so (McCartney and Roberts, 2013; Naughton and Tan, 2010; The Bristol Post, 2012), however such course of action clashes with category 4 miscarriages of justice. Therefore many factually innocent people are still seen as guilty offenders who got away on a technicality rather than as factually innocent (Naughton and Tan, 2010). This also means that if we try to eliminate some miscarriages of justice from category 4 by limiting opportunities to exploit technicalities, some category 1 miscarriages of justice will be prolonged as well. It, therefore, means that for as long as category 1 will depend on technical errors rather than new facts and factual innocence, categories 1 and 4 will be tied together and will occasionally clash.

Similarly, some cases that fit in category 1 will actually belong to category 3. This could happen if an innocent person is sent to prison and gets released afterwards on new scientific evidence, which was not obtainable during the original trial. This would mean that the factually innocent victim would belong to category 1, but, after the new evidence comes to light and the victim is released, the miscarriage of justice would transfer to category 3, because the whole error was caused by lack of technological advancement. The main reason such cases need to be categorised separately is that in a case of category 1 miscarriage of justice it is possible to avoid a larger error in judicial system and protect others from becoming victims of the same error, while category 3 miscarriage of justice does not include any human errors, hence there is no need for law changes. Category 1 could also include a malicious act against the factually innocent prisoner, which would need to be investigated, while there are no such acts in category 3 miscarriages of justice. Cases from category 1 can shift to category 2 in a similar way; however correction methods would stay the same as in any other case of the same category, because an error would normally occur in such cases.

Categories 2, 3 and 4 can have similar methods of victim rehabilitation, because the harm caused by the offender will be similar, if comparing similar crimes and the same number of victims. Category 1 can also have similar impact on victims of crime; however it depends on the amount of time passed between the crime and release of factually innocent victim of miscarriages of justice.

Category 1 and, occasionally, categories 2 and 3 will have additional victims – factually innocent people who went to prison. These people suffer completely different trauma, therefore treatments are different too.

Altogether it looks like all categories include victims of crime who suffer harm by knowing that the offender was not caught, however some categories can have additional victims who suffer additional harm from being sent to prison for no reason. Although most miscarriages of justice are caused by a technical error, it is also a widely used opportunity to correct some of them, meaning that errors are often both – the poison and the cure.


BBC (2014) Birmingham Pub Bombings: No New Inquiry to Be Held, BBC [Online]. Available at: (Accessed: 04 November 2015).

Berzins, G. (2016) A new definition of miscarriages of justice, Miscarriages of Justice Blog [Online]. Available at: (Accessed: 30 August 2016).

Criminal Appeal Office (2014) Frequently asked questions, Criminal Appeal Office [Online]. Available at: (Accessed: 13 March 2015).

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

Eady, D. (2009) Miscarriages of Justice: The Uncertainty Principle. PhD thesis. Cardiff University.

Jay, A. (2014) Independent Inquiry into Child Sexual Exploitation in Rotherham, Rotherham Metropolitan Borough Council [Online]. Available at: (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: (Accessed: 04 May 2016.

McCartney, C. and Roberts, S. (2013) Building Institutions to Address Miscarriages of Justice in England and Wales: ”Mission Accomplished?”, University of Cincinnati Law Review, 80 (4), pp. 1332-1361 NRL [Online]. Available at: (Accessed: 27 September 2015).

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.

Naughton, M. and Tan, G. (2010) Chapter 3: Why alleged victims of wrongful conviction maintain innocence, in: Claims of Innocence: An introduction to wrongful convictions and how they might be challenged. Bristol: University of Bristol, pp. 12-14.

O’Sullivan, N. (2014) Birmingham Six Accused Calls for Public Inquiry Into 1974 Bombings, The Irish Post [Online]. Available at: (Accessed: 03 November 2015).

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

Roberts, S. and Weathered, L. (2009) Assisting the Factually Innocent. The Contradictions and Compatibility of Innocence Projects and the Criminal Cases Review Commission, Oxford Journal of Legal Studies, 29 (1), pp. 43-70 Networked Knowledge [Online]. Available at: (Accessed: 29 September 2015).

Runciman, V. (1993) The Royal Commission on Criminal Justice, HMSO [Online]. Available at: (Accessed: 25 August 2016).

The Bristol Post (2012) Fighting for Simple Justice, The Bristol Post [Online]. Available at: (Accessed: 12 October 2015).

Whiteway, K. (2008) The Origins of the English Court of Criminal Appeal, Networked Knowledge [Online]. Available at: (Accessed: 25 August 2016).




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