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An examination of the criminal appeals process and the adequacy of procedures for reviewing alleged or suspected miscarriages of justice in the light of the chosen case study, together with an outline of the main challenges facing indeterminate sentence prisoners maintaining factual innocence
inadvertently perpetuates miscarriages of justice further due to the recurring theme of homogeneity in the application of law to victims of miscarriages of justice and indeterminate sentence prisoners.
It is not easy to pin down a definitive figure of miscarriages of justice in any given year. However, one way of arriving at a figure can be the official statistics of successful appeals against criminal conviction. These successful appeals demonstrate the miscarriage of justice. One such case is that of Sam Hallam, who was tried and convicted in 2005 for murder and conspiracy to commit grievous bodily harm and violent disorder. After spending 7 years in prison, his conviction was later quashed by reference from the Criminal Cases Review Commission (CCRC) to the Court of Appeal. The CCRC has been hailed as “that rare thing- a public body of which the UK can be proud of.” However, there is a general disillusionment amongst scholars about the success of the CCRC and whether its procedures are adequate. The case of Sam Hallam demonstrates several issues with the CCRC but the most pertinent issue concerns the ‘Real Possibility test’
The Real Possibility test is the CCRC referral threshold and it posits the question of whether there is a real possibility that the Court of Appealmay find the conviction unsafe. The test is said to be a unique threshold in the criminal process. The test is the last resort for appeal for a convict and it comes after all the other routes to appeal are exhausted.
In Sam Hallam’s case the application of the Real Possibility test came when the CCRC considered whether, as a result of new evidence or argument, namely the non-disclosure of Sam Hallam’s mobile phone, that there is a ‘real possibility’ that the conviction would not be upheld where a reference was made.
Despite the Real Possibility test being devised to give a last chance to those who are convicted of offences, it is still considered to be too restrictive to give that opportunity in many cases. This is addressed by Kevin Kerringan where he says that the key obstacle to success for alleged victims of wrongful conviction is the restrictive culture that permeates the appellate system for addressing issues of potential error. If miscarriages of justice are to be evidenced by successful appeals there would be a success rate of seventy-five per-cent, however due to the legalistic and restrictive approach of the Real Possibility test the sheer magnitude of wrongful convictions shall never be considered, “waiting in the wings of the Court of Appeal is a legion of further, less notorious but equally shocking miscarriages of justice.”
For Michael Naughton the CCRC has been conceptualised as a step back from its predecessor (the C3), in its inability to refer cases of merit back to the Court of Appeal. The significance of the problem with
1 Kevin Karrigan, ‘Real Possibility or Fat Chance’, in M. Naughton (ed.) The Criminal Cases Review Commission: Hope for the Innocent? (Basingstoke: Springer 2009) 166.
2 Carole McCartney: “Weighted in the balance”, (The Guardian 29 November 2008)
3 Criminal Appeal Act 1995, s.13(1).
4 Kevin Karrigan, ‘Real Possibility or Fat Chance’, in M. Naughton (ed.) The Criminal Cases Review Commission: Hope for the Innocent? (Basingstoke: Springer 2009) 168.
5 R v Criminal Cases Review Commission, ex parte Pearson  EWHC Admin 452,  1 Cr App R 141, , where the court held that ”the real possibility is imprecise but it denotes a plain contingency that there was an outside chance or a bare possibility” that the conviction will not be upheld in an appeal.
6 Kevin Kerrigan, Miscarriage of justice in the magistrates' court: The forgotten power of the criminal cases review commission. (2006) Criminal Law Review 124.
7 Kevin Karrigan, ‘Real Possibility or Fat Chance’, in M. Naughton (ed.) The Criminal Cases Review Commission: Hope for the Innocent? (Basingstoke: Springer 2009) 145
8 David Rose, In the Name of The Law: The Collapse of Criminal Justice (Vintage: New Edition 1996) 23
7 M. Naughton,The Criminal Cases Review Commission: Hope for the Innocent? (Basingstoke: Palgrave Macmillan 2009) 200
“Real Possibility test” can be interpreted in light of the Scottish Criminal Cases Review Commission (SRCCRC) whereby cases are referred on the interests of justice. From this perspective it is clear that the test should be based on the more ethical perceptions of justice and to to operate within the manner aligned with public aspirations.
The literature concerning the criticisms of the Real Possibility test fails to acknowledge the underlying issue, which is, that the CCRC is acting within the ambit of the powers conferred by Parliament through statute. The CCRC cannot act outside the scope of these powers as that would be ultra vires and if the function has been conceptualised to be mechanical, rather than interpretative, then that is the scope of ambit. This was understood by Lord Bingham, who said that the function of the CCRC is mechanical.
In order for there to be a change in the appellate system, there is a need to recognise the need for change. This is where the issue of isolation is most applicable, wherein the central question is: how does the legal system acknowledge discourses outside of the legal sphere? An analysis based on the theory of autopsies by Nobels & Schiff would suggest that for the system to continue functioning, the law cannot be totally open to its environment, for to do so is to have no boundaries and without boundaries there can be no system. Although Nobels & Schiff present a convincing argument that the law has to be normatively closed, if the law continues to disregard the disjunction between the socio-political aspirations for the appeals system and the actual workings of the procedures in place, then paradoxically authoritative legal decisions and procedures are insufficient as there is a failure to acknowledge wrongs by the system.
It is seen that the isolation of law from socio-political aspirations, and the need for the appellate system to seek closure has persisted long after the miscarriage of justice has been acknowledged. This is evidenced in the hesitancy of the system to grant compensation to those who were victims of miscarriage of justice. Sam Hallam was acquitted after spending 7 years in prison, but his application to the Court of Appeal for compensation was rejected. His contention that the new legislation governing compensation was unlawful, was rejected by the Court of Appeal, which concluded that the test did not offend the presumption of innocence.
The tribal loyalty of the judiciary to the Court of Appeal clearly indicates a lack of enthusiasm to seek true justice and camouflages it as legal nuances, as Peter Thornton acknowledges there is a suspicion that the Court of Appeal harbours reluctance to rectify wrongs. The failure to declare that the system has failed, results in limitations of redressal for the victim of a miscarriage of justice. It can be said that the attitude of the courts has penetrated the processes of the appeals system, and it is this attitude that is deeply rooted in the isolation of the law from socio-political discourses.
The two most striking concerns for indeterminate sentence prisoners are that of the considerable delay of adjudication of criminal cases resulting in a “justice gap”. It can also be said that justice delayed is justice denied. The other concern is the issue of maintaining factual innocence. For Nobels & Schiff, law has to have a normative closure and therefore the parole deal reinforces the belief that all prisoners are guilty as a matter of fact in law and there is no possibility that there are innocent persons in prison. In spite of the fact that this understanding is correct, the analysis is deeply flawed in that it does not identify that the system is burgeoning toward tyranny through the application of mechanical processes do not acknowledge persons who are innocent within the prison systems.
10The Criminal Procedure (Scotland) Act 1995, s.194C.
10David Jessel, ‘Wrongly Accused: Who is Responsible for investigating Miscarriages of Justice’, (2011) The Social Gap.
10R v Criminal Cases Review Commission, ex parte Pearson  EWHC Admin 452,  1 Cr App R 141 p.128
10Richard Nobels and David Schiff, Miscarriages of Justice: A Systems Approach, (1995) The Modern Law Review 302.
10 s.133 (1ZA) of the Criminal Justice Act 1998.
10 P.Thornton, ‘Miscarriages of Justice A Lost Opportunity’  CLR 926
10Congressional Research Service. Library of Congress, 1989. (Attributed to William E. Gladstone. Laurence J. Peter, Peter’s Quotations, p. 276 (1977)
10R Nobles; D Schiff, Understanding Miscarriages of Justice, (Oxford: Oxford University Press 2000)
Steven Greer purports that plea bargains are a prima facie evidence of guilt for which the system rewards, inevitably leading to innocent persons pleading guilty. Although Greer is right in his assertions there is a clear of lack of analysis with regard to the homogeneity of the law applied and the consequences of these processes in assessing the adequacy. Through this blanket approach, wrongful convictions are further perpetuated for persons like Stephen Downing and Susan May who maintain their factual innocence; facing longer prison sentences, denied access to prison courses and finally the break-down of their personal autonomy due to the process of plea-bargaining.
The homogeneity again can find its basis in the argument that the appeals process is inadequate due to the perception the law has of it itself. The law has to change its procedures from mechanistic and empirical to uphold its moral integrity as it is can be inferred from the CRCC’s referral rate and back log that there are possibly over two hundred innocent persons in prison in England and Wales today.
In light of the aforementioned issues there is a need to move beyond the limitations of conventional socio-legal and political discursive paradigms. The emerging Zemiological approach (considering the social, psychological and financial harms) can be used to exemplify the adequacy of the appellate system by going beyond the scope of the law to consider a wide range of serious harms caused by the processes of the system. In this context indeterminate sentence prisoners face psychological harm in maintaining their innocence in a system that oppresses them by recognizing them only as legally guilty and the profound effects wrongful imprisonment has on families (Sam Hallam’s father committed suicide during his incarceration). Adrian Grounds found that persons suffering wrongful convictions also suffered from post-traumatic stress syndrome. In addition, the social harm faced by failings of the appellate system is that it results in a further public crisis of confidence, arguably the CCRC is not the solution campaigners and the Royal Commission of Justice recommendations had hoped for. The insufficiency of procedures is clearly seen in the light of the aforesaid consequences of the systems failing. The Criminal Justice system should work toward reviewing processes in order to decrease social harms by rejecting the isolative creature it has come to be and engaging in discourses outside of its practices.
The issue at the heart of the appeals process is that it exists in isolation from the victim, public discourses and social issues. This isolation reduces the complexity of the matter to what is understandable for the law whilst simultaneously manipulating issues according to the system’s own rules. This essay has sought to acknowledge that although there are a number of legitimate social rules, procedures and practices, the failing of the system to acknowledge the full extent of the issue of miscarriages of justice beyond the scope of the law has resulted in an inappropriate and defective appeals process system.
19Steven Greer, Miscarriages of Criminal Justice Reconsidered, (1994) 57 (1) The Modern Law Review 63.
20Kevin Kerrigan, Miscarriage of justice in the magistrates' court: The forgotten power of the criminal cases review commission. (2006) Criminal Law Review 124.
21 Carole McCartney: “Weighted in the balance”, (The Guardian 29 November 2008)
22Adrian Grounds, No Sense of an Ending: The effects of long-term imprisonment amongst Republican prisoners and their families (with Ruth Jamieson) (Monaghan: Seesyu Press 2002) 87
23David Jessel, ‘Wrongly Accused: Who is Responsible for investigating Miscarriages of Justice’, (2011) The Social Gap.
Huff C R, Killas, M. (eds.), Wrongful Conviction: International Perspectives on Miscarriages of Justice (Philadelphia, PA: Temple University Press 2008)
Karrigan K, ‘Real Possibility or Fat Chance’, in M. Naughton (ed.) The Criminal Cases Review Commission: Hope for the Innocent? (Basingstoke: Springer 2009).
Naughton M, The Criminal Cases review Commission: Hope for the Innocent (Basingstoke: Palgrave Macmillan 2009)
Naughton M, Rethinking Miscarriages of Justice: Beyond the Tip of the Iceberg (Basingstoke: Palgrave Macmillan 2007)
Nobles R, Schiff D, Understanding Miscarriages of Justice (Oxford: Oxford University Press 2000)
Ogletree C J, Sarat A, When Law Fails: Making Sense of Miscarriages of Justice (New York, NY: New York University Press 2009)
Walker C, Miscarriages of Justice: A Review of ‘Justice in Error’(Revised 2nd edition, Oxford: Oxford University Press 1999)
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