The Telegraph reports
Convicted criminals who are “plainly guilty” are being freed by the Court of Appeal because of trial irregularities, the Government says in a consultation document published today on possible changes in the law on appeal cases.
John Reid, the Home Secretary, says the quashing of convictions because of technicalities or loopholes is damaging to public confidence in the criminal justice system and may also put the public at further risk of crime.
The document, heralded as part of the Government’s reform of the criminal justice system to “rebalance it in favour of victims and the law-abiding majority”, concedes that the options for legal change offered by the Government would affect no more than 20 cases a year.
My first reaction on hearing this was, I must confess, that if Dr Reid thinks it’s a good idea it must a dreadful one, given his normal view on bourgeois fripperies like due process, the presumption of innocence and an independent judiciary. However, since, as the warning judges are required to give juries on the subject of the defendant’s bad character puts it,
You must decide to what extent, if at all, his character helps you when you are considering whether or not he is guilty. But bear in mind that his bad character cannot by itself prove that he is guilty. It would therefore be wrong to jump to the conclusion that he is guilty just because of his bad character
His propensity, after all, to commit crimes against the liberties of HM’s subjects, and to tell judges they just don’t get it when they try to protect these liberties, doesn’t mean he’s necessarily guilty this time round.
And, I suppose, we ought to consider the evidence — something Dr Reid doesn’t always like letting juries do, of course, before he imposes control orders on people.
Anyway, the evidence is contained in the consultation paper, Quashing Convictions – Report of a review by the Home Secretary, Lord Chancellor and Attorney General, which follows Lord Justice Auld’s more wide-ranging Review of the Criminal Courts of England and Wales in 2001 (both .pdf). (I do wish, btw, that the dead trees would would link to the publications they report in their online editions).
I’ve ony had a quick read of Quashing Convictions — it’s only 40-odd pages — and I want to think about it a bit more. I’m writing this to get what seem to me the main issues down in writing and, I hope, as a convenient summary for anyone who’s interested.
It’s important, though, to be clear what it is and isn’t discussing. It’s not about people getting off on ‘legal technicalities’ in the sense that they haven’t been read their rights or there was something minor wrong with a search warrant — as, I think, The Today Programme were implying this morning. That may be what happens in the USA, but it’s not an issue here; even if evidence is improperly obtained it can still, so long as the judge thinks it’s safe to put it before a jury, go in.
Rather, they’re talking about the very few — 20-odd cases a year, as the Telegraph notes — where the Court of Appeal throws out a conviction, even though it thinks it’s perfectly safe, because either so many small things, or one big thing, have gone so badly wrong in the pre-trial or the trial process that the Court of Appeal think the trial was so unsatisfactory that, even though it reached a safe verdict, it shouldn’t have happened.
Two examples — actual cases — they give in the report are of a chap by the name of Mullen  EWCA Crim 278 who was convicted of very serious crimes after a trial no one claims was anything other than properly conducted; the problem was that we’d kidnapped him from Zimbabwe to get him to face his trial.
In this case, the Court of Appeal said (though there were other problems with the pre-trial procedure, too)
Furthermore, in our judgment, for a conviction to be safe, it must be lawful; and if it results from a trial which should never have taken place, it can hardly be regarded as safe. … But, for the reasons which we have given, we agree with his 1995 conclusion that “unsafe” bears a broad meaning and one which is apt to embrace abuse of process … It follows that, in the highly unusual circumstances of this case, notwithstanding that there is no criticism of the trial judge or jury, and no challenge to the propriety of the outcome of the trial itself, this appeal must be allowed and the appellant’s conviction quashed.
In the other case, that of Smith & Ors, R v  EWCA Crim 1525 (25th May, 1999), the conviction was thrown out because the judge had — wrongly, in the view of the Court of Appeal — rejected the defence application at the end of the prosecution case that there was no case to answer; there — though it wasn’t precisely what had happened — the Court of Appeal considered a hypothetical case while trying to reach a decision:
What if a submission is wrongly rejected but the defendant is cross examined into admitting his guilt? Should the conviction be said to be unsafe? We think it should. The defendant was entitled to be acquitted after the evidence against him had been heard. To allow the trial to continue beyond the end of the prosecution case would be an abuse of process and fundamentally unfair. So even in the extreme case the conviction should be regarded as unsafe;
The report ends by offering three possible options:
A re-instate a proviso similar to that which was part of the original statutory test (see paragraph 2 above) so as to provide that the appeal should not be allowed, even if there is a procedural irregularity, if the Court consider no miscarriage of justice actually occurred;
B replace the proviso with another formulation, designed to achieve the same end, and perhaps addressing more directly the Court’s view (where they have reached one) of the guilt of the appellant;
C recast the test and the task of the Court of Appeal so as to require a substantial re-examination of the evidence (akin to the task of the jury).
It makes it clear that B is, at present, the preferred option; A, they think, doesn’t really change the present situation and C is not acceptable because it’s for juries, not the Court of Appeal, to decide on the facts of the case, so if the Court is unsure about the verdict (as opposed to the pre-trial or trial process by which it was reached) the conviction should be overturned and, if possible and appropriate, the matter retried.
I can understand the argument that the point of the legal system isn’t to ensure the guilty defendant nevertheless has a sporting chance; however, I’m a bit uncomfortable with removing the Court of Appeal’s discretion, in effect, to register a process when things really have gone badly wrong somewhere and say, this never should have happened– e.g. the defendant who was kidnapped. The Consultation Document suggests (para 26) that letting the obviously guilty free, for whatever reason, is wrong:
it is wrong to punish the public and deny justice for the victim in this way: if the system or those who operate it are at fault it is they and not the public who should be punished or required to learn lessons, if appropriate.
This, I fear, worries me. First, the Criminal Justice system, whatever this government thinks, isn’t there to provide closure or justice for the individual injured party. That’s what the Civil Justice system is for. Criminal cases are The Crown vs someone, not The Complainant vs someone. Someone’s prosecuted because he’s broken the law — which is usually there for a good reason, but even if it isn’t, it’s still the law, and we can’t have people ignoring it. That’s not in the interests of the public as a whole.
But neither is it in the interests of the public as a whole that the Crown should be able to ignore the rules with impunity, since they are there for a good reason — to protect the innocent from the ordeal of a trial in the first place, and also to give him some support against the far greater resources of the Crown. If someone makes a mistake and you’re wrongly arrested — which can happen to anyone at any time — you haven’t got anything like the time, money and manpower the CPS and the police have. Those protections are there for a reason, and I fear for the general consequences if we take the attitude that it really matter if we go around kidnapping people so long as we get the right result. Because it seems to me that, even though we don’t intend it, in any system operated by fallible human beings, mistakes will get made, and I have no wish to be on the receiving end when they do — even though, since I’m innocent, it’ll doubtless get sorted out in the end by the Court of Appeal when they get round to hearing my appeal after I’ve been wrongly in prison for a year or so.
Better, I suspect, now and again — in about 20 cases a year — to let the guilty go free rather than take the risks of letting the police and the prosecution cut too many corners in pursuing them.
But I dunno. I want to think about this some more.