What is a miscarriage of justice?
A miscarriage of justice is a broad term – it is most often used to refer to an innocent person wrongly convicted. However, at its broadest, it covers any unfair, improper, or unjust outcome of judicial proceedings (and therefore can include the wrongful acquittal of a guilty person or the unfairly excessive sentence of a defendant as well as the wrongful conviction of the innocent). Our focus is on wrongful convictions.
At the time of writing, the profile of ‘miscarriages of justice’ in the UK is relatively high. This is because of the huge media interest in the Post Office Horizon IT scandal frequently described in the national press as ‘the largest ever miscarriage of justice’ and the acquittal of Andrew Malkinson over the summer of 2023.
Between 2000 and 2014, the Post Office prosecuted 736 sub-postmasters and sub-postmistresses as a result of a flawed (Horizon) accounting system.
Many post office workers lost their livelihoods, homes and, in some cases, their liberty. The consequences have been devastating and it has been reported 33 have so far people died ‘waiting for justice’.
The stories of hard-working people at the heart of their communities whose lives have been destroyed by an IT glitch has resonated with journalists and the public in a way that the complex stories of perhaps less sympathetic people claiming to have been wrongly accused of more heinous crimes in cases where there are identifiable victims have not.
Andrew Malkinson served 17 years in prison for a crime that he did not commit before having his conviction quashed over the summer. His case has served to shine a spotlight on the criminal appeals system.
So far, the furore over the case has prompted two inquiries – one instigated by the CCRC itself and one launched by the justice secretary Alex Chalk.
There is also the Law Commission’s ongoing review of the criminal appeals process – this was set up following a recommendation by 2021 Westminster Commission on Miscarriages of Justice.
If you are wrongly convicted and you have exhausted your right to appeal, then you have one route to clearing your name. You need to make an application to the Criminal Cases Review Commission and they can refer your case back to the Court of Appeal.
In order for that to happen, the CCRC must take the view that you have a real possibility of clearing your name – and to do that you need new evidence or new arguments. In other words, you can’t argue that the jury got it wrong.
Miscarriages of justice timeline
Criminal Court of Appeal established
Three boys convicted of Maxwell Confait murder
Birmingham pub bombings
PACE protections introduced
CPS established
Birmingham Six released
Modern discovery regime introduced
CCRC begins work
Derek Bentley conviction overturned
Sally Clarke freed
The jury had been told by an eminent paediatrician, Prof Roy Meadow, that the chances of two cot deaths was 1 in 73 million. This statistic was subsequently discredited and her conviction overturned.
Barry George conviction overturned
Jogee ruling on joint enterprise
CCRC's 20th anniversary
The Court of Appeal quashed close to 70% of referred convictions.
Westminster Commission report
Westminister Commission on Miscarriages of Justice publishes report
Future of Justice Project launch
Westminster Commission on Forensic Science launched
British legal history is rife with miscarriages of justice.
Notorious cases include the so-called ‘Irish’ cases Guildford Four, the Birmingham Six, the Maguire Seven, and Judith Ward relating to the IRA’s bombing campaigns of the 1970s came to light in the 1980s and 1990s, waking up the public’s attention to what was then a troubled justice system that did not recognise the frequency and gravity of wrongful convictions. These cases featured false confessions, police corruption and misconduct, fabricated evidence, police withholding important documents from defendants, and unreliable expert forensic evidence. There were also numerous non-IRA related cases such as Broadwater Farm Three, Stefan Kiszko and the Cardiff Three.
The successful appeals of these cases exposed the rife weaknesses in the system and its vulnerability to abuse. A Royal Commission was established in 1991 to consider the reform required. The Commission’s report’s recommendations led to the Criminal Appeal Act 1995 and the establishment of the Criminal Cases Review Commission (CCRC) to refer alleged wrongful convictions back to the Court of Appeal
Where we are now
Many changes in the criminal justice system have been implemented in the last decades.
However, the mechanisms awarded to defendants to protect them from wrongful convictions have not addressed many of the core causes.
The main mechanism for addressing the possibilities of wrongful convictions has not been well supported. The CCRC is an underfunded body with an average referral rate of 2%.
Campaigners and commentators believe that the Court of Appeal has taken a conservative line post 1997 and is increasingly resistant to new appeals limiting the grounds and arguments that can be raised by applicants.
We are grateful for the support of the international law firm Simpson Thacher Bartlett and, in particular, London managing partner Jason Glover and partner Nicholas Shaw.
