About Miscarriages of Justice

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.

History

Criminal Court of Appeal established

  • 1907

The Court of Appeal established following a series of wrongful convictions and one of the...

Three boys convicted of Maxwell Confait murder

  • 1972
Three innocent boys jailed for the murder of Maxwell Confait after making confessions that...

Birmingham pub bombings

  • 1974

A series of IRA attacks including the Birmingham and Guildford pub bombings which result in

PACE protections introduced

  • 1984
Police and Criminal Evidence Act (PACE) introduced - see 1972. PACE tackled a number of...

CPS established

  • 1985
Crown Prosecution Service established under the Prosecution of Offenders Act 1985.

The CPS was established in
...

Guildford Four released

  • 1989

Guildford Four released - after nearly 15 years behind bars....

Birmingham Six released

  • 1974

Birmingham Six released. The Royal Commission on Criminal Justice, chaired by Viscount Runciman of Doxford,...

Modern discovery regime introduced

  • 1996
The Criminal Procedure and Investigations Act 1996 provided a framework for the disclosure of unused...

CCRC begins work

  • 1997

The Criminal Cases Review Commission was established as a result of the Runciman Commission -...

Derek Bentley conviction overturned

  • 1998
The Court of Appeal overturns the conviction of Derek Bentley for the murder of a policeman

Sally Clarke freed

  • 2003

...
Sally Clarke freed by the Court of Appeal after being handed two life sentences in 1999.

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

  • 2008
Barry George had his conviction overturned after having been found guilty of the murder of...

CCRC refers just 12 cases

  • 2015
The number of referrals by the CCRC drops to an all-time low - 12 -...

Jogee ruling on joint enterprise

  • 2016

...
In 2016, the Supreme Court ruled that the law on joint enterprise had ‘taken a wrong turn’ in the landmark case of R v Jogee.

CCRC's 20th anniversary

  • 2017

...
CCRC marked its 20th anniversary: 634 cases had been referred to the Court of Appeal, and 419 of those convictions overturned.

The Court of Appeal quashed  close to 70% of referred convictions.

Westminster Commission report

  • 2018

...
The APPG is established and has its first meeting as a response to the declining number of referrals chaired by Barry Sheerman MP. The first meeting is also a launch for Jon Robins’ book Guilty Until Proven Innocent.

Westminister Commission on Miscarriages of Justice publishes report

  • 2021
The APPG publishes its Westminster Commission on Miscarriage of Justice report recommending a Law Commission...

Future of Justice Project launch

  • 2023

Future Justice Project launches. The government accepts the APPG's recommendation for a Law Commission review...

Westminster Commission on Forensic Science launched

  • 2023
The Westminster Commission on Forensic Science inquiry, co-chaired by Baroness Sue Black and Professor Angela...

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.