Appealing for justice

Home office proposals to curb the Court of Appeal’s power to quash convictions have met with strong resistance from all corners of the legal community, says Kate Hanley


The television images of Guildford four member Gerard Conlon emerging from the Court of Appeal in 1989, yelling for the release of fellow innocent prisoners in his shirt sleeves and flanked protectively by his family, remain synonymous with Britain’s unsavoury history of miscarriages of justice.



Admittedly, the Guildford four, Maguire seven, Birmingham six, Bridgewater three and numerous others, were part of an era that preceded the Police and Criminal Evidence Act 1984 and in the eyes of many, what happened to them would not occur today. But the words of Paddy Hill, one of the Birmingham six, are arguably more poignant now than ever: ‘Justice is something that is not on this government’s agenda.’



The Home Office’s latest proposals to curb the Court of Appeal’s power to quash convictions have met with resounding dissent from leading criminal practitioners, senior academics, human rights organisations and members of the judiciary, who consider the move to be a grave threat to the rule of law in this country.



In a paper published for consultation at the tail end of last year, the government is seeking to prevent the appeal court from quashing convictions on the grounds of procedural irregularities where there is strong evidence of guilt. ‘The government is committed to rebalancing the criminal justice system in favour of the victim and the law-abiding majority,’ writes Home Secretary John Reid in the paper’s foreword, which is backed by the Attorney-General and the Lord Chancellor.



‘It may come as a surprise to some that the existing law empowers the Court of Appeal to quash a conviction on purely procedural grounds, even where the judges of that court have no doubt the appellant is guilty,’ he continues. ‘Such outcomes are damaging to public confidence in the criminal justice system. They may also put the public at further risk of crime… It is our firm view that the present system risks outcomes which are unacceptable to the law-abiding majority.’



Notably, the government is not seeking views on whether the law should be changed, but how the change should be implemented. However, the fact that the Court of Appeal can overrule cases of abuse of process, no matter how guilty a defendant, is a cornerstone of the British legal system, argue critics of the new proposals.



‘The consultation paper is frankly bizarre and wholly misconceived,’ says Campbell Malone, head of the appeal team at north-west firm Stephensons and a specialist in miscarriages of justice. ‘It is appalling that they seem to have misunderstood what the test [for quashing convictions] is.’



‘Painful as it is to have to say so, this paper is marked by two particularly bad qualities: arrogance and shallowness,’ asserts Professor John Spencer of Cambridge University, a leading authority on the appeals process, whose work the Home Office quotes in its proposals.



Justice, the law reform and human rights organisation, also has ‘extremely serious concerns’ over the paper and describes it as ‘deeply flawed’. Sally Ireland, author of Justice’s formal response document, explains, ‘The central premise of the paper misunderstands the nature of appeals. The court’s function is not to adjudicate on the guilt or innocence of the appellant, but to enforce the rule of law.’



Three suggestions for change are put forward by the Home Office. The first is to return to the previously amended proviso that appeals should not be allowed if the Court of Appeal is of the opinion that no miscarriage of justice has occurred; the second would be to achieve the same outcome but to require the court to address directly its views on the appellant’s guilt; and the third would require a significant re-examination of the trial evidence, ‘akin to the task of the jury’.



Stephanie Roberts, senior law lecturer at the University of Westminster, who assisted Justice with its response, argues: ‘We object to the proposals on two levels. First of all, they are unworkable. It is the job of the jury to decide on guilt or innocence, and you would be giving the [appeal judges] a new power that they don’t have and I suspect they don’t want. Secondly, the court must have the power to quash a conviction even if it thinks the appellant is guilty, because it restores its role as protector of the rule of law. If the court doesn’t have that power, there is nothing to stop us going back to the bad old days of bashing the

evidence out of someone.’



This view is echoed by the Law Society’s criminal law committee in its response to the Home Office consultation: ‘The removal of basic safeguards would create an environment in which abuse of power and corrupt practices were effective in obtaining convictions, and would encourage “noble cause corruption” and vigilantism,’ it claims.



Any argument that miscarriages of justice are a phenomenon of the past is blitzed by the recent cases of solicitor Sally Clark and Angela Cannings, both freed on appeal following flawed forensic evidence regarding cot deaths. Then there is the matter of Nicholas Mullen, which on the one hand is the very case that has spurred the Home Office into seeking change, and on the other, is a classic example of why campaigners say the Court of Appeal should be left alone. Mr Mullen, suspected of plotting an IRA bombing campaign in Britain, was abducted from Zimbabwe on the orders of MI6 and returned to England to face trial. Despite strong evidence of his guilt, he was freed on appeal by a court that could not uphold such blatant disregard for the law by the British authorities.



Campbell Malone currently has multiple cases before the Court of Appeal and confirms that miscarriages of justice continue to occur, although the causes are probably different. Non-disclosure and flawed expert evidence are the main culprits today, he reveals. Added to this, he says, is the recent threat of terrorism and the growing powers of the police. ‘My own view is that the climate we have now, with security concerns, may create a whole new breed of cases. The classic Irish cases of the 1970s involved a foreign concern and the feeling of a society under threat from terrorism. Now the threat is simply from another source.’



Jane Hickman, senior partner at London firm Hickman & Rose and secretary of the Criminal Appeal Lawyers Association, argues that the Home Office proposals are ‘a complete knee-jerk piece of decision making. Most people who know anything about the system are very concerned about this. Although it has been fashionable for the government to say that miscarriages of justice are not happening anymore, they are happening and are more likely to happen. That is why you need a robust appeals mechanism’. She adds, ‘The government is increasingly looking desperate, and at times incompetent, in the field of criminal justice.’



Sally Clark’s lawyer, Mike Mackey, a partner at Burton Copeland in Manchester, is equally scathing of the motives behind the Home Office paper. ‘They enact the law they think will make them popular for the moment, without thinking of the long term. You see a cycle: parliament passes half-baked legislation, judges then apply it and the result doesn’t meet with public approval, so the government blames the judges.’



The consensus is that there is no need to change the current appeal system. ‘We had a committee of lawyers and academics looking at this and the feeling was that there isn’t a problem, because where a conviction is quashed there is the remedy of a retrial,’ says Ms Ireland. ‘It is very unusual for retrials to be impossible.’



While the tabloids may scream of a ‘soft’ legal system that lets off murderous villains on technicalities, this is factually erroneous. ‘Before the Court of Appeal will quash a conviction at all, it has to be satisfied that the procedural irregularity was something more than a mere technicality,’ explains Professor Spencer. Or, as he eloquently puts it: ‘For the majority of procedural irregularities, the Court of Appeal is prepared to hold its judicial nose and uphold the conviction, if it is convinced that the defendant is really guilty.’



He adds: ‘Although I don’t like to see criminals free, I think that in cases such as those, it is a price that we have to pay to ensure that the executive – and the police – remember that the law of the land applies to them, as well as us.’