MISCARRIAGES OF JUSTICE – The Law and Policy Blog

23rd September 2024

(“…Punish the Wrongdoer” – at the Old Bailey, London – which presumably means implicitly not punishing the innocent: source.)

I was going to do an article over at Prospect about the Lucy Letby case, with an accompanying more detailed post here. But I have now put it on hold.

There are four reasons for this.

First, the online context for the article and post was (and is still) too heated and partisan.

The article and post are about what it would mean for such a case to be a miscarriage of justice or not: in effect, a guide to how to think about that and other cases where it is contended there is an unsafe conviction.

As such the article and post would not take a “side” – but it seems there is currently little appetite for anything other than which maintains Letby is either innocent or guilty.

And like Pavlov’s puppies, there are individuals who just need the slightest pretext to describe something as a “conspiracy theory” – even when no conspiracy is posited, and still less is there any theory.

(For an Anglo-Saxon empiricist and pragmatist to be called a “theorist” is perhaps as objectionable as being called a “conspiracist”.)

(And for more on whether miscarriages of justice require a “conspiracy theory” see here.)

On the other “side” there will be those just as irked at a legal blog setting out that the various scientific and statistical points being made by critics of the convictions, even taken at their highest, can only go so far in this particular case

So I am waiting for the online context to calm down.

Second, there is the beginning of the Thirwall inquiry.

Any half-decent article and post on the Letby case would now need to take account of the additional information that will be available from the inquiry, in addition to the information from the court litigation.

And so I am now also waiting for that inquiry to get to an appropriate stage.

Third, there is the risk of what can be called the “one sample” fallacy.

And so I wanted to look at other actual and contended miscarriages of justice, so to see the problems that have come up before and how, if at all, those problems were addressed.

I also wanted to see if the folk memory of past notorious miscarriages of justice accorded with the actuality of what was decided by the court.

When I re-looked at the Roy Meadow case reports, for example, they did not quite say what I recollected those cases saying.

And fourth, I wanted to set out some preliminary points – like the role of juries and how it is for them to weigh evidence (once that evidence is admissible) – in a separate post or posts.

(In first go at the Letby article, I was 2,000 words in and I still was explaining in general terms the role of juries in weighing evidence.)

Sometimes an article and a post can (try to) do too much, and I got a sense that this was the situation here.

As I have said before, I have no ultimate view on the guilt or innocence of Letby – and that is for a jury or a court of competent jurisdiction to decide, and not a blogger or someone who reads a blog.

But it is a case which may provide a useful basis for helping lay people understand how the justice system works (or may not work) and what a court can and cannot do.

And for the Letby case in particular, what else the legal system could have possibly done when Letby and her lawyers elected (for good reason or bad) not to put expert evidence before the jury themselves.

Miscarriages of justice do happen – especially when there is reliance on expert and circumstantial evidence; but that does not mean that every case where there is reliance on expert and circumstantial evidence is (or is likely to be) a miscarriage of justice.

That misconception can perhaps be called the prosecution critic’s fallacy.

And so in the meantime before I publish something more substantial on Letby, let us look at other cases where the has been an actual or alleged miscarriage of justice.

Let us look at the case of Oliver Campbell, which I wrote about here and here.

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How a recent appeal case is instructive about how difficult it for the English legal system to right a wrong

Over at Prospect I have done a piece on the recent Oliver Campbell case.

Any person with an interest in miscarriages of justice should read the judgment in this case.

For what is striking about the appeal judgment is not so much that the convictions was quashed but just how close the court of appeal came to not quashing the convictions.

Indeed, if you read the judgment in a linear way, from start to finish (as opposed to how lawyers will tend to look at a judgment by skipping to the end), you have to wait until paragraph 133 before you see which way the court is going to decide this case.

Until this paragraph, the judgment reads as if all the grounds of appeal will fail: it is the judicial equivalent of a sudden brake turn on a lengthy journey.

Judges do not use words lightly, and so it is notable that the judge does not just say “unusual circumstances” but “very unusual circumstances” (emphasis added):

The exceptional nature of the case is again emphasised again a few paragraphs later (emphasis added):

In other words: the convictions were almost not quashed. It was a close-run thing.

But what happens next in the judgment is disconcerting.

By way of background: when the court of appeal quashes a conviction it normally considers whether there should be a retrial.

In the circumstances of this appeal – where 1991 convictions have been quashed because of reliability of the evidence of things said in interviews in 1990, and where the appellant has served ten years in prison for the offences – you may think that putting a brain damaged defendant through a retrial would not a good course of action.

But the court of appeal comes very close to ordering a retrial (emphasis added – and please read the reasoning in full):

How this could be a “finely-balanced decision” would perhaps astonish any sensible person.

The appeal judgment shows that Campbell was lucky three times: the Criminal Cases Review Commission made a reference in 2022 to the court of appeal (after it refused to do so in 1999), the quashing of the convictions almost did not happen, and the madness of a retrial in these circumstances was even more narrowly averted.

And a read of the judgment shows generally how difficult it is for any miscarriage of justice to be corrected – especially when the appeal relies on evidence that was before the original court, or on evidence that could have reasonably placed before the original court.

Of course: a justice system should be as much about quashing unsafe convictions as it is about imposing convictions.

But as averred in Prospect, the justice system of England and Wales imposes criminal liability with far more ease than it ever removes it. (Read the rest of my article here.)

Also of interest are the Criminal Cases Review Commission’s reasoning for the referral in 2022 and the informative pages of the estimable barristers of Foundry Chambers who acted for Campbell (here and here).

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Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

Category: MISCARRIAGES OF JUSTICE

On writing – and not writing – about miscarriages of justice

Miscarriages of Justice: the Oliver Campbell case