UK: Collateral damage, by Nick Moss
01 April 2011
“All forms of the state have democracy for their truth, and for that reason are false to the extent that they are not democracy” Marx, Critique of Hegel’s Philosophy of Right (1843)
1. The quality of evidence
In February 2010, Ali Dizaei, a commander in the Metropolitan Police, was convicted of the offences of misconduct in a public office and doing acts with the intent to pervert the course of justice. The conviction followed allegations that “in the course of a minor and wholly personal dispute with a civilian he arrested the man for threatening behaviour when he knew there was no justification for doing so, thus abusing for personal reasons the considerable power given to him for public purposes.”[1] On 22 and 23 March 2011, Dizaei appealed, relying on “material going to the general credit of the other party to the personal dispute, who was, inevitably, a principal Crown witness at the trial. It is said that it is material which was not available at trial and which is of such a nature that it renders the conviction unsafe.” [2] Given that the material consisted of evidence that the witness had lied about his identity and origins and was now known to have committed substantial benefit fraud, it is not surprising that the Court of Appeal judges felt able to conclude that they “simply do not know whether this conviction is soundly based or not. In those circumstances we are driven to the conclusion that it cannot be regarded as safe.”[3] However, it should be noted that the Court also observed that: “There is, in this case, a good deal of evidence independent of (the witness)” [4] and it has been the practice of the Court of Appeal in such circumstances time and again to do precisely what they properly refused to do in this case – “attempt to make itself into a jury in order to assess the whole case, on paper and without seeing the witnesses.” [5]
In the first appeal by Michael Stone against conviction for what have come to be known as the Chillenden murders, it was revealed that “one witness subsequently retracted his evidence and was shown to be hopelessly unreliable. A second witness...had been paid money by a national newspaper and offered further money if the appellant were convicted.” [6] At the subsequent retrial the court heard evidence from a witness Damien Daley about a purported cell confession. At Michael Stone’s 2005 appeal, grounds were advanced that new post-trial evidence of Daley’s “lies in evidence (about his use of heroin in prison) and his unreliability due to heroin addiction and instability” [7] meant that the defence had been unfairly deprived of a much greater opportunity to demonstrate the bad character and unreliability of the key witness in the trial. Daley had lied on oath about his drug use - which subsequent probation reports revealed had led to a heroin addiction and a dependency on Benzodiazepine in the form of Diazepam and Temazepam. Daley was, the Court of Appeal now accepted, “a hardened criminal, who lied when it suited him and he had, on his own admission, taken every type of drug. He had lied specifically about taking heroin at his first trial, because he thought it had no relevance to the evidence which he gave.” [8] Nevertheless, so far as the Court of Appeal was concerned “in the light of Daley's admissions of lying, and about taking heroin, which we have already rehearsed, evidence that he lied to a greater extent than was apparent at the time of the second trial, does not, in our judgment, significantly affect the quality of his evidence.”
Karl Watson cannot even get the Criminal Cases Review Commission (CCRC) to accept that the key witness against him is so discredited his case should now be referred back to the Court of Appeal. Watson’s case was first submitted to the CCRC more than 13 years ago, when new evidence that had been kept secret from his original trial cast doubt on his conviction for the murder of John Shippey. Watson had originally been excluded from inquiries because he had an alibi. But two years after Shippey’s murder he was arrested on the evidence of Bruce Cousins, a mechanic who worked with Watson in the motor trade but who was wanted by police for other matters. Cousins was found in possession of what was described as a “script” which he had dictated to his 16-year-old girlfriend incriminating himself and Watson in the murder. He said that he saw Watson stab Shippey and then helped Watson dispose of the body. Cousins had mental health problems and psychiatrists had warned he would say anything “regardless of his memory of the facts.” One expert was sufficiently concerned about Cousins’ mental state and reliability that he alerted the Crown Prosecution Service (CPS). But this information was not passed to Watson’s defence lawyers, either at trial or at his first appeal in January 1996, when Lord Taylor, then the lord chief justice, made clear that the conviction stood on the basis that Cousins was “a witness who could be relied upon.” Karl Watson rightly contends that he was denied the chance at trial to explore whether Cousins was a fantasist or susceptible to false confession.
In 2005 Harriet Harman QC, then Minister of State at the Department for Constitutional Affairs, wrote to Watson’s MP, Richard Ottaway, admitting that the material concerning Cousins’ psychiatric state had been withheld from the defence. Then, in 2008, Watson successfully sued his former defence lawyers for negligence in their handling of his case. Mr Justice Owen ruled it “likely” that Watson had been denied a fair trial and ordered that his judgment be made available at taxpayers’ expense to enable Watson to “deploy it.” His new legal team duly did this – only for the CCRC to decide that although the judge was clearly saying Watson’s trial was unfair, he did not express an opinion about whether or not the conviction was safe and his ruling was, therefore, open to interpretation. [9] As Karl Watson puts it “It seems evident to exponents of the Law that just like the truth, sometimes justice is expendable and should not get in the way of a good story.”
It might be thought that the discrediting of the witness matters less per se than the status of the Appellant (a commander in the Metropolitan police in the Dizaei case - an ordinary working class man in the other cases detailed).
2. Pseudodialecticos
Most recently, the Supreme Court has tried to decide what constitutes a miscarriage of justice. Jean Luis Vives in his 1520
Adversus Pseudodialecticos, railed against the scholastic guardians of the “Christian mystery” for creating a language which formed a private idiom that deployed a meaning of words “contrary to all civilized custom and usage”.
The formulation was set out in the linked cases
R (on the application of Adams) (FC) (Appellant) v Secretary of State for Justice (Respondent), in the
Matter of an Application by Eamonn MacDermott for Judicial Review (Northern Ireland), in the
Matter of an Application by Raymond Pius McCartney for Judicial Review (Northern Ireland) 2011 UKSC 18 which concerned the application of the power of the Secretary of State to award compensation to victims of miscarriages of justice pursuant to section 133 of the Criminal Justice Act 1988. That section provides:
(1)...when a person has been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows beyond reasonable doubt that there has been a miscarriage of justice, the Secretary of State shall pay compensation for the miscarriage of justice to the person who has suffered punishment as a result of such conviction.
In each case the claim for compensation was refused by the Secretary of State, whose decisions were upheld on judicial review both at first instance and on appeal. The common issue that arises in relation to each appeal is the meaning of “miscarriage of justice” in section 133. In the case of Adams there was a second issue, which is the meaning of “a new or newly discovered fact”. On 18 May 1993, Andrew Adams was convicted in the Crown Court at Newcastle of the murder of a man called Jack Royal and sentenced to life imprisonment. He appealed to the Court of Appeal and on 16 January 1998 his appeal was dismissed. Some nine years later his case was referred to the Court of Appeal by the CCRC on three grounds. The first, and only material ground, was that incompetent defence representation had deprived him of a fair trial. On 12 January 2007 the Court of Appeal allowed his appeal on this ground. In doing so the appeal judges stated expressly that their decision was not to be taken as finding that, if the failings on the part of the defence lawyers had not occurred, Mr Adams would inevitably have been acquitted. [10]
The issue for the Supreme Court therefore was how to construe a “miscarriage of justice.” Section 133(1) reproduces, in
almost identical wording, the provision in article 14(6) of the International Covenant on Civil and Political Rights 1966, which this country ratified in May 1976 (“article 14(6)” of the “ICCPR”). Lord Phillips focused on what he determined was a material difference between the two:
When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law... (“article 14(6)” of the “ICCPR”).
The reference to “a final decision” is accommodated by a provision in section 133(5) which defines "reversed" as referring to a conviction which has been quashed on an appeal out of time or on a reference under the 1995 Act. As the Supreme Court rehearsed, the meaning of “miscarriage of justice” in section 133 received consideration by the House of Lords in
R (Mullen) v Secretary of State for the Home Department [2004] UKHL 18; [2005] 1 AC 1 when rejecting a claim for compensation by Nick Mullen. He had been convicted of terrorist offences. His conviction had been quashed by an appeal out of time, because he had been seized and brought to the UK from Zimbabwe in circumstances that had involved a flagrant abuse of power. It was not suggested that there was any defect in the trial process itself. The House held that in these circumstances Mr Mullen's conviction had not been quashed on the ground of a “miscarriage of justice” within the meaning of section 133. Lord Steyn expressed the view that this phrase only extended to the conviction of someone subsequently shown to be innocent.
The circumstances of the Mullen case clearly troubled the appeal court. Nick Mullen was deported from Zimbabwe unlawfully - he was denied access to legal advice and denied any right of appeal against deportation. He was in effect kidnapped, brought to the UK, tried and convicted. At the appeal, Lord Justice Rose remarked “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. Indeed the
Oxford Dictionary gives the legal meaning of “unsafe” as “likely to constitute a miscarriage of justice”. [11] The House of Lords determination that “in these circumstances Mr Mullen's conviction had not been quashed on the ground of a "miscarriage of justice" within the meaning of section 133” departed from the logic of the appeal decision. The court observed in setting out the basis for this formulation, ““Miscarriage of justice” is a phrase that is capable of having a number of different meanings.”[12] Lord Phillips:
In giving the judgment of the Court of Appeal in relation to Adams' case Dyson LJ divided the circumstances in which convictions may be quashed on the basis of the discovery of fresh evidence into four categories, which I shall summarise in my own words.
(1) Where the fresh evidence shows clearly that the defendant is innocent of the crime of which he has been convicted.
(2) Where the fresh evidence is such that, had it been available at the time of the trial, no reasonable jury could properly have convicted the defendant.
(3) Where the fresh evidence renders the conviction unsafe in that, had it been available at the time of the trial, a reasonable jury might or might not have convicted the defendant.
(4) Where something has gone seriously wrong in the investigation of the offence or the conduct of the trial, resulting in the conviction of someone who should not have been convicted.
These four categories have provided a useful framework for discussion.
It is important to note the content of the arguments and interventions dismissed by Lord Phillips. One in particular should alert us to the intent of the (re) formulation. The law reform organisation JUSTICE, acting as interveners, contended that, in the Parliamentary debates around the clause that was to become s133, Earl Ferrers, then Minister of State at the Home Office, had been asked by Lord Hutchinson of Lullington “the very question that lies at the heart of these appeals.” [13]
He contrasted a new fact which resulted in the quashing of a conviction because it raised a doubt in the mind of the Court of Appeal about the safety of the conviction and a new fact which caused the Secretary of State to advise that a defendant should be pardoned because he had been shown to be innocent. Which, he asked, amounted to a miscarriage of justice under the clause? This, he stated, was a crucial point.
Ferrer’s response was succinct:
The normal course is to refer cases to the Court of Appeal and to regard its view as binding.
Mr Bailin QC, for JUSTICE, contended that, in accordance with Lord Hope’s observations on the use that can be made of parliamentary material in R v A (No 2) [2002] 1 AC 45 at para. 81, this statement binds the Secretary of State to accept that the question of whether there has been a miscarriage of justice must be determined from the judgment of the Court of Appeal in the particular case and that, as the Court of Appeal does not and cannot rule on whether the defendant is innocent, that cannot be the test of whether there has been a miscarriage of justice. However obvious this might seem, Lord Phillips was having none of it. Seeking refuge from the obvious in the French Code de Procédure Pénale and the Travaux Préparatoires of the International Covenant on Civil and Political Rights, he asserted:
It is, I believe, possible to make some more positive conclusions about what it was that the states who were involved in the drafting of article 14(6) were trying to achieve. They were concerned with the emergence of a new fact after the completion of the trial process, including review on appeal. Article 14(5) provides that everyone convicted of a crime shall have the right to have his conviction and sentence reviewed by a higher tribunal according to law. Article 14(6) applies to the discovery of a new fact after that final decision. Compensation was only payable where the new fact demonstrated conclusively that there had been a miscarriage of justice. Thus miscarriage of justice had to be the kind of event that one could sensibly require to be proved conclusively. [14]
This interpretation appears to fly against the Government’s view as clearly put forward by Ferrers. For Lord Phillips:
It would have been possible for the contracting parties to have agreed that any person whose conviction was reversed by reason of a newly discovered fact should be given compensation for the consequences of the conviction. This could have been justified on the basis that the reversal of the conviction raised a presumption of innocence and that compensation should be paid on the basis of that presumption. The parties did not take that course. The fact that they did not do so, and the requirement that the miscarriage of justice should be established conclusively, indicates so it seems to me, an anxiety not to agree to an entitlement to compensation that would result in compensation being paid to those who had in fact committed the crimes of which they were convicted, at least on a substantial scale. [15]
This then is the logic of the formulation put forward - the presumption of innocence remains in place until conviction. But reversal of conviction does not restore the presumption. Thus, as we will see, the matter of innocence becomes politicised - it becomes a matter not for, (as per Ferrers) the Court of Appeal, but for the determination of the Secretary of State. For the purpose of s133, the judgement of the courts is displaced by the judgement of the executive.
In Mullen, on the facts, Lord Bingham held that:
It is for failures of the trial process that the Secretary of State is bound, by section 133 and article 14(6), to pay compensation [16]
Lord Phillips at least goes further than this in recognising:
It is not the failure of the trial process that constitutes a miscarriage of justice, but the wrongful conviction that may be caused by it. A wrongful conviction is capable of amounting to a miscarriage of justice whether or not it has been caused by a failure of the trial process. I do not believe that Lord Bingham can have intended to exclude from the ambit of section 133 convictions quashed as the result of the discovery of new facts in circumstances where there has been no failure of the trial process. That, I believe, is the situation with which section 133 is, at least primarily, concerned. [17]
If the decision is one for the executive then whether by failure of process or discovery of new facts, the issue becomes posed in the terms set out by Lord Brown in his dissenting judgement:
“Naturally I recognise that the application of the innocence test will exclude from compensation a few who are in fact innocent. Even on the majority's test, of course, some who are innocent will be excluded. That, however, seems to me preferable to compensating a considerable number (although mercifully not so many as would be compensated on the category 3 approach) who are guilty...Why should the state not have a scheme which compensates only the comparatively few who plainly can demonstrate their innocence – and, as I have shown, compensate them generously – rather than a larger number who may or may not be innocent? That, at all events, is the scheme which in my opinion Parliament enacted here.” [18]
It is clear that Lord Phillips intends a more nuanced interpretation than this, but once he departs from the intent expressed by Earl Ferrers (and in so doing restoring to the Secretary of State a power Ferrers in formulating the clause appears explicitly to seek to renounce) the end result will be the same.
Lord Phillips rules that what he has defined as Category 3 and Category 4 cases (as per above) are outside the scope of s 133:
I think that the primary object of section 133, as of article 14(6), is clear. It is to provide entitlement to compensation to a person who has been convicted and punished for a crime that he did not commit. But there is a subsidiary object of the section. This is that compensation should not be paid to a person who has been convicted and punished for a crime that he did commit. The problem with achieving both objects is that the quashing of a conviction does not of itself prove that the person whose conviction has been quashed did not commit the crime of which he was convicted. Thus it is not satisfactory to make the mere quashing of a conviction the trigger for the payment of compensation (Para. 37)
Re category 4:
As I understand it, the category embraces an abuse of process so egregious that it calls for the quashing of a conviction, even if it does not put in doubt the guilt of the convicted person. I would not interpret miscarriage of justice in section 133 as embracing such a situation. It has no bearing on what I have identified as the primary purpose of the section, which is the compensation of those who have been convicted of a crime which they did not commit. If it were treated as falling within section 133 this would also be likely to defeat the subsidiary object of section 133, for it would result in the payment of compensation to criminals whose guilt was not in doubt.” (Para 38)
Re category 3:
The situation under consideration is one where the fresh evidence reduces the strength of the case that led to the claimant's conviction, but does not diminish it to the point where there is no longer a significant case against him. I would not place this category within the scope of section 133 for two reasons. The first is that it gives no sensible meaning to the requirement that the miscarriage of justice must be shown "beyond reasonable doubt", or "conclusively" in the wording of article 14(6). It makes no sense to require that the new evidence must show conclusively that the case against the claimant is less compelling. It is tantamount to requiring the Secretary of State to be certain that he is uncertain of the claimant's guilt. (Paras 39-0)
Lord Phillips then moves to consider Category 1 cases – those where fresh evidence clearly shows that the defendant is innocent of the crimes of which s/he was convicted. In doing so he finally acknowledges (in referencing the debate in the Court of Appeal for Ontario in
R v Mullins-Johnson 2007 ONCA 720; 87 OR (3d) 425) the constitutional importance of the question the issue raises per se:
[A] criminal trial does not address “factual innocence”.The criminal trial is to determine whether the Crown has proven its case beyond a reasonable doubt. If so, the accused is guilty. If not, the accused is found not guilty. There is no finding of factual innocence since it would not fall within the ambit or purpose of criminal law. Just as the criminal trial is not a vehicle for declarations of factual innocence, so an appeal court, which obtains its jurisdiction from statute, has no jurisdiction to make a formal legal declaration of factual innocence.
But the “constitutional dilemma” is not the one Lord Phillips foresees. While the court may have no jurisdiction to make a formal declaration of innocence, one would logically assume that the reversal of a conviction restores the presumption of innocence. For s133 it does not - “But the decision whether there has been a miscarriage of justice within section 133 is not for the court but for the Secretary of State. He should have no difficulty in deciding whether new evidence that has led to the quashing of a conviction shows beyond reasonable doubt that the defendant was innocent of the crime of which he was convicted. Where the prosecution has satisfied the jury beyond reasonable doubt that a defendant is guilty, evidence that demonstrates beyond reasonable doubt that he was in fact innocent will not be equivocal.” The “constitutional issue” is precisely the politicisation of the notion of “innocence” such that it becomes the property of the executive. The presumption of innocence -
Ei incumbit probatio qui dicit, non qui negat [19] - as embodied in Roman Law and set out in the
Universal Declaration of Human Rights, article 11 as: “Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which they have had all the guarantees necessary for their defence” - stands thus honoured solely in the breach. Lord Phillips draws up a definition of “miscarriage of justice” which is a muddled combination of Categories 1 and 2 that he sets out as:
A new fact will show that a miscarriage of justice has occurred when it so undermines the evidence against the defendant that no conviction could possibly be based upon it. This is a matter to which the test of satisfaction beyond reasonable doubt can readily be applied. This test will not guarantee that all those who are entitled to compensation are in fact innocent. It will, however, ensure that when innocent defendants are convicted on evidence which is subsequently discredited, they are not precluded from obtaining compensation because they cannot prove their innocence beyond reasonable doubt. [emphasis added]
But this purportedly “robust” test will be determined not by the Court of Appeal’s decision to reverse a conviction but by the interpretation of that reversal by the Secretary of State.
3. Plastic bags on heads
The issue has greater significance than Lord Phillips’ semantic flailings might suggest – and not only for Andrew Adams, whose claim for compensation was thereby rejected as a result of the evasions recounted. The Criminal Cases Review Commission was established as a result of the Runciman Report (the 1991
Royal Commission on Criminal Justice). The intent in establishing the CCRC was to depoliticise the issue of miscarriages of justice, by removing the matter of referral to the Court of Appeal from the Home Office to a nominally independent body. We should recall that the Runciman Report was a response to a crisis in the criminal justice system brought about by a series of appeals and the campaigns around them, which exposed a pattern of fitting-up, corruption, brutality, and judicial and political acceptance/encouragement of these. The Guildford 4, the Maguire 7 and the Birmingham 6 won their freedom through the exposure of forensic incompetence, manufacture of evidence and confessions adduced through physical force. There then followed the disbandment of the West Midlands Serious Crime Squad, following 91 documented cases of beatings, plastic bags being placed over heads to induce suffocation, fabrication of evidence, denial of access to legal advice etc. A series of further appeals - the Taylor sisters, the Cardiff 3, the Darvell brothers, the Tottenham 3, had brought the criminal justice system’s real face to light.
We now have therefore a system of appeal administered by the CCRC which is designed to remove the issue of miscarriages of justice – and the law enforcement practices which lead to miscarriages of justice - from the realm of the political. Following
Adams, MacDermott and
McCartney, the issue of compensation is restored to the domain of the executive - so that the process of overturning a conviction is a matter of administration, but the compensation due is a matter of political judgement - the politicisation of the concept of “the presumption of innocence.” The only proper response to this is to seek the re-politicisation of the issue of miscarriages of justice per se: to refuse to submit to the dead hand of CCRC bureaucracy. We should also pause to consider the issue of miscarriages of justice in a wider context. Lord Brown’s comment in
Adams that “Naturally I recognise that the application of the innocence test will exclude from compensation a few who are in fact innocent” recalls that of Lord Denning when the Birmingham 6 pressed charges against West Midlands police in 1977, which were rejected in the Court of Appeal on 17 January 1980 by Lord Denning, as Master of the Rolls sitting with Lord Justice Goff and Sir George Baker under Issue Estoppel. In his judgment Lord Denning said:
Just consider the course of events if their [the Birmingham 6’s] action were to proceed to trial...If the six men failed it would mean that much time and money and worry would have been expended by many people to no good purpose. If they won, it would mean that the police were guilty of perjury; that they were guilty of violence and threats; that the confessions were involuntary and improperly admitted in evidence; and that the convictions were erroneous. That would mean that the Home Secretary would have either to recommend that they be pardoned or to remit the case to the Court of Appeal. That was such an appalling vista that every sensible person would say, “It cannot be right that these actions should go any further.” [20]
Clive Walker has suggested that a “miscarriage” means literally a failure to reach an intended destination or goal. A miscarriage of justice is therefore,
mutatis mutandis, a failure to attain the desired end result of “justice.” [22] What if this presumption is entirely wrong? What if miscarriages of justice function precisely as an “intended goal” – the collateral damage of a system that purports to rationality but is in fact entirely irrational; that purports to equality of arms but is rooted in systemic inequality, racism, gender discrimination etc? The symbolic value of the “There but for the grace of god” aspect of miscarriages of justice ought not to be underestimated as a means of enforcing quiescence in working-class communities, serving as the obverse of the oft-parroted “if you’ve nothing to hide, you’ve nothing to fear” of the “more CCTV” proponents - that if you insist on being out on the streets, you’re only a step away from the plastic bag over the head, and the coin-toss of the “innocence test.”
Footnotes
1. Dizaei v R [2011] EWCA Crim 117 para 1
2. ibid para 2
3. ibid para 28
4. ibid para 28
5. R v Stone [2005] EWCA Crim 105 para
6. ibid para 29
7. ibid para 39
8. For further information on Karl Watson’s case, see Private Eye no. 1276, 23 November 2010 and insidetime October 2010
9. Marx, Wage Labour and Capital (1847)
10. [1999] EWCA Crim 278 para 66
11. (2011] UKSC 18 para 9
12. qu Lord Phillips ibid para 11
13. ibid para 21
14. ibid para 24
15. R (Mullen) v Secretary of State for the Home Department [2004]UKHL 18; [2005] 1 AC 1 para 8
16. (2011] UKSC 18 para 28
17. ibid para 281
18. "The proof lies upon the one who affirms, not the one who denies."
19. Stephen Sedley A benchmark of British justice The Guardian 6.3.99. Paragraph 15.
20. Clive Walker and Keir Stamer (eds) Miscarriages of Justice (Blackstone Press) 1999 page 39
22. George Tenet "DCI Statement on the Belgrade Chinese Embassy Bombing House Permanent Select Committee on Intelligence Open Hearing", Central Intelligence Agency [22.7.99]