Criminal proceedings are outcome oriented. The court’s core, overriding objective is to arrive at the right answer: acquitting the innocent and convicting the guilty is, or at least should be, the aim of the game. Civil proceedings, by contrast, are guided not so much by outcome but by process values: the parties should be able to advance their respective cases on an equal footing. The difference in approach is understandable because, as Ronald Dworkin says, people have a profound right not to be convicted of crimes of which they are innocent. To breach that profound right would amount to a ‘miscarriage of justice’ – a term which was finally been unpacked by the UK Supreme Court in a judgment running to 284 paragraphs handed down yesterday.
R (Adams) v Secretary of State for Justice  UKSC 18 concerned appeals brought by three appellants each claiming for compensation under section 133 of the Criminal Justice Act 1988 following the quashing of their convictions for murder by the Court of Appeal. Adams had been convicted in 1993 for the murder of Jack Royal. He went to the Court of Appeal in 2007 and complained that his defence at the trial was incompetent because of a failure on their part to consider unused material disclosed by the police which would have undermined the prosecution’s sole and star witness. The Court of Appeal held that that if this had been done the jury might not have been satisfied of Mr Adams’ guilt, although he would not inevitably have been acquitted. McCartney and McDermott were the second and third appellants. McCartney was convicted of the murders of Geoffrey Agate and DC Liam McNulty – McDermott’s conviction was also for the murder of DC McNulty. The sole evidence against them were admissions they had made during police interview which they claimed had been given as a result of ill-treatment at the hands of the police. After hearing new evidence of the police’s previous form extracting confessions by the use of violence, their convictions were quashed by the Court of Appeal in Northern Ireland who said that the had ‘a distinct feeling of unease’ about the safety of their convictions.
Section 133(1) of the 1988 Act provides —
… 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 or, if he is dead, to his personal representatives, unless the non-disclosure of the unknown fact was wholly or partly attributable to the person convicted.
In dismissing Adams’ appeal and allowing those of McCarthy and McDermott, the Supreme Court held, in a nutshell, that a ‘miscarriage of justice’ occurred within the meaning of s 133 when a new or newly discovered fact conclusively demonstrared that the evidence against a defendant had been so undermined that no conviction could possibly have been based upon it.
What’s a “miscarriage of justice”?
A “miscarriage of justice” was capable of several meanings – it was not an inflexible term. Lord Phillips says, at paragraph 9:
“Miscarriage of justice” is a phrase that is capable of having a number of different meanings. 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 [Category 1].
(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 [Category 2].
(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 [Category 3].
(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 [Category 4].
The purpose of s 133 of the 1988 was to compensate a person who had been convicted and punished for a crime which he did not commit. That was straightforward enough. 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.” (see para 37)
So the issue turns on whether the circumstances leading to the quashing of a conviction point to “innocence” – a term which is fairly alien to English criminal law. Working backwards, Category 4 circumstances did not fall within the objects of s 133 because,
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.
Category 3 circumstances also did not satisfy s 133, for two reasons. The first was that unsafe conviction circumstances gave no sensible meaning to the requirement that the miscarriage of justice must be shown “beyond reasonable doubt” (para 40). The second, more profound justification for excluding Category 3 circumstances from the scope of s 133 was that,
[t]he category of those who are convicted on evidence which appears to establish guilt beyond reasonable doubt, but who have their convictions quashed because of fresh evidence that throws into question the safety of their convictions, will include a significant number who in fact committed the offences of which they were convicted. This is the inevitable consequence of a system which requires guilt to be proved beyond reasonable doubt.
Category 1 circumstances were obviously covered by s 133. However, and this is probably the nub of the issue, the ambit of the section, so a majority of their Lordships held, was not restricted to cases in which the the defendant was shown to be “innocent’ of the crime. The reach of the section extended to those cases falling under Category 2, where the fresh evidence was such that, had it been available at the time of the trial, no reasonable jury could properly have convicted the defendant. That wider meaning of a “miscarriage of justice” was clearly intended by article 14(6) of the the ICCPR which s 133 gave effect to in domestic law.
So, we arrive at the following test for “miscarriage of justice” at para 55 of the judgment:
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. [But] 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.
Yesterday’s judgment raises important questions about the way we view the outcomes of criminal cases and the processes adopted to achieve them. The decision imports the notion of ‘innocence’ – a concept hitherto relatively alien to our criminal process for the simple reason that innocence is incredibly difficult to define and even harder to objectively observe. At what point does a defendant’s guilt, or lack thereof, become an observable fact? When the jury come back and give their verdict? When the Court of Appeal dismiss or allow appeals against conviction? When compensation is paid out under s 133? A Heisenberg-type uncertainty gets in the way. But the law has to draw the line somewhere, and the Justices of the Supreme Court have set the bar, in my view, at the right point. A right to compensation is predicated upon innocence (however that is to be observed) or where no reasonable jury could have convicted on the evidence. Unsafe convictions or illegally obtained confessions ought to be acknowlegded with quashing orders, but the case for monetising those errors and paying compensation is less convincing.
I started this post by saying that the aims of criminal law should be to acquit the innocent and to convict the guilty (see rule 1.1(2)(a) of the Criminal Procedure Rules 2010). I will go further by saying that the acquittal of the innocent should be prioritised over the conviction of the guilty. The question is, does English criminal procedure reflect that balance? The decision in R (Adams) stirs up a feeling that truth in outcome of criminal proceedings is key. We can only achieve that truth with rules of evidence and procedure that let in reliable evidence (which can be subjected to adverse scrutiny) and keep out the unreliable (and, perhaps, the unfair). Do witness anonymity orders, the admission of bad character and hearsay and incursions into the right to silence portray a system of laws arranged around a pursuit for truth?
Yesterday’s judgment should be welcomed, but I fear the rest of our rules of criminal procedure and evidence have a bit of catching up to do.