How miscarriages are caused

A major difficulty encountered in any study of miscarriages of justice is the wide variety of forms they can take. The most obvious are those in which the accused was in no way involved in the crime with which he or she was charged. Suspicion had fallen on the wrong person. When such miscarriages come to light, usually through the discovery of new evidence, they invariably hit the headlines, without however provoking much speculation as to how they came about or concern that the real villain had remained free to commit further crimes.

But there are many other categories about which the general public know nothing. They rarely come to light and if they are remedied on appeal they are not reported as wrong convictions. They include:

The police have enjoyed far too much power in the prosecution process, and will continue to do so, despite the new safeguards contained in the recent Criminal Evidence Act. They investigate and report on the scene of the crime They interview suspects and take statements from potential witnesses They can search clothes, houses an vehicles without any independent check on their findings. They are responsible for the collection of all exhibits and packaging them for delivery to the forensic laboratory. They can bargain with suspects and put pressure on vulnerable witnesses. They can testify without fear of challenge to admissions which may or may not have been made and will be able to do this until tape recording is fully in force and accepted. All these activities are subject to no kind of judicial or independent scrutiny until the suspect is charged. The newly-appointed Prosecuting Solicitors will have power to refuse a charge, but it is not at all clear what powers they have been given and will use to verify the in formation laid before them and to re quire further investigations.

Our experience is that there are some forces or divisions in which the senior officers have become corrupted by the power they wield and will stoop to any form of malpractice to obtain a conviction if in their eyes it is justified. Unless the committal proceedings are contested, the evidence they have assembled will not be challenged until the trial and judges do not look kindly on accusations of dishonesty against the police. If the accused has a record, it will be put in. If, in a trial within a trial, he or she alleges that an admission was extracted by pressure or ill treatment, the judge will be more than likely to rule that it is admissible. In no way can the accused later complain about any matters that were dealt with at the trial. If any serious malpractice is brought to light at a later stage, the complaint will be investigated primarily to determine whether the officer should be prosecuted or disciplined. The accused will not be told the details of the investigating officer's findings. These may be sent to the Home Office but will most probably remain there. An essential reform is that complainants or their solicitors are provided with all the statements taken in the course of the investigation. If this can be done when a case is referred by the Home Office to the Court of Appeal, why should it be denied to a prisoner who is trying to obtain a reference?'

In the last 20 years there have been three mistaken identity scares leading to the appointment of a small but high-powered committee under the chairmanship of Lord Devlin. This committee recommended a number of important statutory safeguards including a requirement of corroboration unless the identification was clearly reliable. But this did not please the judges as it would deprive them of the discretion they have always enjoyed. They therefore persuaded the Home Office that no legislation was required—the problem could safely be left in their hands. The Court of Appeal then proceeded to lay down detailed guidelines for trial judge which if not observed might—but only might—lead to the conviction being quashed. It did not take very long for the guidelines to be watered down. Many judges now only pay lip service to the reading out the guidelines but failing draw the jury’s attention to the specific differences of description or unsatisfactory circumstances as they are required to do. In three cases known to us there has been a more sinister evasion of the guidelines. Having decided that they want to charge a suspect, the police ignore the differences in description and produce some kind of admission. There is then no need for the identification evidence to be deployed or the guidelines observed, as the Court Appeal will treat it as a confession case.

In the case of Ian Woolmore 1982 two young girls were walking in the outskirts of an Essex town. They were joined by a man who chatted them up and then suddenly flung the elder girl to the ground and raped her. The younger girl ran off with their dog to get help. In their statements to the police both girls related the man’s height to those of their daddies, which worked out at 5' 8". They both give detailed matching descriptions of his physical characteristics and clothes .

Because of a matching blood group, suspicion fell on Woolmore, a loner of low intelligence who lived in a hut in his sister’s garden. He was in deep psychological trouble and, when the police offered to help him if he admitted the rape, he readily agreed and, albeit with some mistakes, described how it happened. But the police were themselves in trouble, because Woolmore was a veritable giant of 6’ 8" and none of his characteristics and clothes matched the girls’ description. This had led them not to hold an identification parade.

At the trial, Woolmore repudiated his confession but was unable to explain it away. By agreement of counsel, the girls did not give evidence—only their statements were read. The only comment on identification made by the judge, who sat the younger girl on his knee, was "One of the girls, or was it both, said the man was taller". At a subsequent appeal, the presiding judge said that it would have been quite easy for the girls to have misjudged the man’s height and for Woolmore to have mistaken a brown dog for a black and white one. The Court declined to consider a statement from Woolmore explaining that he had made the confession to protect a close friend who had admitted the rape to him under an oath of secrecy. But it graciously reduced his sentence from ten to seven years because he had not made the girls give evidence.

Furthermore, safeguards relating to the makeup of an identification parade are still inadequate.

In the case of Desmond Adams, one of the identifying witnesses was moved, without provoking any adverse comment from the trial judge or Court of Appeal, to tell the jury that he was the only man on the parade who could possibly have been the man who assaulted her. In the recently publicised case of Anthony Mycock, the Manchester police put a mature man of 28 on a parade com posed, apart from Mycock’s brother, of young students under 20.

The police refused to accept a recommendation that parades should be photographed and only a few forces record the physical descriptions and clothing of the persons standing on the parade. To mount an effective appeal, the appellant’s solicitor has to write to all the members of the parade and obtain their descriptions. If no protest w; made at the time, even when the accused was not represented, the Court of Appeal will not entertain one.

In the course of their investigations the police quite often take statements from witnesses that are favourable to the defence and until fairly recently the were not obliged to disclose them. Their only legal duty was to provide the names and addresses of witnesses who in their opinion, might be helpful. This was a travesty of fairness, for how could the prosecution always know what statements might be helpful?

Furthermore, when defence solicitors approached these witnesses for statements, they might well be met with a refusal on the grounds that they had already made a statement to the police After continued pressure, instructions have now been issued that the defence must have access to, but not copies of all statements taken during the investigation. In a murder enquiry, these can amount to many hundreds, which means that a busy solicitor may have to spend many working hours at a police station without any guidance as to what might be of interest. One can only hope that the independent Prosecution Solicitors will find some way of remedying this situation.

The calling of prosecution witnesses presents a more serious problem. It happens quite often that statements favourable to the defence, for example in respect of descriptions or observations, are quite properly included in the bundle of depositions, but the prosecution decides not to call their makers as witnesses. This can present the defence counsel with a dilemma. If the witness is called and found to be uncooperative, counsel cannot cross-examine the witness unless the judge can be persuaded to make him or her a hostile witness. But if the judge calls and examines a witness, he or she can then be cross-examined by both sides. Under present law, the court has a residual power to call a witness but rarely if ever uses it. It is held to be an undesirable intrusion into the battle arena rather than a means of establishing the truth. For ourselves, we believe that at the request of either counsel the judge should exercise this power and further that the jury should at least have the right to ask the judge to call any witness who has been named in the course of the trial proceedings. It is a travesty that a judge should say to a jury, as he did in a case in which two men were accusing each other of a murder, "You may wonder, members of the jury, why you have not heard the evidence of X who could have shed a great deal of light on this case," and leave it at that.

It is a question for serious debate whether the accepted practice of leading witnesses on a tight rein is the best way of getting at the truth. To begin with, it makes a nonsense of the oath which should read more appropriately, "I promise to tell as much of the truth as the Court will allow me to tell". This is not just a facetious criticism. It frequently happens that a witness wants to go beyond a simple question asked by counsel but is told by the judge, "just answer the questions". This can result in the suppression of an important fact or observation. In two cases, when a mother was asked why she had not told the Court an important fact that might have cleared her son, she replied, "I was never asked the right question". Two forensic experts have complained to us that there have been times when their testimony has been cut short by counsel before they have had a chance of bringing out or clarifying an important aspect of their findings. There is a very simple answer to this problem, namely that after witnesses have finished giving evidence, the judge should ask if there is anything else within their direct personal knowledge which they think the jury ought to know. The objection raised to such a procedure is that the witness might come out with some inadmissible hear say, but we regard this risk as negligible and unlikely to create a situation which an experienced judge could not handle.

The other objection has already been mentioned, namely that it would bring about an undesirable descent by the judge into the battle arena. There is also room for doubt whether the bullying of witnesses is helpful to the cause of justice. Experienced police officers and criminals can usually survive attack. They have decided in advance what they are going to say and stick to it, whereas young honest police officers and alibi witnesses can too easily become confused and discredited. A common ploy is for prosecution counsel to ask them in an aggressive tone if they have discussed their evidence with anyone before coming forward. They will naturally and almost inevitably have done so but are afraid to admit it in case they have done something wrong. They deny it, are found to have lied and thus lose credibility.

Independent civil witnesses play a vital part in the judicial system which is not properly recognised and honoured. They run the risk of being made to look foolish or branded as liars. They may be kept waiting for days and then told that they are not wanted. h it to be wondered at that they are often reluctant to come forward?

The rules about hearsay evidence were originally designed to prevent uneducated juries being misled by village gossip and in our view should have no place in an educated society. In other jurisdictions, the tribunal is en titled to hear any relevant evidence and is held to be capable of evaluating it. We further, as laymen, do not understand the logic of the principles on which hearsay evidence is defined. For example, a man is involved in a criminal incident in which the issue is intent or guilty knowledge. An admission implying guilt alleged to have been made to a police officer, or even a fellow prisoner hoping for some reward, is regarded as admissible. But if immediately after the incident he has gone for advice to a priest and given him a detailed account of the incident which clearly absolves him from any blame, the priest cannot testify to this, even though the police officer denies that the man gave him the explanation or prosecuting counsel maintains that it is a late invention.

In the case of R. v. Steele, a young man emerged from three days detention in a police cell, having been induced to sign an unconvincing confession. He was allowed to see his solicitor and told him that he had made the confession only because he had been beaten up and kept without sleep. He described in detail the treatment he had received. The solicitor was allowed to tell the court that he appeared agitated and that he went and complained to the superintendent in charge of the case, but not what he was told by his client. The police had only to maintain that the confession was free and voluntary to obtain the support of the judge and be believed by the jury.

In another case, a man entered a house and attacked a woman who was cleaning the hall. She called out to her husband upstairs, "Bill, come quickly, there is a man trying to rape me". Bill came down and detained the man until the police arrived. At the magistrates' court the clerk had to stop the wife from saying what she had called out and the husband from saying what he had heard her call out, even though their witness statements had confirmed each other. The case was dismissed. The over-strict enforcement of the rule governing dying declarations can very easily lead to a miscarriage justice. This requires that a statement made by a person who has died since making it is not admissible in evidence unless made under a settled expectation that he or she was dying. In the case Leathland and Castin Townsend which hit the headlines many years ago, there is no doubt that the wrong brother was convicted of murder. The dying man had described Castin as his killer to two friends, two nurses and the hospital doctor, but the judge would not admit the evidence because the doctor had not told the man that he was dying. Castin later confessed to being the killer, but the police officer deputed to take a statement from him reported that he was unwilling to make one and Leathland had to serve seven years.

It is unlikely that any barrister criminal practice would disagree with the view that false evidence in varying degrees of seriousness is given every day in every court in the land. It may be given deliberately or unwittingly, or may take the form of perjury by omission which we have already mentioned and which may be just as deadly in its effects on verdicts. It can of course be committed by or on behalf of guilty defendants hoping to escape conviction but we are concerned with perjury the results in the conviction of the innocent This state of affairs can be attributable in part to the hypocritical nature of the oath but mainly to the indifference with which perjury is regarded by authority. Even when it emerges quite clearly in the course of a trial or a subsequent investigation that a police officer or other prosecution witness has given false or misleading evidence, he or she is very rarely prosecuted or even disciplined. The responsibility for prosecutions for perjury rests with the Director of Public Prosecutions and in 1984 only 15 per sons, including police officers, were charged with perjury in judicial proceedings. 13 were found guilty of whom six were given custodial sentences. 38 persons involved in 17 cases were charged with conspiracy to pervert the course of justice.

Other jurisdictions take a more serious view. For example, in France a deliberate perjurer is liable to be given a sentence of imprisonment equal to that of the victim. In Germany the oath is not gabbled, as it so often is here, hut is administered by the judge with the whole court standing, and the witness is really required to tell the whole truth. ()n the other hand, a much more realistic view is taken of defendants’ evidence. They are not expected to tell the truth and are therefore not required to take the oath.

Furthermore, there is no civil remedy for the victim of perjury. If the Director of Public Prosecutions fails to prosecute a police officer for assault then the victim can bring a civil action for damages in the Crown Court. But a per son who has been imprisoned through false evidence has no such right.

Disputes about the genuineness of confessions and admissions have long been the most unsatisfactory feature of criminal trials. They have wasted thousands of hours of court time every year and have done much harm to the integrity of the system. The police have tended to rely on them instead of looking for independent evidence against their suspect. Loss of confidence in the police has led to juries disbelieving admissions when they may well have been genuine. Senior judges in the Court Appeal have called for steps to be tab to reduce the uncertainty surrounding them. The disputes usually take the form of a trial within a trial in which the accused give their versions of how they were induced to make their confessions usually alleging oppressive questioning and ill-treatment, or outright fabrication. The police deny any such pressure and the judge then decides whether or not the confession is admissible in evidence. If the confession is admitted, the battle is fought all over again front of the jury.

There are new rules which govern the permitted periods a conditions of detention and questioning but they have no statutory fore Nothing is lost by the prosecution if they are not observed, as judges very rarely use their discretion to exclude a confession, their instinct being to believe the police rather than the person in the dock. The new safeguards introduced in the Criminal Evidence Act will eventually improve the present situation but loopholes will inevitably remain. Much will depend on the calibre and conscientiousness of custody officers and the fairness of magistrates. Judges and juries will still have to decide whether they believe the police or the defendant. A simple and effective solution to the problem would be that no confession or admission should be admissible in evidence unless it has been authenticated by a magistrate or a solicitor or a tape recording. This would relieve the police of any temptation to extract confession by improper pressure. In any event there is an important test for validity which should be applied any confession, namely whether it gives a reasonably correct account of the known facts.

In two of the Rough Justice (Livesey and Steel), the alleged confessions contained a number of serious admissions and/or mistakes on which the trial judge failed to comment. In our view there should be strict guidelines as in identification cases, requiring the judge to point out to the jury all such omissions and discrepancies. Next, all confessions should be written by the suspects themselves. If they are unable to write, then the duty solicitor or the custody officer should be called in to write it at the suspect’s dictation. Finally, evidence should be sought and given to the Court about the physical and psychological state of the suspect, in particular if he or she could have been under the influence of drugs.

Joint trials are a potent source of miscarriages because they often take the form of two interwoven battles—the prosecution versus the accused, and the accused versus each other The simplest but perhaps the most dangerous situation arises when two people have been involved in a killing. They both accuse each other and claim that they tried to protect the accused or to stop the fight.

This means that each accused has to submit to cross-examination by two counsel—a formidable ordeal in it itself. In three cases we have studied the jury has, in our view quite mistakenly, accepted a suggestion by the judge that it was a joint enterprise and convicted both defendants. Until quite recently a defendant could deliver a surprise attack on a co-accused from the dock, knowing that he or she could not be cross-examined. Quite rightly, he or she now has to go into the witness box but it took many years and many unsatisfactory verdicts before the need for such a reform was accepted. A statement made by one accused incriminating another can however be read to the jury without its maker being required to go into the witness box to support it; on condition that the judge instructs the jury to disregard it or to put it out of their minds (an intellectual feat of which judges themselves are incapable).

The worst hazards however lie in multiple gang trials in which an innocent person can be found guilty by association. The accused was with the villains when they were rounded up or seen drinking with one of them in a pub. The actual evidence is circumstantial or minimal. He could clear himself if he told the court all he knew about the crime, but he is too scared to do so. The members of the gang could clear him but they are pleading not guilty and after they have been convicted and lost their appeals it is too late.

No one in authority will ascribe any credibility to a convicted prisoner unless he or she is giving evidence for the prosecution. A somewhat different situation is when one of the accused group pleads guilty and is anxious to give evidence that will clear a co-accused. He or she should rightly be sentenced before the main trial so that evidence can be given without fear that the police will give the Court an adverse report, but some judges insist on postponing sentence until the end of the trial. They like to hear the whole story to avoid passing disparate sentences, but they will have read the depositions—and in any event the wrong conviction of an innocent person is more serious than an inappropriate sentence on a guilty one The legal profession is not blameless in such matters: one of the writers has dealt with two cases in which defendants pleading guilty were dissuaded from giving evidence by their counsel and one in which counsel tried to persuade his client that it would be in his best interests to give evidence for the prosecution.

Many innocent persons plead guilty for a variety of reasons. In minor cases they want to avoid the trouble of going to court, or they are advised to do so by the police. In sexual cases they may want to avoid the publicity attendant on trial. They may be warned by their counsel that the police evidence against them is very strong and that it would be in their best interests to plead guilty to a lesser charge if the prosecution agrees. They are fearful of facing the ordeal of battle, and the deal is done. Such cases are not imaginary. It is well known by counsel that the police will deliberately enter a more serious charge in order to secure a plea of guilty to a lesser charge. This is quite wrong because it means that the question of guilt or innocence may be decided between counsel in stead of by a court. In jurisdictions governed by the Napoleonic Code, pleas of guilty are not accepted until all the available facts in a case have been deployed before the court, and we regard this as a highly desirable reform.

The Criminal Justice Act 1967 included a requirement for the defence to give advance notice of alibi evidence. The police had been complaining that alibi defences were being sprung on them without their having had the chance to verify them and check for criminal records. A necessary safeguard was that the police, when given the names and addresses of alibi witnesses, should not be allowed to interview them unless the accused’s solicitor was notified and given the opportunity to be present. When the Bill was published, it did not include this safeguard, but during the Committee stage assurances were obtained from the then Law Officers that appropriate instructions would be issued to all Chief Constables. This was duly done and for the time being the instructions were observed. But they gradually came to be overlooked. The judiciary and legal profession appeared to be ignorant of them and they are not mentioned in Archbold’s Criminal Law and Practice. Ten years after the Act had been passed, the Home Secretary was persuaded that the relevant instructions had most probably been forgotten and should be re-circulated. But he refused the further request that they should be circulated to the judiciary and local law societies. Thus for a long period and probably to this day the police have been free to interview defence witnesses and persuade them withdraw or amend their evidence.