Inadequate Appeals System Means No Safety Net for Wrongfully Convicted

May 13, 2021

FACT has known for a long time that the appeal system in England is failing those who have suffered the worst abuse the state can inflict on a citizen, a wrongful conviction.

The catastrophic failure of justice that led to over 550 post office workers being wrongly accused of stealing may have been a shock to many. Worse even than the fact that so many people were wrongly accused and convicted is the disgracefully long time that elapsed before they received justice.

Meanwhile, according to Daniel Finkelstein’s recent article in The Times, ‘here’s how we can help victims of injustice’ a man wrongfully accused of rape, in what appears to have been the most extraordinary investigative botch-fest, has been denied justice for 17 years.

In a process that some might think made the court scene from Alice in Wonderland seem sane by comparison, Mr Andrew Malkinson was found guilty of rape on the basis of an identity parade and nothing else. This was despite the fact the police had been looking for a hairy chested short man with a face deeply scored by his victim and Mr Malkinson was 5ft 11in with a smooth chest and no scratches and no link to the victim.

How could this happen? According to Finkelstein, investigators aim to secure a conviction and do not ‘focus’ on evidence that doesn’t help in their aim. Members of FACT who have been the subject of an investigation know this only too well.

His case was considered by the the Criminal Cases Review Commission (CCRC), an organisation which was set up to reverse disasters like this. Despite two applications for help, he was twice turned down and was imprisoned for an extra 10 years beyond his tariff because he refused to say that he was guilty. Meanwhile, the real rapist is running free according to another article in The Times describing new DNA evidence.

What’s the solution then? According to Mr Finkelstein the CCRC is cash starved and trying to function with only 2.5 full time equivalent posts and a third less funding than in 2003-4 while trying to cope with a workload which is 50% higher.

While the CCRC is struggling with a reduced budget, the Appeals Court is said to have been setting the bar for overturning convictions higher and higher.

The All Party Parliamentary Group (APPG) on Miscarriages of Justice launched the result of its review of the work of the CCRC in March 2021 and made many recommendations in their report ‘In the Interests of Justice’.

Currently the CCRC can only refer someone to the Appeal Court if there is a ‘real possibility’ that the case may be overturned, and the report considered that this test made the CCRC ‘too deferential to the Court of Appeal, and acted as a brake on their referrals’. The APPG has recommended that the test should be changed so that that the CCRC should refer a case ‘if it considers the conviction may be unsafe, the sentence may be manifestly excessive or wrong in law, or that it is in the interests of justice to make a referral’.

In addition the APPG recommended that the Law Commission should review the test applied by the Court of Appeal, to allow it to quash a conviction where it has serious doubt about the verdict, even without fresh evidence or new legal argument.

The requirement to find fresh evidence has been an insurmountable barrier for many of those convicted of historical sexual offences where the only evidence available has been the testimonies of the claimant and the defendant.

We all hope that the APPG’s report will be acted on in full. Even if it is implemented quickly it will be too late for Andrew Malkinson and countless others who have had so many years of their life stolen from them.

For lists of known miscarriages of justice and wrongful allegations see our page Examples of Miscarriages of Justice and Wrongful Allegations.

 

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