An end to miscarriages of justice?

The above headline would be one usually welcomed by human rights activists here and throughout the world given the significance it could have: no more convictions on the basis of ‘confessions’ beaten out of suspects; an end to police corruption, an end to agent provocateurs fitting up persons, the list goes on.

Yesterday however the beginning of the end of ‘miscarriages of justice’ closer to home may have come about through a rather different scenario, as Westminster formally signed off on the Anti-Social,  Behaviour, Crime and Policing Act  2014. Section 151 of the Act redefines the term ‘miscarriage of justice’ requiring victims to undertake the often impossible task of proving themselves innocent to the high criminal law threshold of beyond reasonable doubt before their case can be categorized as such.

The change does not relate to the ability to quash unsound convictions but rather the ability to have the case then officially recognised as a ‘miscarriage of justice’. This effects entitlement to compensation but also risks facilitating impunity for malpractice within the criminal justice system as if cases are no longer be classified as miscarriages of justice then why would they require individual or structural remedies or redress?

In May 2013 the UK coalition government included this controversial single clause in the Anti-Social Behaviour, Crime and Policing Bill. The clause was to have the effect of amending section 133 of the Criminal Justice Act 1988 (compensation for miscarriages of justice) to change the definition of a ‘miscarriage of justice’ to one to be determined “if and only if the new or newly discovered fact shows beyond reasonable doubt that the person was innocent of the offence”. In effect the victim of the alleged miscarriage of justice would have to take on the roles usually undertaken by police and prosecutors and gather evidence to prove themselves innocent to the high threshold of a criminal law test, for matters which may have occurred sometime ago.

The London-based campaign group JUSTICE stated that the cases of the Birmingham Six, the Guildford Four, The Maguire Seven, The Cardiff Three and Judith Ward would not have been able to satisfy the proposed innocence test.[1] The Westminster Joint Committee on Human Rights held that the clause was incompatible with Article 6(2) of the European Convention on Human Rights and the common law requirements of the presumption of innocence and recommended its removal from the bill, which was supported by Liberal Democrats in the Commons.[2]  Prior to this NGOs Justice, Liberty and CAJ promoted an amendment, supported by the Labour party and SDLP, to define ‘miscarriage of justice’ more consistently with international obligations.[3] The issue was not pushed to a vote and the Commons deferred to the House of Lords for further discussion, who on a narrow vote, defeated the government clause with alternative wording now being recommended in a second report by the Joint Committee on Human Rights.[4] On return to the Commons however the UK government reinstated its definition, with a seemingly semantic amendment of replacing the word ‘innocent’ with the phrase ‘did not commit’, when the bill returned to the Lords government had the numbers to push through the change by 253 votes to 214, and redefined the term.

In Northern Ireland, given devolution of justice, the new definition only directly applies to ‘national security’ cases.[5]  The clause was introduced to effectively overturn the UK Supreme Court judgement of 2010 which dealt with the appeals of Adams and two Northern Ireland Judicial Review cases (Eamonn MacDermott and Raymond McCartney).[6] The judgement held that a ‘miscarriage of justice’ occurred when the original evidence said to justify the conviction has been undermined to the extent whereby no conviction could possibly be based up on it.[7] CAJ had had subsequent concerns about the restrictive manner in which Northern Ireland Courts have interpreted this test.[8]

The new definition does not ‘clarify’ the interpretation of the concept as the UK Government had claimed but significantly changes it away from a position whereby the individual is to demonstrate that a Court could not have rightly found beyond reasonable doubt that they were guilty, to one whereby an individual is expected to prove their innocence. CAJ, in evidence to Westminster, stated that the motivation for the change in definition was questionable, drawing attention to upcoming claims being made in Northern Ireland into unresolved issues such as the ill treatment of detainees during the conflict and subsequent convictions in non-jury emergency courts, often based on ‘confession’ evidence.[9] CAJ argued “It would be a matter of concern if in part the motivation behind the current provision relates to preventing such practices from being further exposed.”[10]

Following its safe passage through Westminster the battle to maintain the integrity of the term ‘miscarriage of justice’ will no doubt return to the courts.

[3] Namely leave out ‘the person was innocent of the offence’ in the government clause and insert ‘no reasonable court properly directed as to the law, could convict on the evidence now to be considered.’

[4] Namely when a ‘new or newly discovered fact shows conclusively that the evidence against the person at trial is so undermined that no conviction could possibly be based on it’.

[5] In Northern Ireland the changes were to apply to compensation applications determined by the Secretary of State and not those determined by the Department of Justice. [the clause would insert subsection 1ZA into section 133 of the Criminal Justice Act 1988, this would require the new test to be used when cases under subsection 6H of the Criminal Justice Act 1988 (as amended by schedule 6 of the Northern Ireland Act 1998 (Devolution of Policing and Justice Functions) Order 2010)]. The Secretary of State determines Northern Ireland applications when she takes the view ‘protected information’ is relevant to an application (for example, because the court which quashed the original conviction did not make public, in whole or in part, the reasons why), and she is of the view that ‘on the grounds of national security’ the Department of Justice, or their assessor, is not to be given the protected information or a gist of it. [See subsections 6A-6K of the section 133 of the Criminal Justice Act 1988 (as amended by schedule 6 of the Northern Ireland Act 1998 (Devolution of Policing and Justice Functions) Order 2010)].

[6] R (Adams) V Secretary of State for Justice [2011] UKSC 18.

[7] This state of affairs must furthermore be shown by reference to a ‘new or newly discovered fact/s’ which was interpreted as including either facts the significance of which were not appreciated previously by the accused or his/her lawyers, or alternatively facts which were newly ‘discovered’ to the appeal court on appeal (with comparison with the fresh evidence principles on appeal).

[8] See in the matter of application for Judicial Review Joseph Fitzpatrick and Terrence Shiels, High Court Northern Ireland Queens Bench Division TRE8655 delivered 30 November 2012.

[9] See for example Cobain, Ian Inside Castlereagh: ‘We got confessions by torture’ The Guardian Monday 11 October 2010 [Available at accessed July 2013].

[10] CAJ S412 ‘Written Evidence to the Public Bill Committee on the Anti-Social Behaviour, Crime and Policing Bill, introduced into the Commons on 9 May 2013’, paragraph 13.