'If the prosecution fails to disclose vital evidence to the defence, and the verdict is guilty, how will the defendant fight their innocence when they do not know such evidence may exist to support their claim?'
“It is better that ten guilty escape than one innocent suffer.” Sir William Blackstone
Many people in our society believe that our criminal justice system is fair and equal, the defendants guilty beyond reasonable doubt. Many would argue that our criminal justice system has no flaws. But is our criminal justice system so flawless? Throughout the years, we have seen many cases of miscarriages of justice. We have seen people who spend 25 years behind bars for a crime they did not commit.
Despite this, the problem of wrongful conviction has become an accepted matter in society. This is a serious matter and we should not brush the failures under the carpet. People who have been wrongfully convicted have lost their families, their reputations, their jobs and most importantly their freedom.
Who fails these people?
Research has already proven that a number of factors generally contribute to wrongful convictions; unreliable witness testimony, a false or unreliable confession, false or misleading forensic science, and inadequate disclosure. In July 2017, a joint inspection by Her Majesty's Inspectorate of Constabulary and Her Majesty's Crown Prosecution Service Inspectorate discovered severe flaws in the criminal justice system with regard to the disclosure of evidence. The inspection found that police routinely failed to comply with requirements to list all undisclosed evidence in sufficient detail to enable prosecutors to decide if it should be disclosed to the defence.
'Of the disclosure schedules examined, 22 per cent were found to be ‘wholly inadequate’. In addition, the report identified that in some cases involving sensitive evidence, potentially undermining material was only disclosed late or not at all in circumstances where a miscarriage of justice was only narrowly avoided' (Jemmison and McFadden, 2018).
Failures to disclose have already caused miscarriages of justice. If the prosecution fails to disclose vital evidence to the defence, and the verdict is guilty, how will the defendant fight their innocence when they do not know such evidence may exist to support their claim?
Another big challenge relating to miscarriages of justice is lost and destroyed evidence. A finding in The Telegraph discovered that almost three quarters of criminal justice practitioners, particularly lawyers, had to work on cases where the evidence had been lost or destroyed. This seems extremely challenging for innocent people and lawyers who are fighting to launch an appeal. Not only evidence is being destroyed or lost but also audio recordings and court documents from trial proceedings are being destroyed after seven years.
It is not a secret that many people in prison do not know where to seek legal help or have the funds for private legal representation, and in some cases it might take years for a case to get investigated from organisations who fight miscarriages of justice. Imagine being in prison for a crime you did not commit and being told that the evidence does not exist to prove your innocence any longer.
Lately, there has been an argument regarding the decrease in the number of sexual offence prosecutions. According to the Law Commission:
'There are many complex reasons for the decline in cases reaching court. Our focus is on how evidence is used in trials involving sexual offences. Academic research shows that some individuals hold misconceptions about sexual harm (“rape myths”) in relation to the credibility, behaviour and experience of complainants in cases involving a sexual offence. It is unclear how extensive such misconceptions might be amongst the public and how much impact they can have on the juror’s task of evaluating the evidence. Some argue that jurors need more assistance with assessing evidence in relation to sensitive and challenging issues that may fall outside their own experience and understanding'.
However, a recent study found the conviction rate in rape cases has increased from 55 percent to 75 percent over the past 15 years. The researchers were given exclusive access to a dataset containing over 5.6 million criminal charges; every charge against every defendant in every Crown Court in England and Wales from 2007 to 2021. In all but one of those 15 years, the rape conviction percentage was higher than 50%, indicating that juries found defendants guilty more often than they acquitted them.
The research was carried out by Cheryl Thomas KC (Hon), professor of judicial studies at UCL, director of the UCL jury project and co-director of the university’s Judicial Institute. It followed a petition to Parliament in 2018 alleging that juries believed rape myths, resulting in a 21% lower rape conviction rate than for other crimes. These claims were not supported by any evidence.
At the time, it was evident that there had been a significant decrease in the number of rape charges brought against defendants in the Crown Court. It was unclear whether the drop in charging had made a difference in the conviction rate. According to Thomas' research, the average jury conviction rate for rape over the last 15 years - 58% - is greater than the conviction rate for other violent offences such as threats to kill, attempted murder, or causing grievous bodily harm. On manslaughter charges, juries acquit defendants more often than they convict.
As seen above, the jury is more likely to convict someone who has been accused of a sexual offence. The media have also reported that the jury’s verdict is influenced by rape myths - which as can be seen above is not the case.
The aim of the Law Commission is to create juryless trials in England and Wales for sexual offences in order to increase convictions. It is not about justice, it is more about increase the statistics. The narrow focus on numbers in the rape case debate is damaging. Misinformation about reporting and charging rates encourages weaker performance and investigation, which is harmful to the defendant who may be charged based on insufficient evidence.
The media reporting about low rape conviction may also be an huge influence on the jury, which might solely convict someone in order to increase these statistics. The new proposal from the Law Commission might create more miscarriages of justice than before. If trials become juryless it does not mean that the numbers will increase; Judges are not immune to bias. Judges are also more likely to be aware of the low conviction rates in rape trials, placing pressure on the decision maker to convict. The pressure of conviction will likely also increase the number of miscarriages of justice. It is no longer about who is guilty or who is innocent.
Society only knows famous cases of miscarriages of justice such as the Birmingham Six, the Guildford Four and the Post Office Scandal to name a few - but these cases are only the tip of the iceberg, and miscarriages of justice frequently occur in our criminal justice system. Some people would argue that the system makes mistakes and we should not be that harsh. In fact, we should. A mistake can cost your freedom and your rights.
Some would argue that we have the Court of Appeal to help these people, but it is not as easy as some may think. Obtaining permission to appeal is not straightforward and even if you get permission to appeal the Court may order a retrial or may substitute a conviction for an alternative offence. Not surprisingly, only 11% of appellants are successful.
The risk of sending an innocent person to prison and leaving the actual perpetrator walk free is harmful and the risk of re-offending is greater. Miscarriages of justice do not only affect innocent people in prisons but also their families and society as a whole.
By Enesa Ibrahimi
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