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How big is the ‘iceberg’? a zemiological approach to quantifying miscarriages of justice

Michael Naughton

Introduction

Previous critical researches into miscarriages of justice in England and Wales’ Criminal Justice System (CJS) have not generally addressed the question of the likely scale of the miscarriage phenomenon in any systematic way. Rather, they have generally been directed towards individual exceptional miscarriage cases, brought about through extra-judicial procedures, that have exemplified particular ‘errors’ or ‘fallibility’ in the CJS’s legislative framework. Despite this, many critical analyses of miscarriages have routinely speculated upon the possible scale of England and Wales’ miscarriage phenomenon by asserting that the exceptional miscarriage being ‘exposed’ is the ‘tip’ of some much greater ‘iceberg’. But, just how big the iceberg might be has hardly received any critical attention at all.

In this context, this essay draws from zemiology the holistic study of the social, psychological, physical and financial harmful consequences of social phenomena. It argues that by focussing upon exceptional cases, those cases of criminal conviction that are routinely quashed by the Court of Appeal (Criminal Division) (CACD), or more mundanely quashed by the Crown Court from the magistrates’ court have received no attention at all. As a result, the likely scale of England and Wales’ miscarriage phenomenon that can be inferred from the official statistics, the size of the official iceberg, has been overlooked. In consequence, an extensive range of harmful consequences that also accompany routine and mundane miscarriages have also been neglected. In conclusion, it is noted that there are a number of legitimate structural rules, procedures and practices that can cause miscarriages that might never be acknowledged in the official statistics of successful appeal against criminal conviction. When these are also considered, the true number of miscarriages of justice may be higher than portrayed in the official statistics, as may the harmful consequences.

To this end, the essay is structured into three parts. Firstly, England and Wales’ appellate structure is briefly outlined. Secondly, the Lord Chancellors Department’s (LCD) official statistics of successful appeals against criminal conviction are analysed and three categories of miscarriage discerned the exceptional, the routine and the mundane. Finally, the third part discusses the zemiological approach to social phenomenon and the significance of incorporating even the most apparently routine and mundane of quashed criminal convictions within the critical miscarriage rubric.

The appellate structure

Within England and Wales’ CJS there are a number of appellate opportunities available to those who receive criminal convictions. In order of ascending judicial superiority:

• the Crown Court deals mainly with appeals by persons convicted in magistrates’ courts against their conviction or sentence or both;
• the Court of Appeal (Criminal Division) (CACD) hears appeals in criminal matters from the Crown Court;
• an appeal can be made to the House of Lords where it has been certified by the CACD that a point of law of general public importance was involved in a decision;
• the Attorney General has the power to refer what are thought to be unduly lenient sentences for offences triable on indictment to the Court of Appeal;
• the Criminal Cases Review Commission (CCRC) can refer cases that have already been through the appeals system and have not succeeded for any reason back to the appropriate appeal court’ (Chapman and Niven, 2000, pp. 42-43); and,
• when all domestic appellate attempts have been exhausted, criminal appeal cases can also be taken to the European Court of Human Rights at Strasbourg (see European Court of Human Rights website: http://www.echr.coe.int/).

In terms of official miscarriage statistics, the LCD collects statistics from each of these appeal courts in terms of applications for leave to appeal and their success. Taken together, these statistics would provide a picture of the scale of England and Wales’ miscarriage iceberg that can be inferred from the official statistics.

Exceptional miscarriages

Although the LCD publishes official statistics of all the criminal convictions that are successfully quashed upon appeal in the various appeal courts, current official definitions, public perceptions and critical miscarriage discourse have been almost entirely focussed upon the cases of Stephen Downing (see Vasagar, 2000; Vasagar, 2000b; Vasagar and Ward, 2001); Derek Bentley (see Campbell, 1998; Birnberg, 1998; Oliver, 2002); Mahmood Mattan (see Lee, 1998; Wilson, 2001), John Kamara (see Quinn, 1999; Carter and Bowers, 2000; Gillan, 2001), the M25 Three (see Hardy, 2000; Bird, 2000; Times Law Report, 2000), the Cardiff Three (see Carroll, 1998; Lewis, 1999); and so on. All of these were exceptional cases of successful appeal against criminal conviction that were referred back to the CACD by the CCRC having previously failed through routine appeal procedures.

Table 1 represents the number of criminal convictions that were quashed by the CACD as a result of being referred back to the CACD by the CCRC since it started handling casework in March 1997. In the year 1998, for example, there were 7 cases that were successfully quashed in the CACD after referral by the CCRC. This compares with a total of 341,000 criminal convictions from the Crown and magistrates courts in the same year, 1998 (Home Office, 2000). Thus, depicting only the minutest of icecubes.

Table 1: Criminal Cases Review Commission: Successful quashed convictions after referral back to CACD*

Source: Criminal Cases Review Commission, 2001. * The methodology upon which this analysis is based differs from the CCRC’s own analysis in that it only includes those criminal convictions that were successfully quashed after referral back to the CACD that involved no further action. That is, this analysis does not include those ‘quashed’ convictions that were included by the CCRC that resulted in an altered charge or sentence. Nor does it include those ‘quashed’ convictions that the CACD referred for retrial. ** Figures for the year 1997 are from 31 March when the CCRC started handling casework. *** Figures for the year 2001 are up to and including to October.

This is not to suggest that the trend to focus upon exceptional cases is entirely misguided. To be sure, accompanying this trend is an important ‘tradition of CJS reform’ (Naughton, 2001, pp. 50-52) whereby the Government has introduced corrective legislation in an attempt to resolve the public crises of confidence that were induced by the high profile that these cases attain. For example, the Court of Appeal (Criminal Division) (CACD) has its roots in the Government’s legislative response to the public pressures that were exerted by the Beck case, which exemplified the urgent need for a court of criminal appeal (Report of the Committee of Inquiry into the Beck Case, 1904; Pattenden, 1996); capital punishment was abolished in the Government’s legislative response to the public crisis of confidence in criminal justice that was engendered by the cases of Bentley, Evans-Christie and Ellis, which together exemplified the question of the justness and/or appropriateness of the continuance of capital punishment (see Block & Hostettler, 1997; Christoph, 1962); the Police and Criminal Evidence Act (1984) (PACE) (see Fisher, 1977; Police and Criminal Evidence Act, 1985) which imposed guidelines on police conduct were a consequence of the pressures brought about by the Confait Affair which exemplified the consequences of procedural disregard (see Price & Caplan 1976; Price 1985); and, the establishment of the Criminal Cases Review Commission (CCRC) was a direct consequence of the cases of the Guildford Four and the Birmingham Six which exemplified the need for an independent body for the investigation of suspected or alleged miscarriages once existing domestic appeal processes had been exhausted (Royal Commission on Criminal Justice, 1993).

In this context, analyses of exceptional miscarriages are important as they often exemplify problems in the CJS’s legislative framework in need of corrective reform. But, they represent only a minute part of England and Wales’ miscarriage phenomenon. And, they, therefore, capture only a minute part of the harmful consequences that miscarriages of justice engender.

Routine miscarriages

A major limitation of concentrating on exceptional miscarriage cases that are brought to light via the extra-judicial procedures of the CCRC, is that all manner of routine miscarriages have been neglected. For, in addition to the exceptional miscarriages there are also all those criminal convictions that are obtained in the Crown Court that are routinely successful in appeal to the CACD on a daily basis. Indeed, if ‘miscarriages’ are also considered to be those criminal convictions that are routinely quashed upon appeal by the CACD, then they can, perhaps, be said to be far more widespread than is commonly first thought. Table 2 shows that in the decade 1989-1999, for example, the CACD abated a yearly average of 770 criminal convictions over 8,470 in total.

Click HERE for Table 2: Court of Appeal (Criminal Division): Successful appeals against criminal conviction 1989-99 (inclusive)

Source: Lord Chancellor’s Department (1999) Judicial Statistics Annual Report London: HMSO Cm 4786; Lord Chancellor’s Department (1998) Judicial Statistics Annual Report London: HMSO Cm 4371.

To put this figure into context, as well as to give some indication of the split between the routine and exceptional miscarriages contained in the official miscarriage statistics, it is worth comparing the CCRC’s reported case statistics in a little more detail. If the 36 cases that were successfully quashed upon being referred back to the CACD by the CCRC since 1997 are compared against all the official CACD statistics, then in the year 1997 alone, 832 appeals against criminal conviction were successful in being quashed through routine appeal procedures. But, by incorporating routine miscarriages within critical analyses, the official scale of England and Wales’ miscarriage phenomenon increases from an annual average of 7 cases to an annual average of around 770 cases, and the miscarriage iceberg as it is conventionally perceived and understood is increased a hundred fold.

Mundane miscarriages

In addition to successful appeals in the CACD from the CCRC and the Crown Court, criminal convictions obtained in the magistrates’ court can be appealed in the Crown Court. When the criminal convictions from the magistrates’ court that are quashed upon appeal to the Crown Court are also taken into account conceptions of England and Wales’ official miscarriage phenomenon are even further extended.

For example, Table 3 shows an annual average of 3,546 quashed convictions at the Crown Court for criminal convictions that were given by the magistrates’ courts between 1998-2000 (inclusive). If this average is added to the CACD annual average then an official picture of England and Wales’ miscarriage phenomenon, the official miscarriage iceberg, is multiplied to an annual average of 4,316 cases.

Table 3: Crown Court: Successful appeals against criminal conviction in the magistrates’ court 1998-2000 (inclusive)

Source: Lord Chancellor’s Department (2000) Judicial Statistics Annual Report London: HMSO Cm 5223; Lord Chancellor’s Department (1999) Judicial Statistics Annual Report London: HMSO Cm 4786; Lord Chancellor’s Department (1998) Judicial Statistics Annual Report London: HMSO Cm 4371.

Zemiology

But, are these routine and mundane successful appeals against criminal convictions really miscarriages? Or, are they, as advocates and defenders of the system contend, a manifestation of the safeguards that are contained within the CJS, functioning in the interests of the protection of the criminal suspect population (see, for example, Pattenden, 1996, pp. 57-58). Of course, in a sense the criminal convictions that are routinely quashed by the CACD and mundanely quashed by the Crown Court are a sign of ‘the carriage of justice’ and that people who are wrongly convicted in England and Wales do have rights of legal redress. But, safeguards are supposed to exist only for use in extreme circumstances and only then are they supposed to be used in the last resort. By concentrating the critical miscarriage agenda only upon exceptional cases, the safeguard argument is sustained. But, by widening the critical miscarriage gaze to incorporate routine and mundane miscarriages any notion of the right to appeal as a last resort appellate safeguard collapses. By so doing, safeguards can themselves be conceived as merely routine and mundane legal procedures that do not stand up to critical scrutiny (c.f. McBarnet, 1981, pp. 11-25).

Another angle on miscarriages that comprehensively calls into question the notion of safeguards and points towards the critical necessity of including routine and mundane miscarriages within the rubric of England and Wales’ miscarriage iceberg is the zemiological perspective. In essence, zemiology takes a more holistic approach to the study of the consequential harm(s) of socio-legal phenomena - social, psychological, physical and financial - that have profound impacts and effects. It is then well placed to determine whether the law is in need of review and/or re-constitution (Gordon et al, 1999; Hillyard and Tombs, 2001).

Elsewhere, these ideas have been applied and the harmful social, psychological physical and financial consequences of miscarriages of England and Wales’ CJS have been briefly outlined, and the financial consequences of the likely penal costs of containing the wrongfully convicted more fully developed (Naughton, 2001, pp. 56-61). What have previously received less attention are the crucial zemiological questions of the potential scale of England and Wales’ miscarriage phenomenon and the forms of harm that both accompany, and are associated with, routine and mundane successful appeals against criminal conviction. Indeed, from a zemiological perspective the distinction between exceptional, routine and/or mundane miscarriages is not so straightforward. Even the most apparently routine and mundane wrongful criminal convictions also involve an extensive range of zemiological harms, and not always to a lesser degree.

For example, in June 1998, 58 motorists won a joint action against Greater Manchester Police after being wrongly convicted of drink-driving offences. It transpired that a kit that was being used to determine blood alcohol levels contained a fault that actually introduced alcohol into the suspect’s sample and gave a positive reading even if the suspect had not been drinking. The zemiological costs attached to this case were as substantial as in many exceptional cases. Some of those concerned served prison sentences, some lost their businesses, several suffered mental breakdowns, and some even tried to take their own lives (see Ford, 1998).

Conclusion

This article has noted the general generic trend of critical researches to focus upon exceptional miscarriage cases that are produced through extra-judicial procedures and the accompanying tradition of CJS reform. Without doubt, this trend and tradition are important and have been significant in effecting many progressive changes to the CJS, such as those described. However, the trend to focus on exceptional successful appeals against criminal conviction serves to reduce perceptions of the true scale of England and Wales’ miscarriage phenomenon, and it diverts critical attention from the forms of harm that accompany those cases of criminal conviction that are routinely quashed by the CACD, or more mundanely quashed by the Crown Court from the magistrates’ court. As a result, both the likely scale of England and Wales’ miscarriage phenomenon that can be inferred from the official statistics, the size of the official iceberg, as well as an extensive range of harmful consequences that also accompany routine and mundane miscarriages have been overlooked.

It must also be acknowledged that the legislative events that brought about the establishment of the CACD, the abolition of capital punishment, the introduction of PACE (1984) and the creation of the CCRC were not about the correct legality of the challenges in the exceptional cases that preceded them. On the contrary, they were largely brought about because they were able to induce a public crisis of confidence in the CJS by demonstrating the harmful consequences to the individuals in these cases, as well as the future potential harm to other criminal suspects and convicts. This then prompted Government intervention to resolve the crisis by demonstrating, through the introduction of corrective legislation, that the potential harm to criminal suspects that might be innocent of their criminal charges and convictions had been reduced. In this context, a more thorough zemiological analysis of miscarriages, routine and mundane as well as exceptional, might bring about more profound and wide-ranging legislative changes to the CJS that might more appropriately address the potential causes of miscarriages and their accompanying harmful consequences. Routine and mundane miscarriage cases are of as much critical importance as exceptional miscarriages. Not only to the question of the likely size of England and Wales’ miscarriage iceberg, but also to questions of the likely size of the accompanying zemiological icebergs of social harm, psychological harm, physical harm and financial harm. In short, if miscarriages continue to be conceived only in exceptional terms not only will they continue to only concern the tip the miscarriage iceberg, they will also only be able to capture the tip of a range of social, psychological, physical and financial harms that miscarriages engender.

Finally, it must be noted that this essay has only considered the likely scale of England and Wales’ miscarriage phenomenon in the entirely legalistic and retrospective confines of the official statistics. That is, a miscarriage has only been considered to have occurred when an appeal against criminal conviction has been successfully achieved. But there are a whole host of additional structural obstacles, barriers and disincentives that also need to be taken into critical consideration to gain a purchase on the full scale of England and Wales’ miscarriage phenomenon. For example, there is the ‘time loss rule’. Under this ‘rule’ when the criminally convicted apply for an appeal they are advised that if their appeal is ultimately unsuccessful it could result in substantial increases to their sentence. Research conducted by JUSTICE found that ‘the effect is to transform a minor check on wholly groundless applications into a major barrier in some meritorious cases’ (Justice, 1994, p. 7). Another example is the Criminal Procedure and Investigations Act (1996) (CPIA) which introduced a regime for advance disclosure that is at odds with the operational practices of police officers, the Crown Prosecution Service (CPS) and defence solicitors. As a consequence, ‘errors’, whether inadvertent or otherwise, may not be recognised and the result is a system that presents real risks of future miscarriages of England and Wales’ CJS (see Taylor, 2001). There are also the potential miscarriages that result from charge, plea and sentence ‘bargaining’ that induce innocent people to plead guilty to criminal offences that they have not committed (see Baldwin and McConville, 1977).

In this context, the 4,316 miscarriage cases that make-up the annual average of official miscarriage statistics (the official statistics of successful appeals against criminal conviction) can themselves be conceived as just the tip of some even greater miscarriage and zemiological icebergs.

Acknowledgements

Thanks to Ruth Levitas and Christina Pantazis for helpful comments on an earlier draft.

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Michael Naughton
University of Bristol
Department of Sociology
12 Woodland Road
Bristol
BS8 1UQ
Telephone: 0117 954 5592
E-Mail: M.Naughton@Bristol.ac.uk