Wrongful convictions: towards a zemiological analysis of the tradition of criminal justice system reform
In the history of England and Wales' Criminal Justice System (CJS) a discernible tradition of CJS reform emerges that exhibits the following discursive rules. At particular times, particular wrongful conviction cases are debated. In these debates, these particular cases attain a high profile 'miscarriage' status that throws the government, legal and public/media spheres into chaotic collision. As a result, legislative reforms have to be introduced to the CJS that serve to resolve the situation whereupon normality between and within the colliding spheres can, at least, be temporarily resumed.
Within this discernible tradition, this article applies ideas derived from zemiology (the science/study of societal harm - social, physical, psychological and financial) and focuses upon some of the broader consequences of wrongful criminal convictions and/or miscarriages of the CJS. In particular, the article attempts to emphasise:
It is concluded that the scale of the wrongful criminal conviction phenomenon demonstrates a reductive approach to punishment that cannot be regarded as attributable to mere error, anomaly, or even systemic malpractice. On the contrary, the extent of the problem intimates a purposeful complacency and failure to act by both the government and the agencies that comprise the CJS, except in times of extreme pressure and perceived public crisis. From a zemiological perspective, this complacency and failure to act entails profound consequences, which fundamentally calls into question the continued legitimacy of current criminal conviction practices.
The tradition of Criminal Justice System reform
Any analysis of public/media concerns, social or legal debates, or, indeed, politico-governmental legislative responses to the perceived 'problem' of miscarriages of the CJS shows that they have correspondingly tended to concern only a comparatively small number of cases, known collectively as the 'high profile' cases (HP). This tendency manifests itself in recent times to the effect that there is something of a consensual CJS miscarriage concern revolving solely around the same few notorious cases - the Birmingham six (see Mullin, 1986), the Guildford four (see May, 1994) the Maguires (see Kee, 1986), Judith Ward (see, Emmerson, 1999), Stefan Kiszko (see Pattenden, 1996), the Tottenham three (Rose, 1992), the Darvell Brothers (see Hill et al, 1985), the Taylor sisters (see Peelo and Soothhill, 2000).
This tendency, however, is not unique to current times. A history of the CJS shows that whichever modern era one chooses for analysis public/media concerns and CJS miscarriage campaigns, social or legal debates and official politico-governmental legislative responses to the perceived problem have always been centred only upon a particular high profile case or small group of high profile cases.
Consider four of the most critically important politico-governmental legislative events that have historically occurred within the CJS:
Each of these legislative events was initiated, not because of the overwhelming weight of CJS miscarriage statistics, but rather in direct response to the pressures of a particular high profile case or small group of high profile cases. The CAA (1907) was attributed to the pressures of the Beck case (see Pattenden, 1996); the MADPA (1965) to the cases of Bentley, Evans and Ellis (See Block and Hostettler, 1997); PACE (1984) to the Confait Affair; and the CAA (1995) to the cases of the Birmingham six et al. The significance of each of these events and, therefore, the small number of high profile CJS miscarriage cases concerned is that each represented a defining moment in the CJS legislative framework of its day. Indeed, our current CJS legislative framework on miscarriages was defined by, and is a direct consequence of the CAA (1995) and the high profile cases of the Birmingham six et al related to it.
Another interesting feature of each of these critically important politico-governmental HP CJS miscarriage legislative events/ defining moments is that each (except the CAA (1907)) has connections with a royal commission set up previously to address the problem of CJS miscarriages as perceived at that time. The MADPA (1965) was connected to the parliamentary debate about the establishment, terms of reference and recommendations of the Royal Commission on Capital Punishment (1953) (RCCP (1953)); PACE (1984) was an outgrowth of some of the recommendations of the Royal Commission on Criminal Procedure (1981) (RCCP (1981)); and, the CAA (1995) was a consequence of some of the recommendations advised by the Royal Commission on Criminal Justice (1993) (RCCJ (1993)). As for the CAA (1907) it too has connections with an extra-judicial instrument in the form of a Committee of Inquiry, which reported in 1904, set up in response to the Beck case.
Wrongful convictions as a statistical phenomenon
A major problem with traditional miscarriage debates is their lack of reflexivity and their statistical partiality. Not only have the possible functions that such debates might themselves fulfil in the interplay and legitimation of modern CJS power been neglected, none have addressed the constant phenomenon of wrongful convictions as a statistical whole. This neglect serves to obscure the scale of wrongful convictions. It further promotes perceptions of crisis around the public knowledge of particular high profile wrongful conviction cases. And it contributes to the continuation of the tradition of CJS reform. Simply put, wrongful convictions are not merely a high profile intermittent 'problem'; they are a routine feature of England and Wales' system of criminal justice.
Noting the difficulties in defining wrongful criminal convictions or miscarriages of the CJS (see, for example, Greer, 1994), and also that there are technical issues related to the guilt or innocence of those who have their criminal convictions quashed by the CACD (see, for example, Nobles and Schiff, 1995), if 'wrongful' criminal convictions or 'miscarriages' of the CJS are considered only as those criminal convictions that are quashed by the Court of Appeal (Criminal Division) (CACD), then they can, perhaps, be said to be far more widespread than is commonly first thought. In the decade 1989-1999, for example, the CACD abated a yearly average of 770 criminal convictions - over 8,470 in total (see Table 1).
If a slightly broader definition is applied that also includes successful appeals made against length of sentence, then the number of miscarriages of the CJS (the number of times that the CJS itself indicates that it previously got either the conviction or the sentence wrong), increases to an annual average of 3,712 appellants or 40,829 for the period (Table 2).
Click HERE for table 1.
Click HERE for table 2.
In addition to the CACD, which deals with appellants in criminal matters from the Crown Court, there are various other criminal appellate opportunities within England and Wales' Criminal Justice System court structure. In criminal matters, the Crown Court deals with appellants convicted in Magistrates' courts who appeal against their conviction or sentence, or both. There is also a Divisional court of the High Court that is responsible for criminal appeals - hearing appeals from the Crown Court and Magistrates' Court by way of judicial review and 'cases stated' (ruling whether a court or tribunal was wrong in law or in excess of its jurisdiction). An appeal can also be made to the House of Lords where the CACD considers that a point of law of general public importance is involved. In addition, the Attorney General can refer Crown Court sentences considered 'unduly lenient' to the CACD. Criminal appeal cases can also be taken to the European Court of Justice.
In many ways, then, wrongful convictions or miscarriages of the CJS thus conceived can be said to be a normal, routine feature of our system of criminal justice. Indeed, such judicial bodies as the CACD exist only because CJS miscarriages can and do occur.
Zemiology as an emerging discipline has been described as an attempt to move beyond the boundaries and/or limitations of conventional socio-legal and/or criminological discursive paradigms. It seeks to engage with, confront, or at the very least draw attention to a wide range of serious harms (social, psychological, physical and/or financial) that have profound impacts and effects upon a modern citizenry that are unable to be conceptualised by conventional socio-legal and/or criminological perspectives. Harms thus conceptualised include accidents at work, insurance scams, environmental and public health malpractice, and so on. Some things that might not conventionally be thought of as 'crime' might score more highly on a scale of personal hardship than many events and incidents that are actually defined as crime (see Gordon et al, 1999).
In the context of wrongful criminal convictions/miscarriages of the CJS there are a number of relevant 'social harms' that might apply. They can relate to the harm to 'individual autonomy, development and growth' (Hillyard and Tombs, 2000, p. 9) that can result from years of wrongful imprisonment. They can relate to being deprived of a partner's support. They can relate to a parent's absence during a child's upbringing, which can have associated impacts upon that child's heath and life-chances. 'Social Harms' conceived in this way can also have profound impacts upon the families and friends of the wrongfully convicted. They can also relate to the victims of criminal offences in that they have to live with the knowledge that the wrong person was convicted for the crime committed against them, with the result that the true perpetrator is free.
'Physical harm' can include such things as the assaults, torture and the brutality by state officials (Hillyard and Tombs, 2000, p. 9) that featured in so many of the high profile miscarriage cases. For example, the cases of the Bridgewater four, the Birmingham six, the Guildford four and various cases involving the now disbanded West Midlands Serious Crime Squad.
'Psychological harm' can relate to the mental strain of years of wrongful imprisonment. For example, in 1996, Adrian Grounds a psychiatrist at the Institute of Criminology at Cambridge examined Gerry Conlon of the Guildford four and four of the Birmingham six. He found that they were all suffering from irreversible, persistent and disabling post-traumatic stress syndrome. He compared their mental state with that of brain damaged accident victims or people who had suffered war crimes (see Pallister, 1999).
The scope of this article means that not all of these zemiological consequences can be further explored here. Accordingly, the remainder of the article focuses in more detail upon the financial/economic zemiological consequences that derive from wrongful criminal convictions.
Financial/economic zemiological consequences
One of the most important financial/economic zemiological costs has been defined as the 'mis-appropriation of funds by government' (Hillyard and Tombs, 2000, p. 9). Within such a perspective, the financial/economic consequences of wrongful criminal convictions/miscarriages of the CJS are both significant and substantial. Economic costs normally considered include compensation paid out for wrongful criminal charges and convictions; judicial costs for court hearings and appeals; and defence lawyers and barristers costs.
But there are also a whole host of direct economic costs of miscarriages of the CJS that emerge which are not normally considered. For example, there are the costs to the penal system of containing the wrongfully convicted in prison. There are also the potential costs to the benefit system in terms of support provided by the state that was previously provided by the wrongly convicted person. And, there are all manner of other medical costs incurred, such as the socio-psychological counselling necessary in many of the high profile CJS miscarriage cases in helping to reintroduce those wrongly imprisoned into society, sometimes after decades of incarceration.
In addition, the economic costs of wrongful convictions can be structurally conceptualised to include the costs of establishing and maintaining such governmental institutions as the CACD that was established as a direct response to public pressure around high profile CJS miscarriage cases. They can include the costs of such governmental bodies as the Criminal Cases Review Commission (CCRC) which, like the CACD was also created as a direct consequence of the public knowledge of high profile CJS miscarriage cases. They can include the costs of establishing and maintaining such extra-judicial governmental inquiries as the CJS miscarriage royal commissions. They can include the costs of the Police Complaints Authority (PCA). And they can conceivably include the costs of government policies designed at managing CJS miscarriages and all of their strategic implementations.
Not all of these economic aspects of the consequences of wrongful criminal convictions/miscarriages of the CJS can be further developed here. Accordingly, in an attempt to give some indication of the economic extent of the problem, the remainder of this section focuses upon the prison costs aspect of containing the wrongfully convicted.
Table 3 shows the average net operating cost per dispersal prison place per annum. Because there is no evidence that all of those who had their convictions quashed by the CACD between 1989-99 were held in a dispersal prison, Table 4 shows an alternative average net operating cost per all establishments place per annum for the period.
Table 5 shows that if all of the convictions quashed by the CACD between 1988-1999 were for wrongly convicted persons held in dispersal prisons then the total average cost to the public purse would have been £277.8 million.
Again, because there is no evidence that all of those who had their convictions quashed by the CACD between 1988-99 were held in a dispersal prison Table 6 shows an alternative all establishments total average public cost of £176 million for the period.
In considering the Tables it must be noted that the alternative average totals presented in Table 4 and Table 6 are just as problematic as the average totals presented in Table 3 and Table 5 and for exactly the same reasons. It is highly likely that at least some of the wrongly convicted who had their convictions quashed between 1988-1999 would have been held in dispersal prisons.
Whichever average total figures are the most accurate and/or appropriate is thus difficult to determine, but Tables 3-6 serve their intended purpose here by presenting some indication of the extent of the relevant average costs per wrongfully convicted prisoner per annum involved.
But these relevant average public costs (between £277.8 million and £176 million) for the containment of wrongly convicted prisoners between 1989-99 represent only a small percentage of the actual costs that are involved as they assume only that each of the wrongly convicted concerned served one year in prison.
When one considers the decades of wrongful imprisonment experienced by those at the centre of the high profile miscarriage of CJS cases, along with the many obstacles, disincentives and/or barriers to a CACD appeal hearing the above costs can easily be exponentially multiplied, potentially amounting to many hundreds of millions, even billions of pounds, for the period concerned.
Click HERE for table 3.
Click HERE for table 4.
Click HERE for table 5.
Click HERE for table 6.
This aim of this article is to initiate an ongoing and sustained debate both about the scale of wrongful criminal convictions and their routine nature within our system of criminal justice. The tradition of CJS reform demonstrates the hitherto functional utility of miscarriage debates and the way in which they have been historically domesticated by the CJS - i.e. public pressure has been domesticated by the introduction of new legislation. But wrongful convictions are not only an intermittent socio-legal phenomenon, rather they are a constant statistical feature of our system of criminal justice. Innocent people are being routinely and systematically wrongly convicted for criminal offences that they have not, and in many cases could not, have committed. It is no longer acceptable that miscarriages are debated only when a high profile case outrages, shocks, or captures the imagination of the public consciousness. As judicial statistics are collected on behalf of the government those in positions of CJS governmental power are fully aware of the number of people being wrongly convicted. In terms of wrongful convictions, 'reducers' generally believe that the efficacy of deterrents would be maximised by ensuring that someone is penalised for every known crime, whether that person were guilty or not and even if those punishing were secretly aware that they were sometimes penalising the innocent (see Walker, 1980, pp. 27-37). The history of CJS reform demonstrates that successive government failures to act except in times of extreme public pressure and perceived crisis can only be described in extremely reductive terms.
This article has also attempted to indicate the staggering costs to the public purse of wrongful criminal convictions that have profound impacts upon society as a whole. In terms of prison costs alone they potentially involve many hundreds of millions, perhaps even billions of pounds for the period 1988-1999. When legal fees, compensation awards, the costs of establishing and running such things as the CACD, the CCRC, the PCA, the miscarriage royal commissions and so on are added, the costs of wrongful criminal convictions for the period probably run into many billions of pounds. From a zemiological perspective the impacts of such misuse of public finances are far-reaching and profoundly undermine the continued legitimacy of current criminal conviction practices.
Thanks to Paddy Hillyard, Christina Pantazis and to the two anonymous reviewers, one of whom undoubtedly helped to create what I hope is an eminently more readable piece!
Block, B.P & Hostettler, J. (1997) Hanging in the Balance: A History of the Abolition of Capital Punishment in Britain , Winchester, England: Waterside Press.
Emmerson, B. (1999) 'Prosecution in the dock', The Guardian November 15.
Gordon, D., Hillyard, P & Pantazis, C. (1999) 'Introduction to Zemia and Zemiology', Paper presented at the 'Zemiology Beyond Criminology' conference, Dartington, England (February).
Greer, S. (1994) 'Miscarriages of Justice Reconsidered', The Modern Law Review 57: 1, January.
Hillyard, P. & Tombs, S. (2000) 'From Crime to Social Harm: Criminology, Zemiology, and Justice', (unpublished).
Home Office (1989) 'Report on the work of the Prison Service April 1988 - March 1989', London: HMSO Cm 835.
Home Office (1990) 'Report on the work of the Prison Service April 1989 - March 1990', London: HMSO Cm 1302.
Home Office (1991) 'Report on the work of the Prison Service April 1990 - March 1991', London: HMSO Cm 1724.
Home Office (1992) 'Report on the work of the Prison Service April 1991 - March 1992', London: HMSO Cm 2087.
HM Prison Service (1993) Volume Two 'Prison Service Annual Report and Accounts April 1992 - March 1993', London: HMSO Cm 2385.
HM Prison Service (1995) 'Prison Service Annual Report and Accounts April 1993 - March 1994', London: HMSO HC 185.
HM Prison Service (1996) 'Prison Service Annual Report and Accounts April 1994 - March 1995', London: HMSO HC 447.
HM Prison Service (1997) 'Prison Service Annual Report and Accounts April 1995 - March 1996', London: HMSO HC 247.
HM Prison Service (1997) 'Prison Service Annual Report and Accounts April 1996 - March 1997', London: HMSO HC 274.
HM Prison Service (1998) 'Prison Service Annual Report and Accounts April 1997 - March 1998', London: HMSO HC 998.
HM Prison Service (1999) 'Prison Service Annual Report and Accounts April 1998 - March 1999', London: HMSO HC 748.
Kee, R. (1986) Trial and error: the Maguires, the Guildford pub bombings and British justice, London: Hamish Hamilton.
Lord Chancellor's Department (1998) Judicial Statistics Annual Report, London: HMSO CM 4371.
Lord Chancellor's Department (1999) Judicial Statistics Annual Report, London: HMSO CM 4786.
May, J.D. (1994) The Guildford and Woolwich Inquiry, London: HMSO HC 449.
Mullin, C. (1986) Error Of Judgement: The Truth About The Birmingham Bombs ,London: Chatto & Windus Ltd.
Nobles, R. & Schiff, D. (1995) 'Miscarriages of Justice: A Systems Approach', The Modern Law Review 58: 3, May.
Pallister, D. (1999) 'An injustice that still reverberates', The Guardian, October 19.
Pattenden, R. (1996) English Criminal Appeals 1884-1994: Appeals against conviction and sentence in England and Wales, Oxford: Clarendon Press.
Peelo, M. & Soothill, K. (2000) 'The place of public narratives in reproducing social order', Theoretical Criminology, Volume 4(2): 131-148; 012318.
Rose, D. (1992) A Climate of Fear, the Murder of P.C. Blakelock and the case of the Tottenham Three, London: Bloomsbury.
The Guardian (1992), June 10.
The Times (1991), June 28.
Walker, N. (1980) Punishment, Danger & Stigma: The Morality of Criminal Justice, Oxford: Basil Blackwell.