"Reluctantly, we uphold the appeal”: The problem with the Court of
Appeal
Those words are, I am proud to
say, not mine. They are the words of Lord Lane who was “forced” to overturn
Anthony Mycock’s burglary conviction in 1984. Mycock was by no means a
"lucky duck" criminal who had managed to have his conviction quashed on a faint technicality- he had, as
the Court of Appeal was forced to acknowledge, been completely exonerated. It
had transpired that the burglary he was convicted of had never happened, and
the only witness had admitted that she had fabricated the entire story.
The Court of Appeal, in its
modern incarnation, grew out of some legal changes in the early part of the
last century. Prior to that criminal appeals had been an even more disorganised
affair than they are today; appeals on a "point of law" (where you
are appealing the way that the trial judge ruled on something) were very
possible to appeal but "points of fact" (where you want to show that
the fact pattern relied on by the prosecution was wrong) were much harder to
put before a court. The jury's verdict, be it 'guilty' or 'not guilty', had
been arrived at in secret, on whatever basis and should therefore be respected
as final. The jury had sworn a solemn oath and could be trusted to have
returned the right verdict.
It may seem disingenuous that
this was the case. Surely, if a jury, or a Magistrate, had convicted a person
on incorrect facts, or new evidence had come to light, it would be obvious that
the matter had to be looked into again?
Sadly, this was not the attitude
of many of the judges of the day. It is no secret that every new crop of judges
in those days (and possibly these days, depending on who you ask) was littered
with "hanging judges". A "hanging judge" did not just describe
any judge who imposed the death penalty- after all, until 1965, murder was punishable
with death. So, every High Court judge up until that point will have been
forced to impose the death sentence during their career. The concept of a
"hanging judge" was far more nuanced than it might seem. It described
a judge whose philosophy was that there could be no redemption for murderers,
and, as a corollary of that, that the jury system was an unquestionable
facility for determining guilt. No re-examination was necessary, nor was it desirable.
Judges with such a mentality in this day and age, mercifully, are not less
loose with the ability to execute people- but as anyone familiar with joint
enterprise in action will know, they still have a frightening amount of power
to destroy a convicted person's life. If you accept a jury can be wrong, then
it is very hard to reconcile that with a belief that the death penalty should
be allowed. It is only by taking the view that jury's verdicts should be final
that the death penalty makes any sense.
How does all of this relate to
the inadequacies of the modern Court of Appeal? Well, quite simply, a
disturbing attitude has filtered down through the years, it still persists today.
The question of who makes up the judiciary, as a whole, is my starting point. I
am not speaking about the lack of diversity on the bench; I am speaking about
the way that judges are selected. It is received wisdom among the legal
profession that, generally, you have a better chance of becoming a judge if you
spent most of your time as a barrister (or solicitor, in rare cases)
prosecuting. If you had a preference for defence work you might be perceived as
too renegade to be trusted with a judicial position; you may look out for the
interests of the defendant too much, to the detriment of the good working order
of society. It is also no secret that the last three governments have
introduced a raft of measures to make convicting defendants much, much easier
than it was before.
The removal of the prohibition on
double jeopardy (i.e. re-trying a person who has previously been acquitted),
firstly by the Conservative Government of the 1990s (in cases of bribery of a
witness or juror), secondly by the Labour Government (in cases where "new and
compelling evidence" emerges) was such a change- but it has so far led to
just 7 convictions.
The really insidious changes were
to the rules of disclosure in 1996, which made it more difficult for defence
teams to access all of the information held by the police on a particular case,
and the 2003 changes to the rules on "bad character evidence" (these
changes made it far easier for the prosecution to tell a jury that a defendant had
previous convictions) and the admissibility of hearsay evidence (indirect
evidence, not given in live court, such as where a prosecution witness has
signed a statement and then refused to give evidence in court- this deprives the
defence barrister of the opportunity to cross-examine the witness).
One of the worst assaults on the
defendant's rights came in the form of an Act passed by the Conservative
government of the 1990s which seriously limited an arrested person's right to
silence, by introducing "adverse inferences from silence" and
"adverse inferences from failure to account". This Act of Parliament
was an about-face from the prevailing understanding of not only the British
justice system, but most justice systems the world over, that no person should
be required to answer allegations put to them. It may seem unimportant that a
person suspected of a crime has the right to remain silent, until you consider
that "failing to account for forensic evidence" might mean being
unwilling to give the police possible reasons why a pictogram (one trillionth
of a gram) of someone's cells were on your clothes; hardly a reasonable thing
to expect an ordinary person without a PhD in forensic science to explain.
In short, the attitude seems to
be that more convictions will lead to a safer society. Not all judges take this
view, but most do. This "crime control" philosophy demands that the
best trials are those in which the prosecution can introduce as much evidence
as they like, sometimes unchallenged and often evidence which assassinates the character
of the defendant rather than direct evidence about the case in hand. Some judges
favour a "due diligence" approach, which holds that if the legal
system is to have any dignity, and if convictions are to be safe, then it is vital
that the defence have the opportunity to challenge as much evidence as possible;
and that evidence which has been obtained illegally is not put before the
court, however strong.
The Judicial Appointments
Commission oversees the appointment of most judges in this country. Prior to this,
the work was nominally done by the Lord Chancellor's office. In reality, this hid an ugly word of Old Boys
networks and taps on the shoulder.
You could not apply for any
judicial role more senior than a Recorder (a barrister, or solicitor, who sits
part-time as a Crown Court judge, trying the more simple cases). If you wanted
to be a Circuit Judge or a High Court judge then your academic qualifications
or skill as an advocate were far less important than whose cocktail parties you
attended and who you had been at school with. So, we did away with this arcane
system a decade ago and the JAC replaced it- all is well surely?
Not so. It is true that up to the
level of a High Court judge all applications are directed through the JAC, a
public body which has an approved selection process and accountability of some
sort. But for the two highest ranks of the English bench, the Court of Appeal
& The Supreme Court (formerly the House of Lords), it is still up to the Lord Chancellor's
office to decide who to promote from the High Court bench. It is a process
largely unchanged from how it was 30 or 100 years ago- with a tap on the
shoulder being given to those deemed "appropriate" for such an
exalted position. It does not take much imagination to conceive of the
characteristics that are being looked for. Legal excellence is certainly a
requirement, very few career failures make it onto the Court of Appeal bench;
an unblemished personal life is a necessity; an understanding that you will not
make any dramatic decisions that could upset anybody else's applecart (e.g. a
conviction rate obsessed government) also seems to be a requirement.
The odd renegade does slink
through the selection process, but the Court of Appeal makes decisions by
majority (3 judges, with a majority of 2 needed) and so it is quite rare that
they do anything out of the ordinary. It does not take David Icke to draw the
conclusion that this is because the Court of Appeal is good, most of the time,
for nothing more than a bit of window dressing.
You see, roughly 1,000 full
criminal appeals against conviction are made to the Court of Appeal each year
(to say nothing of the thousands and thousands more applications made which are
refused by the "single judge process"- which I shall explain briefly
below), less than 350, in a typical year, lead to any alteration being made to
the original decision of the court (by which I mean either the quashing of a
conviction, or substitution of a conviction). But, the equation for working out
the odds of success for an appellant is more complicated than this. In the
1960s it was decided that it was no good that, in the rare cases where their
Learned Lordships agreed that one of their Learned Brothers (as judges refer to
one another) in the lower court had gone wrong, the scoundrel in the dock
should simply walk free....so a provision to allow their Lordships to quash a
conviction but direct a retrial was introduced. Statistics are hard to come by,
but it seems that in about 1/3rd of the cases where the Court of Appeal quashes
a conviction they allow the prosecution to run a re-trial (depending on the age
of the conviction, the severity of the offence and the way the wind is blowing
at the CPS then they make or may not decide to actually have another trial).
So, the odds of making a successful application to the Court of Appeal, being
granted an Appeal, having your conviction quashed and not being re-tried are,
by my reckoning, going to be in the 4-5% range (assuming 5,000 applications are
made to appeal and roughly 200 defendant's convictions are quashed without a
re-trial being held).
Other laws have been brought in
to make it harder for good Court of Appeal judges to quash convictions, and
easier for bad Court of Appeal judges to justify why they will not quash a
conviction. Until the late 1990s, a conviction could be quashed on the basis
that it was "unsafe" or that a "misdirection in law" had
taken place. This covered most situations where an appellant had a genuine
grievance about his or her original trial- either the judge had misdirected the
jury, or the police had hidden evidence or a new witness had come forward. In 1997,
it was decided that a "misdirection in law" was no longer, of itself,
sufficiently good grounds to quash a conviction. The appellant had to prove
that not only had there been a misdirection in law, but also that it had led to
his conviction being unsafe. This change was justified on the basis that not
all misdirections in law would jeopardise a conviction. This may be true, as
sometimes, rarely, trial judges go further than they need to in directing a
jury in order to ensure that the defendant is only convicted if the jury really
is sure of their guilt- but the problem is that these sort of misdirections
favourable to a defendant would not be the sort being appealed by said
defendant! The only misdirections being appealed would be those where the trial
judge had omitted something crucial when addressing the jury, or had coloured
his directions by giving an inappropriate opinion of some of the evidence (or
of the defendant) etc. So, in reality, this change only cut one way- to the detriment
of appellants. It also provided modern "hanging judges" on the CoA
with everything they needed to dismiss bothersome appeals brought by, in their
minds, clearly guilty defendants who have been nit-picking in an attempt to
secure another shot before a new jury.
They could have had a glaring
misdirection in law, by the trial judge, highlighted and be free to say,
"Yes, the learned judge was wrong, but in my view he was not so wrong that
if he had been right the jury might have acquitted- therefore the conviction is
safe". Until the change in the law this would not have been possible- they
would have had to quash the conviction.
The filtration system used by the
Court of Appeal's criminal division is another problem. A single CoA judges
hears very brief, very précised bases of appeal. These hearings can be over in
a matter of minutes, but the single judge holds the power to either allow the
prospective appellant to appeal before three judges or to prevent him from
doing so. This is justified on the basis that a lot of appeals are hopeless,
and such a justification may well pass muster with the bean counters in
Whitehall at the Ministry of Justice, or in the pages of newspapers. BUT, in reality,
this justification doesn't pass the smell test. You see, barristers may well be
the "mouthpieces" of their clients but that does not permit them to
say and do exactly as their clients please. Barristers are also "officers
of the court", in the same way as a judge or court usher is, and they owe
a duty to the court. They cannot represent a client at appeal on the basis of a
hopeless legal challenge, simply to appease the client and to earn money. There
is actually a specific, and somewhat misleading, term of art used to describe a
scenario in which a barrister is trapped between his client's wishes (which
are, notwithstanding the above, usually sacred) and his duties as an officer of
the court....he or she is said to be "professionally embarrassed". I
have witnessed this happen in open court just once, when an angry defendant
demanded that his barrister challenge the admissibility of some disclosure
evidence during a murder case, which was actually going to benefit the
defendant's case- the barrister stood and announced, "Your Honour I have
been instructed to oppose any decision to admit this evidence, I cannot provide
any reason and am professionally embarrassed".
On the same basis barristers are
prevented from disclosing certain information to juries in the hope of securing
a perverse acquittal for their client. A barrister cannot tell the jury how
long his client will receive if convicted in anything more than general terms,
a fact which has great implications in joint enterprise cases (with jurors
being astounded at the sentences handed down the most minor secondary
participant). Equally, a barrister cannot tell a jury, "Yes, my client is
guilty but you must acquit him as his behaviour was justified". It is an
issue which came to the fore in the trial of Pat Pottle & Michael Randle,
two activists who broke "KGB spy" George Blake out of prison. The two
men were forced to dismiss their barristers and give their closing speeches
from the dock. I segue into these two points about barrister's duty to the
court only because they have such massive implications for joint enterprise
trials. It is fair to assume that a lot more jurors would be in favour of
acquittal if they knew the outrageous sentences imposed on secondary parties.
Unfortunately, the only way for a defendant to make jurors aware of this is to
represent himself.
So, it is quite simply nonsense
to say that we need this filtration system to provide "worthless"
appeals from taking up time. At any rate, there are provisions for "wasted
costs orders" to be made if a barrister wastes the court's time with inane
or irrelevant submissions- a humiliating fate no barrister would risk enduring.
The truth is that the Court of
Appeal was set up to allow theoretical objections to convictions, but most
judges are dyed in the wool believers that quashing convictions should be a
rarity. I shall part with the words of Lord Denning, a man widely revered for
his championing of the common man or woman, this was certainly true where the
little man took on the government in the sphere of the public law....but if you
wanted Lord Denning on your side, it was best not to appear shackled in the
dock. In an interview about Rough Justice, a pioneering TV programme which
sought to uncover miscarriages of justice and bring them to light, he famously said, "Once
judge and jury have come to a decision, the media MUST NOT go round trying to
get what they call 'fresh evidence' so as to show, if they can that the
decision was wrong". The shocked interviewer asked, "Even if that
means innocent people in prison", Denning replied, "Yes".
Denning was no worse than any
other judge of his day, or of today, he was simply more outspoken. At the
release of the Guildford Four he remarked that, "It would be better that
we had the death penalty than this appalling vista"...it was understandably
assumed that the 'appalling vista' he spoke of was police corruption and the
shame of English courts convicting the innocent. In truth, he was observing
that if the Guildford Four had been hanged then no appeals would have been
brought and the British justice system never would have been disgraced before
the world. For the COA the reputation of the system, it seems, is always more
important than justice.
Josh Radcliffe
