When it comes to human rights instruments, miscarriages of justice occupy somewhat of a nebulous position. A miscarriage of justice occurring is not of itself a breach of a persons human rights. It may involve a breach of one of many rights (most commonly the right to a fair trial) but it can happen that a court finds someone has been the subject of miscarriage of justice and no rights have been breached. Take for example the 2009 Irish case of Feichín Hannon. No claim was ever made that the police did anything wrong or that the trial was improperly conducted. A witness lied and the jury believed her. And a man was convicted of sexual assault. Years later she recanted and a miscarriage of justice was declared. No rights breached.
Where human rights do most specifically come into play is in relation to compensating a person when that happens. Article 14 of the ICCPR requires that where a
“…conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated…”
Equally, Article 3 of Protocol 7 of the European Convention of Human Rights makes a similar demand on states. (Note that the UK is bound by the ICCPR but has not ratified Protocol 7). While this may appear to bring human rights into the equation after the fact, the real impact of these requirements has been to bring under scrutiny when a state is required to pay compensation. In other words, what does the term miscarriage of justice actually mean?
To many this seems obvious. We think of the Birmingham Six or Guildford Four and other instances where people have been convicted of crimes they did not commit. But to suggest it means innocence requires a person to prove that they are innocent before they can get compensation, an impossible task in most cases.
This week three appeals are being heard in the UK Supreme Court on this very issue: McCartney, MacDermott and Adams. Raymond McCartney, a sitting Member of the Legislative Assembly (MLA) in Northern Ireland, and Eamonn MacDermott were convicted of murder of an RUC officer in 1979 and sentenced to life imprisonment. Their convictions were overturned in 2007 following an application by the Criminal Case Review Commission to the Court of Appeal. Andrew Adams was convicted in 1993 of a murder in Newcastle and also had his conviction quashed in 2007. All three men have been denied compensation by the Secretary of State, who is empowered under s.133 of the Criminal Justice Act 1988 to make payments where a miscarriage of justice has occurred. That legislation does not define the term and so the task has been left to the courts. As yet a clear definition has not been provided. Their appeals against the decision of the Secretary of State now bring the matter before the Supreme Court.
The leading case on the issue is the House of Lords judgment in the 2004 case of R v. Secretary of State, ex parte Mullen. In that case all judges found that the case at hand did not involve a miscarriage of justice, but Lords Steyn and Bingham commented obiter on the meaning of the term, and their conflicting views have since proven irreconcilable for the Court of Appeal on numerous instances. Lord Bingham took quite a broad approaching:
“Plainly, the expression includes the conviction of those who are innocent of the crime of which they have been convicted. But in ordinary parlance the expression would, I think, be extended to those who, whether guilty or not, should clearly not have been convicted at their trials… In cases of this kind, it may, or more often it may not, be possible to say that a defendant is innocent, but it is possible to say that he has been wrongly convicted. The common feature in such cases is that something has gone seriously wrong in the investigation of the offence or the conduct of the trial, resulting in the conviction of someone who should not have been convicted.” (emphasis added)
Lord Steyn on the other hand, read the term much more narrowly,
“I conclude that the autonomous meaning of the words ‘a miscarriage of justice’ extends only to clear cases of miscarriages of justice, in the sense that there would be acknowledgment that the person concerned was clearly innocent.”
These points were made obiter and the issue has not come before the House of Lords or Supreme Court again, until now. In the mean time the Courts of Appeal and High Courts of England & Wales and Northern Ireland have been faced with the issue on close to a dozen occasions. The approach that would be taken by these courts was developed in the case of Clibery, where it was suggested that rather than try and decide between the two differing definitions, the Court could consider whether the instant case met either standard (or more specifically Bingham’s broader standard) and if not, then there would be no need to consider the issue at all as there would be no question of a miscarriage of justice. In that case it was felt that on the facts Bingham’s standard had not been met and a resolution of the conflicting statements was thus avoided.
And so a trend developed whereby the courts avoided the issue of defining the term entirely through applying this approach. This was seen in cases such as Magee, Boyle, and the Court of Appeal cases of the current applicants: McCartney and MacDermott and Adams. In all of these cases it was felt that neither standard had been met and so the issue of what the term actually means was avoided. Hopefully the current case will bring some resolution to the matter.
It is also hoped that the Supreme Court adopts a broad approach, along the lines of Bingham’s statement. Requiring a person to prove their innocence before their case can be considered a miscarriage of justice sets an impossible standard and brings into play all sorts of questions about the operation of the presumption of innocence. But more than this, it also takes a narrow view of what it means to say that justice has been miscarried. Surely where a case involves serious breaches of the fundamental rights of an accused, whether the individual can prove innocence or not, it cannot be said that justice has been done. To remove such cases from the ambit of the term is to leave serious wrongdoing on the part of the State untouched by our most scathing criticism of the system.
To this end, I would advocate consideration of the Irish approach to the definition. In DPP v Nora Wall, building on other cases and previous jurisprudence, the Irish Court of Appeal said an exhaustive definition would be neither desirable nor possible but that the following examples could be provided:
- where the innocence of the accused can be established;
- where the prosecution should never have been brought in the first place as there was never any credible evidence implicating the accused;
- where there has been such a departure from the rules of judicial procedure as to make what happened irreconcilable with judicial or constitutional procedure;
- where the has been a grave defect in the administration of justice, brought about by agents of the State.
This approach cements a dedication to the protection of rights and ensures that ‘grave’ actions by the State will secure the most serious condemnation of the courts. The UK courts have looked to the Irish Courts before on this matter. Indeed, in Mullen, Lord Bingham twice referred to the Irish case of Pringle  2 IR 225. They should perhaps consider the Irish jurisprudence once again on this matter.
Neither Lord Steyn nor Lord Bingham continue to serve in the UK’s highest court. Lord Walker will be the only Lord who heard Mullen who will hear this case (He expressed the view that Lord Steyn’s were ‘powerful reasons’). The case will be heard over three days this week and the judgment will be expected in a number of months. It will be awaited nervously not just by these applicants, but by all hoping to have their case declared a miscarriage of justice, and their friends and families. Given that the CCRC has received over 13,000 applications to date, that makes this a very significant case.