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McCartney, Carole; Roberts, Stephanie (2012)
Publisher: University of Cincinnati Law Review and Publications
Languages: English
Types: Article
Subjects: M200
The revelation of miscarriages of justice can lead a criminal justice system to a crisis point, which can be capitalized upon to engineer legal reforms. In England and Wales, these reforms have included the establishment of three bodies: the Court of Criminal Appeal, the Criminal Cases Review Commission, and the Forensic Regulator. With differing remits, these institutions are all intended to address miscarriages of justice. After outlining the genesis of these bodies, we question whether these three institutions are achieving their specific goals. This Article then outlines the benefits accrued from the establishment of these bodies and the controversies that surround their operation. At present, both individually and collectively, these institutions represent a partial solution to miscarriages of justice. However, this Article argues that calls for a greater focus upon “actual” innocence made in light of this partial success are misguided. Such a refocusing may have the unintended consequence of fostering a climate where miscarriages of justice flourish. The rights of all suspects need protection, and due process concerns have the concomitant benefit of protecting the innocent from wrongful conviction. A blinkered approach to “miscarriages” will not necessarily assist the wrongfully convicted and may even increase their number.
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    • 30. This case and the RCCJ report are discussed infra.
    • 31. RCCJ, supra note 15, at 171-72 ¶ 46.
    • 32. This is the current test the Court has to quash convictions. Section 2(1) of the Criminal Appeal Act 1995 states that the Court of Appeal (a) “shall allow an appeal against conviction if they think that the conviction is unsafe; and (b) shall dismiss such an appeal in any other case.”
    • 34. S. Roberts, The Royal Commission on Criminal Justice and Factual Innocence: Remedying Wrongful Convictions in the Court of Appeal, 1 JUST. J. 86 (2004).
    • 35. Frederick Lawton, Judgments Without Prejudice, THE TIMES, Oct. 23, 1990.
    • 36. For a further discussion on the problems of lurking doubt appeals specifically, see L. Leigh, Lurking Doubt and the Safety of Convictions, CRIM. L. REV. 809 (2006) L. James, Criminal Appeals and the Lurking Doubt 154(49) J.P. 780 (1990).
    • 37. These principles from the early cases are summed up in R v. Parks, (1961) 1 W.L.R. 1484.
    • 38. DONOVAN COMMITTEE REPORT, supra note 15, ¶ 132.
    • 39. Id. ¶ 136.
    • 40. Criminal Appeal Act, 1968, c. 19, § 23 (U.K.).
    • 41. Criminal Appeal Act, 1968, c. 19, § 23(2) (U.K.), as amended by Criminal Appeal Act, 1995, c. 35, § 4 (U.K.).
    • 42. See Roberts, supra note 34.
    • 64. Id. § 19(1) (U.K.).
    • 65. Criminal Appeal Act, 1995, c. 35, § 22(4) (U.K.).
    • 66. D. Malet, The New Regime for the Correction of Miscarriages of Justice, Part 2 159(44) J.P. 735 (1995) at 736.
    • 67. Criminal Appeal Act, 1995, c. 35 (U.K.).
    • 68. Id. at 13(1)(a), (b) (U.K.); Criminal Appeal Act 1995, 1995, c. 35, § 13(2), (U.K.) (explaining that the Commission may require the Chief Constable to appoint the investigating officer from his own force or another.).
    • 69. R v. CCRC Ex Parte Pearson, (2000) 1 Cr. App. R. 141, 149.
    • 70. PATTENDEN, supra note 6.
    • 71. Richard Nobles & David Schiff, After Ten Years: An Investment in Justice? in THE CRIMINAL CASES REVIEW COMMISSION: HOPE FOR THE INNOCENT 151, 152-53 (Michael Naughton ed., 2010). This figure is based on 33 referrals which succeeded at the Court of Appeal out of 2000 successful appeals against conviction and sentence. The 0.058 per cent figure is the total successful Commission referrals (33) out of 57,000 people found guilty and sentenced in the Crown Court.
    • 72. See the CRIM. CASES REV. COMM'N Case Library which is available on the Ministry of Justice website at (last accessed 27 June 2013).
    • 81. For a discussion on the two interpretations of unsafe, see S. Roberts, 'Unsafe' Convictions: Defining and Compensating Miscarriages of Justice, 66 MOD. L. REV. 441 (2003).
    • 82. Court of Appeal, unreported, transcript 30 July 2007.
    • 83. Michael Naughton, Conclusion, in THE CRIMINAL CASES REVIEW COMMISSION: HOPE FOR THE INNOCENT? 233 (Michael Naughton ed., 2010).
    • 84. Id. at 225.
    • 85. David Jessel, Innocence or Safety: Why the Wrongly Convicted are Better Served by Safety, THE GUARDIAN, Dec. 15, 2009, available at (last accessed 2 December 2012); See Hannah Quirk, Identifying Miscarriages of Justice: Why Innocence in the UK is Not the Answer, 70 MOD. L. REV. 759 (2007). 2012]
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