‘Unsafe’ Convictions: Defining and CompensatingMiscarriages of Justice

Stephanie Robertsn

Introduction

The names of the Guildford Four, the Birmingham Six, the Maguire Seven, theBridgewater Four and many others are synonymous with the term ‘miscarriages ofjustice.’ Scenes of jubilation outside the Royal Courts of Justice with freedappellants proclaiming they had been ‘found innocent’ were commonplace at thebeginning of the 1990s. Although this may represent the media and publicperception of a ‘miscarriage of justice,’ in 1999 the Court of Appeal held in R vMullen1 (no 1) that the term could also apply to those situations where, althoughsatisfied that the appellant was factually guilty, the conviction was quashed as aresult of ‘a blatant and extremely serious failure to adhere to the rule of law.’2

Nicholas Mullen’s conviction had been declared unsafe3 after material had beendisclosed eight years after the original trial which revealed that the police, MI6,the Security Service and officials from the Foreign Office and the Home Office hadcolluded with the authorities in Zimbabwe to procure Mullen’s deportation incircumstances contrary to Zimbawean law and internationally recognised humanrights. It was argued on appeal that this was an abuse of process, and the quashingof the conviction was the appeal court’s way of marking its disapproval of thebehaviour of the prosecuting authorities in bringing Mullen to trial.4

Following his release, Mullen applied for compensation under the statutoryscheme5 which is set out in section 133(1) of the Criminal Justice Act 1988:

Where a person has been convicted of a criminal offence and when subsequently hisconviction has been reversed or he has been pardoned on the ground that a new or newlydiscovered fact shows beyond reasonable doubt that there has been a miscarriage of justice,the Secretary of State shall pay compensation for the miscarriage to the person who hassuffered punishment as a result.

The section was enacted to give effect to the United Kingdom’s obligations underArticle 14(6) of the International Covenant on Civil and Political Rights (ICCPR).

n Law Department, London School of Economics. I am very grateful to David Schiff, RichardNobles and the anonymous referee for commenting on earlier drafts of this case note.

1 [1999] 2 Cr App R 143.2 ibid 156.3 Criminal Appeal Act 1995, s 2(1).4 The abuse of process ground can be contrasted with the s 78 of the Police and Criminal Evidence

Act which allows the trial judge to exclude illegally obtained or unfair evidence if it is deemed itwould have ‘an adverse effect on the fairness of the proceedings.’ The Court of Appeal has heldthat the exclusion of evidence under s 78 is not to mark the disapproval of the behaviour of theprosecuting authorities as the power only relates to the fairness of the trial. See the speech by AuldLJ in Chalkley and Jeffries [1998] 2 Cr App R 79, 107. For criticisms of this, see generally A. Chooand S. Nash ‘What’s the matter with section 78’ (1999) Crim LR 929.

5 Mullen also applied under the ex gratia scheme whereby the Home Secretary has a discretion toaward compensation which falls into specified categories as set out in the written statement to theHouse of Commons on 19 November 1985 (HC Deb vol 87 col 691–692) but this case note onlyrefers to the statutory scheme.

r The Modern Law Review Limited 2003 (MLR 66:3, May). Published by Blackwell Publishing Ltd.,9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA. 441

The Act does not define what is meant by a ‘miscarriage of justice’ but it does statethat compensation is only payable when a convicted person has been pardoned ora conviction quashed on an appeal out of time, or on a reference to the Court ofAppeal by the Criminal Cases Review Commission. The rationale for this is that ithas to be a decision which is no longer open to challenge under the normal judicialprocess so if a conviction has been quashed within the usual time limits6 theappellant will not be eligible for compensation. This gives effect to the Article’sintentions that compensation should be paid where a new fact has emerged andwhere the normal working of the judicial system has not revealed the wrongfulconviction.7 Although it is the Secretary of State who determines eligibility, theamounts awarded are determined by an independent assessor.Mullen’s request for compensation was refused by the Home Secretary and

he applied for judicial review of that decision. The case of R (on the application ofNicholas Mullen) v The Secretary of State for the Home Department 8 (no 2) raisedthe issue of how miscarriages of justice are defined under the Criminal JusticeAct as Mullen had satisfied the appeal out of time requirement and theAdministrative Court accepted that the abuse of process was a ‘newly discoveredfact,’ therefore the issue for the court was whether the discovery of the abuse ofprocess had showed beyond a reasonable doubt that there had been a miscarriageof justice.In the Administrative Court, Brown LJ agreed with the Home Secretary that

Mullen had not suffered a ‘miscarriage of justice’ for the purposes of section 133as the term was interpreted to apply to those individuals who are ‘provedinnocent.’ This judgment was problematical in three respects. Firstly, it impliedthat illegal or unfair behaviour by the prosecuting authorities was acceptable aslong as the end justifies the means; secondly, it asserted the importance of thefactual guilt of the appellant and the insignificance of rights and fairness at a timewhen the Human Rights Act has highlighted the importance of proceduralfairness under Article 6 in the appellate process; and thirdly, although at first sightthe proposition that only innocent people wrongfully convicted can claimcompensation is a straightforward one, this judgment made it extremely difficultto satisfy the test in section 133 as the Court of Appeal declares convictionsunsafe, it does not declare people innocent.The Administrative Court decision has now been reversed by the Court of

Appeal9 (Mullen no 3) which has held that proof of innocence is not a prerequisiteof entitlement to statutory compensation. It is submitted that this decision iscorrect for three reasons. Firstly, it reconciles the test for quashing convictionsunder the Criminal Appeal Act and the test for claiming compensation under theCriminal Justice Act; secondly, it restores the presumption of innocence in boththe criminal and civil process; and thirdly, it asserts the importance of rights andfairness in relation to what constitutes a miscarriage of justice.

6 There is a 28 day time limit after conviction to lodge a ‘notice of an application for leave toappeal’ which can be extended at the discretion of the Court of Appeal, the Registrar or theDeputy Registrar. For a discussion on the reasons for granting an extension of time see thejudgment given by Lord Bingham CJ in R v Hawkins [1997] 1 Cr App R 234.

7 Earl of Caithness, HL Deb, col 739 29 October 1987.8 [2002] 1 W L R 1857.9 R (on the application of Nicholas Mullen) v Secretary of State for the Home Department [2002]

EWCA Civ 1882.

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Defining a miscarriage of justice under the Criminal Justice Act

In the Administrative Court, Mullen had argued that his conviction ‘was no less amiscarriage of justice because it was consequent upon a trial which ought not tohave taken place at all than he had been rightly tried but wrongfully convicted.’He was relying on the appeal (Mullen no 1) judgment of Rose LJ who haddeclared, with recourse to the Oxford English Dictionary, that ‘unsafe’ meant‘likely to constitute a miscarriage of justice.’ The issue for the AdministrativeCourt was whether all convictions declared unsafe amounted to a miscarriage ofjustice for the purposes of section 133.The Home Secretary had counter-argued that as section 133 was enacted to give

effect to the United Kingdom’s treaty obligations undertaken upon ratification ofthe ICCPR, ‘miscarriage of justice’ in section 133 bears the same meaning as inArticle 14(6) of the Covenant. The Home Secretary then argued that the Courtshould have regard to Article 3 of the Seventh Protocol to the EuropeanConvention on Human Rights (ECHR) as it precisely reproduces the language ofArticle 14(6) and the Explanatory Report to the protocol which states that:

the intention is that States would be obliged to compensate persons only in clear cases ofmiscarriages of justice, in the sense that there would be a clear acknowledgement that theperson concerned was clearly innocent.

The Seventh Protocol to the ECHR has never been ratified by the UnitedKingdom, however, in the Administrative Court, Brown LJ accepted argumentsby the Home Secretary that the Explanatory Report was a legitimate aid to theconstruction of an international obligation and stated:

In short, a miscarriage of justice in the context of section 133 means the wrongful convictionof an innocent accused. Compensation goes only to those ultimately proved innocent, not toall those whose convictions are adjudged unsafe.yAlthough, as prosecuting counsel inMullen submitted and the Court of Appeal held, the word ‘unsafe’ can refer to a miscarriageof justice in the round, including such abuse of process as would have prevented proceedings,that is not the sense in which the expression is used in section 133.10

The implications of this decision are that those appellants whose convictions havebeen quashed on the basis that there has been a pre-trial irregularity or thatevidence was obtained illegally or unfairly will not be able to claim compensationunder section 133 unless they can show that, in addition, they are in fact innocent.If the appellant is judged to be guilty by the appeal court or pleads guilty11 but hashis conviction quashed, the behaviour of the prosecuting authorities will not betaken into account by the Home Secretary when deciding who is awardedcompensation under the statutory scheme, regardless of how illegal or unfair thatbehaviour has been.In reversing the decision in the Court of Appeal, Schiemann LJ rejected the

arguments of the Home Secretary and decided that, firstly, the words ‘in the sensethat there would be a clear acknowledgement that the person concerned was

10 See n 8 above, 1864.11 See R v Bhatti (CA, unreported, transcript 19 December 2000) which followed the reasoning in

Mullen (no 1) and quashed the conviction despite the guilty plea of the appellant as theprosecution had relied on a report from a police officer which was ‘fatally flawed.’

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clearly innocent’ in the Explanatory Report could have been interpreted in twoways:

It may well be that the words were intended as indicating what was understood as beingcomprised within the concept of miscarriage of justice. On the other hand, it is perhapsarguable that all that was meant was that the payment of compensation would be theacknowledgement that the person concerned was innocent.12

Secondly, after reviewing the travaux preparatoires of the ICCPR, he rejected theconclusion of the Administrative Court that Article 14(6) used the words‘miscarriage of justice’ in the narrow sense of meaning that innocence had to beproved:

All that seems to indicate that all were agreed that the concept of miscarriage of justice wasused in its wider rather than its narrower sense. There is absolutely no suggestion that theparties understood that there was a requirement that innocence be proved.13

Thirdly, he did not think that the Covenant should be relied upon as a source forthe meaning of ‘miscarriage of justice’ in section 133:

I see no reason, particularly in a statute which makes no mention of the Covenant in its longtitle or elsewhere, to give the phrase ‘miscarriage’ a strained construction in order to fit inwith what is alleged to be its meaning in the Covenant. Thus I do not regard the meaning inthe Covenant as being crucial to the success or failure of this appeal.14

And fourthly, he rejected the view of the Administrative Court that ‘it simplymakes no sense to talk in terms of an abuse of process showing beyond reasonabledoubt that there had been a miscarriage of justice.’15 Schiemann LJ conceded thatif ‘Mr Mullen did engage in the dastardly conspiracy of which he stood accused,then imprisonment was an appropriate punishment for him’ but if the Court ofAppeal had quashed the conviction as a result of the abuse of process, he did ‘seenothing odder about compensating him for having been there’ as ‘that has theadvantage of being consistent with the presumption of innocence which I see asbeing in play in this type of case.’16

His overall conclusions were:

In a case where this court has quashed a conviction the presumption of innocence requiresthat Acts of Parliament are to be interpreted on the basis that it is not intended that the stateshould proceed on the basis that a wrongly convicted man is guilty. Had Parliament intendedthat compensation should only be available to those who could prove themselves innocent itwould have said so clearly. In the present case there is not even such an implication.17

It is submitted that this approach has to be the correct one as the anomaly createdby the decision of Brown LJ in the Administrative Court, which he did not addressin his judgment, was how an appellant satisfies the Home Secretary that he isinnocent for the purposes of claiming compensation under the Criminal JusticeAct, when the Court of Appeal, under the Criminal Appeal Act, quashes

12 See n 9 above, para 7.13 ibid.14 ibid, para 18.15 See n 8 above, 1864.16 See n 9 above, para 20.17 ibid, para 27.

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convictions on the ground that they are ‘unsafe.’18 Therefore, the decision of theCourt of Appeal has reconciled both tests in defining what amounts to amiscarriage of justice, and also raises the wider issue of the purpose andprocedures for determining guilt and innocence.

Reconciling the Criminal Justice Act and the Criminal Appeal Act

The main difficulty with the judgment of Brown LJ was summed up by SchiemannLJ in the Court of Appeal as ‘our criminal law system does not provide for proofof innocence.’19 Indeed, what Brown LJ should have known, being a Court ofAppeal judge, is that it is not possible at any stage of the criminal justice process to‘prove innocence.’ Although there is a presumption of innocence in the Englishand Welsh legal system,20 this is a technical term which requires the prosecution toprove its case beyond reasonable doubt. If the prosecution case fails it does notfollow that the defendant is innocent,21 as a verdict of ‘not guilty’ by the jury doesnot mean that the defendant is not responsible for the crime.22 Therefore, it is therole of the trial courts to determine whether the defendant is ‘legally guilty,’ notwhether he is ‘factually innocent.’ The question is then what happens when theguilty verdict is reviewed on appeal and in order to clarify in what circumstances aconviction quashed will give rise to a claim for compensation it is necessary toanalyse the role of the Court of Appeal.

‘Unsafe’ and innocence

As previously stated, the role of the Court of Appeal is not to declare peopleinnocent as the Criminal Appeal Act 1995 gives the Court of Appeal the power toquash a conviction if it thinks it is ‘unsafe.’ This is the technical legal argumentthat infuriates those who have been wrongfully convicted, in the sense that theydid not commit the crime, as the quashing of the conviction is seen by them to be avindication of innocence and an admission by the ‘system’ that a mistake wasmade. But for the appeal court the conviction has been quashed because it is notconsidered safe, not because the appellant is found to be factually innocent. This iswhy there is rarely an apology from the Court which causes much consternationamongst appellants,23 the media,24 and the general public. The Court does

18 In R v A (D), Lord Bingham CJ stated: ‘The Court is in no position to declare that the appellantis innocentyThat is not the function of this court. Our function is to consider whether in the lightof all the material before us this conviction is unsafe’ [CA, unreported, transcript 14 March 2000].

19 See n 9 above, para 28.20 This is also enshrined in Article 6(2) of the ECHR: ‘everyone charged with a criminal offence shall

be presumed innocent until proven guilty according to law.’21 See Michael Zander: ‘The presumption of innocence exists quite independently of whether the

defendant is innocent or guilty, and indeed has nothing to do with the question of guilt orotherwise.’ The Times, 20 August 1994.

22 See Lord Donaldson: ‘A verdict of not guilty says nothing about innocence. It simply says that thejury was not wholly sure that the accused committed the crime.’ Sunday Times, 28 August 1994.

23 At a press conference after the Birmingham Six were freed, one of the six, William Power criticisedthe appeal system and stated: ‘It’s all about points of law. It had nothing to do with justice. Thetruth didn’t come out. Nobody was interested in the truth.’ The Times, 15 March 1991.

24 The judgment of Lord Lane, when freeing the Guildford Four, was criticised in a Sunday Timeseditorial in the following terms: ‘Not a single word of apology for their years of wrongfulimprisonment were uttered. No declaration of innocence was made for the record.’ 17 March1991.

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occasionally express regret and apologise25 though this is not required within theirlegally defined role.But although it is not the role of the Court to declare people innocent, there are

two interpretations of ‘unsafe,’26 and the first interpretation has applied to a‘factually innocent’ person who has been, or may be, wrongfully convicted. This isillustrated by R v Criminal Cases Review Commission ex p Pearson,27 where LordBingham CJ stated:

If on the consideration of all the facts and circumstances of the case before it, the courtentertains real doubts about whether the appellant was guilty of the offence of which he hasbeen convicted, the court will consider the conviction unsafe.

At first glance it may appear straightforward that it is this interpretation of‘unsafe’ that Brown LJ refers to when defining a ‘miscarriage of justice,’ and thoseappellants who have had their convictions quashed under this interpretationshould be able to claim compensation as although the Court of Appeal has notproved them ‘factually innocent,’ the Court has raised a doubt about whether theyare ‘factually guilty’ which should satisfy the Home Secretary for the purposes ofsection 133. But this is not as straightforward as it may appear as although theCourt may express an opinion on the factual guilt or innocence of the appellant inthe course of explaining why the conviction is ‘unsafe,’ this does not necessarilymean that the conviction is being quashed on the grounds that the appellant is‘factually innocent.’ This is clear in Schiemann LJ’s judgment in R v Callaghan28

where he states:

This court will regard a conviction as unsafe when on the material before this court, itappears that a person may have been convicted of a crime which he may not have committed.That can be the result of a number of factors, such as unreliable evidence having beenadmitted, a wrong direction in law having been given to the jury, a failure to direct the juryproperly as to the burden of proof, a muddling summing up of the evidence, a failure toremind the jury of a defendant’s good character, or there having been a failure by the judgeto warn of the dangers attendant upon accepting some particular evidence. Examples arelegion.

In R v Secretary of State for the Home Department, ex parte Bateman,29 it was heldthat mistakes by the trial judge did not amount to a newly discovered fact,30

therefore, if the conviction is quashed on the basis of any of the factors inCallaghan the appellant would not be able to claim under the statutory schemeeven if the basis of the appeal from the appellant’s point of view was that he was in

25 For example, when allowing the appeals of the Tottenham Three, the Court stated: ‘In allowingthese appeals we wish to express our profound regret that they have suffered as a result of theshortcomings of the criminal process.’ R. Pattenden, English Criminal Appeals 1844–1944(Oxford: Clarendon Press, 1996) 181.

26 For a discussion on the two interpretations of ‘unsafe’ see Mantell LJ’s judgment in R v Hanratty[2002] 2 Cr App R 30.

27 [1999] 3 All ER 498, 503D-C.28 [1999] EWCA Crim 606.29 [1994] COD 504 CA.30 For a further example of the difficulties in satisfying this part of the test see R v Secretary of State

for the Home Department, ex parte Howse [1994] COD 504, CA where it was held that theinvalidity of a by-law was not the discovery of a new fact.

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fact innocent. The only hope for the appellant would be to uncover some freshevidence which, for various reasons, is not an easy task.Although the Court has been given wide powers to receive fresh evidence, it has

consistently chosen to interpret these powers restrictively so as not to retry thecase.31 In particular, the Court will generally not allow a defence to be raised inthe Court of Appeal which was not raised at the original trial.32 As a result ofcomplaints about the Court’s approach to fresh evidence, the Royal Commissionon Criminal Justice (RCCJ)33 recommended a statutory change with the aim ofwidening the scope of the receipt of fresh evidence by the Court of Appeal.34

The difficulties appellants face in relation to fresh evidence appeals arecompounded by the Court’s reluctance to quash convictions generally on errors offact. Although the Court was originally created in 1907 as a result of high profilemiscarriages of justice, from its inception the Court has shown it is far morewilling to quash convictions on the basis of errors of law.35 This wasacknowledged by the RCCJ who concluded:

In its approach to the consideration of appeals against conviction, the Court of Appealseems to us to have been too heavily influenced by the role of the jury in Crown Court trials.Ever since 1907, commentators have detected a reluctance.yto consider whether a jury hasreached a wrong decision. This impression is underlined by research conducted on ourbehalf. This shows that most appeals are allowed on the basis of errors at the trial, usually inthe judge’s summing up. We are all of the opinion that the Court of Appeal should be readierto overturn jury verdicts than it has shown to be in the past.36

It has been suggested37 that the reason why more appeals are allowed on the basisof a legal or procedural irregularity is because questions of law and procedure arenot the province of the jury and therefore the Court are not usurping the role ofthe jury when quashing convictions on this basis. Whatever the reason, the upshotis that a defendant is far more likely to have his conviction quashed on the basis ofan error of law than an error of fact. A consequence of this is that many appellantsare forced to frame their appeals in technicalities as they (or their lawyers) knowthat this will give them a higher chance of success than an argument based oninnocence. But cases such as Bateman and Brown LJ’s judgment in theAdministrative Court show that the downside of this would be that the appellantwould not be able to claim statutory compensation.So although at first sight Brown LJ ‘s judgment that only those ‘ultimately

proved innocent’ can claim compensation is a straightforward one, his judgmentwould make it extremely difficult to satisfy the test in section 133. A furtherproblem with his judgment is that he has completely ignored the significance ofMullen’s original appeal (no 1) on the second interpretation of ‘unsafe’ whichasserts the importance of rights and fairness in relation to what constitutes amiscarriage of justice.

31 See generally Pattenden, n 25 above, 130; D. Schiff and R. Nobles, Understanding Miscarriages ofJustice. (Oxford: Oxford University Press, 2000) 74.

32 Criminal Appeal Act 1968, s 23(2), as amended by the Criminal Appeal Act 1995, s 4.33 The Runciman Royal Commission on Criminal Justice (Report, cmnd 2263, London: HMSO,

1993).34 ibid, chapter 10, para 60.35 See J.R. Spencer, ‘Criminal Law and Criminal Appeals: The Tail That Wags The Dog’ (1982)

Crim LR 26036 Chapter 10, para 10.3.37 Pattenden, n 25 above, 76.

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‘Unsafe’ and procedural fairness

The second interpretation of ‘unsafe’ is illustrated by R v Hickey and others,38

where Roch LJ stated:

This court is not concerned with the guilt or innocence of the appellants; but only with thesafety of their convictionsy.the integrity of the criminal process is the most importantconsideration for courts which have to hear appeals against conviction. Both the innocentand the guilty are entitled to fair trials.

Prior to the amendment by the 1995 Act it had been settled law that the Court ofAppeal had the power to quash convictions regardless of whether the Courtconsidered the appellant to be factually guilty.39 However in R v Chalkley,40 whichwas decided shortly before the appeal judgment of Mullen (no 1), Auld LJfollowed the Pearson approach and held that the Court of Appeal did not havethe power under the new test to allow an appeal if it thought the appellant wasfactually guilty but was dissatisfied in some way with the trial process.The appeal court in Mullen (no 1) followed the approach of Hickey and adopted

a broad interpretation of unsafe which moved away from Chalkley to revert backto the approach taken by the Court of Appeal prior to the 1995 Act, emphasisingthat the Court still performed a supervisory role in assessing the overall fairness ofthe prosecution process. Rose LJ stated ‘yfor a conviction to be safe, it must belawful; and if it results from a trial which should never have taken place it canhardly be regarded as safe.’41

For the appeal court in Mullen (no 1), unsafe could not just be interpreted toincorporate notions of factual guilt and innocence but could also be interpreted toincorporate notions of fairness into the criminal justice process. This interpreta-tion of unsafe has gained prominence in recent years with the enactment of theHuman Rights Act (HRA) 1998 which incorporates the European Convention onHuman Rights (ECHR) into English law. The HRA has had an impact oncriminal appeals in asserting the importance of rights and fairness over factualguilt when deciding if convictions are unsafe.Article 6 of the ECHR states that everyone has the right to a fair trial and in the

case of Condron v United Kingdom,42 the European Court of Human Rights heldthat the question whether the rights of the defence guaranteed to an accused underArticle 6 of the Convention were secured in any given case cannot be assimilatedto a finding that his conviction was safe in the absence of any inquiry into fairness.In R v Davis, Rowe and Johnson,43 the appeal court rejected the argument that afinding of a breach of Article 6.1 by the European Court of Human Rights shouldlead inexorably to the quashing of a conviction though the Court followed theMullen (no 1) approach and quashed the conviction despite declaring that ‘this isnot a finding of innocence, far from it.’

38 CA, unreported, transcript 30 July 1997.39 For example, in R v Madhi [1993] Crim LR 793, the Court of Appeal quashed the conviction on

the basis of an abuse of process, even where there was no suggestion of the defendant not having afair trial, and R v Blackledge [1996] 1 Cr App R 326, where it was held that a material irregularitycould result in the conviction being quashed even when there was no doubt that the appellant wasguilty.

40 [1998] 2 Cr App R 7941 See n 1 above, 161.42 (1999) Crim LR 679.43 [2001] 1 Cr App R 8.

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Mullen (no 1) and Condron were approved by Lord Woolf in R v Togher whichwas decided after the Human Rights Act had come into force. Lord Woolf heldthat the Court could apply section 3 of the HRA to read ‘unsafe’ in such a way asto ensure compatibility with the ECHR. He stated:

Applying the broader approach we consider that if a defendant has been denied a fair trial itwill be almost inevitable [my italics] that a conviction will be regarded as unsafe. For thisreason we endorse the approach of Rose LJ in Mullen and prefer the broader approach tothe narrower approach supported by Auld LJ [in Chalkley].44

The decision in Togher has been endorsed by two judgments of the House ofLords,45 but there still appears to be some confusion over whether a breach ofArticle 6 almost inevitably leads to the conviction being quashed. In R v Alami andBotmeh, which was decided after the House of Lords judgments, Rose LJ held that‘..even if there were an assertable breach of Article 6, we would not regard thatbreach as, in itself, calling for any remedy other than a declaration of violationunless, by virtue of the breach, the jury’s verdicts were unsafe.’46

And in R v Skuse, Rix LJ stated that ‘yhad we held that there had been abreach of article 6(1), we consider that we would not have been bound to hold theconviction to be unsafe.’47

This interpretation of unsafe has been identified as a problem area by Sir RobinAuld in his review of the Criminal Courts. He proposes that an amendment to thestatutory ground would ‘make clear whether and to what extent [the test] is toapply to convictions that would be regarded as safe in the ordinary sense of theword but follow want of due process before or during trial.’48 Sir Robin does notaddress what that amendment should be but in order for the Court to comply withthe HRA the amended provision must allow for a conviction to be quashed ifArticle 6 has been breached, whether or not there is any doubt about the factualguilt of the appellant, as any amendment to the Criminal Appeal Act would haveto be certified by a Minister as being compatible with the Convention.49 Thiswould also bring the Court of Appeal into line with the judgment of the EuropeanCourt of Human Rights in Condron.The reliance placed by Brown LJ in Mullen (no 2) on the Explanatory Report of

a Protocol to the ECHR which has not been ratified by the United Kingdomseems misplaced when considered in the light of the impact the HRA has had oncriminal appeals in asserting the importance of rights and fairness. Although theeffect the Human Rights Act has had on criminal appeals is currently uncertain,the judges have made it clear that only very serious procedural irregularities willamount to unfairness so as to render the conviction unsafe. If the quashing of theconviction was the appeal court’s way of marking its disapproval of the behaviourof the prosecuting authorities in bringing Mullen to trial then interpreting‘miscarriage of justice’ to apply to issues of due process and fairness would haverepresented the Administrative Court also marking its disapproval of thebehaviour by awarding compensation. As Schiemann LJ stated in the Court ofAppeal ‘if the discretionary balance comes down in favour of quashing Mr

44 [2001] 1 Cr App R 457, 468.45 Firstly in R v Forbes [2001] 2 WLR 1 and then R v A [2001] 2 Cr App R 2146 [2002] 1 Cr App R 28, at para 27.47 [2002] EWCA Crim 991, at para 63.48 Review of the Criminal Courts of England and Wales, chapter 12, para 10.49 For a discussion on Auld’s proposals for the appellate process see K. Malleson and S. Roberts.

‘Streamlining and clarifying the appellate process’ (2002) Crim LR 272.

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Mullen’s conviction and letting him out of prison then I see nothing odder aboutcompensating him for having been there.’By allowing Mullen’s appeal (no 3), the Court of Appeal has reconciled the two

interpretations of unsafe under the Criminal Appeal Act, with the definition of‘miscarriage of justice’ under the Criminal Justice Act, and has also clarified therole of the Home Secretary.

The role of the Home Secretary

As the Court of Appeal rarely comments on whether it considers the appellant tobe factually guilty or factually innocent under Brown LJ’s judgment the HomeSecretary would have to draw his own conclusions as to whether the appellant wasinnocent for the purposes of compensation. Indeed, the Home Secretary argued inthe Court of Appeal that even if the Court were positively to find a convicted maninnocent of the crime of which he had been previously convicted such a findingwould not bind the Home Secretary who would be free to come to his ownconclusions on the matter since he might have access to material which was notavailable to the Court when it quashed the conviction.Whilst this does benefit those who did not raise the issue of factual innocence on

appeal but have other newly discovered evidence to show they are factuallyinnocent, if the Home Secretary is to completely disregard the judgment of theCourt of Appeal it is not clear by what procedure the Home Secretary determineswho can claim compensation and who cannot. For example, at this point theHome Secretary is determining a civil right to compensation rather than a criminalcharge against the defendant but it is not clear which burden of proof shouldapply. Although section 133 states that it must be shown beyond all reasonabledoubt that there has been a miscarriage of justice, the fact that it is a civil rightmeans that the burden of proof should be the civil standard of ‘on the balance ofprobabilities’ which is easier to satisfy. The Court of Appeal (no 3) decision hasmade the whole process much more transparent as now the only consideration forthe Home Secretary will be whether it was a ‘newly discovered fact’ which resultedin the conviction being quashed which can be determined from the Court ofAppeal judgment.The Court of Appeal judgment also reinstates the presumption of innocence as

Schiemann LJ held, after reviewing the caselaw of the European Court of HumanRights,50 that the right under Article 6(2) of the ECHR applies to both civil andcriminal proceedings. If the Home Secretary disregards the decision of the Courtof Appeal then he does not take into account the legal effect of the convictionbeing quashed which is a direction to the trial court to enter a verdict ofacquittal.51 This is not necessarily a finding of innocence as, as discussed above, itis not just those who are considered innocent who are entitled to have theirconvictions quashed and an acquittal is not a declaration of innocence. But it doesmean that the presumption of innocence has been restored and as stated bySchiemann LJ in the Court of Appeal ‘what the law can and does provide is that aperson is not to be convicted of a crime unless his guilt is proved.’52 If the

50 Leutscher v The Netherlands [1996] 24 E.H.R.R. 181; Lamanna v Austria, application no. 28923/95delivered on 10 July 2001; Weixelbaum v Austria, application no. 33730/96 delivered on 20December 2001.

51 Criminal Appeal Act 1968, s 2(3).52 See n 9 above, para 20.

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judgment of Brown LJ in the Administrative Court was followed, Mullen wouldbe not guilty according to law but would remain guilty in the eyes of the HomeSecretary for the purposes of compensation. This would surely not be asatisfactory state of affairs.

Conclusion

If a statutory compensation scheme awards money to all those who qualify for itthen, on one level, it is understandable that limits will be placed on the qualifyingcriteria. The hurdles of exhausting the normal appeals procedure to have theappeal quashed ‘out of time,’ the difficulties of finding new evidence which is,firstly, accepted by the Court of Appeal and secondly, judged by it to make theconviction unsafe, all serve to ensure that statutory compensation is only paid tothe few that manage to pass all the stringent tests. The further hurdle added byBrown LJ that innocence has to be proved makes it virtually impossible and givesa great deal of discretion to the Home Secretary to make arbitrary decisions aboutguilt and innocence and who ‘deserves’ compensation and who does not. It alsoallows the Home Secretary to maintain that someone is guilty even though theyare not guilty in the eyes of the law.The Court of Appeal judgment is therefore to be welcomed as it brings the

Criminal Justice Act inline with the Criminal Appeal Act and curtails thediscretion of the Home Secretary. Although the general perception of the role ofthe Court of Appeal is to make assessments on whether there is sufficient evidenceof the appellant’s guilt, a no less important function of the Court is to uphold theintegrity of the trial process and to protect the right of the appellant to a fair trialwhich is conducted according to law. By interpreting a ‘miscarriage of justice’ toapply to both of these roles, the Court of Appeal is acknowledging that they areequally important, and whilst it is much easier to convince people that publicmoney should be paid to those who are considered to be factually innocent, ratherthan those who are considered to be factually guilty, if the quashing of theconviction is the appeal court’s way of marking its disapproval of the behaviour ofthe prosecuting authorities, then the award of compensation should also be theHome Secretary’s way of marking his disapproval. Since the Home Secretary hasbeen given leave to appeal to the House of Lords in this case, it is hoped that theLords follow the decision of the Court of Appeal.

Unsafe ConvictionsMay 2003]

451r The Modern Law Review Limited 2003