Fresh Evidence and Factual Innocence in the Criminal Division of the Court of Appeal

Abstract

One of the main criticisms of the criminal division of the Court of Appeal has been that it is deficient at identifying and correcting the wrongful convictions of the factually innocent. These criticisms stem from the Court's perceived difficulties in relation to appeals based on factual error. The main ground of appeal for errors of fact is fresh evidence and these appeals are particularly problematic because they require the Court to trespass on the role of the jury somewhat in assessing new evidence on appeal against the evidence at trial in order to determine whether the conviction is unsafe. The broad consensus is that the Court's difficulties are caused by three main issues: its deference to the jury verdict; its reverence for the principle of finality; and the lack of resources to deal with huge numbers appealing. There is less agreement in identifying the source of the problems because it is not clear whether they derive from legislative powers or the interpretation of those powers by the judiciary. This article uses both qualitative and quantitative empirical research in order to try to determine what the Court's approach is in fresh evidence appeals and, if there are problems, whether it is the law or the interpretation of the law by the judiciary which is to blame. It also proposes reforms designed to make it easier for the Court to rectify miscarriages of justice.

Forensic Science and Expert Testimony in Wrongful Convictions: A Study of Decision-Making at the Criminal Cases Review Commission

“…This study focused on decision making at the Commission, not the Court, but interviews with Commission staff demonstrated an increasing concern that the Court was becoming more reluctant to quash convictions based on fresh evidence. They were not surprised when Stephanie Roberts' new research showed that while the number of appeals based on fresh evidence had almost doubled since a similar study by Malleson (1993) in 1990, the rate at which the Court had admitted that fresh evidence had declined significantly from 61 per cent in 1990 to 19 per cent in 2016 (Roberts, 2017). Given that the Commission's decision field and frames are strongly shaped by evolving jurisprudence, and that commissioners perceive the Court to be less impressed by fresh expert and forensic evidence, its decisions may become more conservative, causing it to refer even fewer cases, and some wrongfully convicted people will remain in prison.…”

Police retention and storage of evidence in England and Wales

“…Have we exhausted what we need to do for the purposes, is there a requirement to hold on? (Lekamwattage, 2018).Post conviction, a successful appeal will most likely require fresh evidence (Roberts 2017), 8 which may well be found in unused trial evidence; if it has been kept. The decision on what is relevant and what should be kept, therefore, is critical to the work of the Court of Appeal.…”

“…The NPCC published national guidance in 2017 for police forces and forensic science providers on retention periods for material post conviction but, as detailed below, only two forces appeared in 2018 to be aware of these guidelines. Because a successful appeal will almost always require fresh evidence (Roberts 2017), which may well be found in unused trial material, the decision on what is relevant and what should be kept has the potential to directly affect the operation of the Court of Appeal. In a review of the first 10 years of the CCRC, a founding commissioner commented: 'Some of the clearest miscarriage of justice referred by the Commission have been where there has been fresh evidence to show that the jury convicted on a misleading, incomplete or simply wrong view of the relevant facts' (Elks, 2008).…”

Re-evaluating post-conviction disclosure: A case for ‘better late than never’

“…Burnett claims that sexual offence convictions are proliferating in the current febrile atmosphere with many convictions resting purely on uncorroborated accusations in the context of a stated police philosophy of "believing the victim" (Burnett 2016, Ch1). Furthermore, in line with the "crime control" rhetoric, often fuelled by the media and government policy the always-conservative Court of Appeal (CACD) has become increasingly resistant to allowing appeals (Roberts 2017). This has also resulted in a similar approach from the CCRC, whose referral rate reached an all-time low of 0.77% of applications in 2016-17 being referred to appeal (this amounted to 12 cases out of around 1500).…”