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A critical evaluation of the utility of using innocence as a criterion in the post conviction process. Stephen John Heaton

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A critical evaluation of the utility of using innocence as a criterion in the post conviction process. Stephen John Heaton A thesis submitted in fulfilment of the requirements of the University of East
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A critical evaluation of the utility of using innocence as a criterion in the post conviction process. Stephen John Heaton A thesis submitted in fulfilment of the requirements of the University of East Anglia for the degree of Doctor of Philosophy Norwich Law School December 2013 This copy of the thesis has been supplied on condition that anyone who consults it is understood to recognise that its copyright rests with the author and that use of any information derived therefrom must be in accordance with current UK Copyright Law. In addition, any quotation or extract must include full attribution. 2 Abstract This thesis examines the plight of the innocent person who has been wrongly convicted. It starts from the premise that such a fate is abhorrent and that the criminal justice system should have effective mechanisms in place to correct such errors. The Court of Appeal (Criminal Division) (CACD) has stated that it is not part of its function to consider innocence. Only the safety of a conviction is within its purview. The Criminal Cases Review Commission (CCRC) cannot correct an error itself, but can invite the CACD to consider doing so if it, CCRC, considers that there is a real possibility of the CACD quashing the conviction. My hypothesis was that, in the light of these stated positions, neither the CACD nor CCRC does treat innocence as a discrete criterion in determining appeals and applications respectively. I tested this hypothesis by examining CACD judgments delivered in 2009 and judgments on CCRC conviction referrals in the period I examined 404 case files at CCRC. I found that neither body gave consideration explicitly to whether the applicant/appellant was innocent. I then considered whether innocence could and should be an explicit consideration for either body. I argue that while innocence could be designated a material consideration it should not be. The most important change that Parliament should make is to CACD s application of the appeal test: that is the real obstacle for appellants who claim they are innocent. I propose that the CACD should be required by statute to receive fresh evidence more readily, and in some fresh evidence cases required to remit the case for retrial. Such changes would impact positively upon CCRC, which would then be able to refer more cases in which the applicant might be innocent. 3 4 Table of Contents Contents Abstract... 3! Contents... 5! List of Tables... 15! Preface... 17! Acknowledgements... 23! Chapter One - Overview... 25! 1.1 Introduction... 25! Chapter Two - What is special about innocence?... 31! 2.1 Introduction... 31! 2.2 The Research Questions... 31! 2.3 Innocence within the Criminal Justice System... 32! The search for truth... 33! The presumption of innocence... 34! The standard of proof... 35! Exclusionary rules of evidence... 36! Mechanisms to Correct Error... 36! 2.4 Current Post Conviction Remedies... 37! 2.5 The Court of Appeal... 38! Appeals from convictions in the Crown Court... 39! Test Applied on Appeal... 40! Admission of Fresh Evidence... 41! Retrial Provisions... 42! 2.6 The Criminal Cases Review Commission... 43! Creation of CCRC... 43! CCRC s Powers... 44! Amendments to the 1995 Act... 45! Other Powers... 47! 5 Table of Contents Royal Prerogative of Mercy... 47! 2.7 Compensation for Miscarriages of Justice... 47! 2.8 The Key Provisions... 49! 2.9 A Question of Definition... 49! Innocence... 50! Lingering stigma and the presumption of innocence ! Defining Innocence... 53! Miscarriage of Justice... 58! Popular Definitions... 58! Judicial Observations... 60! The Royal Commission on Criminal Justice... 61! Criminal Cases Review Commission... 62! Academic Definitions... 62! Comparative Approaches... 66! Wrongful Conviction... 68! 2.10 Defining Error Correction Terms... 71! The Retrial Caveat... 73! Chapter Three - Literature Review... 75! 3.1 Introduction... 75! 3.2 Topic Areas... 75! Miscarriage of Justice Case Studies... 75! Causes of Miscarriages of Justice... 76! Jury Error... 76! Comparative Studies... 78! Wrongful Convictions in Adversarial and Inquisitorial Systems Compared.. 78! Wrongful Convictions in Other Adversarial Systems... 79! Scale of Miscarriages of Justice... 81! 3.3 The Innocence Debate... 84! 3.4 Correction of Miscarriages of Justice... 84! 3.5 Literature on the Court of Appeal ! 3.6 Criminal Cases Review Commission... 90! 6 Table of Contents Too timid and deferential to the CACD... 92! Out of touch with the approach of the CACD... 92! Too focussed on legal or technical issues... 93! Not a success... 94! Hope for the Innocent?... 94! Literature from research within CCRC... 97! 3.7 The Gaps in the Literature... 97! Chapter Four - Methodology... 99! 4.1 Introduction... 99! 4.2 Methodological Approach... 99! 4.3 Empirical Observations: Methodology ! 4.4 CACD judgments in ! 4.5 Judgments on CCRC referrals ! 4.6 Research within CCRC ! 4.7 Limitations and Risks ! 4.8 Results ! Chapter Five Court of Appeal Data ! 5.1 Introduction ! 5.2 The Primary Research Question ! 5.3 Appeal Judgments from ! 5.4 Sample Characteristics ! Outcome of Appeals ! 5.5 Observations ! Grounds of Appeal ! Successful Appeals ! Innocence in Due Process Appeals ! Innocence Appeals ! No case to answer ! 7 Table of Contents Lurking Doubt ! Identification Issues ! 5.6 Fresh Evidence ! Fresh Psychiatric Evidence ! Witness of Fact Evidence ! Expert Evidence ! Retrials ! Innocence ! 5.7 Change of Approach ! 5.8 CACD Judgments on CCRC Referrals ! 5.9 Due Process Issues ! Police Misconduct ! Judicial Error ! Non-Disclosure by the Prosecution ! Unfair Trial ! Change of Law Cases ! Due Process Issues Conclusions ! Due Process and Innocence ! 5.10 Fresh Evidence ! DNA ! Medical Issues ! Misidentification ! Witnesses of Fact ! Expert Evidence or Witness ! Complainant Issues ! 5.11 Lurking Doubt ! 5.12 Retrials ! 5.13 Conclusions ! Chapter Six - Evaluation of the Court of Appeal ! 6.1 Introduction ! 6.2 Background and Evaluation Context ! 8 Table of Contents Innocence ! Limitations ! 6.3 The Receipt of Fresh Evidence ! 6.4 The Application of the s23 Tests ! Admissibility ! Capable of Belief ! No reasonable explanation for failure to adduce at trial ! Would not have afforded a ground of appeal ! Combined Reasons ! Not in the interests of justice ! Conditional Hearing of Evidence ! Conclusion on the Receipt of Fresh Evidence ! 6.5 The Evaluation of Fresh Evidence ! The Application of the Test ! 6.6 Usurping the Jury ! 6.7 Lurking Doubt ! 6.8 Mistaken Identification Cases ! 6.9 The Approach to Retrials ! 6.10 Resistance to Change? ! Statutory Amendments ! Influencing CCRC ! A unified entity? ! Assessing Consistency ! 6.11 Conclusion The Approach of the CACD ! 6.12 The CACD and Innocence ! Chapter Seven - Criminal Cases Review Commission Data ! 7.1 Introduction ! 7.2 Focus of the Research ! Case Studies ! The Sampling Process ! 9 Table of Contents 7.3 Sample Profile ! The Types of Offence ! How many claimed innocence? ! Gender of the Applicant ! Guilty Pleas ! Representation ! No Relevant Prior Appeal ! Re-applications ! Conclusions on the profile of the samples ! 7.4 CCRC s Method of Operation ! My Analysis of Case Files ! How CCRC deals with applications ! 7.5 Research Limitations ! 7.6 Observations ! Not every applicant claims innocence ! Why do people apply to CCRC? ! The most commonly submitted grounds of application ! Incompetent Representation ! Police or Prosecutorial Misconduct ! Witness/Complainant Credibility ! Rerunning the Trial ! 7.7 Difficulties for CCRC and Applicants ! The Nature of the Offence ! Brawl Cases ! Sex Offence Cases ! Other Difficulties Observed ! Lack of Available Data ! Resource Implications ! The Rights of Victims ! Retractions ! Re-applications ! The Limits of CCRC s Powers ! No Relevant Prior Appeal and Exceptional Circumstances ! 10 Table of Contents 7.8 Conclusions from the Random Sample ! Competing Policy Priorities ! The absence of fresh evidence or argument ! 7.9 Committee Refusals Sample ! 7.10 Observations ! 7.11 Due Process ! Psychiatric Issues ! Police Misconduct ! Non disclosure ! Public Interest Immunity ! Points of Law ! Due Process Conclusions ! 7.12 Fresh Evidence ! Fresh Exculpatory Evidence ! Fresh Evidence tending to undermine the prosecution case ! Expert Evidence ! Fresh Inculpatory Evidence ! Conclusion on Fresh Evidence Cases ! 7.13 Application of the Real Possibility Test ! The Discretion not to refer ! 7.14 Troubling Cases ! 7.15 Committee Refusal Sample Conclusions ! Chapter Eight Evaluation of CCRC ! 8.1 Introduction ! 8.2 Evaluating Performance ! 8.3 Possible Measures of Success ! 8.4 Quantitative Measures ! CCRC s Referral Rate ! Comparing the Referral Rate with Previous Arrangements ! CCRC s Contribution to Correcting Miscarriages of Justice ! 11 Table of Contents CCRC s own measures of performance ! 8.5 Qualitative Measures ! CCRC is not what the RCCJ or JUSTICE envisaged ! CCRC works only within defined parameters of the legal system ! CCRC s Independence ! The scope of review ! What did the RCCJ and JUSTICE envisage? ! CCRC s Investigatory Role is constrained by the real possibility test ! Is the real possibility test unduly restrictive? ! Conclusion ! 8.6 My Evaluation - Judging Quality ! What claims do applicants make in their applications to CCRC? ! To what extent do applicants back up claims with evidence or argument? ! What difficulties does CCRC face in reviewing applications? ! Do particular types of offence create special difficulties? ! Are CCRC s powers sufficient to fulfil its role? ! 8.7 How thoroughly did CCRC carry out reviews? ! Were reviews carried out thoroughly and diligently? ! Did CCRC consider matters not raised by the applicant? ! When CCRC refused to pursue lines of enquiry, did it provide clear justification for its refusal? ! Was CCRC s review of applications clear and consistent? ! Was CCRC s handling of fresh evidence issues clear, consistent and thorough? ! Was CCRC s application of the real possibility test clear and consistent? ! 8.8 To what extent do these conclusions indicate that there are obstacles for the innocent? ! 8.9 Conclusion ! Chapter Nine Innocence or Fresh Evidence? ! 9.1 Introduction ! 9.2 Could innocence become a material consideration in the post conviction process? ! 12 Table of Contents Interpretation and Application ! 9.3 Should innocence become a material consideration in the post conviction process? ! 9.4 Limitations of Innocence ! Certainty of Innocence ! Innocence is insufficiently precise ! An unnecessarily high standard? ! Too low a standard? ! Isolating Innocence ! Difficulty of proving a negative ! Internal v External Miscarriages of Justice ! Lurking Doubt is not Synonymous with Innocence ! The Approach of the CACD ! 9.5 Other Potential Consequences ! Risk of Elevating Innocence ! Separation of Innocence ! 9.6 Conclusion the Limitations of Innocence ! 9.7 Fresh Evidence ! 9.8 Troubling Cases ! 9.9 Why were these cases not referred? ! 9.10 Legislative Change ! Not Usurping the Jury ! Consistency with Compensation Decisions ! Category ! Category ! Category ! Category ! The relationship between quashing and retrial ! 9.11 A More Radical Proposal ! 9.12 Less Radical Proposals ! 9.13 Other Proposals for Change ! 13 Table of Contents CCRC should be bolder in making referrals ! CCRC should be abolished ! CCRC should publish its Statement of Reasons for Refusal ! The UK needs an Innocence Act ! The Real Possibility test should be changed ! 9.14 The Royal Prerogative of Mercy ! 9.15 Extending the Right of Appeal ! 9.16 Conclusion ! Appendix 1 Confidentiality Agreement ! Postscript - Margaret Livesey ! Bibliography ! Books ! Cases ! Legislation ! Journal Articles ! Contributions to Edited Volume ! Official Publications ! Conference Papers ! Electronic Articles ! Thesis ! Media Reports ! Web Pages ! 14 List of Tables Table Types of Offence ! Table Types of Grounds of Appeal ! Table Successful Grounds of Appeal ! Table Claims of Innocence ! Table Types of Offence CCRC Referrals ! Table 7.1 Types of Offence ! Table 7.2 Other Characteristics ! Table 8.1 Home Secretary referrals - estimates of percentage ! 15 16 Preface Alan Livesey was murdered on the evening of 22 nd February The police were called to 41 The Crescent at 11:28pm and upon arriving they found the body of the 14 year old. He had been fatally stabbed. As matters unfolded over the following days and weeks an extraordinary story emerged. Alan s mother Margaret Livesey quickly became the chief suspect. The suspicion is counter intuitive since a mother killing her son is most unusual. It becomes even more counter intuitive when one considers Alan s age. A mother killing an infant is rare but it is much more rare for a mother to kill a teenage son. Still, such incidents can happen especially when the mother is overcome by rage. In this case the victim was bound and subjected to elements of torture before death (specifically small knife wounds had been inflicted on his eyelids). These factors would suggest that this was not a killing carried out in a moment of sudden rage. Margaret Livesey had spent the evening of the 22 nd February drinking in a local pub and had then been given a lift to the end of The Crescent where she was dropped off just after 11pm. She spent part of the next few minutes drinking a glass of cider with neighbours before asking the neighbour s son to go and check on her son. He came back a few minutes later with the grim news of Alan s death. According to the prosecution prior to going to her neighbour s house Margaret Livesey is said to have been dropped off, returned home, flown into a rage, killed her son, tied him up and inflicted other wounds. She was then said by the prosecution to have calmly walked to the neighbour s house to drink the glass of cider. By 7:45pm on 27 th February after a police interview lasting nearly four hours Margaret Livesey had confessed to murdering her son and been formally charged by the police. There was some evidence from neighbours which bolstered the 17 Preface prosecution case, but the confession was crucial. Margaret Livesey withdrew her confession within a few days of making it saying that she had been confused and that the police had convinced her that she must have committed the crime. Margaret Livesey was tried twice for the murder of her son. Her first trial, which started in Preston on 2 nd July 1979, was aborted during jury deliberations when a relative of one juror was taken seriously ill and the juror was discharged. The jury had already completed two days of deliberations when the juror was discharged on 11 th July. Press reports indicate that the judge then asked whether both prosecution and defence would give their written consent to proceeding with just 11 jurors. The defence declined to do so and a retrial was ordered. The retrial started just 8 days later on the 19 th July During the first trial lurid, but perfectly permissible, headlines about the trial had featured prominently in the Lancashire Evening Post 1 easily the most widely read local newspaper in the area. 1 All the images in this thesis are reproduced with the permission of the Lancashire Evening Post. 18 Preface On the 2nd July 1979 the lead story was 19 Preface The case featured as front page lead on the following two days and again on the 5th July when the story was headlined: In the days before 24 hour television news and the Internet local evening newspapers were a key source of news. It is inconceivable that at least some of the second jury did not see these stories. Whether it influenced their deliberations is unknown, but after deliberating for just five hours they returned a guilty verdict. Margaret Livesey was sentenced to life imprisonment. Her case was taken up by the BBC Television programme Rough Justice which carried out a detailed reinvestigation and broadcast the results in October The authorities were unmoved. Lancashire Police commented This force does not want to substitute trial by TV for trial by judge and jury. 2 The organisation JUSTICE submitted a dossier to the Home Office in November 1983, but still to no 2 Mike Hill and Nicola Adam, Lancashire's most notorious murders (At Heart 2008) Preface avail. Further work by JUSTICE and a second Rough Justice TV programme did eventually bear fruit when the Home Secretary, Douglas Hurd, referred the case back to the Court of Appeal. Jubilation from the campaigners was dashed a year later in December 1986 when the Court of Appeal rejected the appeal saying: We have carefully considered all these matters and we are not of the view that this conviction was in any way unsafe or unsatisfactory. The more information that was adduced before us, the more we became convinced that the verdict of the jury was correct. This appeal is dismissed. 3 Margaret Livesey remained in prison until the late 1980s. Campaigning journalist Bob Woffinden also included a chapter on the case in his 1987 book on Miscarriages of Justice. 4 He particularly focussed on the way in which the Court of Appeal had dealt with the appeal. All of the events described happened in the village of Bamber Bridge which sits on the outskirts of what is now the city of Preston. I was born and raised in the village and the case made an indelible impression upon me. The conviction of Margaret Livesey always struck me as implausible and it helped to build a life-long interest in how innocent people may be convicted of a crime and the difficulties which face them once they have been convicted. This thesis explores just how difficult it is for someone who claims to be innocent to get a conviction overturned. 3 R v Livesey Court of Appeal (Criminal Division) 16th December Bob Woffinden, Miscarriages of Justice (Hodder and Stoughton 1987) 22 Acknowledgements I could not have completed this thesis without the help and support of a lot of people. My wife, Fiona, was a constant source of encouragement and support. She also provided practical support and constructive criticism by reading some of the many drafts the thesis has undergone. The lifetime efforts of my father and my late mother enabled me to pursue my interest in the subject, which would otherwise have been impossible. The Commissioners and staff at CCRC were unfailingly helpful and endured interruptions to their work without complaint. Above all, they were interested in what I was doing and continue to be interested. I particularly want to thank John Wagstaff and Justin Hawkins, whom I met on my first visit to CCRC. Both helped me immensely during the research. A number of Commissioners also took particular interest in my research and I would like to thank Michael Allen, Ian Nichol, Alastair MacGregor, John Weeden, Penny Barrett and CCRC Chairman Richard Foster for all giving freely of their time. I was also fortunate enough to meet two former Commissioners, Laurie Elks and Barry Capon, and they too provided me with a valuable insight into their time at the Commission. My supervisors Professor Rosemary Pattenden and Dr. Ian Edwards worked very hard to try to ensure that the finished product achieved the necessary level of academic rigour. Any shortcomings are no reflection on the effort they put in. Last, but not least, was our Border Collie, the irrepressible and loyal Jazz. The many hours I spent walking with Jazz were a perfect opportunity to clarify my ideas. Sadly, he passed away in 2013 so did not see the end of the process, but his contribution was immensely valuable. 23 24 Chapter One - Overview 1.1 INTRODUCTION This thesis is a critical evaluation of innocence in the post-conviction process in England, Wales and Northern Ireland. 1 The evaluation is original because it comprises the first detailed analysis of the manner in which the Criminal Cases Review Commission 2 handles cases in which innocence is in issue. This analysis was possible because CCRC granted access to its case files. The thesis i
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