A review of the Quashing Convictions Report - Book Report/Review Example

A review of the "Quashing Convictions" Report The basis and philosophy behind the proposals within the "Quashing Convictions" Report is d quite explicitly by John Reid, the Home Secretary, in his Foreword to the report. He argues that the government is "committed to rebalancing the Criminal Justice System in favour of the victim and the law-abiding majority . . . a promise to change the law about appeals against conviction".1 There are two basic premises that go along with these statements. First, that the Criminal Justice System is currently balanced in favor of criminals and second, that changing the law on the quashing of convictions would somehow change this balance. This review will argue that neither premise is in fact tenable, and further, that the Report exhibits an overall dangerous tendency through suggesting that the Criminal Justice System "should" be balanced in favor of either side. The scales of justice should be equal and balanced. The Foreword to the Report continues with remarkable honesty by stating that the government is "open to suggestions about how we achieve the aims, we are not consulting on the aims themselves or therefore on whether the law should be changed."2 The government has apparently made up its mind on the principles and facts underlying the need for reform, it merely is requesting help on the more mundane task of the practical implementation of the new laws. This review will tackle both the ideas for implementing the laws, and also the doubtful premise that change is actually needed. The government suggests that "where the Court of Appeal are of the view that a conviction is, in the normal sense of the word, 'safe', it should not be possible to quash it."3 The word "safe", at least within the government's rather limited definition of the word, implies that the criminal is in fact guilty of the crime that he/she was accused of. The government wants to stop convicted criminals, who the Court of Appeal have "formed such a view"4 as to their guilt, from having their convictions overturned because of some technicality within the trial or pre-trial process. This point of view is troubling in a number of ways. First, it is a general principle of English common law (since Magna Carta) that the jury is the sole finder of fact as to the guilt or innocence of the defendant in a case. The Court of Appeal does not hear the evidence (it merely reads it), it does not experience the demeanor of the witnesses and/or the accused within court and within their testimony. Thus it is put in the place of any person who might read the transcript of a trial and is asked to consider the guilt or innocence of the defendant. Whether guilt or innocence is best determined by a jury of one's peers is debatable, but beside the point: it is the system that is in place within the United Kingdom. Other justice systems, such as the French5, which may be just as fair, do not use the jury system, and within such a system, the idea of the Court of Appeal being essentially a secondary trier of fact and guilt/innocence makes more sense. But the system being suggested by the government puts the Court of Appeal in a problematic situation. The idea that the Court should not allow a appeal "when" it has the view that the defendant is in fact guilty begs the question of how the Court is meant to determine guilt or innocence. Indeed, the only logical assumption would be for the Court to "decide" whether on the defendant's guilt/innocence before it considers the grounds for appeal. If it decides the defendant is guilty then there will be no need for them to consider the actual grounds of appeal. But the government is not stating that the Court of Appeal must consider the guilt or innocence, but rather when it has done so, or chooses to do so, (and finds for guilt) it should disallow the Appeal. Lord Bingham has powerfully stated that the Court of Appeal "is not and should never become the primary decision-maker . . . it has an imperfect and incomplete understanding of the full processes which led the jury to convict"6. The government does not provide any evidence as to why this basic argument was originally incorrect or why the situation described by Lord Bingham has essentially changed. If the Court of Appeal is now to become at least a secondary decision-maker re. guilt or innocence it should apply to a finding of innocence as well. Thus the government's reforms should include provisions stating that if the Court of Appeal "finds" a defendant innocent than not only the Appeal is upheld but also the defendant is found not-guilty, and thus subject to all the protections that are still in place vis--vis double jeopardy. The government uses the Court of Appeal findings in Togher 7 to imply that the scales of justice have moved too far towards the accused, but looked at it in a different way, the comments in Togher in fact could support the argument that no change Is needed. The government uses 2(1) of the Criminal Appeal Act (1995) as the benchmark through which various Appeal comments should be seen. In Togher, the Court stated the following: 2(1) is broad enough to permit the quashing of the conviction on the grounds that it was unsafe because of abuse of process prior to the trial. In particular, a conviction could be unsafe even if there was no doubt that the defendant had committed the offence of which he had been found guilty.8 (Emphasis Added" It would have been more telling if the words "even if there was no doubt" as to the guilt of the defendant. The government uses this comment to suggest that, in a crude sense, guilty men are being set free because of technical infractions regarding evidence and the like. But the important factor is who is deciding that there is "no doubt" as to the guilt of the defendant Late in the Report the government states that "it considers that a retrial by a judge sitting with a jury remains the appropriate outcome where the Court of Appeal considers an appeal should be allowed and have, for whatever reason, not felt able to form a clear view as to the appellant's guilt."9 But in the same paragraph the government states that there is "little merit" in reconstituting the Court as the primary decision maker. There is a fatal lack of clarity here - either the Court of Appeal is to decide guilt/innocence or it is not. The interests of justice, for either the majority of the law-abiding public or the minority of criminals, cannot be served by having a vague, ill-defined role for the Court of Appeal. Finally, the idea that the Justice System should be skewed towards the law-abiding public rather than towards the criminals, or that it should be balanced between the two ignores the basic reason for rules of procedure and evidence being in place. The State takes on an awesome (and easily abused) power when it takes away the liberty of a man or woman. Imprisonment takes time away from a person's life that can never be restored. Thus the scales of justice should provide every possible safeguard for the accused because the stakes are so high and mistakes are so consequential for him if he is found guilty. If, as the government appears to be doing, the rules of evidence are being "rewritten" or simply ignored to enable the state to imprison people it "knows" to be guilty, then the UK is on a slippery slope indeed. ______________________________________ Bibliography Reid, John. "Report of a review by the Home Secretary, Lord Chancellor and Attorney General." Office for Criminal Justice Reform. September 2006. R. v. Pendleton [2001] UKHL 66 R. v. Togher [2001] Cr App R 457 Vogler, Richard. A Guide to the French Justice System. Prisoners Abroad, London: 1999. How the essay was planned The basic plan of the essay, after reading and re-reading the Report itself, was to provide a critique, both of its basic premises and the detailed arguments that it used to support those premises. The most important part of this task was to identify the central thrust of the Review: i.e. what it was saying and how it was saying it. This was fairly simple to glean as the Home Secretary states the government's position succinctly and unambiguously in the Foreword to the piece. However, as I came to understand the arguments behind the position it because obvious that the reasoning was not succinct and unambiguous. Indeed, it was often long-winded and rather tenuous as to its meaning. Thus the context of various Courts of Appeal statements was important to glean, and for this I read several of the judgments for the cases mentioned within the legal section of the paper. Reading the whole judgments provided a more accurate assessment of what the Judges were actually intending to say, rather than the selective quotes that appeared in the paper itself. Finally, the paper was organized in a logical manner to cover as many of these quite complex criticisms of the Report within the limited space available. Read More