The Miscarriage of Justice - Essay Example

 The Miscarriage of Justice Article 6 of the Human Rights Act of 1998, which came into force in 2000 in the U.K, establishes the right of every individual to a fair trial, in order to ensure that an individual’s civil liberties are protected and that every person who is charged with a criminal offense in particular, shall be presumed innocent unless proved guilty according to law.1 However, Treschel identifies the inherent possibility for miscarriages of justice, especially in criminal trials, when there are two conflicting perspectives (a) the human rights perspective which mandates that the rights of the individual in question to a fair trial be ensured and (b) the public prevailing opinion against the individual which may be propagated through the media or public opinion, even political motivation, that deems the individual to be guilty before he/she has actually been discovered to be so through due process of law.2 A miscarriage of justice may condemn an innocent person to punishment for a crime he/she may not have committed. While there may be a miscarriage of justice in other areas as well, it always has the most serious consequences in criminal convictions since the punishment may involve long terms or imprisonment or even execution. Wrongful convictions are difficult to over turn and although there are provisions for appeal under the law, an innocent person may suffer needless imprisonment, incarceration or even death, when a miscarriage of justice occurs. In many instances, such wrongful convictions may also be the result of unfair trials, the manipulation or fabrication of evidence or the framing of an innocent party through false testimonies and misdirection of judicial authorities. An innocent person wrongly convicted of a crime he/she did not commit, may face the consequences even after a wrongful conviction has been overturned, because it is impossible to reverse the effects of punishment already suffered or the torment and hardship that may have been endured by the innocent person and his/her family. The most heart rending aspect of a miscarriage of justice occurs when an innocent person is wrongfully convicted and put to death. There are some salient cases that illustrate the miscarriage of justice, which are discussed below: The case of Judith Theresa3 is one of the best examples of the miscarriage of justice in terms of legal impropriety in the disclosure of material evidence and the role of experts and forensic scientists in providing evidence. In this case a woman was convicted of being a terrorist on the grounds that nitroglycerine was discovered on her property. Defendant was convicted and sentenced to 30 years imprisonment, of which 17 had already been served when the Appeal was filed on the grounds of failure of timely disclosure. The problem in this case was the withholding of information by the forensic scientists who were working for the Government and believing that it was their duty to aid the police, they withheld information which they believed might prove damaging to the Prosecution’s case. The woman was convicted on the basis of evidence gathered through her confessions but she later appealed the conviction, stating that her mental state and her disturbed status as a “pathological liar” made her testimony and confession unfit for acceptance as evidence in the case. To examine these grounds the Court considered the cases of Lowery (Christopher Russel) v The Queen4 and the case of R v Turner5 since both of these cases had dealt with the question of unreliability of a conviction made on the basis of confessions. Interviewing has been acknowledged to be an important aspect of police investigations, however in some instances these interviews are used to secure a forcible admission from a suspected person rather than to uncover the evidence and true facts that surround the criminal activity6. The withholding of information by the Government scientists in the Theresa case also compromised the interest of fairness and justice and the discovery of the real facts; it was geared more towards building a good case for the prosecution. Clark Stapleton also points out that tapes produced during hearings are increasingly being used as the basis for conviction7. The police often provoke the suspects into saying something that exists in a different context but may be present in quite a different context in the Court through partial taped evidence provided, which results in incriminating statements that produce convictions in about 80% of the guilty pleas. However, all such practices leave room for miscarriage of justice, where a person such as Theresa may be wrongly convicted on the basis of unreliable confessions, the veracity of which is questionable. The fact that the experts had withheld vital information that could have exonerated her was another factor that weighed heavily in her favor during the Appeal. Such withholding in effect constitutes the misuse of evidence to unfairly prejudice the Court against Theresa. Under Section 2(1) (a) of the Criminal Appeal Act 1988, the failure to disclose information relevant to the case was deemed to constitute injustice to the Appellant. The scientists had a duty to make necessary disclosures to the Court in the interest of a fair hearing, irrespective of whether or not it helped or harmed a party in the suit. The case of Sally Clark and Angela Canning 8 is yet another example of the miscarriage of justice that occurred due to misuse of expert testimony and evidence by scientific experts. In this case the testimony of expert witnesses was the main factor that determined conviction on the charge of murder of babies. Sir Roy Meadow, a pediatrician who had been practicing for several years, provided evidence to the Court in the form of statistical calculations which were later proved to be wrong. The question of reliance on expert testimony and forensic evidence were the major points of contention in the appeal of Sally Clark and Angela Cannings, since this issue had already been raised in the issue of other cases such as that of the Birmingham Six9, who had served 16 years in jail after being convicted on the basis of faulty forensic evidence and were released in 1991.10 In this case which came up for appeal, it was held that the Appeal Court was not required to determine whether or not the accused were innocent of the crimes they were purported to have committed11, the moot point for the Court to examine was whether the judgment of the lower Court on conviction could be allowed to stand. The Court held that serious doubts could be raised about the police evidence based on confessions and the scientific evidence that was procured for the trial and formed the basis upon which the conviction was handed out. It was on this basis that the Court of Appeals held that the conviction could not be deemed to be satisfactory. In a similar manner, The Court was also not satisfied about the conviction of Judith Theresa, who served time for 17 years before she was exonerated. Article 6(1) of the Human Rights Convention12 states: “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.” However, in Judith Theresa’s case, the partisan nature of the testimony of the Government through their withholding of evidence is in flagrant violation of the provisions for a fair and public hearing. As a result of the nature of the partisan testimony of the Government scientists, Theresa had to spend 17 years in jail and the adverse consequences that this may have had on a woman who was already mentally disturbed would be irreversible. Such a travesty of justice would qualify as a violation of the provisions of Article 6 of the Human Rights Convention. Moreover, it may also be noted that miscarriages of justice, such as that which occurred in Theresa’s case, would also be in flagrant violation of Articles 3 and 8 of the Convention on Human Rights. While Article 3 prohibits inhuman or degrading treatment to anyone, Article 8 guarantees the right to privacy and family life. In this connection, Article 12 may also be deemed to be violated by a miscarriage of justice, since this provision ensures that a person has the right to marry and have a family. However, spending 16 and 17 years in jail may hardly be deemed conducive to leading a family life and the question of inhuman treatment during the prison sentence is a given, since a victim of miscarriage of justice, like Theresa or the “Birmingham Six” may in fact, be innocent of the crimes deemed to have been committed. To be punished for a crime one did not even commit is a clear breach of the freedoms guaranteed under the European Convention on Human Rights. A miscarriage of Justice therefore causes several violations of the freedoms guaranteed to an individual under the Human Rights Convention. In the UK, the Human Rights Act of 1988 is intended to give legal force to the aims and objectives of the European Convention of Human Rights, that seeks to guarantee certain freedoms to all individuals. Section 3 of the Human Rights Act of 199813 states that UK Parliament legislation must be read and given effect to in a manner that will be compatible with European Convention guarantees of fundamental rights. The burden of judicial interpretation that rests upon the English Courts is meant to ensure that the goals set out in the Treaty and the freedoms guaranteed under the Convention are applied within the U.K., to the greatest extent possible. Individuals in the U.K. are also free to directly approach the European Courts in the event there is a violation of their rights under the Convention. Therefore, a miscarriage of justice will be actionable both under UK law and EC law. Such violations of individual freedoms need to be redressed as quickly as possible, although there can never be compensation for the victims that could be deemed to be adequate for the injuries and torture they have suffered through the curtailment of those same freedoms. When the victim is a young person on the threshold of life, any miscarriage of justice would cause a grave breach of their fundamental rights, guaranteed to all European citizens. On November 29, 1991, a young boy named Fergus aged 13, was indicted on the count of assault and an intent to rob. He was identified in Court by a person who was four years older than him and who identified him as the person who had tried to rob him some weeks earlier. But the truth was that the boy was innocent in this case. Two years later, he appealed the conviction in Court14 and it was determined that a miscarriage of justice had taken place and that the boy had been wrongly convicted. The miscarriage of justice occurred through improper judicial procedure, presentation of evidence and improper disclosure of relevant information to reach the right decision. In the first instance there was the question of whether the evidence of the witness who claimed that he recognized Fergus was to be treated as evidence of identification or evidence of recognition. In a case where the witness does not recognize and know the person well, it is preferable to hold an identification parade rather than the procedure that was followed by the Court in this case, by asking the witness whether he recognized the defendant in the Court as the person who had attempted to rob him, after a solitary instance of seeing Fergus in the street and having him pointed out. No identification parade was arranged and the question that arose in this case was whether the Judge had been correct in granting the plea of the prosecution to ask the victim about the identify of Fergus. Moreover, there was the entire issue of weakness of the evidence that was presented. In view of the established position in criminal law that an accused person is innocent unless proven guilty, it is necessary that strong, relevant supporting evidence be provided – in the absence of proper evidence, a jury cannot convict the person who is accused. The case was not prepared adequately, the evidence collected was not comprehensive or conclusive and the boy was convicted on grounds that were not strong, substantial and free from error. This case illustrates the tragic element inherent in such miscarriages of justice. Not only was there impropriety in the procedure that was followed and a failure on the part of the solicitors in question to adequately prepare and present their respective cases, there was also a failure to disclose all the relevant evidence. In the appeal that Fergus brought before the Court, his counsel brought to the notice of the Court the fact that there was a photograph of Fergus that had been taken just after his arrest which was available in 1991, as well as the initial report of the crime that had been prepared based on the victim’s account, yet neither of these items was disclosed to the Court. Neither did the police bother to forward the report, neither did the crown prosecution bother to procure the information. The common law of disclosure as enunciated in R v Ward15 emphasizes the fact that such evidence must be fully disclosed. Therefore the visual identification process that had been allowed by the Court in finding Fergus guilty, is one that is acknowledged to be one with defects and should not have been allowed. The correct procedure in this case would have been for the Court to have withdrawn the case from the jury. The right of a member of the public to immunity and the right of innocence until proven guilty was violated in Fergus’s case. Two years of life went by in detention under a conviction for a crime that he did not commit. What is especially distressing in this case is the young age of the defendant, who has been needlessly punished during his developing years and has been subjected to mental distress and incarceration. The notoriety of conviction for a crime, loss of schooling and the sense of shame are likely to be irreversible in the case of Fergus – the psychological and mental implications of wrongful detention are unlikely to be redressed under the measures that have been laid out under the Criminal Justice Act16, which states: “Subject to subsection (2) below, when a person has been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows beyond reasonable doubt that there has been a miscarriage of justice, the Secretary of State shall pay compensation for the miscarriage of justice to the person who has suffered punishment as a result of such conviction or, if he is dead, to his personal representatives, unless the non-disclosure of the unknown fact was wholly or partly attributable to the person convicted. (2) No payment of compensation under this section shall be made unless an application for such compensation has been made to the Secretary of State.” The fundamental rights that Fergus had to a fair trial as laid out in Section 6 of the Human Rights Act of 1988 and the European Convention on Human Rights have been infringed. There may also be a cause of action that will arise in his case for violation of Articles 3 and 8 of the European Convention. In the case of Kamara17, the defendant had walked up to a stranger waiting for a bus and punched him in the eye. Kamara was a mentally ill patient and it was revealed in Court that he had a history of not taking his medication properly. He responded well to treatment and tended to be aggressive while off his medication. The issue in question in this case was whether the Court should impose a restraining order on Kamara under Section 41 of the Mental Health Act or whether a hospital order under Section 37 of the same Act was adequate to address the needs of the patient. In this instance a miscarriage of justice occurred because the Court ordered that the defendant should be made subject to special restrictions under Section 41 that would require him to take his medication regularly, remain at a particular address and report regularly for his check ups. In the defendant’s behalf, it was contended that his history showed that he had never posed any serious criminal risk to the public and it was possible that a hospital order under Section 37 would be adequate in the interim to rehabilitate the patient; the imposition of a restriction order before a hospital stay was argued to be unnecessary. But the Court held that in the interest of the safety of the public, the defendant should be made subject to restrictions for an indefinite period, to satisfy the requirements of his physician, that he take his medication regularly. While it may be argued in this case that the imposition of a restriction order is in the overall interests of the community and especially for the patient himself, there is a serious issue of violation of the fundamental human rights of freedom and privacy of the Defendant Kamara. His history did not provide any justification for the conclusion that he could pose a serious threat to the public and the decision on imposition of a restriction order would have been proper when the patient was being discharged. To impose restrictions over and above what is strictly necessary cannot be deemed to be just, it represents a compromising of the rights of the defendant. The obligation to remain at one place and submit to regular psychiatric check ups and forcible intake of medication, etc is a violation of the patient’s freedom to opt for or against treatment, his freedom to live where he chooses and his right to privacy. A person who is mentally disturbed nevertheless has rights which cannot be compromised, unless he has been proved to be a serious threat to the public or severely incapacitated in a mental sense, neither of which was proved to be the case for Kamara. In fact, Kamara’s rights under Article 8 of the European Convention were violated because his privacy, his home, his lifestyle and his freedom were being invaded. Allowing such a decision to stand opens the way for further instances of overstepping the boundaries of juridical authority in arriving at decisions which are not strictly in accord with the evidence and infringe upon an individual’s rights. Unless a Court of Appeal overturns such convictions that have been wrongfully attained, the process of justice itself will be compromised and the objectives of the European Convention to ensure a free and fair trail to every individual cannot be achieved. In recent times, several such instances of miscarriages of justice have been coming to light where convictions administered are being overturned and questioned, since the validity of court procedure used in such convictions is itself being questioned. New and improved techniques of forensic evidence are revealing the fact that in several cases, people have been wrongfully convicted through faulty forensic evidence.18 Such improved techniques have also helped bring new evidence to light which may not have been available at the time of a trail where there was a miscarriage of justice, or where the evidence may have been faultily interpreted. While the Criminal Act provides for compensation for the victims, the exact modalities of such compensation are not yet clear. There are issues of loss of privacy, family life, loss of job and reputation, loss of skills due to passage of time and the inability to keep oneself up to date with the latest developments in the work arena which renders a former jailee ineligible for employment. How are all these issues to be addressed? It presents a problem of enormous injustice which cannot be redressed in a financial sense and no matter how well the victim is rehabilitated, the harmful consequences of a wrongful conviction are likely to be irreversible and would constitute a breach of an individual’s fundamental rights that are permanently damaging. While the high incidence of such wrongful convictions may have contributed towards more caution in the exercise of jurisprudence and judicial procedure, there are still no provisions that are sufficient to ensure that the process of justice is kept free of error. While the quality of forensic tools of investigation may have improved and DNA tests may have reversed many wrongful convictions, the fact nevertheless remains that there are inadequate measures available to tackle judicial impropriety, inadequate evidentiary proceedings and an abuse of the due process of law to favor one party over another. In the United States, the double jeopardy clause provides for an accused person being tried again for the same crime, but there is no such provision in British law. Moreover a Court of Appeal is not obliged to determine whether a wronged party is indeed innocent or guilty of the crime alleged to be committed; it is sufficient for the Court to determine that there was an abuse of the process of law. In view of the serious implications and grave consequences of a wrongful convictions, individual rights and freedoms of persons accused in criminal proceedings may only be ensured through large scale reformation of the criminal justice process. Bibliography * Article 6 , section 2 of the Human Rights Act of 1998. [Online] Available at: http://www.opsi.gov.uk/acts/acts1998/80042--d.htm * Clark-Stapleton, Karen Lesley, No Date. “Injustices within the System: Is the System fundamentally flawed?” [Online] Available at:http://www.portia.org/chapter13/KarenLCS/system.html, accessed 1/19/06 * Lowery (Christopher Russel) v The Queen (1974) AC 85 * R v Ward (1993) 1 WLR 619 * R v Turner (Terence) 1975 CLY 762 * R v McIlkenny (1992) 2 All ER 417; 93 Cr App R 287 * R v Stafford (Dennis) (No: 2) (1974) A.C. 878 * R v Fergus 98 Cr App R 313 * R v Kamara [1974] AC 104 * Report titled Forensic Science on Trial pp 64 [online] Available at: http://www.publications.parliament.uk/pa/cm200405/cmselect/cmsctech/96/96i.pdf; accessed 1/19/2006 * Sally Clark [2003] EWCA Crim 216 * Section 3 of the Human Rights Act of 1998 [Online] Available at: http://www.opsi.gov.uk/acts/acts1998/80042--a.htm#3 * Section 133 of the Criminal Justice Act 1988 * The European Convention on Human Rights [Online] Available at: http://www.hri.org/docs/ECHR50.html * Treschel, Stefan. Human Rights in criminal proceedings, Oxford University Press, 2005 Read More