John Reid's "wheeze"

Observations on criminal justice

Later this month, the government is due to publish responses to its proposals to limit the power of appeal court judges to overturn convictions. The summary has been promised since the consultation period ended in December, but the New Statesman has learned that ministers have delayed publication while trying to decide how to respond to the overwhelmingly negative views of appeal lawyers and campaigners against miscarriages of justice.

The controversial plans were published last September in a consultation paper called Quashing Convictions: a report of a review by the Home Secretary, Lord Chancellor and Attorney General. John Reid, the Home Secretary, wrote in a foreword that the proposals were aimed at "rebalancing the criminal justice system in favour of the victim and the law-abiding majority".

The paper proposes a change in the law to prevent the Court of Appeal from quashing a conviction on a legal "technicality". If the judges have formed the view that the convicted person is guilty of the offence, they will not be able to declare the conviction "unsafe" even if there were deficiencies in the trial or pre-trial process. These deficiencies could involve non-disclosure of key evidence to the trial judge and even unlawful acts by the prosecuting authorities.

In its response to the Quashing Convictions proposals, the Criminal Appeal Lawyers Association supported the need for appeal judges to overturn convictions obtained when the prosecuting authorities have acted outside the law, known as an "abuse of process".

"The purpose of the abuse of process doctrine is to discourage illegal acts by those in authority and to maintain public confidence in the administration of justice," they wrote, warning: "There is an inherent danger in the consultation paper's proposals: namely, that they will encourage illegal acts by public officials of the kind that so tainted the criminal justice system . . . which led to many high-profile miscarriages of justice."

Chris Mullin, the MP for Sunderland South, is a former journalist whose investigative reporting led to the exposure of such cases as that of the Birmingham Six, whose convictions were quashed. His work was instrumental in setting up the Criminal Cases Review Commission (CCRC).

Mullin has been scathing about the proposals. In a private letter to Baroness Scotland, minister of state for criminal justice, he wrote: "Is there a problem that needs resolving, or is this a wheeze that someone in high places has dreamed up on the back of an envelope in the hope of appeasing the mob?

"The Court of Appeal already has the power to order a retrial in cases where convictions are quashed on technicalities and surely this will suffice in the small number of cases that occur each year."

Other critics believe it is not the role of the appeal court to decide on the guilt or innocence of a person, but only to rule whether or not a conviction is "safe".

Furthermore, as Mullin points out, the law already allows the appeal judges to order a retrial even if they decide that the original conviction was "unsafe".

Professor Graham Zellick, chairman of the CCRC, said: "I have seen a whole range of extremely powerful arguments of practice and principle to show these proposals to be wholly misconceived. If you made this change it would have minimal impact in terms of the government's law-and-order agenda. But it would have very significant impact in terms of principle and legality.

"It would be a gross interference with the constitutional role and powers of the Court of Appeal . . . Governments make mistakes and I think this is a mistake. The right thing for them to do is bury it."

This article first appeared in the 09 April 2007 issue of the New Statesman, France: Vive la différence?