Wrongful Convictions and Bad Juries – ‘Lurking Doubt’ in the Court of Appeal

Proving your innocence in most cases requires finding some ‘fresh evidence’ that wasn’t available at your original trial, a challenge that stops many a wrongly convicted person in their tracks. Unless you are one of the lucky few able to acquire pro bono support, conducting a private investigation from behind bars isn’t easy, and isn’t cheap. Many of us sitting in our cells often ask ourselves why, when no fresh evidence can be found but the jury has clearly made a mistake, an experienced Judge can’t simply reverse the decision?

This question led a former House of Commons Justice Committee to call on the Law Commission to examine the various legal thresholds that a wrongful conviction must overcome before it can be overturned. Five years on from the publication of their report, and nothing has happened. Some of the concepts awaiting scrutiny include whether there is some ‘lurking doubt’ that an injustice has been done, or whether some new evidence affects the ‘safety’ of the original conviction.[i] After all the hard work of investigating and compiling a case, appellants and their representatives reaching the Court of Appeal find themselves straining with a boulder at the summit, hoping it won’t roll down.

In circumstantial cases, such as my own, juries will come to a decision on the basis of an accumulation of points. Ideally, an applicant will need to neutralise each of these individual strands and then ask the Court to consider the impact on the case as whole. This may not always be possible, but clearly, as one unravels more and more threads from the rope, we reach a point at which the rope can no longer sustain the weight of the prosecution case. In practice, and in my own experience, the Criminal Cases Review Commission (CCRC) seem unwilling to refer these kinds of cases for appeal without fresh evidence – even though there was no direct evidence in the original case. Perversely then, it is harder to bring a successful application in these more speculative, circumstantial cases than it is for convictions based upon direct evidence.

As a result, many wrongful convictions remain unresolved for want of ‘fresh’ evidence. Very often, none can be found. If these cases cannot meet the ‘real possibility’ test, but there is a risk of a miscarriage of justice being perpetuated by further inaction, the CCRC should have the power to refer such a case for the Court of Appeal to consider. Many campaigners and academics have suggested that the CCRC ought to rely on the original recommendations made by the Runciman Royal Commission on Criminal Justice some 30 years ago, in order to consider whether it has ‘serious doubt’ about the jury’s decision,[ii] or whether there are “reasons for supposing that a miscarriage of justice might have occurred”.[iii]

This reflects guidelines set down by Lord Justice Widgery in Cooper, who held that in the end, the Court will need to ask itself:

“…whether there is some ‘lurking doubt’ in our minds which makes us wonder whether an injustice has been done. This is a reaction which may not be strictly based on the evidence as such. It is a reaction which can be produced by the general feel of the case”.[iv]

Lake developed this view further, making it clear that “such doubts are resolved not, as I say by rules of thumb and not by arithmetic, but they are largely by the experience of the Judges concerned and the feel which the case has for them”.[v]

Twenty years after the ‘lurking doubt’ test was first formulated by Lord Bingham, barely 6 out of 300 appeals even considered the principle.[vi] A recent ruling by Lord Judge in the case of Pope seemed to signal the end of its use altogether:

“It is not open to the court to set aside the verdict on the basis of some collective, subjective judicial hunch that the conviction is or may be unsafe… the application of the ‘lurking doubt’ concept requires reasoned analysis of the evidence or the trial process, or both, which leads to the inexorable conclusion that the conviction is unsafe”.[vii]

As former CCRC Commissioner Laurie Elks explained to Justice Gap, the ruling in Pope sets the bar “impossibly high”.[viii] When the House of Commons Justice Committee convened in March 2015 to consider the issue, they were assured by Lord Thomas that “if having examined the evidence, the Court is left in doubt about the safety of the conviction, it must and will be quashed”. [ix] This would suggest Judges have much broader powers of discretion to overturn convictions than they have actually been exercising. The HCJC were left feeling deeply concerned that:

“there is no clear or formal mechanism to consider quashing convictions arising from decisions which have a strong appearance of being incorrect… We are aware that this would constitute a significant change to the system of criminal appeals in this country and that it would qualify, to a limited extent, the longstanding constitutional doctrine of the primacy of the jury… While it is important that the jury system is not undermined, properly-directed juries which have seen all of the evidence may occasionally make incorrect decisions”.[x]

If the Court of Appeal, like the CCRC, remains unconvinced that there is any real need to amend its own practice, then the new All Party Parliamentary Group on Miscarriages of Justice (APPG) – established in 2019 – will need to find some resolution to the impasse.

Jury Primacy – undermining the Rule of Law

One of the problems has been that, whilst twelve random people – brought together in relative discomfort for the duration of a complex criminal trial – can and do inevitably make mistakes, the Court of Appeal has always been reluctant to usurp their role as jury.[xi] The tradition, known as ‘jury primacy’, stems from the famous Bushel’s Case of 1670, where an Old Bailey Judge imprisoned a jury for returning a verdict he disagreed with. Releasing the beleaguered group, the Lord Chief Justice remarked that “the Judge may try to open the eyes of jurors, but not to lead them by the nose”.

It seems unlikely that a Judge would try pulling this kind of trick today, so is this tradition outdated? Forty years ago, The Justice and Home Affairs Select Committee seemed to think it was, describing jury primacy as “a brick wall in the path of access to justice at the post-trial stage.”[xii] Taking steps to remove this obstacle today is certainly something the APPG should focus its attention on. Our judiciary need unfettered discretion to overturn difficult cases.

Whilst open justice is often heralded as one of our most important principles under the Rule of Law, the reality is that wrongly convicted appellants can never know precisely why they have been convicted. Juries make their decisions in secret and it remains an offence in the United Kingdom for them to divulge the nature of their deliberations. Which specific points a conviction eventually turns on will often be a mystery.

Bearing in mind that only 2% of all criminal cases are actually tried by jury, any “sentimental attachment to the symbol of the jury is dangerous”, argues Penny Darbyshire, a Professor of Law at Kingston University. “The jury is an anti-democratic, irrational, and haphazard legislator”. [xiii] Apologists tend to cite the ability of juries to “bend the law without breaking it”, but the truth is that they may well be convicting or acquitting defendants for reasons entirely extraneous to the facts.

Perhaps the most important step that APPG members can make today is to change the law in this area. Juries should be required to give reasons for their verdicts, something that already happens in Spain. They should also be allowed to disclose the nature of their deliberations after trial, a feature of the Australian justice system which took the important step of preventing jurors from doing so for financial reasons.

[i] HCJC – op. cit. Paragraph 5, p. 27

[ii] The Royal Commission on Criminal Justice, Report, Cm 2263, (July 1993) – paragraph 46

[iii] Ibid. paragraph 332

[iv] R v Cooper [1969] 1 B 267, 53 Cr. App. R. 82

[v] R v Lake, 65 Cr. App. R. 172

[vi] Laurie Elks, ‘Court of Appeal in dereliction of duty over reluctance to review jury decisions?’, Justice Gap – April 2015

[vii] Pope v R [20212] EWCA Crim 2241

[viii] Elks, op. cit.

[ix] Ibid. paragraph 26, p. 15

[x] HCJC – op. cit. Paragraph 4, p. 27

[xi] Pendleton [2001] UKHL 66

[xii] (1991) Penny Darbyshire, ‘The Lamp that shows the Freedom Lives – is it worth the candle?’, Criminal Law Review, Oct, 740 – 752

[xiii] Darbyshire – op. cit.

Mark Alexander, LL.B. (Hons) LL.M.

Mark is a former Rugby School and King’s College London student who was imprisoned in 2010 at the age of 22. He has since completed both his undergraduate and postgraduate law degrees in prison with the University of London. Mark received the Longford Trust’s Patrick Pakenham scholarship award for Law in 2016, and is a member of the Prisoner Policy Network.

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