February 07 2023

‘All justice systems make mistakes – not least chronically under-funded ones’

‘All justice systems make mistakes – not least chronically under-funded ones’

Last month, Nazanin Zaghari-Ratcliffe’s persecution at the hands of the Iranian regime was due to come to an end.  Her five year sentence, allegedly for plotting to ‘topple the Iranian regime’, had run its course and her electronic tag had been removed in preparation for her release. Inevitably, given that Zaghari-Ratcliffe is no insurrectionist but a tragic pawn in the ongoing dispute between Britain and Iran, this was not the end of her maltreatment at the hands of the Iranian state. Instead, Iran’s Revolutionary Court sentenced her to a further year in prison, this time finding her guilty of spreading ‘propaganda against the system’.  

It is easy for us to look aghast at the Iranian justice system, where unwitting bystanders are dragged into international affairs through no fault of their own, with Zaghari-Ratcliffe guilty only of holding the two nationalities that make her politically expedient to the Iranian regime.  The performance of such political machinations by the courts, an ostensibly independent branch of government even in Iran, seems almost impossible to imagine here, with our courts more likely to the be scourge of the government than their puppets.  

But it is not only malign political influence that can lead to miscarriages of justice. Courts don’t need to be under the thumb of the government for individuals to unjustifiably suffer at the hands of the state. As the questionable conviction of Andrew Malkinson for rape and the ongoing scandal of the wrongful prosecutions brought against sub-postmasters has shown us, it is far too easy for miscarriages of justice to occur even in the most advanced liberal democracies, where citizens are invested with a  host of rights intended to protect them from state persecution and wrongful conviction.

As Danny Finkelstein has written in The Times this week, much of the fault for these convictions lies with the motivations of the police and prosecutors.  Too often, they are more interested in getting a ‘result’ and in being able to declare the ‘case closed’ – particularly for high profile crimes like rape or murder – than they are in ensuring that they have accused and charged the right person.  The rewards for securing a conviction, regardless of how questionable it may be, vastly outweigh the consequences that officers or prosecutors face for charging people based on little but spurious evidence. 

With Malkinson, who was released last December after serving seventeen years for rape, the Greater Manchester Police concealed the fact that the two key witnesses testifying against him at trial were serial offenders, and they then spent years trying to prevent this information about the witnesses from being disclosed. Similarly, in the tragic cases of the sub-postmasters, who had their lives and livelihoods ruined by wrongful prosecutions being brought against them by the Post Office for fraud, the inconvenient reality that the Horizon accounting system was unfit for purpose was ignored. Instead, the prosecutors were more invested in dissuading ‘other defendants from jumping on the Horizon-bashing bandwagon’ than in considering if there really was a case for any of the accused to answer.  

What is more alarming, however, is the fact that the convictions were allowed to stand for as long as they did. Common sense alone should have alerted most people to the fact that the Post Office’s convictions were questionable, with the alternative seemingly being that after the introduction of a new accounting system, over 750 sub-postmasters and other Post Office employees independently elected to commit fraud en masse.  Malkinson’s conviction was equally dubious.  Every tangible piece of evidence pointed away from him – not least the absence of a ‘deep scratch’ that the victim was certain she marked across her assailant’s face – with prosecutors justifying their pursuit of him on the basis that he was ‘forensically aware’, and had taken steps to ensure that there was no forensic evidence linking him to the crime, presenting Malkinson with a Kafka-esque nightmare. The absence of evidence was their evidence.

It is the responsibility of the Criminal Cases Review Commission (CCRC) to investigate troubling convictions like these, yet as the prosecutions of sub-postmasters mounted up, and as the evidence exonerating Malkinson grew stronger, the CCRC sat on its hands. It refused Malkinson’s applications for a referral to the Court of Appeal, and only intervened in the Post Office case after a civil case in the High Court found that the Horizon system contained ‘bugs, errors and defects’ that probably explained the financial irregularities.

Such failings show how a body that was set up to respond to a series of scandals in the justice system, like the wrongful conviction of the Birmingham Six, in order to restore public confidence in the system, is now undermining it itself.  The CCRC receives applications from those who believe they have been wrongfully convicted, and where it considers that the there is a ‘real possibility’ of the conviction being overturned, it refers the cases to the Court of Appeal.   At the outset, it was effective, referring on average 3% of applications up to the appellate court, but by 2015, there were concerns as to how it was operating. A report by the House of Commons Justice Select Committee that year concluded that it should be ‘less cautious’ in referring cases for appeal, and that its processes should be reviewed by the Law Commission. 

Despite this intervention, the CCRC’s operations have continued to deteriorate. The number of cases referred for review has fallen to less than 1% from 2015-2019, while these referrals are increasingly not for the more serious convictions in the Crown Court, but for the less severe convictions in the magistrates’ courts.  As with almost all of the ills that bedevil the UK’s justice system, much of this decline can be traced back to David Cameron’s period in office and the savage cuts that austerity required ministers and civil servants to make.  The criminal justice system was made to bear an overwhelming share of these cuts, and within this beleaguered system, it was the CCRC that suffered the biggest cut, with its budget reduced from £9.24m in 2004 to £5.93m in 2019. 

Inevitably, such cuts reduced the capacity of the CCRC to investigate cases and to remedy wrongful convictions.  One of the most significant sacrifices was the change in the terms and conditions of commissioners, who are responsible for signing off on referrals to the Court of Appeal.  While the government is required by statute to appoint eleven commissioners, savings were made by turning it into a part-time role, with, from 2017, most commissioners hired on a one-day-a-week contract.  Not only did this leave them with a vast workload, but it diminished their authority, preventing them acquiring the skill or expertise to effectively review cases and to assert themselves against the Ministry of Justice.  

Couple this with the fact that the CCRC was wary from the outset of referring all but the most blatantly unjust cases to the Court of Appeal, and we have a system that is now incapable of remedying wrongful convictions.  Instead of referring cases where there is a ‘real possibility’ of conviction, an implausibly high hurdle to surmount, the CCRC would do better, as the Westminster Commission into the CCRC recently concluded, to put forward cases for review where there is evidence that the conviction is ‘problematic’- a hurdle both Malkinson and the sub-postmasters would have easily cleared.  At present, we have a system that is not so much challenging miscarriages of justice as actually enabling them.   

All criminal justice systems, regardless of how meritorious or well-funded, make mistakes.  Evidence may be lost or hidden, lawyers may err, or new facts may come to light. It is the purpose of institutions like the CCRC to review suspect cases, to search through the haystack and find those convictions that are unsafe.  Given we already have a criminal justice system that is chronically underfunded, with underpaid criminal defence lawyers labouring in a backlogged system, the need for an effective reviews process becomes even more vital.

The government would doubtless like to think we have a more effective justice system than Iran.  It should invest the money and power needed in the CCRC to ensure that.