What is the criminal Court of Appeal actually for? You might imagine it’s a place where the most senior judges in the land review the homework of lower courts and correct any mistakes. Well, yes and no.
My esteemed former colleague David Jessel, then presenter of Channel 4’s Trial and Error and before that Rough Justice on the BBC had a line he would regularly use to defuse the over-optimistic expectations of the families of victims of alleged miscarriage. ‘The Appeal Court,’ he would tell them, ‘is a court of law, not a court of justice.’ The judges do indeed seek to rectify – mistakes of law, but not substantive errors of fact. They’re happy to deal with errors made by their fellow judges and barristers in the conduct of a case, though as this involves criticism of those colleagues it does not, as you can imagine, happen very often. And it has nothing at all to do with what actually happened.
Mistakes in law are not to do with the facts of a case. But, of course, most people alleging miscarriage of justice will be claiming either that the jury were presented with erroneous information, or that they simply came to the wrong conclusion. And that is something the Court of Appeal simply don’t tackle – on the grounds that it is not their job to take the place of the jury, trial by 12 random jurors being a fundamental of our system.
I have long held the view that jurors often come to the right conclusion for the wrong reasons (and I have been a juror myself), but it follows surely that sometimes they will get the wrong result for the wrong reasons. So when you’re up before the Court of Appeal you stand a running chance if you can demonstrate that something went wrong with the way the trial was run, but no chance at all if you’re alleging that the trial was a factual travesty. As an aside, it has always struck me that it must be frustrating beyond belief to find that you have been properly convicted in a case where you know the facts before the court to be wrong – because you did it. Your sense of grievance must be immense, and cases like that are a serious elephant trap for those of us in the miscarriage business.
But it hasn’t always been like this.
- You an read about the Lucy Letby case in the latest PROOF magazine including Stephen Phelps on the media, Prof Richard Gill and Dr Svilena Dimitrova on How to become a serial killer (without killing anyone) and an interview with the barrister Mark McDonald representing the former nurse
The criminal division of the Court of Appeal of England and Wales was set up a hundred and twenty years ago in the wake of disquiet over the convictions of Adolf Beck and George Edalji. Both wrongful convictions were the subject of massive public and press comment, including the support of Sherlock Holmes, or rather of his creator Sir Arthur Conan Doyle. Both men were eventually granted royal pardons, but these cases highlighted the inadequacy of the then judicial system to deal with wrongful convictions. In both cases it was the facts of the case, as well as legal procedure, that was crucial, so when the Criminal Appeal Act, 1907 was passed it established a right of appeal on ‘…a question of fact alone, or a question of mixed law and fact, or any other ground which appears to the court to be a sufficient ground of appeal’.
The liberal provisions of the 1907 Act stand in stark contrast to the Court’s narrow interpretation of its remit 120 years on. But that Act also strengthened the precept that jury decisions are sacrosanct. It was an attempt to limit the role of judges, but arguably it created gave a primacy to the secrecy of jury deliberations that means there is no way of checking whether juries are, on their own, capable of dealing with the ever-increasing complexity of the cases before them. So now, while the Court of Appeal takes a firm position that it will not usurp role of the jury, it has no idea on what basis the jury has reached its decision.
The new court was quick. During the period 1909–1912, there was an average of 450 annual applications for leave to appeal of which an average of 170 were granted. Today the average wait for an appeal against conviction to be heard is ten months, and in murder cases it can be much much longer. Added to that, since 1997 the Criminal Cases Review Commission (CCRC) has been inserted into the process which has extended the timeline to years and even decades (see the cases of Jeremy Bamber, Andy Malkinson or Colin Norris for example). Men like Andy Malkinson or Oliver Campbell can wait 17 years and more for their convictions to be overturned. And what of the proportion of convictions that have been overturned? In recent years it has been running at something less than 12%, as against 37% in those years leading up to 1912.
So compared with its Edwardian predecessor the Court of Appeal is slow, legalistic, restrictive and reluctant to overturn jury verdicts.
But I don’t want to give the impression that it cannot deal with facts at all. The appellant is entitled to bring before the court new evidence not available at the time of the trial. Why this restriction? It’s because of a fundamental principle of English law that goes back way beyond 1907 – the principle of finality, sometimes known as the ‘no second bite of the cherry’ principle. It states that there should be no second chances. Pre-1907 it was the reason that there was no Court of Appeal – the original decision should be final, regardless of the emergence of additional evidence not heard at trial. But even after 1907 there was no chance of a second appeal if your first failed. The only recourse for the wrongly-convicted was extra-judicial – petitioning the Home Secretary, who had the power to recommend the royal prerogative of mercy, and later to ask the Appeal Court to take another look.
In the wake of high-profile miscarriages that came to light in the 1970s and 80s (primarily Irish cases) the 1993 Runciman Commission recommended the establishment of the CCRC, in large part because it recognised the need to address a situation where new evidence emerged after both an original conviction and a subsequent failed appeal. Nowadays, although the finality of the original proceedings still obtains, the CCRC is able to refer case back to the Court of Appeal if it concludes that there is a realistic possibility of success. Often this will be based on the emergence of new evidence not available at the time of the trial. But what exactly does that highlighted phrase mean? And what constitutes new evidence?
As so much in this matter it is a matter of interpretation, and it is the CoCA themselves who are doing the interpretation. Arguably, I would submit, in a highly restrictive manner which is prejudicial to the interests of justice.
Take the case of Lucy Letby, a nurse convicted of multiple murders and attempted murders in the neonatal unit where she worked. The jury heard expert evidence from seven witnesses in support of the prosecution’s case that Letby inflicted intentional harm on these babies. But they heard not a single witness called by the defence to argue that the babies died or collapsed of natural causes. Unsurprisingly, perhaps, the jury convicted. Yet, on hearing of this outcome a senior Canadian neonatologist, Dr Shoo Lee, whose paper (written more than 30 years earlier) had been relied upon by the prosecution, realised that his paper had been completely misrepresented in court and did not support the prosecution’s theories (a fact that could have been ascertained had either the prosecution or the defence picked up the phone to ask him before the case first came to court). Bv the time Lucy Letby’s Leave To Appeal application came up before the full court, her defence lawyers had contacted Dr Lee who agreed to give evidence to the fact that his work a) had been misinterpreted in court; and b) was now out of date.
At the Appeal application in April 2024 he appeared via video link from Canada to explain. Yet in a piece of sophistry typical of the modern Court of Appeal they decided that this evidence could not be ‘heard’ (even though they had heard it) because it had been available at time of the initial trial. So Letby went back to jail for the rest of her life because both prosecution and defence were so incompetent as to fail to pick up the phone to the man who wrote the seminal paper at the heart of the trial. If the Court of Appeal had decided to admit Dr Lee’s evidence they may well have been forced to conclude that the conviction was unsafe. So outraged was Dr Lee by this situation that he convened a panel of 14 global experts to examine the medical notes of the babies in question. That panel concluded that each of the deaths and collapses was due to natural causes. ‘In short,’ to quote Dr Lee, ‘there were no murders.’ See here.
Amanda Knox has a privileged understanding of the predicament of Lucy Letby.
She’s the young American exchange student convicted in Italy in 2009 of the murder of her housemate Meredith Kercher. She knows what it’s like to be a young, attractive female jailed for a heinous crime and vilified by the national and international press. And consequently by public opinion. Today Amanda Knox is a free woman. After a tortuous judicial process (Italian bureaucracy extends to its legal system), the highest Italian Appeal Court quashed her conviction after she had spent four years in jail. It was able to do so because of a fundamental difference between its role and that of the English CoCA – it is able (indeed required) to re-examine the entire case from scratch. In this case it was the original evidence and police inquiry that was flawed. There was (to my knowledge at least) no new evidence not available at the time of the trial. It is perhaps an inevitability that had she been tried and convicted in the English judicial system she would still be languishing in jail.
I hope I’ve made my case that the English CoCA is a sclerotic institution unfit for purpose as it stands.
So how should it be changed? Right now, as we have seen, it is hidebound and restrictive – seemingly keener to preserve the status quo than to investigate possible wrongful convictions. But the Court of Appeal could and should be a truth-seeking organisation.
To start with, in the 21st century surely we need a court that can re-examine the whole case, as in Italy. Secondly the deliberations of the jury should be opened up, carefully but with a view to ensuring that people are not convicted on the wrong basis. Appeal judges are prone to admitting something went fundamentally wrong at the trial but that it would have ‘made no difference to the jury’s decision’. Well, why not ask them?
Let’s give the Court of Appeal the power to summon jurors to understand what they actually thought. In secret if necessary, but surely we must recognise that court cases are now way more complex than they used to be, and unless we know what’s going on in the jury room we can never know if, and how, they got it wrong. So yes, let’s also have some research into the way juries make their decisions. The longer we have zero understanding of what goes on in the jury room the more one suspects it is getting less and less functional. It may be that as we go forward juries are going to need to help in many of the more complex cases.
Finally, the no ‘two bites of the cherry’ principle needs fundamental reform. New evidence not available at the time of the trial. Why not? It must be clear even on a cursory examination of a case like Letby’s that the defence took a faulty line. Why should someone stay in jail if their defence chose the wrong way to approach the case? It is a principle that offends against natural justice. But then I suppose we have to remember what Jessel said. As currently configured the Court of Criminal Appeal of England and Wales is a court of law, not of justice. Time, I suggest for us to put that behind us.
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