WE ARE A MAGAZINE ABOUT LAW AND JUSTICE | AND THE DIFFERENCE BETWEEN THE TWO
November 30 2023
WE ARE A MAGAZINE ABOUT LAW AND JUSTICE | AND THE DIFFERENCE BETWEEN THE TWO

Zander: ‘The Court’s deference to the sanctity of juries is wrong. They sometimes go wrong’

Zander: ‘The Court’s deference to the sanctity of juries is wrong. They sometimes go wrong’

The problem with the criminal appeal system’s failure to get to grips with miscarriages of justice was not the watchdog but the court of appeal which was ‘constitutionally wrong’, argued a leading legal academic last week. Professor Michael Zander KC, an emeritus professor of law at the London school of Economics, was delivering a lecture last week in honour of his 90th birthday, during which he declared he was ‘pessimistic’ at the prospects of the Law Commission review of criminal appeals dealing with the system’s shortcomings.

‘The problem is not the CCRC or the referral provisions,’ said Zander, who was at the heart of the proposals that led to the formation of the Criminal Cases Review Commission (CCRC). ‘The problem is the Court of Appeal which, since 1907 when it was established, has refused to recognise that its role, given by the legislature, includes being sometimes asked to review jury verdicts, even though there is no new evidence.’

Michael Zander was a member of the 1993 Royal Commission on Criminal Justice set up in the wake of scandals such as the Birmingham Six and Guildford Four and which recommended setting up a CCRC-style body. The commission has come in for considerable criticism in recent years and, most recently, since the overturning of the conviction of Andrew Malkinson at the beginning of the summer. As a result of its perceived failure in that case, there are now two inquiries (one by the government and one by the CCRC itself) looking at the CCRC, as well as a Law Commission review considering ‘whether there is anything wrong with the statutory provisions for referral of cases by the CCRC to the Court of Appeal’.

‘In my view there is nothing wrong with those provisions,’ Zander said. The problem was ‘not the CCRC or the referral provisions’. ‘The problem is the Court of Appeal which, since 1907 when it was established, has refused to recognise that its role, given by the legislature, includes being sometimes asked to review jury verdicts, even though there is no new evidence.

The lawyer flagged up the CCRC’s founding statute, Criminal Appeal Act 1907 which provides that court ‘shall allow the appeal if they think that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence’(Section 4(1)).

‘The Court’s deference to the sanctity of the jury’s verdict is constitutionally wrong,’ Zander continued. ‘Since 1907, the constitutional sanctity of the jury’s verdict has applied only to a verdict of acquittal. Juries do sometimes go wrong.’ He said that there were various proposals including those of the 1993 royal commission ‘aimed at getting the Court to act as the original framers intended’. ‘In vain. The court remained unmoved.  I am pessimistic as to the prospects of the Law Commission doing better.’

 

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The title of Michael Zander’s lecture was ‘Promoting change on the legal system’ – also the title of his inaugural lecture six decades earlier – and he reflected on a remarkable career pushing for progressive change in the law on a number of fronts: the criminal justice system, access to justice and the development of human rights.

The same year Zander joined the LSE, 1963, he became legal correspondent of The Guardian, a position he held for 25 years contributing  over 1,400 articles. His campaigning journalism led to many significant fundamental changes. The reform that the academic described as being ‘the most useful in terms of its result and certainly most significant for me personally’ were the landmark PACE (Police and Criminal Evidence Act) protections for suspects in the police station. These were introduced following an earlier royal commission – the 1978 Philips royal commission on criminal procedure (which also recommended the establishment of the Crown Prosecution Service). The Philips commission was set up after a 1977 Zander article which appeared in the Criminal Law Review.

The concerns came to the fore as a result of the scandal over the case of Maxwell Confait, a male prostitute known as Michelle, was throttled and his body discovered in a burnt-out flat in Catford, South London in 1972. Three innocent boys were jailed for his murder after making confessions that medical evidence subsequently demonstrated could not have been true (see here). 

The academic recalled how in 1970, Lord Parker, the Lord Chief Justice, announced that hopeless applications for leave to appeal in criminal cases would be penalised by ordering that part of the time spent appealing would not count towards the sentence. ‘The news of this warning must have flashed around the prisons since the number of applications for leave to appeal dropped dramatically,’ he recalled.

Up to 1970 they had been running at the rate of 12,000 a year but collapsed to 6,000 a year. According to the academic Lord Parker’s statement was based on the (wrong) assumption that prisoners would have received the legal advice supposedly guaranteed by the Criminal Justice Act 1967. Zander went on to interview 132 prisoners who had applied for leave to appeal and demonstrated the many had not received legal advice. The Lord Chief Justice change the rules requiring barristers to sign a statement as to whether there were grounds for appeal.

Justice for all
Zander also played a pivotal role in the law centre movement. The academic was the lead author of the influential 1968 Fabian pamphlet Justice for All. He recalled how he came across the law centre idea during a summer in the US on a Ford Foundation grant to investigate legal innovation as part of President Lyndon Johnson’s so-called War on Poverty. ‘In an article in September 1966, I recommended state-funded neighbourhood law firms providing free services in poverty areas,’ he said.

The Lord Chancellor invited him to discuss the idea but ultimately was not persuaded nor did such radicalism find favour with the mainstream legal profession (‘the Law Society said it was strongly against the idea’).

However it was adopted by the Society of Labour Lawyers who recommended the establishment of what it named ‘law centres’. ‘Nineteen months later, on July 17, 1970, I was present at the well-attended formal opening of the first law centre, in a converted butcher’s shop in North Kensington,’ he said. Zander called the introduction of law centres as ‘a significant development in the provision of legal services in poor neighbourhoods’.