miscarriage of justice 2

8/9/2019 Miscarriage of Justice 2

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A miscarriage of justice occurs whenever suspects or defendants or convicts are treated

by the State in breach of their rights...A conviction arising from deceit or illegalities is corrosive of the State's claims to

legitimacy on the basis of its criminal justice system's values such as respect for

individual rights. In this way, as well as the undesirable fate of the individual, the "moral

integrity of the criminal process" suffers harm. Moreover, there may be practical

detriment in terms of diminished confidence in the forces of law and order leading to

fewer active citizens aiding the police and fewer jurors willing to convict even the

blatantly "guilty".1

The is quotation is taken from Miscarriages of Justice which is an update of Justice in Error,

published in 1993 in the wake of the infamous Birmingham Six and Guilford Four cases. The book questions whether the criminal justice system has been sufficiently reformed to prevent similar

gross miscarriages of justice. It is written in the reasonable and rational style of its editors - a

professor of criminal justice and a barrister. In such abstract language it is possible to question 'the

State's claims to legitimacy' without being accused of being an anarchist. What such formal and

objective language cannot do is express or comprehend the bitter anguish and depths of despair of

those who have been subject to a gross miscarriage of justice.

Indeed, it might be that it is simply impossible within the sober language of fact, within the

language of the law as rational discourse; to express such actualities. It may be that other media –

such as poetry, music or painting – are required to evoke a sufficiently powerful response. But since

language is the tool to hand, the following will have to suffice to make a connection between the

1 Miscarriages of Justice : A Review of Justice in Error, Clive Walker and Keir Starmer (Oxford, 2004) page 33



abstract and the concrete. Between the corrosion of state legitimacy and the experience of an

actual human person who lost his rights 30 years ago. Between a conviction arising from illegality

and the walls of a real prison. Yet such connections must be made if a miscarriage of justice is to be

overturned.

To begin, here is the criminal justice system speaking in words as dry as dust regarding appealsagainst a miscarriage of justice.

“(2) The Court of Appeal shall, in considering whether to receive any evidence, have

regard in particular to—

(a) whether the evidence appears to the Court to be capable of belief;

(b) whether it appears to the Court that the evidence may afford any ground for

allowing the appeal;

(c) whether the evidence would have been admissible at the trial on an issue which is

the subject of the appeal; and(d) whether there is a reasonable explanation for the failure to adduce the evidence at

the trial.”

The following quotation is from a book by Bob Short who lived as a punk squatter in Campbell

Buildings near Waterloo in the south London borough of Lambeth in 1979/80. The police who

allegedly ' played a game where they threw tiny stones at [Scarecrow's] open mouth to see who

could score the first point' would have been based at Kennington police station.

Scarecrow had been the first to die. Loaded up on sleeping pills, he went up to the roof for

reasons unknown. He might have been bored, depressed or just needed a minute to himself to

watch the moon come up over the buildings. Who knows why any of us do anything? He

either overdosed or fell asleep and froze. We never found out which. By accident or design, it

was a sad and lonely passing. In the morning, the police played a game where they threw tiny

stones at his open mouth to see who could score the first point. Grief spilled out onto the

courtyard below but the authorities had marked out their patch with strips of Metropolitan

Police tape, He belonged to them now.

From that moment on, death watched over us with an icy gaze. It was capricious but it would

not be denied. Parents came to reclaim bodies, cut hair, choose suits and re-brand with long

abandoned names. Their control, thought long lost, won out in the end. These prodigal sons

and daughters found repose in the leafy suburbs and towns from whence they thought they had

finally escaped. They had found their little piece of England whether they liked it or not.

The ghosts of those we knew and loved were never laid to rest. No graves marked the names

we spoke. Their stories were wiped clean and altered as if Jesus was a real person and he

himself had washed and forgiven them of their sins. History is always written by the victor

and the battles we waged looked all but lost.

The world was dark and that darkness was rising up against us.

It was police officers from Kennington who responded when Gary Critchley was found

lying seriously injured, and covered in blood, on the pavement outside [Campbell

Buildings] in the early hours of Saturday 28th June 1980. He had sustained serious

injury, including frontal lobe damage to his brain (caused by hammer blows to his

head,) a broken back, arm, and ankle. Analysis of his blood at the time indicated the

presence of alcohol and sleeping tablets. The murder victim [Edward McNeill] was



found in an upper-floor room of the same squat building. Circumstantial evidence, and

physical forensic evidence obtained at the time, suggested that both Gary, and the

victim, were attacked by a third party. Analysis of the blood found on Gary proved that

it had come from his injuries exclusively. None of the victim’s blood was found on

Gary.

The evidence that was used to link Gary to the crime scene consisted of an un-tiedtraining shoe, found on his left foot when was discovered lying in the street. The

Prosecution alleged that prints matching the training shoe were found at the crime

scene. This training shoe was two to three sizes too small for him, and was not in

accordance with his usual type of footwear. He was found wearing a black, laced-up

work boot on his right foot (this fitted him correctly and was identified as being his

usual footwear).

The case for the prosecution suggested the following improbable sequence of events:

That Gary had attacked the victim, changed one of his shoes, self-inflicted a serious

head-wound with the hammer (a wound of sufficient severity to cause brain damage) – after he’d turned it around to ensure it was consistent with the blows to the victims

head- and jumped from the upper floor window of the fourth storey squat onto the

pavement below.

Witness statements for the prosecution were contradictory, inconsistent and contained

discrepancies. Statements given to police by the other squatters had initially said that

two to three hours after Gary and the victim had been seen entering the squat, three men

had arrived in a car. At least one witness described two of the men going upstairs to the

squat, while one man kept watch downstairs. This account was subsequently changed

when presented as prosecution evidence in court. The defence counsel failed tochallenge the witnesses about the discrepancies between their statements and the

evidence given in court and relied upon by the prosecution.

In May 1981, Gary was convicted of the murder of Edward McNeill. Gary was 17 at the time.

Although the original sentence was that he serve 9 to 10 years, Gary is still in prison 29 years later.

A miscarriage of justice? No doubt, but one which has yet to be righted. To be righted, the evidence

presented at the original trial will have to be unbelieved. If it can be found, necessary fresh evidence

(capable of belief) will have to be presented, sufficient to cast fatal doubt upon the reliability of a

conviction based on an 'improbable' sequence of events.

If a sufficiently concrete piece or pieces of fresh evidence cannot be found, a more abstract attack

may be necessary. Here the right to a fair trial would be involved. However relevant legislation (The

Criminal Appeal Act 1995) was enacted prior to the Human Rights Act 1998. The Home Secretary

in 1998, the Rt Hon Jack Straw MP stated that “The Act will guarantee to everyone the means to

enforce a set of basic civil and political rights establishing a floor below which standards will not be

allowed to fall”. Such Rights may be regarded as fundamental in a civilised Society.

The right to a fair trial is contained in article 6 of the European Convention on Human Rights.

1.In the determination of his civil rights and obligations or of any criminal charge

against him, everyone is entitled to a fair and public hearing within a reasonable time



by an independent and impartial tribunal established by law. Judgement shall be

pronounced publicly but the press and public may be excluded from all or part of the

trial in the interest of morals, public order or national security in a democratic society,

where the interests of juveniles or the protection of the private life of the parties so

require, or the extent strictly necessary in the opinion of the court in special

circumstances where publicity would prejudice the interests of justice.

2.Everyone charged with a criminal offence shall be presumed innocent until proved

guilty according to law.

3.Everyone charged with a criminal offence has the following minimum rights:

(a) to be informed promptly, in a language which he understands and in detail, of the

nature and cause of the accusation against him;

(b) to have adequate time and the facilities for the preparation of his defence;

(c) to defend himself in person or through legal assistance of his own choosing or, if he

has not sufficient means to pay for legal assistance, to be given it free when the

interests of justice so require;

(d) to examine or have examined witnesses against him and to obtain the attendanceand examination of witnesses on his behalf under the same conditions as witnesses

against him;

(e) to have the free assistance of an interpreter if he cannot understand or speak the

language used in court.

Considering any possible conflict between the Criminal Appeal Act 1995 and the Human Rights Act

1998, the Council of Her Majesty's Circuit Judges had this to say about the right to a fair trial.

This is one of those basic rights establishing a floor below which standards will not be

allowed to fall. It is unlawful for a Court to act in a way that is not compatible. Thus

where a trial takes place that is not fair the Court conducting that acts unlawfully. Insuch circumstances an Appeal Court must take account of that. In doing so the Appeal

Court must construe the powers contained in Section 2 of the Criminal Appeal Act 1995

in a way that reflects the Convention Right to a fair trial. Thus where a trial was unfair

the Appeal Court must act to protect the Convention Right even if to do so results in a

conviction being overturned.2

Presumption of innocence.

'Everyone charged with a criminal offence shall be presumed innocent until proved guilty according

to law.' Fine words, but what of Gary Critchley's case? As a (recent) resident of CampbellBuildings, as a teenage punk squatter, was he already considered guilty even before any actual

crime had been committed?

Although Gary's case is the most extreme example, the criminal justice system and the 'forces of

law and order' seemed to have had little doubt at the time that the punk subculture constituted a

criminal class and so had no individual human rights. Thus they were collectively assumed to be

'guilty until proven innocent'.

Fortunately, most encounters between members of the punk subculture and the criminal justice

system were for minor offences. Any resulting convictions were therefore the most minor of

2 http://www.judiciary.gov.uk/docs/cocj/criminal_sub_committee/responses/response_quashing_convictions.pdf

accessed 27 April 2010.

http://www.judiciary.gov.uk/docs/cocj/criminal_sub_committee/responses/response_quashing_convictions.pdf





miscarriages of justice. The resulting lack of faith in the 'moral integrity' the criminal justice process

did not spread beyond members of the subculture until the more high profile and serious

miscarriages of justice considered by Walker and Starmer were revealed.

The most high profile cases of miscarriage of justice discussed by Walker and Starmer were those

of the Birmingham Six and Guilford Four. Here the victims of the miscarriages were members of .a

minority community, that of the Irish in England. In the early 1970s the Provisional IRA carried out

a bombing campaign in England. As a result. All members of the Irish community in England wereat risk of being suspected of terrorist sympathies. This irrational suspicion led to the miscarriages of

justice.

With the benefit of thirty years of hindsight, and with numerous examples of gross miscarriages of

justice having come to light, would any 'reasonable person' ( in English law an ordinary person, 'the

man on the Clapham omnibus' ) now consider that Gary Critchley's conviction was 'safe'? That

Gary was fairly treated by the police in 1980 and received a fair trial in 1981? The moral panic

provoked by punk along with the categorisation of punks as 'folk devils' belonging to a subversive

and criminal subculture is part of history now. Most punks, even those over whom death watched

with an icy gaze at Campbell Buildings, have become all but indistinguishable members of

mainstream society.

Most, but not all. For some, early death intervened, denying them the opportunity of to escape the

nightmare and become ordinary individuals. For one -Gary Critchley – it is the State and its

criminal justice system which has left him fixed and frozen, actually imprisoned for the past thirty

years in a nightmare which would otherwise have been but a brief moment of his life.

miscarriage of justice 2

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