"Reluctantly, we uphold the appeal”: The problem with the Court of Appeal
Those words are, I am proud to say, not mine. They are the words of Lord Lane who was “forced” to overturn Anthony Mycock’s burglary conviction in 1984. Mycock was by no means a "lucky duck" criminal who had managed to have his conviction quashed on a faint technicality- he had, as the Court of Appeal was forced to acknowledge, been completely exonerated. It had transpired that the burglary he was convicted of had never happened, and the only witness had admitted that she had fabricated the entire story.
The Court of Appeal, in its modern incarnation, grew out of some legal changes in the early part of the last century. Prior to that criminal appeals had been an even more disorganised affair than they are today; appeals on a "point of law" (where you are appealing the way that the trial judge ruled on something) were very possible to appeal but "points of fact" (where you want to show that the fact pattern relied on by the prosecution was wrong) were much harder to put before a court. The jury's verdict, be it 'guilty' or 'not guilty', had been arrived at in secret, on whatever basis and should therefore be respected as final. The jury had sworn a solemn oath and could be trusted to have returned the right verdict.
It may seem disingenuous that this was the case. Surely, if a jury, or a Magistrate, had convicted a person on incorrect facts, or new evidence had come to light, it would be obvious that the matter had to be looked into again?
Sadly, this was not the attitude of many of the judges of the day. It is no secret that every new crop of judges in those days (and possibly these days, depending on who you ask) was littered with "hanging judges". A "hanging judge" did not just describe any judge who imposed the death penalty- after all, until 1965, murder was punishable with death. So, every High Court judge up until that point will have been forced to impose the death sentence during their career. The concept of a "hanging judge" was far more nuanced than it might seem. It described a judge whose philosophy was that there could be no redemption for murderers, and, as a corollary of that, that the jury system was an unquestionable facility for determining guilt. No re-examination was necessary, nor was it desirable. Judges with such a mentality in this day and age, mercifully, are not less loose with the ability to execute people- but as anyone familiar with joint enterprise in action will know, they still have a frightening amount of power to destroy a convicted person's life. If you accept a jury can be wrong, then it is very hard to reconcile that with a belief that the death penalty should be allowed. It is only by taking the view that jury's verdicts should be final that the death penalty makes any sense.
How does all of this relate to the inadequacies of the modern Court of Appeal? Well, quite simply, a disturbing attitude has filtered down through the years, it still persists today. The question of who makes up the judiciary, as a whole, is my starting point. I am not speaking about the lack of diversity on the bench; I am speaking about the way that judges are selected. It is received wisdom among the legal profession that, generally, you have a better chance of becoming a judge if you spent most of your time as a barrister (or solicitor, in rare cases) prosecuting. If you had a preference for defence work you might be perceived as too renegade to be trusted with a judicial position; you may look out for the interests of the defendant too much, to the detriment of the good working order of society. It is also no secret that the last three governments have introduced a raft of measures to make convicting defendants much, much easier than it was before.
The removal of the prohibition on double jeopardy (i.e. re-trying a person who has previously been acquitted), firstly by the Conservative Government of the 1990s (in cases of bribery of a witness or juror), secondly by the Labour Government (in cases where "new and compelling evidence" emerges) was such a change- but it has so far led to just 7 convictions.
The really insidious changes were to the rules of disclosure in 1996, which made it more difficult for defence teams to access all of the information held by the police on a particular case, and the 2003 changes to the rules on "bad character evidence" (these changes made it far easier for the prosecution to tell a jury that a defendant had previous convictions) and the admissibility of hearsay evidence (indirect evidence, not given in live court, such as where a prosecution witness has signed a statement and then refused to give evidence in court- this deprives the defence barrister of the opportunity to cross-examine the witness).
One of the worst assaults on the defendant's rights came in the form of an Act passed by the Conservative government of the 1990s which seriously limited an arrested person's right to silence, by introducing "adverse inferences from silence" and "adverse inferences from failure to account". This Act of Parliament was an about-face from the prevailing understanding of not only the British justice system, but most justice systems the world over, that no person should be required to answer allegations put to them. It may seem unimportant that a person suspected of a crime has the right to remain silent, until you consider that "failing to account for forensic evidence" might mean being unwilling to give the police possible reasons why a pictogram (one trillionth of a gram) of someone's cells were on your clothes; hardly a reasonable thing to expect an ordinary person without a PhD in forensic science to explain.
In short, the attitude seems to be that more convictions will lead to a safer society. Not all judges take this view, but most do. This "crime control" philosophy demands that the best trials are those in which the prosecution can introduce as much evidence as they like, sometimes unchallenged and often evidence which assassinates the character of the defendant rather than direct evidence about the case in hand. Some judges favour a "due diligence" approach, which holds that if the legal system is to have any dignity, and if convictions are to be safe, then it is vital that the defence have the opportunity to challenge as much evidence as possible; and that evidence which has been obtained illegally is not put before the court, however strong.
The Judicial Appointments Commission oversees the appointment of most judges in this country. Prior to this, the work was nominally done by the Lord Chancellor's office. In reality, this hid an ugly word of Old Boys networks and taps on the shoulder.
You could not apply for any judicial role more senior than a Recorder (a barrister, or solicitor, who sits part-time as a Crown Court judge, trying the more simple cases). If you wanted to be a Circuit Judge or a High Court judge then your academic qualifications or skill as an advocate were far less important than whose cocktail parties you attended and who you had been at school with. So, we did away with this arcane system a decade ago and the JAC replaced it- all is well surely?
Not so. It is true that up to the level of a High Court judge all applications are directed through the JAC, a public body which has an approved selection process and accountability of some sort. But for the two highest ranks of the English bench, the Court of Appeal & The Supreme Court (formerly the House of Lords), it is still up to the Lord Chancellor's office to decide who to promote from the High Court bench. It is a process largely unchanged from how it was 30 or 100 years ago- with a tap on the shoulder being given to those deemed "appropriate" for such an exalted position. It does not take much imagination to conceive of the characteristics that are being looked for. Legal excellence is certainly a requirement, very few career failures make it onto the Court of Appeal bench; an unblemished personal life is a necessity; an understanding that you will not make any dramatic decisions that could upset anybody else's applecart (e.g. a conviction rate obsessed government) also seems to be a requirement.
The odd renegade does slink through the selection process, but the Court of Appeal makes decisions by majority (3 judges, with a majority of 2 needed) and so it is quite rare that they do anything out of the ordinary. It does not take David Icke to draw the conclusion that this is because the Court of Appeal is good, most of the time, for nothing more than a bit of window dressing.
You see, roughly 1,000 full criminal appeals against conviction are made to the Court of Appeal each year (to say nothing of the thousands and thousands more applications made which are refused by the "single judge process"- which I shall explain briefly below), less than 350, in a typical year, lead to any alteration being made to the original decision of the court (by which I mean either the quashing of a conviction, or substitution of a conviction). But, the equation for working out the odds of success for an appellant is more complicated than this. In the 1960s it was decided that it was no good that, in the rare cases where their Learned Lordships agreed that one of their Learned Brothers (as judges refer to one another) in the lower court had gone wrong, the scoundrel in the dock should simply walk free....so a provision to allow their Lordships to quash a conviction but direct a retrial was introduced. Statistics are hard to come by, but it seems that in about 1/3rd of the cases where the Court of Appeal quashes a conviction they allow the prosecution to run a re-trial (depending on the age of the conviction, the severity of the offence and the way the wind is blowing at the CPS then they make or may not decide to actually have another trial). So, the odds of making a successful application to the Court of Appeal, being granted an Appeal, having your conviction quashed and not being re-tried are, by my reckoning, going to be in the 4-5% range (assuming 5,000 applications are made to appeal and roughly 200 defendant's convictions are quashed without a re-trial being held).
Other laws have been brought in to make it harder for good Court of Appeal judges to quash convictions, and easier for bad Court of Appeal judges to justify why they will not quash a conviction. Until the late 1990s, a conviction could be quashed on the basis that it was "unsafe" or that a "misdirection in law" had taken place. This covered most situations where an appellant had a genuine grievance about his or her original trial- either the judge had misdirected the jury, or the police had hidden evidence or a new witness had come forward. In 1997, it was decided that a "misdirection in law" was no longer, of itself, sufficiently good grounds to quash a conviction. The appellant had to prove that not only had there been a misdirection in law, but also that it had led to his conviction being unsafe. This change was justified on the basis that not all misdirections in law would jeopardise a conviction. This may be true, as sometimes, rarely, trial judges go further than they need to in directing a jury in order to ensure that the defendant is only convicted if the jury really is sure of their guilt- but the problem is that these sort of misdirections favourable to a defendant would not be the sort being appealed by said defendant! The only misdirections being appealed would be those where the trial judge had omitted something crucial when addressing the jury, or had coloured his directions by giving an inappropriate opinion of some of the evidence (or of the defendant) etc. So, in reality, this change only cut one way- to the detriment of appellants. It also provided modern "hanging judges" on the CoA with everything they needed to dismiss bothersome appeals brought by, in their minds, clearly guilty defendants who have been nit-picking in an attempt to secure another shot before a new jury.
They could have had a glaring misdirection in law, by the trial judge, highlighted and be free to say, "Yes, the learned judge was wrong, but in my view he was not so wrong that if he had been right the jury might have acquitted- therefore the conviction is safe". Until the change in the law this would not have been possible- they would have had to quash the conviction.
The filtration system used by the Court of Appeal's criminal division is another problem. A single CoA judges hears very brief, very précised bases of appeal. These hearings can be over in a matter of minutes, but the single judge holds the power to either allow the prospective appellant to appeal before three judges or to prevent him from doing so. This is justified on the basis that a lot of appeals are hopeless, and such a justification may well pass muster with the bean counters in Whitehall at the Ministry of Justice, or in the pages of newspapers. BUT, in reality, this justification doesn't pass the smell test. You see, barristers may well be the "mouthpieces" of their clients but that does not permit them to say and do exactly as their clients please. Barristers are also "officers of the court", in the same way as a judge or court usher is, and they owe a duty to the court. They cannot represent a client at appeal on the basis of a hopeless legal challenge, simply to appease the client and to earn money. There is actually a specific, and somewhat misleading, term of art used to describe a scenario in which a barrister is trapped between his client's wishes (which are, notwithstanding the above, usually sacred) and his duties as an officer of the court....he or she is said to be "professionally embarrassed". I have witnessed this happen in open court just once, when an angry defendant demanded that his barrister challenge the admissibility of some disclosure evidence during a murder case, which was actually going to benefit the defendant's case- the barrister stood and announced, "Your Honour I have been instructed to oppose any decision to admit this evidence, I cannot provide any reason and am professionally embarrassed".
On the same basis barristers are prevented from disclosing certain information to juries in the hope of securing a perverse acquittal for their client. A barrister cannot tell the jury how long his client will receive if convicted in anything more than general terms, a fact which has great implications in joint enterprise cases (with jurors being astounded at the sentences handed down the most minor secondary participant). Equally, a barrister cannot tell a jury, "Yes, my client is guilty but you must acquit him as his behaviour was justified". It is an issue which came to the fore in the trial of Pat Pottle & Michael Randle, two activists who broke "KGB spy" George Blake out of prison. The two men were forced to dismiss their barristers and give their closing speeches from the dock. I segue into these two points about barrister's duty to the court only because they have such massive implications for joint enterprise trials. It is fair to assume that a lot more jurors would be in favour of acquittal if they knew the outrageous sentences imposed on secondary parties. Unfortunately, the only way for a defendant to make jurors aware of this is to represent himself.
So, it is quite simply nonsense to say that we need this filtration system to provide "worthless" appeals from taking up time. At any rate, there are provisions for "wasted costs orders" to be made if a barrister wastes the court's time with inane or irrelevant submissions- a humiliating fate no barrister would risk enduring.
The truth is that the Court of Appeal was set up to allow theoretical objections to convictions, but most judges are dyed in the wool believers that quashing convictions should be a rarity. I shall part with the words of Lord Denning, a man widely revered for his championing of the common man or woman, this was certainly true where the little man took on the government in the sphere of the public law....but if you wanted Lord Denning on your side, it was best not to appear shackled in the dock. In an interview about Rough Justice, a pioneering TV programme which sought to uncover miscarriages of justice and bring them to light, he famously said, "Once judge and jury have come to a decision, the media MUST NOT go round trying to get what they call 'fresh evidence' so as to show, if they can that the decision was wrong". The shocked interviewer asked, "Even if that means innocent people in prison", Denning replied, "Yes".
Denning was no worse than any other judge of his day, or of today, he was simply more outspoken. At the release of the Guildford Four he remarked that, "It would be better that we had the death penalty than this appalling vista"...it was understandably assumed that the 'appalling vista' he spoke of was police corruption and the shame of English courts convicting the innocent. In truth, he was observing that if the Guildford Four had been hanged then no appeals would have been brought and the British justice system never would have been disgraced before the world. For the COA the reputation of the system, it seems, is always more important than justice.