When Justice Fails

Like Britain, should we create an independent body to investigate miscarriages of justice? An interview with Professor Graham Zellick

by Gordon Campbell

Arthur Allen Thomas, David Bain, Rex Haig, David Dougherty, Scott Watson…almost every major criminal case in New Zealand seems to have left large numbers of people with the feeling that our justice system regularly gets it wrong, and can’t be relied on to either (a) convict the right person or (b) manage the proceedings of justice in a way that instills confidence that the ‘beyond reasonable doubt’ standard has been properly met.

Britain has done something about it. It took several notorious cases where a miscarriage of justice – or, as some have dubbed it, ‘a carriage of misjustice’ – occurred, before it did so. Namely, the Birmingham Six and Guildford Four cases. In the mid 1990s, an independent body called the Criminal Cases Review Committee (CCRC) was set up by the British government to investigate applications from the public for the review of possibly wrongful convictions, after the appeal process has been exhausted.

Scotland has a similar system, with slightly different rules and powers. In fact, the Lockerbie bomber Ali al-Megrahi was well advanced with an appeal for wrongful conviction to the Scottish CCRC when the infamous plea bargain to release him back to Libya on compassionate grounds was struck, on condition that he dropped his appeal proceedings. If the politicians in Scotland and Britain had hoped that the al-Megrahi plea bargain would save them from the embarrassment of having jailed the wrong man, they were sadly mistaken. Gareth Peirce, the lawyer who defended the Birmingham Six, has summarised the al-Megrahi situation here.

In passing, the political machinations surrounding the Lockerbie bomber case provide some strong reasons why the New Zealand method of handling such cases – leave it to the executive, and the Justice Minister’s discretion – is a bad idea, and a violation of the proper separation of powers. Arguably, politicians should not be allowed to intervene in the work of the judiciary to fix things up, when and how they see fit.

Between 2003 and late 2008 the British CCRC was headed by Professor Graham Zellick, a recent Law Foundation visiting fellow to New Zealand. On Zellick’s watch, the CCRC had to grapple with one of its thorniest problems – what happens when expert witnesses are in conflict, and when juries have to guess which expert is the more reliable? The main case in question involved Sally Clark, a solicitor wrongly convicted of murdering her children – largely on the basis of expert prosecution evidence about Sudden Infant Death Syndrome given by Sir Roy Meadow, which was later found to be fallacious. Belatedly, Clark was exonerated, but she later committed suicide [See correction below].

The dodgy reliability of expert witnesses – and the reliance that juries place on them – is a worldwide problem. Cameron Todd Willingham for instance, was executed in Texas in 2004 for the arson murder of his children, on the basis of an expert analysis of the fire scene. More sophisticated forensic analysis – after Willingham [pictured left] had been put to death – has now proven that the house fire was an accident, and not an arson at all.

The Willingham case is one of the clearest examples of the US capital punishment regime executing an innocent man.

In New Zealand, expert ballistics evidence played a central part in the prosecution and eventual conviction of the recently paroled John Barlow, even though the work of the US expert concerned has since been discredited.

Charles Peters testified in 1995 that forensic testing known as comparative lead bullet analysis showed bullets found at the crime scene matched those belonging to Barlow. The tests have since been discredited worldwide for providing a high number of false matches.

Carrying out investigations into wrongful convictions is never likely to be a widely popular process. Politicians prefer to be seen to be supporting the victims of crime, rather than the victims of the justice system. Judges, while they may privately concede they are fallible and would welcome any competent body that created more confidence in the justice system, are also likely to have misgivings. The mere existence of a permanent body like the CCRC indicates that the Police and the courts routinely get the process of justice badly wrong. Some people would prefer to perpetuate the fiction that this doesn’t happen.

A few years ago, retired judge Sir Thomas Thorp issued a self-funded report that found our provisions for dealings with miscarriage of justice to be inadequate – and he called for New Zealand to create and maintain an independent body dedicated to investigating and helping to correct wrongful convictions. As Graham Zellick explained in this 2009 speech .

the mere fact of having a respectable place where conspiracy theorists and the genuinely aggrieved alike can take their evidence for expert assessment provides a social benefit in itself. More importantly though, the CCRC is a mechanism for detecting and correcting genuine cases of injustice. Werewolf editor Gordon Campbell spoke with Professor Zellick about the CCRC and its work, during Zellick’s recent visit to Wellington.

[Correction: in the copy above and in a question below there is a reference to Sally Clark having committed suicide. In fact, the coroner ruled that Ms Clark died of acute alcohol intoxication in her own home in March 2007 , but that there was no evidence she had intended to take her own life.]

Campbell : The CCRC (Criminal Cases Review Commission) was set up in the wake of the Birmingham Six case. New Zealand doesn’t have such an independent body to investigate whether a criminal conviction is unsound. Is there an argument in principle for having such a body, with or without the catalyst of a famous miscarriage of justice ?

Zellick : Yes, there certainly is. It is often the case that major social reform is precipitated by some crisis or scandal or disaster. But all that does is provide the momentum for government to do something. There’d been discussion in Britain for ways to do something about miscarriages of justice for years. The idea of removing it from the executive and creating an independent body was not by any means novel, but governments often don’t tackle issues of this kind until something forces their hand. You mention one case – there were actually a whole series of serious miscarriages of justice which eventually came to light, and were corrected.

Leaving aside the political aspects – what is the principle involved that necessitates having such a body?

The fundamental principle is that the door to justice in criminal matters should never be firmly closed, however long after the trial and appeal. That’s something very different from the situation in civil justice where you have to have finality because people base their affairs on judicial decision, and finality is everything. But on the criminal side, finality is not necessarily justice. There’s a secondary point that arises, and that is – what is the principle that governs who should be there to deal with these things ? And there is a principle that says it shouldn’t be the executive…

That’s what I wanted to ask, because our current position is that we do have a royal prerogative of mercy, and we do have the executive in the shape of the Minister of Justice occasionally exercising his discretion to launch an investigation and recommend that matters be sent back to the courts for consideration. What’s wrong with that model?

Everything. New Zealand is not unusual. That is the common Anglo law Commonwealth situation, where the prerogative rests with the Crown and that translates into whatever the local arrangements are in Canada, Australia, or New Zealand. It was the situation in Britain until the mid 1990s. What’s wrong with it is two fold : first of all, if you analyse it, it does not accord with the proper sphere of executive action. Interference in individual cases within the justice system is no longer, in principle, regarded as being within the proper sphere of executive action. I think that is now generally recognized as a constitutional principle. We’ve sharpened up our ideas on the separation of powers in recent years.

So the risk is that the situation may become politicized and the discretion exercised for political favour or gain?

Or even less sharply, that Ministers have more pressing matters on their agenda, they don’t want to be distracted, they don’t have the time to give it their attention, their officials may realize from time to time that the Minister isn’t very interested – or that he is very interested. It works in very subtle ways, It may not be as crude as to say that there may be direct political manipulation of the process. The political arena is a very sensitive and curious and turbulent one.

And the issue of public confidence in the process then arises.

Absolutely. And that, without doubt, is fundamental. No system involving a ministerial decision and the use of civil servants is ever – in my view – going to command sufficient public confidence. Also, those systems are very rarely transparent so you don’t have a clue what’s gone on, what’s going on, and how the decision was reached. And also they don’t normally have – though I suppose theoretically they could have – the necessary investigative powers that, in my view, are essential.

You made the point that there must be no point of finality in the criminal justice system, in that the door must always be left open to correct an injustice – but what comfort can that offer to the victims of crime?

You have to have other mechanisms for dealing with the victims of crime. In some respects of course with terribly serious crimes, you can’t make adequate recompense. It so happens that Britain happens to have the most generous system of compensating the victims of crimes of violence of any country in the world.

What I’m getting at is that finality is important for the victims of crime too, to enable the feeling that justice has been done –

And that their misery is at an end ?

Yes. Because only then, in the cliché term, is ‘closure’ possible.

That’s absolutely right. I have to tell you that any review commission has to tread warily, and has to be very sensitive. We certainly don’t go troubling families and victims unless you have to. And if possible – and in most cases this is what we manage to do – we can begin and complete a case without them ever knowing that it been the subject of an application. When we do have to open it up and possibly speak to them or – if we don’t, and make a referral – of course we understand this is not going to be easy for them. And we have in place elaborate protocols to ensure they are the first to know the outcome, that they are advised, and that there are authorities there to support them. The only thing I can say is that this cannot be, and could not be allowed to be, a reason for not reviewing a miscarriage of justice.

If only because closure also depends on the right person being convicted ?

It does.

The underlying assumption is that truth can be arrived at by investigations launched by the CCRC. Isn’t that a sign that the adversarial method has failed, and that there should be more room for the inquisitorial method within normal court proceedings?

I think there’d have to be a far larger number of cases where things had gone wrong to support that thesis. It’s a very small proportion of cases that give rise to any issues and on the whole, the adversarial system works very efficiently. If I were given the choice of trial by one method or the other, I must say I’d go for the Anglo-American adversarial method any day of the week. When you reach this point [of bringing in the CCRC] you have to use different techniques. Just as you don’t say to the Police, yours should be an adversarial process. Because it can’t be. And neither can a review commission’s.

Well, let’s look at those numbers. You get about 1,000 applications for review a year. You send back 40 or 50 a year for the original appellate court, and have about a 70% success rate off convictions quashed. Are those numbers relatively constant, year by year?

They are, curiously enough. They’re very constant. I’m no mathematician, and I don’t understand why it is – yet mathematicians apparently do – but these numbers hardly fluctuate.

That’s interesting. Because it indicates that there is a chronic, fairly predictable level of error in the British justice system. Certainly one high enough to justify the CCRC’s ongoing existence.

I have absolutely no doubt that if there were a similar Commission here, you would find the appropriate level would be very similar to the British experience, and the Scottish experience, in proportion. And for the same peculiar reason, it would remain fairly constant. You might get blips now and again – because there might be for instance, a rash of cases on a particular matter. We had some malpractice on the part of Customs and Excise at one point which necessitated us investigating and referring a terribly large number of cases to the Court of Appeal. All of which were quashed.

Given that the CCRC itself is not infallible, couldn’t there be a similar chronic level of error in the decisions the CCRC makes to turn down applications?

Oh, of course. And people come back to us. People are allowed to renew their applications any number of times. The only thing we say is that there has got to be something new…. And there have been cases where people have come back a second or third time, and it has been referred at that point.

And your decisions are subject to judicial review – so in terms of Who’s Watching The Watchers, there is someone looking over your shoulder?

Absolutely. Though the judicial review has to be on legal grounds. But I have to say there are cases where we say we found no basis for taking it forward, and that was because we found no basis for taking it forward – that doesn’t mean that such grounds might not exist. But we didn’t find them. There has to be some new evidence or argument – and that has to be discoverable – and sometimes..well, there may be a witness or a bit of evidence out there, but if you can’t find it, you can’t find it.

Just to be clear : a CCRC recommendation doesn’t establish innocence, but it assesses whether fresh evidence or a re-evaluation puts the ‘beyond reasonable doubt’ test’ in jeopardy, correct ?

Yes. We don’t make any recommendation at all. We simply have to decide whether there is a real possibility the appeal court might quash the conviction – and that is on the basis of whether that conviction is safe.

The element of subjectivity here surely, is that you can’t have any idea whether the new evidence would have impressed the original jury as much as it impresses you?

Yes. And that’s why ultimately it is for the Court of Appeal and not for us, to decide. They have more experience than we do, and they are the people to make the right assessment.

And in this process, you don’t presume to recreate the original circumstances of the trial?

No. And of course, that’s not what the Appeal Court does. Put it this way. For the conviction to be safe, the Court of Appeal would have to be convinced that if that evidence had been before the jury, it would still certainly have convicted. If there’s a doubt about that, then that conviction isn’t safe. The answer then is to put it before a new jury, and you have a retrial. That’s where you balance the competing interests in the criminal justice system.

I wonder what impact you would think that cutbacks in legal aid will have on the CCRC’s work. Logically, wouldn’t cutting back on legal aid be likely to generate more miscarriages of justice?

Yes. It is worrying. As chairman, I never got drawn into the fairly fierce debate about the adequacy of criminal legal aid. I didn’t think it was right to do so. There is no doubt that the adversarial system is critical to the effectiveness of a criminal trial in the common law system. That pre-supposes competent lawyers. If there are serious cutbacks, all sorts of things can happen. Any diminution in the quality of the criminal bar for example, and any curtailment of adequate preparation time and so on, can impact very heavily. Even at the moment, a very significant proportion of applications to the Commission are based on inadequate legal representation.

In New Zealand, we’ve just had legal aid brought back under the control of the same Justice Minister [Simon Power – pictured left] and executive that also holds the discretion to re-open unsafe convictions. In Britain, is legal aid administered by a truly independent body?

There is some kind of agency or body – called the Legal Services Commission – that is responsible for it. Ultimately of course, it is the Ministry of Justice and the Treasury that determine the overall budget, and the Legal Services Commission that figures out how it will work in practice. Its under tremendous strain at the moment. There is, I know, much concern in the legal profession about its future.

This cutback in legal aid is occurring at the same time the CCRC’s own resources to correct those failings are also being reduced, correct? What cutbacks occurred on your watch?

On my watch? I can’t recall the exact figure.

What was your overall budget ?

It was about 8 point something million [pounds] in my time. We were expected to make so-called efficiencies of something like 3% a year.

I saw a figure of about 300,000 pounds in cutbacks a year, in each of three years.

Well, that’s right, that’s right. We certainly re-arranged our affairs so that in my time, we reduced our expenditure by probably about half a million pounds a year. But still there was the expectation was that each year the budget would reduce.

What was the rationale for that?

Just the curbing of public expenditure. I don’t think we were particularly singled out. I wanted us to be singled out because I said : look, you are applying these so called ‘efficiency savings’ even-handedly across all arms-length bodies like ours. Actually, that’s not the way to do it. Because the needs of some are different from the needs of others. It needs to be done selectively, and with discrimination. But they weren’t very interested in that argument.

The CCRC seems to be the sort of body that might be chronically lacking in powerful friends. Politicians always like to be seen as being friendly to the victims of crime. And the judiciary – though it wouldn’t wish you ill – mightn’t be too upset if hardship was inflicted on an organization set up to second–guess their decisions.

Well, that’s right. And the political imperative that gave rise to its creation soon passes. You become a bit of the furniture. And there certainly wasn’t the ministerial interest in us that there had been in the early days. Sometimes that’s not bad. You fall off the radar screen and than can have its advantages. But that was certainly true in my time. It was a Labour government under Prime Minister Blair, and you’re quite right – all the rhetoric was about re-balancing criminal justice, and favouring the interests of victims and so on. It was indeed a worrying time. The interests of justice seemed to have been effaced. I didn’t feel we were a high priority, and didn’t feel we were much loved by Ministers. We weren’t hated by them… But we did have influential friends. The senior judiciary were very great supporters. I worked with three different Lord Chief Justices, every one of whom was a fervent supporter of the Commission privately, and publicly. As were most of the senior judges in the Court of Appeal…and a good number of members of Parliament. I never felt friendless.

Lets talk about a really contentious issue in your work : the role of expert witnesses in criminal trials. You had Sir Roy Meadow, an expert witness in the infamous Sudden Infant Death Syndrome case who testified that the odds of two SIDS deaths in the same family were 73 million to one, when in fact, the more accurate figure was 200 to one. How can juries negotiate a situation where there are competing experts ?

Very difficult, isn’t it? You only have to think about it to realize that’s not really why we have a jury system. Its a very odd situation. Its one thing to drag ordinary folk off the streets and ask them to decide whether Miss X or Mr Y is telling the truth and which is the more honest person – that’s the sort of thing we expect juries to be able to decide. Is this dishonest? That’s what we expect them to decide, in certain kinds of property cases. That’s what juries are supposed to be good at.

But the notion that a jury can adjudicate between the expert opinions of Professor X and Doctor Y is ludicrous. It is absolutely ludicrous – and it is to place upon the jury a burden for which they are wholly ill-equipped. To make our system do that, to my mind, makes no sense whatever.

Given the tragic outcome of that SIDS case – where we had a grieving mother [Sally Clark pictured left] wrongly convicted of murder and who, even after being exonerated, committed suicide – you would think that would impel the system to give juries more assistance about how to cope when the experts on the stand can’t be trusted, or contradict each other. Has anything been done?

No. No, nothing, really. I should say that Meadow didn’t just give evidence on that one case, which was particularly notorious. He was the principal prosecution witness for the Crown in any number of civil and criminal cases involving children – so his evidence was very widespread, and was relied on very heavily by the Crown.

It is easy enough to identify the problem – but what sort of structural changes would actually help the jurors faced with this dilemma?

I think the fundamental change that has to be faced is that you can’t leave those issues to the jury. We don’t expect the jury to listen to prosecuting counsel and defence counsel on technical points of law and reach a view on which is the correct one. The judge tells them : ‘This the law, I direct you. Matters of fact are for you, matters of law are for me, and I will tell you.’ Of course, they have this residual constitutional right to ignore what the judge tells them, but that’s a different issue.

If, as you seem to be intimating, we should expand the judge’s instructional role to include scientific and technical expert evidence as well – wouldn’t we, at the very least, need to require the judge to provide a rationale for the direction he has given?

I’m sure that’s right. Otherwise there would be no way of knowing how he has come to that conclusion, and why they favour one view rather than the other. And then you may well say – what expertise does the judge have on technical issues? So you may have to find some method of ensuring that the judge is advised…and going a stage further. When you think about it, if you really do have a situation where there is a real conflict on a fundamental issue between the experts on either side – and that evidence is absolutely crucial to supporting any possible conviction – can you really say the Crown has proved its case beyond reasonable doubt?

We have had this [problem] in the Sudden Infant Death Syndrome cases. We have had it in the Shaken Baby cases, where there is no certain science and the clinicians are very undecided as to when you can be certain – you can never be certain – that the baby has been shaken to death.

We had it in another notorious case, where parents were convicted of killing their baby by forcibly administering salt to him. That was over-turned on appeal, but they were initially convicted of murder. It turned, as I recall, on expert witnesses for the Crown saying that there was no way that a baby would somehow get this salt down a baby’s throat without someone really forcing it. And that was of course seized on by the jury. It later emerged that the whole thing was fallacious, and there were other explanations for the high concentrations of salt.

Given the inherent corroboration problems in rape cases, do you support the moves to spare witnesses from adversarial questioning?

Oh, I don’t think you can do that. But we’ve gone a long way in England to building a regime which balances the competing interests. In a matter as serious as a rape allegation where the consequences to the defendant are so significant and the sentence so severe –

And the nature of the crime is such there is usually no other witness to establish the facts?

Absolutely true. To remove that in any way from the adversarial process is actually unthinkable. What we have done is introduce limitations on some of the lines of questioning that used to be very common, and which have now been adjudged to be immaterial, and prejudicial.

Providing the guidelines of questioning are followed, is there anything inherently of concern about convictions based on the testimony of children?

I have no experience of that, to be honest. I think children probably present exactly the same sort of problems as adults. Some are believable, and some aren’t. Some know when they are telling the truth, and some don’t.

Point being – a conviction that relied on the testimony of a child or a group of children, might be seen by a bloc of public opinion as prone to fancy or influence or to the eliding of truth and fantasy, such that it would be inherently risky to rely on it. What do you think?

Its very difficult and slightly dangerous to generalise. You have to fall back and say that you have to treat every case as it is. It would be very dangerous, given the incidence of child sex abuse, to say that children can never give evidence that could support a conviction.

You’ve been publicly critical about lip reading experts and earprint experts. Are there any other kinds of experts that you think should not be recognised by the courts as being expert witnesses?

Can’t think of any at the moment. But I just think the courts need to be just a little bit more cautious about admitting people as experts, or as representing disciplines that can rightly have experts. We’re just a bit too casual about this in the English courts. The Americans have more rigorous tests of what can constitute a discipline whose experts can be called to give evidence in a criminal trial.

Finally, to summarise – why should the CCRC be allowed to second guess the joint work of the judge and the jury in the original trial, given that those parties heard all the evidence in context, and were able to judge in person, the relative reliability of witnesses?

And the answer is : we don’t. And it wouldn’t be right to do so, you’re absolutely correct. That’s why the jurisdiction only comes into play when there is something new, and which by definition, wasn’t before the trial judge and trial jury or indeed, the Court of Appeal. So, it is premised on the notion that something – whether it is legal, or factual – something new has emerged which justifies further consideration. And that further consideration is by the court, and by the appropriate and relevant appeal court. The CCRC system we have fully respects the role of the justice system, and of the judiciary. We don’t in any way replace or oust them. We simply provide a mechanism for laying before them something new that suggests the conviction isn’t safe.

That process must entail some initial guesswork on your part, as to whether the Court of Appeal will buy in and treat the new elements as substantive – and offering the chance of a re-evaluation.

Yes, that’s right. You know, if we went about our job in a reckless, casual or neglectful way, I don’t think we would have won the confidence of the appeal court that we have. I said earlier that successive chief justices and senior judges of the criminal division of the Court of Appeal have been very strong supporters of the Commission. While there may have been the odd case now and then that they thought ought not to have troubled them, and where we may well have spent our energies elsewhere, the fact is we have acquired a quite enviable record – which is a tribute to my colleagues that do the work, day in and day out – and which we would not have if we were putting rubbish before the Court of Appeal.

Yes, but to your critics that’s precisely the problem. They would regard a quota of referrals that’s satisfactory to the upper realms of the judiciary as being indicative of a problem. They strongly believe that you should be ruffling their feathers a bit more by sending them more cases, because the chances are – by playing footsy with the judiciary – you are neglecting cases that may have merit.

Yes, and the Commission has to tread that narrow line. Because you’ve got those on the one hand – the defence constituency – that says the Commission is far too cautious, and should be sending much more to the court. And you’ve got the court whose confidence one wishes to retain. How do you cope with that? You cope with that by simply following a line of integrity and carrying out what you judge to be your statutory duty. The fact is – 30% of the referrals don’t result in anything being overturned. It doesn’t have to be a cast-iron certainty to be referred.

I wasn’t there for the first seven years of the Commission’s life. But you can imagine…when it was set up and started work, the first group of commissioners felt their way gingerly, were very uncertain. They weren’t all by any means, criminal lawyers. They had to understand how the Court of Appeal dealt with these things. Over the years they got some feedback, and a sense of how referrals were dealt with.

The danger by the time I was there – and certainly by the time I’d been there a year or two – was that actually you could predict the final outcome quite easily in about 98 % of the cases. The danger is that then goes further, and you’re sitting on the Commission and you start thinking ‘Oh, there’s no way this conviction is going to be overturned.’ And the others say ‘Yeah, that’s right, there’s no way the Court is going to overturn this.’ And so you don’t refer it, and that 70 % then starts creeping up. We could hit 100% without the slightest difficulty. Or at any rate,95 or 96 %.

So that’s what you’ve got to guard against : of simply, through experience becoming the Court of Appeal and doing their job for them by sending them only what Lord Bingham once called the ‘racing certainties.’ So I think to have kept it at 70% is pretty good. It takes some effort to do that.