Overview of the Book

• Author: Bibi Sangha/Kent Roach/Robert Moles
• Pages: 1-23

CHAPTER

I

Overview

of

the

Book

This

book

discusses

miscarriages

of

justice

in

three

of

the

major

common

law

jurisdictions

—

Britain,

Canada,

and

Australia.

The

objective

is

to

make

clear

that

despite

the

rules

laid

down

by

statutes

and

decided

cases

to

ensure

that

criminal

trials

are

properly

conducted

(the

rhetoric),

there

are

many

instances

where

those

rules

have

not

been

properly

applied

(the

reality).

There

is

now

sufficient

experience

in

all

three

jurisdictions

to

show

that

people

have

been

wrongly

convicted

of

crimes

and

for

us

to

critically

explore

pertinent

issues.

In

all

three

jurisdictions,

there

have

been

cases

where

investi



gations

have

fundamentally

miscarried

and

where

expert

witnesses

have

given

evidence

that

has

been

either

fraudulent

or

wrong.

Our

objective

is

to

bring

some

clarity

to

where

we

are

in

recognizing

and

dealing

with

these

problem

cases.

There

are

marked

differences

between

the

jurisdictions

in

the

proced



ures

available

to

identify

possible

errors.

We

think

that

the

jurisdictions

can

learn

from

one

another

in

determining

how

best

to

move

forward.

We

have

selected

cases

as

illustrative

of

the

issues

and

problems

that

arise.

In

many

respects,

the

lessons

to

be

learned

and

the

guidance

to

be

gained

are

not

jurisdictionally

specific

—

after

all,

the

laws

of

physics

and

of

human

na



ture

are

indifferent

to

many

of

the

features

of

those

jurisdictions

which

make

them

most

distinctive.

Each

of

the

three

nations

is

a

major

common

law

jurisdiction

with

a

suf



ficient

degree

of

similarity

in

its

processes

to

be

recognizable,

one

to

the

other.

The

standards

that

govern

police

and

forensic

investigations

and

prosecutions

in

each

of

them

have

common

features.

Expert

witnesses

often

give

evidence

in

more

than

one

of

them

and

feel

confident

about

what

is

required

of

them.

2

Forensic

Investigations

and

Miscarriages

of

Justice

There

are

differences

in

nomenclature

between

the

jurisdictions.

The

“

Crowns

”

referred

to

in

Canada

are

often

called

“

prosecutors

”

elsewhere.

The

state

or

territory

Supreme

Court

in

Australia

is

the

equivalent

of

the

Crown

court

in

Britain

and

the

provincial

courts

in

Canada.

The

final

appellate

court

in

Australia

is

the

High

Court.

The

final

appellate

court

in

Britain

and

in

Canada

is

called

the

“

Supreme

Court.

”

1

A

word

of

caution

is

also

in

order:

by

studying

“

miscarriages

of

justice,

”

we

are

looking

across

a

broad

range

of

cases

and

considering

those

particular

cases

where

criminal

trials

and

appeals

have

gone

wrong

—

as

identified

by

the

sys



tems

’

own

rules.

2

We

are

aware

of

broader

debates

about

the

precise

meaning

of

miscarriage

of

justice.

Some

argue

that

miscarriage

of

justice

should

be

de



fined

broadly

to

include

convictions

under

unjust

laws

or

through

discrimina



tory

systems

3

while

others,

often

influenced

by

American

innocence

projects

and

DNA

exonerations,

argue

that

there

should

be

a

narrower

focus

on

cases

where

the

accused

has

been

established

to

be

“

factually

innocent.

”

4

This

book

does

not

attempt

to

resolve

this

debate.

5

Nevertheless,

it

accepts

that

a

“

miscarriage

of

justice

”

is

an

expression

which,

although

very

familiar,

is

not

a

legal

term

of

art

and

has

no

settled

meaning.

Like

“

wrongful

conviction

”

it

can

be

used

to

describe

the

conviction

of

the

demonstrably

innocent

....

But,

again

like

“

wrongful

conviction,

”

it

can

be

and

has

been

used

to

describe

cases

in

which

defendants,

guilty

or

not,

certainly

should

not

have

been

convicted.

6

1

In

October

2009,

the

House

of

Lords

became

known

as

the

Supreme

Court;

see

Consti



tutional

Reform

Act

2005

(U.K.),

2005,

c.

4.

2

A

good

theoretical

discussion

of

the

conceptual

issues

involved

in

“

miscarriages

of

justice

”

can

be

found

in

Charles

J.

Ogletree

Jr.

&

Austin

Sarat,

eds.,

When

Law

Fails:

Making

Sense

of

Miscarriages

of

Justice

(New

York:

New

York

University

Press,

2009).

3

Clive

Walker,

“

Miscarriages

of

Justice

in

Principle

and

Practice

”

in

Clive

Walker

&

Kier

Starmer,

eds.,

Justice

in

Error

(London:

Blackstone,

1993)

at

37.

See

also

Michael

Naughton,

Rethinking

Miscarriages

of

Justice

beyond

the

Tip

of

the

Iceberg

(New

York:

Palgrave

Macmillan,

2007)

at

ysjf,

proposing

an

examination

of

“

routine

”

and

“

mun



dane

”

miscarriages

of

justice

that

would

involve

all

successful

appeals.

4

Barry

Scheck,

Peter

Neufeld,

&

Jim

Dwyer,

Actual

Innocence

(New

York:

Doubleday,

2000);

Daniel

Medwed,

“

Innocentrism

”

2008

U.

Ill.

L.

Rev.

1549;

Michael

Naughton,

ed.,

The

Criminal

Cases

Review

Commission:

Hope

for

the

Innocent?

(Houndsmill:

Pal



grave

Macmillan,

2009)

[Naughton,

Hope].

5

But

for

a

discussion

of

the

definition

of

miscarriages

of

justice,

see

Kent

Roach

&

Gary

Trot



ter,

“

Miscarriages

of

Justice

in

the

War

against

Terror

”

(2005)

109

Penn.

St.

L.

Rev.

967.

On

the

dilemmas

of

either

ignoring

or

declaring

innocence,

see

Kent

Roach,

“

Exonerating

the

Wrongfully

Convicted:

Do

We

Need

Innocence

Hearings?

”

in

Margaret

Beare,

ed.,

Hon



ouring

SocialJustice

(Toronto:

University

of

Toronto

Press,

2008)

[Roach,

“

Exonerating

”

].

6

R.

v.

Secretary

of

State

for

the

Home

Department,

Ex

parte

Mullen,

[2004]

UKHL

18

at

para.

9;

Lord

Bingham

[Mullen].