Convicted for crimes that never happened


The Observer Sunday 19th October 2003,6903,1065342,00.html

Following last week's Annual Miscarriage of Justice Day Michael Naughton finds a new category of perverse jury verdicts where the innocent face jail for crimes which never occurred.

The common view of a miscarriage of justice victim is of a person wrongly convicted for a crime that they did not, in fact, commit. More familiar accounts of the causes of miscarriages of justice have focused upon cases of successful appeal against criminal conviction and charted the reasons given by the appeal courts for the initial conviction, most often the perennial problem of prosecution non-disclosure, police error or misconduct, problems with identification, false confessions, perjury or poor defence.

The popular reason cited for miscarriages of justice is that the police and prosecution services are under an enormous pressure, from both government and the public, to tackle rising crime - because the criminal justice system is a human system this leads to inevitable mistakes where innocent victims are unintended casualties in the battle for law and order. There is at least some theoretical merit to that when a crime has actually been committed. But what about the untold number of innocent people who are currently being convicted for crimes that have never occurred?

This is not so far-fetched as it might seem. Recent cases of successful appeal have documented the problem that juries have in adjudicating between competing and conflicting expert forensic scientific evidence.

These include the cases of Sally Clark who spent three years of a mandatory life sentence for the murder of two of her three children who the appeal courts determined had died of natural causes; Florence Jackson, who the appeal courts said died of accidental drowning; Patrick Nichols who spent 23 years of wrongful imprisonment for the murder of Gladys Heath, a family friend, who had accidentally fallen down a flight of stairs; and, Kevin Callan who served three years for the murder of his four-year-old step-daughter Amanda Allman who died as a result of a fall from a playground slide.

These are just a sample of such cases that have been overturned by the appeal courts over the last five years following new forensic evidence.

There are more cases relating to prisoners currently serving life sentences who continue to allege their innocence: Nick Tucker is currently serving a life sentence for the murder of his wife who died following a tragic road traffic accident. Five separate pathologist reports into the case agree that Carol Tucker died of accidental causes.

Jong Rhee is also claiming his innocence following the death of his wife in what contesting forensic science evidence holds to have been an accidental guest house fire; and Angela Canning, who has an appeal pending, is currently serving a double life sentence for the murder of her two children who may have been the tragic victims of 'cot death'.

Such cases continue to question the reliability of convictions based solely on expert forensic science evidence.

To make sense of convictions for crimes that never occurred, you need to consider the current climate of criminal justice in England and Wales. The recent criminal justice bill, which proposed wide ranging reforms of the entire criminal justice system, also included the abolition of many safeguards against miscarriages of justice. Tony Blair has said that these changes are necessary because the present system is ineffectual in obtaining guilty verdicts and too many guilty offenders are said to be escaping their just deserts. While it is true to say that far too many crimes go undetected and police clear-up rates are generally low, the present system is very effective in obtaining guilty verdicts once criminal suspects have been charged - around 95% in magistrates' courts and 87% in the crown court.

Despite such percentages, the criminal justice bill represents a reversal of the principle that it is better that ten guilty offenders are acquitted than one innocent person wrongly convicted, which has long been a cornerstone of the criminal justice system. On the contrary, the operational principle of the criminal justice system now seems to be that the excessive conviction of the innocent is a necessary and palatable fact. Indeed, it can be argued that with the creation of the criminal cases review commission, the system not only officially recognised that miscarriages of justice can and do occur, they have become a necessary requirement. An indicator of a criminal justice system that is truly tough on crime to the extent that it now needs an official body to overturn an increasing number of miscarriages of justice.

As this relates to the issue of the victims of crimes that never occurred, the juries in the various cases, whether already overturned or not, were faced with the impossible task of adjudicating upon highly complex and conflicting expert forensic scientific evidence about which they were not suitably qualified to properly understand. Faced with such a dilemma, and fuelled with the misleading rhetoric that too many guilty offenders are being acquitted, what else could they do except find the defendants guilty? The alternative, that no crime occurred, was a step too far, for it meant risking the release of alleged murderers back into the community with the potential to kill again.

At the same time, the victims of crimes that never occurred also illustrate a category of perverse jury verdicts that has also not previously been acknowledged. Conventionally, perverse jury verdicts are defined as occasions when juries do not comply with the direction or guidance of the courts and return not guilty verdicts in cases where defendants are believed to be guilty. Victims who are convicted of crimes that never occurred turn this on its head and show that juries can be equally perverse when they comply with judicial misunderstandings of forensic scientific evidence and legitimate the wrongful conviction of innocent defendants.

Dr Michael Naughton is a Research Fellow in the Department of Sociology, University of Bristol. He has published widely on the causes, scale and harmful consequences of miscarriages of justice.