The justice system of England and Wales imposes criminal liability with far more ease than it ever removes it. This is not unusual, and the same observation can be made of many criminal justice systems in other countries.
But such tardiness undermines any claim for a system to be just when there has been a miscarriage of justice. The admonition outside the Old Bailey, London’s central criminal court, says “Punish the Wrongdoer”, not punish the innocent.
Last week gave us the latest example of how slowly the wheels of justice turn. In 1990 Oliver Campbell, a man with childhood brain damage, was arrested for murder. He was interviewed some 14 times, on some occasions without any solicitor or independent adult present. He gave inconsistent statements and appeared to make admissions that amounted to a confession.
Campbell was charged. In addition to the (supposed) admissions there was some (slight) identification and circumstantial evidence. He pleaded not guilty. But he was convicted by a jury in 1991 of murder and conspiracy to rob. He was given a life sentence with a tariff of ten years. This was over 30 years ago.
In 1994 he appealed. There was evidence that the co-accused said that the murderer was a different man, but that evidence was ruled inadmissible. There was expert evidence from a psychologist that because of his brain damage Campbell was vulnerable in police interviews. The court of appeal said that such evidence could with reasonable diligence have been available at trial, and in any case the judges were satisfied the jury’s verdict would not have been affected.
Campbell’s lawyer also set out in 1994 that the interview evidence and (supposed) confessions were inadmissible. But the court dismissed the appeal. He was released on licence in 2002, more than 20 years ago.
And yet Campbell maintained his innocence. The Criminal Cases Review Commission (CCRC) put together an appeal. A psychologist instructed by the defence at the first trial, Professor Gisli Gudjonsson, provided fresh evidence of Campbell’s vulnerability beyond mere suggestibility. Another expert listened to the tape recordings of the interviews and said there were significant doubts about the integrity of the confession.
And a further expert, the clinical psychologist Dr Alison Beck, provided evidence (in the words of the court) that “the present approach to assessing the risk of a false confession” was different because “clinical psychology now puts more emphasis on an interviewee’s personal experience. Dr Beck […] regarded the cumulative disadvantage framework, proposed by Scherr and others in 2020, as a scientific development. That framework considers a range of factors which might lead an innocent person to make a false confession. Dr Beck summarised by stating that over the years since 1991, the science has improved but there has also been a changed emphasis on different factors.”
The CCRC applied to the court for an appeal including on the basis that modern psychological practice would now require Campbell's background “to be more rigorously assessed, also taking into account his compliance and memory issues, to examine how this would impact on his behaviour and ultimately his reliability”. Campbell’s defence team, in addition to the CCRC application, put forward another 17 grounds of appeal.
The court of appeal was almost not convinced by any of this 2024 appeal. The additional 17 grounds of appeal were all rejected. A good part of the CCRC application and its expert evidence was also rejected. These were matters which were—or could have been—put before the court at the original trial or at the 1994 appeal.
And here we come to a problem which is a feature of many miscarriages of justice in England and Wales. If the basis for an appeal is evidence which either was or could have been put before the court at trial or on appeal then it does not matter if the court—either the jury or the judge—placed the wrong weight on that evidence, justice has been done. It is not the general role of the court of appeal—including on applications by the CCRC—to place different weight on evidence already considered or to allow evidence which could have been put in but was not.
Instead, the CCRC should normally only apply for an appeal on the basis “of an argument, or evidence, not raised in the proceedings which led to it or on any appeal or application for leave to appeal against it”. In turn the court of appeal should be mindful not to accept evidence unless there “is a reasonable explanation for the failure to adduce the evidence” in the earlier case.
In effect, if a defendant puts forward evidence at trial or on appeal, or could have done so, then usually that is the end of it. If the defendant is convicted, the courts cannot normally revisit that evidence and weigh it differently. There is finality, and a conviction cannot be overturned just because a different court could have taken a different view.
But Campbell’s conviction was quashed, even though almost all of his 2024 appeal was dismissed. There was a particular point which worried the appeal judges. As they described:
“We are nonetheless troubled by one feature of the case. […] in the very unusual circumstances of this case, the principal reason for our disquiet arises from the fact that the fresh evidence would provide a court with the benefit of much more information than was available at the trial about the appellant's mental state when he made his confessions. As a result of the fresh expert evidence, the whole approach to the case would now be informed by a different and better understanding of relevant factors. […] we accept that the fresh expert evidence, in particular that of Dr Beck, adds material information about the risk of a false confession which was not and could not be known at the time. It follows that the conduct of the trial would have been materially different if that information had been known at the time […] The judge would necessarily have been considering submissions in a materially different context. To that must be added the change in practice as to the treatment of vulnerable suspects and defendants and the potential availability of an intermediary to assist the appellant at trial.”
Despite this, Campbell was not altogether saved. The Crown applied for a retrial. The prosecution acknowledged, according to the court, that the relevant events occurred long ago, that the appellant served a lengthy period in prison and has led a law-abiding life in the many years he has been subject to the conditions of his life licence, and that his disability will increase the stress upon him of a retrial. But, the Crown submitted, those matters are outweighed by “the public interest”.
The court of appeal came very close to ordering a retrial. It was, the judges said, “a finely-balanced decision”. But the judges concluded that the public interest in a retrial was “outweighed by the consideration that the appellant—who has served over a decade in prison and has been subject to licence conditions for more than two decades—cannot have a fair trial in circumstances where he will be so severely handicapped in addressing the matters which he would want and need to address”.
This seems such an obvious conclusion to any sensible onlooker that it is disconcerting that the court of appeal even considered a retrial in these circumstances, let alone came close to ordering one. It is also disturbing that, given the grounds for quashing the conviction, the Crown was so insistent on putting a man with brain damage through another murder trial when he had already served a 10-year sentence for the same offence.
A close reading of the Campbell judgment shows in very limited circumstances that miscarriages of justice can be corrected. But that close reading also shows how more likely it is that miscarriages of justice cannot be resolved. The scales of justice, once tilted, should be easier to put right than this.
