IAS Justice Programme Launch

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Launch slides from the Miscarriages of Justice programme hosted at the Institute for Advanced Studies in August 2009.

Launch slides from the Miscarriages of Justice programme hosted at the Institute for Advanced Studies in August 2009.

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  • Also included some BA Legal Studies students and open to a wide range of students potentially
  • Also included some BA Legal Studies students and open to a wide range of students potentially
  • on 4 September 2001 at Flat 0/2, 11 Western Avenue, Rutherglen you JAMES HOLLAND did, while acting with two other persons, assault John Lawrence Lynn and Alison Gilchrist, both residing there, present a knife and a firearm at them, repeatedly threaten them with violence, repeatedly demand money and other property from them, repeatedly seize said Alison Gilchrist by the hair and pull her by the hair, tie her hands together, force her to kneel on the floor, place your hand over her nose and mouth, attempt to remove two chains from around her neck, forcibly remove a ring from her hand and rob her of said ring, tie John Lawrence Lynn's hands together, force him to lie on the floor, remove a chain from around his neck and rob said John Lawrence Lynn of said chain
  • on 9 September 2001 at the shop premises occupied by R S McColl Limited at Rankin Gate, Carluke you JAMES HOLLAND and STEPHEN FOY did assault Stuart Simpson, manager of said shop, present a firearm at him, place said firearm at his head, demand money from him, compel him under threat of violence to show you the location of the safe within said premises and compel him under threat of violence to open said safe and rob him of a quantity of cigarettes, lottery tickets and telephone cards and £400 or thereby of money and thereafter lock him in a storeroom within said premises."
  • it has the effect of compelling the accused to assist the Crown by providing evidence against himself contrary to the law of Scotland and, separatim , article 6
  • The Second Report of the Thomson Committee (1975) This recommendation was not implemented The Devlin Report (1976) dock identification was both undesirable and unsatisfactory The Bryden Report (1978)
  • The Second Report of the Thomson Committee (1975) This recommendation was not implemented The Devlin Report (1976) dock identification was both undesirable and unsatisfactory The Bryden Report (1978)

Transcript

  • 1.
    • Miscarriages of Justice in Scotland
    Michael Bromby – Reader in Law School of Law and Social Sciences Glasgow Caledonian University
  • 2. Overview
    • Aims of SIAS
      • Generate new ideas
      • Challenge conventional thinking
      • Interdisciplinary themes
      • Engaging and creative
  • 3. Overview
    • Miscarriages of Justice Programme
    • Rationale for Programme
    • Introductions
    • Aims and Research Questions
    • Programme
    • Outputs and Objectives
    • Future Events
  • 4. Rationale for Programme
    • Innocence Projects
      • US since 1992, approx 40+ worldwide
      • INUK and other UK projects (2 in Scotland)
    • Scottish Criminal Case Review Commission (10 years on)
    • Diversity of disciplines – law, sociology, psychology, government, politics, etc
  • 5.
    • Introductions
  • 6. Aims and Research Questions
    • How are miscarriages of justice identified? Does the legal system adequately provide avenues for appeal in a timely and effective fashion? The appellate structure of the criminal courts, coupled with European and ECHR legislation being dealt with by both the Privy Council and the European Courts, makes for a lengthy procedure. Can or should this be reformed?
    • How do those claiming innocence fit with the current legal aid system? Access to funds following a conviction is often limited and restricted in terms of appeal. Can and should this change? Can a legal system maintain public confidence and effectively manage the availability of publicly funded legal representation in this situation?
    • How does a claim of innocence affect parole eligibility? The current requirements to acknowledge guilt and remorse for criminal acts will be challenged to incorporate a category for those claiming innocence and address the nature and availability of prison programmes.
    • Can further assistance be given to successful innocent persons who have spent considerable time in prison? Beyond compensation, is there a need for re-integration, psychological counseling and other social issues that are in limited supply and solely from charitable organizations?
    • How is legal education framed and can law students be shaped by the consideration of miscarriages of justice to provide ultimately a different breed of practicing lawyers with new skills?
  • 7. Aims and Research Questions
    • How are miscarriages of justice identified? Does the legal system adequately provide avenues for appeal in a timely and effective fashion? The appellate structure of the criminal courts, coupled with European and ECHR legislation being dealt with by both the Privy Council and the European Courts, makes for a lengthy procedure. Can or should this be reformed?
    • How do those claiming innocence fit with the current legal aid system? Access to funds following a conviction is often limited and restricted in terms of appeal. Can and should this change? Can a legal system maintain public confidence and effectively manage the availability of publicly funded legal representation in this situation?
    • How does a claim of innocence affect parole eligibility? The current requirements to acknowledge guilt and remorse for criminal acts will be challenged to incorporate a category for those claiming innocence and address the nature and availability of prison programmes.
    • Can further assistance be given to successful innocent persons who have spent considerable time in prison? Beyond compensation, is there a need for re-integration, psychological counseling and other social issues that are in limited supply and solely from charitable organizations?
    • How is legal education framed and can law students be shaped by the consideration of miscarriages of justice to provide ultimately a different breed of practicing lawyers with new skills?
  • 8. Programme (Tue)
    • Defining miscarriages of justice, innocence and the breadth of the subject
    • Does the portrayal of the system effect beliefs onto those in the system
    • Views from beyond the SCCRC
    • Views from the Scottish Bar
    • A Proposed Reform Group
  • 9. Programme (Wed)
    • Peaks and troughs in applications
    • Jury Research
    • Is reasonable doubt reasonable?
    • The role of the forensic psychologist
  • 10. Objectives and Outputs
    • Position Paper on Miscarriages of Justice in Scotland
      • How do we understand and respond to claims of miscarriages of justice
    • Annotated Bibliography
      • Scope and limitations
  • 11. Future Events
    • 25-26 August – Scottish Context
    • 16-17 September –Partner events
    • 26+29 October – International Context
    • 29 November - Legal Education Day
    • 1-2 December /early January – Final Evaluation and Review
  • 12. Defining Miscarriages of Justice, Innocence and Breadth of Subject
    • Michael Bromby
  • 13. Defining Miscarriages of Justice
    • System rectification
      • Appeal court mechanisms
      • Convictions only, sentencing or both?
    • System failure
      • External consideration (SCCRC) and referral
  • 14. Defining Wrongful Conviction
    • The expression ‘‘wrongful conviction’’ is not a legal term of art and it has no settled meaning. Plainly the expression includes the conviction of those who are innocent of the crime of which they have been convicted. But in ordinary parlance the expression would, I think, be extended to those who, whether guilty or not, should clearly not have been convicted at their trials.
    • Lord Bingham in R (on the application of Mullen) v Secretary of State for the Home Department [2005] 1 AC 1, [4]
  • 15. Defining Miscarriages of Justice
    • ‘ 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 said and has been used to describe cases in which defendants, guilty or not, certainly should not have been convicted.
    • Lord Bingham in R (on the application of Mullen) v Secretary of State for the Home Department [2005] 1 AC 1, [9]
  • 16. Defining Miscarriages of Justice
    • Nobles and Schiff adopt a systems theory approach
      • autopoiesis (circularity of legal authority)
      • Safety of conviction avoids the lay interpretation
    • Breach of human rights approach (Walker / Greer)
      • Unjustified convictions (or avoidance)
      • Not including ‘normal appeals processes’
    • Naughton classification
      • Exceptional (CCRC), routine (CoA), mundane (Crown Ct)
      • Avoiding ‘normal appeals’ excludes bulk of cases and examples
  • 17. Criminal Appeal Cases
  • 18. Criminal Appeal Cases
  • 19. Defining Miscarriages of Justice
    • Appeals against sentence may be a miscarriage but not a wrongful conviction
    • Analysis of statistics and cases required?
    • How much concern do we need to give to abandonment?
  • 20. Defining Innocence
    • Social concept
    • Factual innocence
    • Legal concept (presumption)
  • 21. Concepts for Discussion
  • 22. Breadth of Subject
    • Annotated Bibliography
      • Evaluation of MoJ articles/books/publications
      • “ Critical Miscarriage Discourse”
    • Innocence Project Student Exercise
      • Cross-discipline
      • Categorise and cross reference with tags
  • 23. Peaks and Troughs
    • Michael Bromby
  • 24. Peaks and Troughs
    • UK DNA cases
      • Peak in 1990s
    • Post-conviction DNA testing
      • Forecast to decline in US ~10 years
    • National Academy of Sciences Report
      • Many sciences are not exact or wholly reliable
  • 25. Peaks and Troughs
    • The very existence of SCCRC / CCRC
      • Is there a natural lifecycle?
    • SCCRC applications (~100 p/a)
    • High number of defective representation
      • Due to recent recognition of ground?
      • Disclosure to follow suit?
    • Landmark decisions of HCJ
      • Opening of ‘floodgates’ in particular cases
  • 26. Holland v HMA (2005)
    • Forms of identification:
      • Photo albums
      • Identity parades
        • Sequential
        • Non-sequential
      • Dock Identifications
    • Research and recommendations of the Psychology and Law disciplines
  • 27. Holland v HMA (2005)
    • Witness 1
      • Registered disabled, poor health
      • Gave description and identified accused from police album of photographs
      • Attended line-up, identified 2 foils
      • Precognition statement – “grey fleece”
    • Witness 2
      • Registered disabled, blind in 1 eye, partial sight
  • 28. Holland v HMA (2005)
    • Witness A – (for 2 nd charge)
      • Gave description and identified accused from police album of photographs
      • Attended line-up, identified 2 foils
    • Son of witness A
      • Returned home during assault
      • Id parade: Id or statement of resemblance?
  • 29.  
  • 30. Dock Identification
    • Thompson Report (1975)
      • “ if a witness failed to identify at a parade, it should not be competent for the Crown to ask that witness to identify in court ”
    • Bryden Report (1978)
      • “ undesirable to make dock identification conditional upon there being prior identification at a parade ”
      • “ the need for corroboration was a valuable safeguard”
  • 31. Dock Identification
    • High Court’s rejection of Appeal
      • Safeguards exist, not unfair per se
    • Privy council opinion
      • Judge erred in warning the jury
      • Does not impact change upon Scots law
        • Domestic rules of evidence
        • ECHR concerned with fair trial as a whole