In a recent article titled Lehrmann’s barrister refers Higgins’ public statement to court, police (https://www.smh.com.au/politics/federal/lehrmann-trial-aborted-after-juror-misconduct-20221027-p5btei.html), we heard how a jury member’s ‘indiscretion” in privately researching on the subject and the potential sharing of the information in the jury room was sufficient to abort and force a new trial.
In addition to this, the article itself and all other media comments seen by the public will make it more difficult for the accused to get a fair trial – some may even say it would be impossible since the future jury would have been made even more aware and biased by the reporting, the accusations, the misinformation, etc.
This raises several questions about media reporting of ongoing criminal cases: should the identity of the persons be revealed? How is it possible to prevent juries and potential jurors from becoming biased or influenced one way or the other by what they read, see or hear in media reports? Should there be trials by jury at all when media reports abound? How about when the accused or the accusers are celebrities, known figures, or from particular [tainted] industries or professions? All these issues are potential causes of miscarriages of justice.
Bearing in mind the above, if you read up on the Clarke Brothers vs State of WA case, you would wonder why the second trial was not aborted. During the trial it was revealed that one of the jurors was a friend of one of the investigating police officers in their case. Later, after the jury verdict was handed down, it came to light through social media, that the same juror was in fact a Prison Officer at Hakea Prison, where the defendants had been remanded during and after the first trial.
Similarly, the Clarke brothers’ trial, Appeal, and retrial, had received extensive media coverage for 11 years. It should be clear that both the system and the lawyers themselves failed to prevent the miscarriage of justice that had become evident in the first successful Appeal against conviction: the retrial firstly should have been in front of judge-alone (as per the brother’s instructions to their lawyers); secondly, it should have been aborted when it became known that the jury’s impartiality had been potentially compromised, and, thirdly, the Appeal Court should have been made aware that the juror in question not only was a friend of the investigating police officer but was also a prison officer working where the brothers had spent time in custody.
Unfortunately for the Clarke brothers, all of the above systemic errors make their High Court Appeal against their wrongful conviction even more difficult.
As well as garnering an international following and spawning an entire genre of true-crime audio, TV and film, Serial’s investigation of Sayed’s case prompted discussion about the role of the media in uncovering wrongful convictions – in the UK as well as the US.
Unfortunately, the inevitable consequence of a broken criminal justice system, as the UK’s has consistently been described, is that some people will be wrongfully convicted. In response to the Sayed ruling, the BBC presenter Justin Webb asserted that podcasts were “the place to go” for innocent people wrongly convicted. I am not convinced.
The British media has a history of doggedly investigating miscarriages of justice. However, as I set out in a paper presented recently to the Nexus Conference on Wrongful Convictions, there has been a major – and critical – disengagement in the media’s coverage of such cases over the last 30 years.
This had led, as legal scholars Richard Nobles and David Schiff show in their 2000 book Understanding Miscarriages of Justice, to the British public’s faith in the justice system being fatally undermined. As an ultimate consequence of this fallout, in 1997 the first ever independent miscarriage-of-justice watchdog – the Criminal Cases Review Commission (CCRC) – was created.
Journalist David Jessel memorably commented that this represented “the nationalisation of zeal, the taking of fervour into public ownership”. It was indeed a radical move. Mostly though, it was the direct result of campaigners’ and, crucially, journalists’ commitment to exposing the rot at the heart of the justice system.
Jessel was a presenter on the BBC’s pioneering investigative programme Rough Justice from 1985 to 1990. It is striking to think that journalists on licence-feepayers’ money would investigate these often intractable cases. Sometimes their efforts revealed shocking wrongful convictions; often they did not and were never broadcast. In total, between 1980 and 2007, the show was responsible for overturning 18 convictions.
Investigating miscarriages of justice was not just great prime-time telly (occasionally, it wasn’t even that), it was part of what the press saw as its public service remit.
To wit, the journalist Bob Woffinden (documentary producer for Yorkshire TV and author of the book Miscarriages of Justice) successfully challenged a Home Office ban on journalists visiting prisoners – and in so doing, went on to provide the Court of Appeal in 1999 with details of more than 60 cases where journalists had played a substantial role in identifying miscarriages of justice. Their work had led to convictions being quashed.
Press coverage declines
The UK has one of the largest prison populations in western Europe, approximately 87,550 people. In an average year, 1,400 apply to the CCRC to have their cases reviewed.
While in 2021, the CCRC sent a record number of cases – 71 – to the Court of Appeal, the vast majority (51) came from a single source (the Post Office Horizon debacle) and six related to a second case (the Shrewsbury 24) that had been initially rejected by the CCRC and was only accepted after it was challenged through the courts. In other words, outside of these two unusual cases, just 14 people had their cases sent back to the Court of Appeal that year.
In March 2021, a parliamentary report into the CCRC stated that it had suffered the “biggest cut” of any part of the justice system since 2010, receiving just £5.93m in 2019 compared with £9.24m in 2004. The workload for each of its 31 case review managers, meanwhile, had more than doubled from 12.5 cases in 2010 to 27 in 2017.
What’s more, the report highlighted what it termed the CCRC’s “dysfunctional” relationship” with the Ministry of Justice (quoting the High Court in R (Warner) v SoS for Justice ).
The CCRC’s independence is supposedly protected by statute through its 11 commissioners. Until 2012, those commissioners were full-time on salaries with holiday, sick pay and a pension.
By 2017, however, they had been replaced with new commissioners recruited on one-day-a-week contracts with no benefits. It is impossible to do justice to complex cases with so little commissioner time available, when a successful applicant requires the backing of no less than three commissioners.
These are obvious, critical problems that only add to the wider crisis the justice system is facing. At last count, the backlog of cases facing the Crown Court hit 59,687, according to Ministry of Justice data released in September 2022. This means thousands of victims of violent and sexual crimes, as well as those accused of such crimes, are waiting over a year for their day in court. They are at the mercy of a “broken” justice system.
And yet, research shows that national press coverage of miscarriages of justice has notably decreased. Between 1992 and 2007, it dropped by as much as 18%.
Britain’s justice watchdog was set up as a result of the campaigning of a previous generation of journalists. Its defanging, by contrast, has taken place with barely a flicker of interest from today’s media. The wrongly convicted are not only being let down by the broken justice system. They are being failed by a media that has lost interest and moved on.