HAMLYN - College of Social Sciences and International Studies ...

Criminal Justice
the prosecution's case sufficiently to make it probable that a jury
would convict; and the prosecution would have to show that the
new evidence could not with due diligence have been obtained
before the first trial. The decision would be for a High Court
judge, subject to a right of appeal to the Court of Appeal. The
court would have to be persuaded that a second trial was in the
interest of justice. 43
Despite the safeguards and restrictions, I am unhappy about
the proposal. If a High Court judge allowed a second trial on the
basis that a conviction was probable, in what sense could the
defendant get a fair second trial?
Roughly one in four of those convicted by a jury appeals
against conviction. 44 In the absence of any fresh evidence, the
Court of Appeal, however, is understandably reluctant to overturn
the jury's decision. It has not seen the witnesses or heard
the evidence. Mastering the transcript of a trial sufficiently well
to reach the conclusion that the jury got it wrong is a formidable
task, especially in a lengthy case. 45 But occasionally it is prepared
to make that judgment. In 1968, in the case of Cooper, 46 the
court went so far as to say that it would quash the conviction if
it had a "lurking doubt". ("[T]he court must in the end ask itself
a subjective question, whether we are content to let the matter
stand as it is, or whether there is not some lurking doubt in our
minds which makes us wonder whether an injustice has been
done. This is a reaction which may not be based strictly on the
evidence as such; it is a reaction which can be produced by the
general feel of the case as the court experiences it.") It would be
remarkable if the Court actually applied that very liberal
43 Law Commission, Double Jeopardy (Consultation Paper No. 156, 1999).
44 In 1998, the Court of Appeal Criminal Division received 2,099 applications for
leave to appeal against conviction. In the same year there were 9,562
defendants convicted after pleading not guilty to all counts. See Judicial
Statistics, Cm. 4371, (1998), Tables 1.7 and 6.9. The comparable figures in 1997
were 2,318 and 10,152. {ibid., Cm. 3980, (1997), Tables 1.7 and 6.9).
45 Justice Michael Kirby, a distinguished Australian judge, has said that appeal
judges typically do not have the time to consider the evidence properly. They
may not even have time to read the whole of the transcript. ("They visit the
evidence, on the invitation of counsel, skipping from one passage to another.
Rarely do they capture the subtle atmosphere of the trial . . . These are the
reasons why so much deference is paid to the advantages of the trial judge or
jury, who see the evidence unfold in sequence and observe the witnesses
giving their testimony." [Miscarriages of Justice, the Child & Co Lecture
(London, 1991), p. 26.)
46 [1969] 1 Q.B. 267.
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