No defence: miscarriages of justice, lawyers and poor representation



‘It seems to be very difficult for the Court of Appeal and the CCRC to accept that some lawyers themselves who conduct trials are responsible for wrongful convictions; to put it simply they are not up to the job.’
Maslen Merchant from Wrongly Accused: who is responsible for investigating miscarriages of justice?

It is true, to an extent, that the Court of Appeal is reluctant to accept that a convicted person’s legal representatives were inept, writes Tom Wainwright. It has been said on many occasions that such assertions are to be approached with ‘healthy scepticism’. What is of more concern, what the court seem to have more difficulty accepting, is just how much of an effect poor representation has on the trial process.

  • Tom is a criminal barrister at Garden Court
  • This is essay is from a new collection of essays (No defence: miscarriages of justice and lawyers) as part of the Justice Gap series and following on from Wrongly Accused: who is responsible for investigating miscarriages of justice? (to be published in association with Solicitors Journal and Wilmington). You can download that collection HERE.
  • Contributors for No Defence include Eric Allison; Dr Ros Burnett; Prof Ed Cape; Dr Dennis Eady; Francis Fitzgibbon QC; Mark George QC; Andrew Green; Campbell Malone; Michael Mansfield QC; Mark Newby; Daniel Newman; Paul May; Dr Angus Nurse; Correna Platt; Julie Price; Dr Hannah Quirk; David Rose; Adam Sampson; Satish Sekar; and Tom Wainwright. Thanks to all.
  • The pic is called ‘A Figment of your Imagination in Time’ (HMP Edinburgh, pencil on paper) and is from the Koestler Exhibition for Scotland, November 2012

Most of the time the Appeal Court will try to avoid dealing with the question of incompetence altogether. In Day [2003] EWCA Crim 1060 the court proclaimed that incompetent representation ‘cannot in itself form a ground of appeal or a reason why a conviction should be found unsafe’.

Instead of examining the standard of preparation or advocacy in detail, the court will usually look at the evidence which was or was not put before the jury as a result. For example, where the advocate did not object to prejudicial evidence being adduced by the prosecution, the court will focus on whether or not that evidence should have been introduced. If it shouldn’t have been, there has been an error in the trial process and it does not matter whether it was objected to at the time.

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