Understanding Miscarriages of Justice Law, the Media, and the Inevitability of Crisis

by Nobles, Richard; Schiff, David; Teubner, Gunther

• ISBN13: 9780198298939
• ISBN10: 0198298935
• Format: Hardcover
• Copyright: 2000-06-01
• Publisher: Oxford University Press

Summary

Understanding Miscarriages of Justice explores a paradox. In a society in which justice is uncertain and contested, how can we talk meaningfully about miscarriage of justice? The book examines the structural conditions that inevitably produce high-profile miscarriages of justice. The thesis of the book is that there is a tension between the rhetoric of justice as understood outside of law, particularly in the media, and legal practice. Despite evidence that miscarriagesof justice must be a normal and expected consequence of imperfect arrangements for investigations, prosecutions, and trials, they are ordinarily understood as exceptional and unacceptable events. Periodically, however, miscarriages are seen not as exceptional, but widespread and normal. At suchmoments, the legitimacy of the criminal justice process is called into question in the media. These moments are constructed in the media as a crisis of public confidence in criminal justice. With the mass media's vivid interest in crime and punishment and their relentless reconstruction of relevant facts, the courts fact-finding monopoly is fundamentally contested. While this happens in all phases of a criminal process, the contest becomes particularly dramatic when after a criminalconviction the mass media continue their investigation and discover, according to their criteria of truth, a miscarriage of justice. But there is no set of common criteria that would allow for the design of rational procedures to end the contest. There is no forum, no procedure, and no set ofcriteria that would make possible a common search for truth.

Author Biography

David Schiff is a Senior Lecturer at LSE.

Table of Contents

Introduction	1	(13)
Rethinking miscarriages of justice and criminal appeals	1	(4)
A note on our use of theory	5	(3)
A caveat on finality	8	(2)
The structure of the book	10	(3)
Problematizing miscarriage of justice	13	(26)
Introduction	13	(3)
A conception of miscarriage of justice	16	(2)
Truth as a value in criminal justice	18	(7)
Due process as a value in criminal justice	25	(7)
The relationship between truth and due process within criminal justice	32	(3)
Generating miscarriage of justice	35	(4)
Remedying miscarriages of justice: the history of the Court of Criminal Appeal	39	(53)
Introduction	39	(2)
Before the Criminal Appeal Act 1907	41	(9)
The emergence of the Court of Criminal Appeal	50	(5)
The great `experiment': how did it work?	55	(7)
The reforms of the 1960s	62	(9)
The Court's decisions after the 1960s reforms	71	(11)
The reforms of the 1990s	82	(5)
Understanding reformulated powers	87	(2)
Conclusion	89	(3)
Into and out of crisis: a recent history of media reporting on miscarriages of justice	92	(79)
Misreading conviction, acquittal, and miscarriage	93	(8)
Constructing crisis	101	(6)
Analysing media reporting on miscarriages of justice	107	(4)
Before the recent crisis: 1987--8	111	(6)
From miscarriage to crisis: 1989--92	117	(32)
Losing the momentum of crisis: 1993--4	149	(14)
After the crisis: 1995--6	163	(4)
Underlying patterns	167	(4)
Scientific evidence and investigation by the new Criminal Cases Review Commission: the scope for further miscarriages of justice and crisis	171	(58)
Introduction	171	(2)
Legal authority and scientific authority	173	(16)
Two case studies: the Birmingham Six appeals (1987/8 and 1991) and the Maguire Seven appeal (1991)	189	(26)
Legal authority and investigation: the Criminal Cases Review Commission	215	(14)
From understanding miscarriage of justice to reform	229	(34)
Tragic Choices analysis of the impetus to reform motivated by high profile miscarriages of justice	230	(5)
Managing inevitable miscarriage of justice---the role and reform of the Court of Appeal	235	(10)
Alternative explanations of the role of the Court	245	(6)
After the last crisis	251	(4)
A Tragic Choices and autopoietic systems theory analysis of criminal justice reform	255	(4)
Conclusion	259	(4)
Bibliography	263	(12)
Index	275