A critical evaluation of the utility of using innocence as a criterion in the post conviction process.
This thesis examines the plight of the innocent person who has been wrongly convicted. It starts from the premise that such a fate is abhorrent and that the criminal justice system should have effective mechanisms in place to correct such errors. The Court of Appeal (Criminal Division) (CACD) has stated that it is not part of its function to consider ‘innocence’. Only the safety of a conviction is within its purview. The Criminal Cases Review Commission (CCRC) cannot correct an error itself, but can invite the CACD to consider doing so if it, CCRC, considers that there is a ‘real possibility’ of the CACD quashing the conviction. My hypothesis was that, in the light of these stated positions, neither the CACD nor CCRC does treat ‘innocence’ as a discrete criterion in determining appeals and applications respectively. I tested this hypothesis by examining CACD judgments delivered in 2009 and judgments on CCRC conviction referrals in the period 1997-2011. I examined 404 case files at CCRC. I found that neither body gave consideration explicitly to whether the applicant/appellant was ‘innocent’. I then considered whether ‘innocence’ could and should be an explicit consideration for either body. I argue that while ‘innocence’ could be designated a material consideration it should not be. The most important change that Parliament should make is to CACD’s application of the appeal test: that is the real obstacle for appellants who claim they are innocent. I propose that the CACD should be required by statute to receive fresh evidence more readily, and in some fresh evidence cases required to remit the case for retrial. Such changes would impact positively upon CCRC, which would then be able to refer more cases in which the applicant might be innocent.
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