How our courts might become more appealing

ACCORDING to one senior member of the profession much critical comment

about the Criminal Appeal Court has come from people who are frankly

pretty hopeless lawyers themselves. Up to a point, no doubt. But the

argument ad hominem would not succeed in court and should not anywhere

else.

In any case it may be that what these critics are really trying to say

is not that the court as it stands does a bad job, but that a different

sort of court might do a better one.

First, a little history. There was no appeal court in criminal matters

in Scotland until 1926, when one was set up in the aftermath of the

Oscar Slater debacle. It came under fire immediately, accused of dodging

the real issues in that case, even though Slater's appeal was allowed.

A more searching criticism, and one that has never really been

answered, soon came from the pen of John (later Lord) Cameron.

Basically, he criticised the fact that the court was not empowered to

consider defects in a jury's treatment of the evidence but was limited

to dealing with the consequences of procedural errors permitted, or

misdirections uttered, by the trial Judge. Most miscarriages of justice,

he argued, stem from the former, not the latter.

So far as procedural matters are concerned, this is probably true. The

question of misdirection of the jury by a trial Judge raises the

question how much of the Judge's charge juries actually understand or --

and the distinction is an important one -- happen to agree with. One

eminent jurist has even suggested that most Judges construct their

charges with the court of appeal, rather than the jury, in mind.

The whole matter is too complicated to go into just now, but it does

bring us back to the point that the appeal court is not normally able to

interfere with the jury's assessment, however that was achieved, of the

evidence.

What we may need, then, is a court of review rather than of appeal.

The function of an appeal court, strictly speaking, is supervisory. It

has to be satisfied that correct procedures have been followed and that

the verdict in question is one, not which it would itself necessarily

have reached, but one which the inferior court was entitled, in all the

circumstances, to reach.

The usual reason given for this approach, and it is a good one, is

that an appeal court does not hear witnesses giving their evidence

directly.

What is more difficult is when it is claimed that evidence has come to

light that was not available at the original trial which, if true, might

have been of critical importance.

Broadly speaking, such evidence would be one of two sorts. First there

is direct evidence, of an alibi for example or to the effect that the

perpetrator is someone different. There is also indirect evidence, that

of the scientist perhaps, who will state that scientific conclusions

presented at the trial would now be regarded as wrong.

Let us assume that a year after conviction someone seeks to appeal on

the grounds that one witness of each sort, previously unavailable, has

now come forward. What is to be done?

What difference the first sort of witness would have made can never be

known; the best that appeal Judges can do would be to hear the evidence

and if they believed it, try to work out what effect it might have had

on the verdict of the convicting jury.

Since juries do not give reasons for reaching their verdicts, this is

an impossible task.

So far as the second witness goes, it might be that the Crown would

concede that the new evidence was fatal to the conviction. But what

would happen if the Crown were to argue that even without the now

discredited scientific stuff, there had been other ample evidence -- two

eye-witnesses perhaps -- on which the jury could rely?

It is for this reason that in some countries the appeal court looks to

see if the conviction, in the light of the fact that some perhaps

material evidence is now found to have been flawed, is still ''safe''.

Thus the question becomes one of degree. This seems to be the best that

can be done.

Seeking to discern whether or not there has been a miscarriage of

justice by trying to guess what a jury might have done had it heard

different evidence is neither easy nor scientific. It is for this reason

that such matters might be more appropriately dealt with by a court of

review, possibly with some inquisitorial, as opposed to reactive,

function.

When a material item of new evidence became available such a court

would simply set aside the jury's verdict and look at the whole thing

afresh, albeit dealing with much of the evidence in transcript form.

This would be something of an innovation and in the end might not be a

very good idea, but it is worth looking at.

The obvious drawback is that such a system would be open to abuse by

convicted persons suddenly whistling up a horde of new witnesses. But it

should not be beyond the wit of man to devise a means of preventing

this, even though a long-overdue system of filtering out at an early

stage hopeless but costly appeals against sentence has not yet been

discovered.

Actually one of the most common causes of miscarriages of justice to

their clients, so lawyers will tell you, is that the different lawyer

previously acting did not conduct the trial properly. No doubt there is

an element here of ''What cowboy did this then?'', but the problem

remains.

In this connection it was interesting to see that in a recent English

case the Judges singled out the inefficiency of the appellant's previous

lawyers as one of the items contributing to a miscarriage of justice.

No matter what form an appeal court of the future takes, however, it

is difficult to see professional incompetence being regularly

entertained as a ground of appeal. That way total confusion would lie.