CRIMINAL JUSTICE AND
MISCARRIAGES OF JUSTICE IN
ENGLAND AND WALES
CLIVE WALKER AND CAROLE MCCARTNEY
One expects in a fair and effective criminal justice system that evidence of guilt will be both overwhelming and clearly more convincing than the defendant's claim to innocence. However, mistakes are inevitable. Memories are fragile and may be masked by emotion or even open to manipulation. In addition, strong inducements encourage both prosecution and defense to be selective in their versions of reality. How far should a criminal justice system be alert to these possibilities of error, and how should it respond?
The answer to the first question is that the values of liberty and justice demand that a very high priority be given to ensuring that state coercive powers are exercised only in justified circumstances. Ultimately, the imposition of official sanctions, such as imprisonment or the imposition of a fine must be justifiable to the individual affected and must also be acceptable within the norms of society. The result is that a special premium is placed on the values of liberty and justice—more so than on the righting of a criminal wrong: “It is better that ten guilty persons escape than that one innocent suffer.”1
In answer to the second question, of how a criminal justice system should respond to the possibility of error, many of the safeguards must reside within the legal rules and the internal working cultures fostered by training and management within institutions such as the police, prosecution, forensic science, judiciary, and advocates. Of further relevance are the appeal courts, which provide an outlet for certain types of doubt and grievance to be addressed.2 Yet, whatever care is expended at each stage of the criminal justice process,