Abstract
Building on existing research from a zemiological approach, this article seeks to contribute to a more ontological understanding of the production and reproduction of harms associated with wrongful imprisonment in England and Wales. Drawing from Anthony Giddens’s theory of structuration, it is argued that whilst the harms of wrongful imprisonment are both complex and devastating, victims need not be perceived as entirely passive. Rather, victims of wrongful imprisonment can be viewed as knowledgeable agents with the intrinsic capacity and agency to strategically cope with and even survive the harms that they experience. The article concludes with personal accounts by victims of wrongful imprisonment that form an identifiable ‘survivor’ discourse to highlight some of the key critical factors that are vital in helping victims of wrongful imprisonment to re-structure their lives after release.
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Notes
The leading authority for this interpretation of ‘unsafe’ is the case R v Mullen (1999). Nicholas Mullen appealed against his conviction for conspiracy to cause explosion on the basis that his deportation from Zimbabwe to England was unlawful. In quashing Nicholas Mullen’s conviction, the CACD held that the definition of ‘unsafe’ under s. 2 of the Criminal Appeal Act 1995 was wide enough to include an abuse of process at the pre-trial stage.
The CACD has powers under s. 23 of the Criminal Appeal Act 1968 to receive fresh evidence not adduced at the original trial. The role of the CACD is not to ascertain whether the fresh evidence proves the appellant innocent. Rather, as stated by Lord Justice Judge in the case of R v Hakala (2002), ‘the essential question, and ultimately the only question for this court, is whether, in light of this fresh evidence, the convictions are unsafe’ (Lord Justice Judge, R v Hakala, Para. 11).
The complexities of defining ‘innocence’ and ‘wrongful conviction’ have similarly been debated in the United States. Huff et al. (1986, 519), for instance, argued that whilst a wrongful conviction can be said to have occurred if the evidence that led to the conviction does not demonstrate guilt beyond reasonable doubt, such an individual cannot be categorised as a ‘convicted innocent’ unless guiltlessness is established. Radelet et al. (1996, 910–911) make the distinction between ‘legal’ and ‘factual’ innocence, the former refers to the failure of the state to meet the legal burden of establishing guilt beyond reasonable doubt, and the latter referring to cases where the defendant was not involved in the crime at all. More recently, Burnett (2002, 971–982) identified three types of ‘innocence’: ‘actual’ innocence referring to cases where the convicted person was not at all involved (2002, 975); ‘factual’ innocence denoting situations where the convicted person was in some way involved but was not the killer (2002, 977) and ‘legal’ innocence involving cases where the defendant admits responsibility for the crime but offers and excuse or justification (2002, 979–980).
Prior to the establishment of the Criminal Cases Review Commission, the Home Secretary had the power under s.17 of the Criminal Appeal Act 1968 to refer alleged miscarriages of justice that have exhausted the normal appeals process back to the CACD.
The CCRC is the official body established in 1997 to review alleged miscarriages of justice in England, Wales and Northern Ireland and refer qualifying cases back to the appeal courts (Criminal Cases Review Commission 2010a).
In all of the cases of wrongful conviction cited above, the police played an instrumental role in causing them either through coercing and torturing suspects into making false confessions, withholding or fabricating evidence, or, flawed investigative practices.
These four categories of harm developed by Naughton vary slightly from what was originally proposed by Hillyard and Tombs. In defining zemiology as a study of social harm, they suggested four categories of social harm including physical, psychological and financial harms as well as ‘cultural safety’ which encompasses ‘notions of autonomy, development and growth, and access to cultural, intellectual and informational resources generally available in any given society’ (Hillyard and Tombs 2004, 19–20). Indeed, it can be argued that Naughton’s classification of ‘social harm’ as a sub-category of the typology of harms engendered by miscarriage of justice is slightly problematic: at its core, miscarriages of justice and whatever forms of harms they produced are intrinsically social, in that they are resultant, whether directly or indirectly, of the wider, socio-legal operations of the criminal justice system which caused the miscarriage of justice in the first place.
In many ways, Naughton’s example of physical harm can be more appropriately viewed as a cause rather than consequence of the miscarriage of justice in that it is precisely the deliberate infliction of torture and abuse by the police in their attempts to coerce false confessions from these miscarriage of justice victims that directly led to their wrongful conviction and imprisonment.
Against Giddens, Clegg (1989) argues that the theory of structuration is ultimately subjectivist and ‘at the expense of a more structural conception of power expressed through already existing relations of domination and subordination’ (1989, 142). I would disagree with this interpretation. Whilst Giddens recognises and emphasises the agency and knowledgeability of social actors—the way in which agency is simultaneously mediated through structures is equally vital to his theory of structuration. The core of structuration theory is precisely to shift away from the primacy of agency over structure or subjectivism over objectivism (or vice versa), but to see the both as intimately linked in the duality of structure and agency (see McLennan 1984, 126, Stones 2005, 16). As this relates to victims of wrongful imprisonment, the fundamental point of this analysis is to show how, whilst there are structural, macro factors which can enable and constraint the ability of victims to survive the harms engendered upon them, their capacity to exercise their agency (albeit within the confines of the structural context and boundaries they are situated in), cannot be discounted from analyses on their post-release experiences.
As amended by s.61 of the Criminal Justice and Immigration Act 2008.
Like the Maguire Seven and the Birmingham Six, the Guildford Four-Gerry Conlon, Carole Richardson, Paul Hill and Patrick Armstrong were wrongly convicted for IRA-related bombings and spent 15 years in prison until their convictions were finally quashed in 1989 (see Conlon, 1994).
Thank you to the Second Anonymous Reviewer for helping me to recognise the complexities involved in the post-release experience of victims of wrongful imprisonment and to clarify the notion of ‘survivorship’.
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Acknowledgments
I am tremendously grateful to Michael Naughton for his unstinting encouragement and assistance with previous drafts. I would also like to express my gratitude to the two Anonymous Reviewers for their critical engagement and constructive comments on the original submission which have forced me to clarify my thoughts and undoubtedly improved the article. The usual caveat applies—any errors or mistakes are my own.
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Tan, G. Structuration Theory and Wrongful Imprisonment: From ‘Victimhood’ to ‘Survivorship’?. Crit Crim 19, 175–196 (2011). https://doi.org/10.1007/s10612-010-9111-y
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DOI: https://doi.org/10.1007/s10612-010-9111-y