Causation: Beyond the Official Miscarriage of Justice Iceberg

Abstract

There are two distinct approaches to unearthing the causes of miscarriages of justice in England and Wales. On the one hand, academic and practising lawyers have conducted collaborative researchers drawn from official data on the causes of miscarriages of justice as evidenced, primarily, by exceptional successful appeals, and listed the causes in strict accordance with the reasons given by the appeal courts, i.e. false confession, malicious allegation, police or prosecutorial ‘error’ or ‘misconduct’, and so on. On the other hand, researchers from a more critical sociological/criminological perspective have operated on a more theoretical plane of analysis and sought to attribute the causes of miscarriages of justice to forms of inequality and discrimination that lie at the heart of the structures of society. The former modes of analysis, premised on the judgements of the appeal courts, tend to attribute the causes of miscarriages of justice to errant individuals who are either criminal justice system personnel or members of the public who, for whatever reason, subvert the criminal justice process, which otherwise would not have caused a miscarriage of justice. Conversely, analyses that locate the causes of miscarriages of justice in the very structures of society attribute them to the normal exercise of criminal justice system power which targets certain sections of the population, along lines of social class, gender, ethnicity, age, and so on, failing, therefore, in the fundamental governmental requirement that all should be treated as equal before the law.