Fresh Evidence and Factual Innocence in the Criminal Division of the Court of Appeal

Abstract

One of the main criticisms of the Criminal Division of the Court of Appeal has been that it is deficient at identifying and correcting the wrongful convictions of the factually innocent. These criticisms stem from the court’s perceived difficulties in relation to appeals based on factual error. The main ground of appeal for errors of fact is fresh evidence, and these appeals are particularly problematic because they require the court to trespass on the role of the jury somewhat in assessing new evidence on appeal against the evidence at trial in order to determine whether the conviction is unsafe. The broad consensus is that the court’s difficulties are caused by three main issues: its deference to the jury verdict; its reverence for the principle of finality; and a lack of resources to deal with huge numbers appealing. There is less agreement in identifying the source of the problems because it is not clear whether they derive from legislative powers or the interpretation of those powers by the judiciary. This article uses both qualitative and quantitative empirical research in order to try to determine what the court’s approach is in fresh evidence appeals and, if there are problems, whether it is the law or the interpretation of the law by the judiciary which is to blame. It also proposes reforms designed to make it easier for the court to rectify miscarriages of justice.