No criminal justice system is perfect. Sometimes it “miscarries” and innocent people are convicted. The consequences can be devastating for those involved, and sometimes for society, leading to unrest or political tensions.
In this episode we look at some selected miscarriages of justice from the United States, the United Kingdom and Australia. We discuss a very controversial and live issue at the moment, the Lucy Letby convictions in the United Kingdom, involving the deaths of seven babies, which relied on expert evidence which is now being challenged by other experts.
We also look at a new phenomenon; “mass” miscarriages of justice, where governments or government agencies wrongly prosecute people and then go into denial, as happened in the UK’s Post Office scandal, and in Australia with the Robodebt scandal.
Some common themes in these terrible events are discussed. At the end of the day, there is no substitute for vigilance and remaining sceptical about everything that is given in evidence.
TRANSCRIPT
STEPHEN BOTTOMLEY
No criminal justice system is perfect. Sometimes it “miscarries”.
STEPHEN PARKER
It is impossible to know whether miscarriages of justice are happening more or less frequently than in the past. Perhaps there is more media investigation of cases today, bringing them to light, and of course there are now true crime podcasts which go into old cases.
In this episode we look at a few examples and we search for common themes.
STEPHEN BOTTOMLEY
We also look at recent scandals where governments themselves have inflicted miscarriages of justice on a large group of people: what we might call mass miscarriages of justice.
STEPHEN PARKER
The starting point, of course, is that in a criminal trial the onus is on the prosecution to prove their case beyond a reasonable doubt.
But sometimes something goes wrong at the prosecution end – for example police corruption.
Sometimes the prosecution does not disclose all the evidence to the defendant, as it should do.
STEPHEN BOTTOMLEY
Sometimes the 12 members of the jury are biased.
Sometimes a judge points them in the wrong direction.
And occasionally the defendant has pleaded guilty, so there is no trial at all. Maybe they have been told they will certainly be convicted and it is better to take a lighter sentence for pleading guilty.
STEPHEN PARKER
In Episode 5 we heard of an even more bizarre scandal, where an Australian defence barrister, Nicola Gobbo, colluded with the police to betray her clients, and seemingly frame completely innocent people.
STEPHEN BOTTOMLEY
Let’s start with a few notable examples from around the common law world.
In the United States, one such case was the Central Park Five, in 1989.
Five teenagers, aged between 14 and 16, were wrongfully convicted of assaulting and raping a jogger in New York City’s Central Park. Their convictions were based on coerced confessions obtained after prolonged police interrogations without legal representation, and weak forensic evidence. They were sentenced to between 5 and 15 years imprisonment. In 2002, after the real perpetrator confessed and DNA evidence confirmed his involvement, their convictions were overturned.
STEPHEN PARKER
An older case was the Scottsboro Boys in 1931. Nine African American teenagers were falsely accused of raping two white women on a train in Alabama. They were tried within a month of their arrest and had to be protected from a lynch mob. Despite weak evidence and contradictory prosecution evidence, they were convicted by all-white juries. Over the years, their cases underwent multiple retrials and appeals, highlighting deep-seated racial biases in the legal system. By 1950, all had been released or escaped, and in 2013, they were posthumously pardoned.
STEPHEN BOTTOMLEY
In the United Kingdom was the 1974 case of the Birmingham Six. Six Irish men were wrongfully convicted for pub bombings in Birmingham that killed 21 people. Their convictions were based on coerced confessions obtained under police brutality and flawed forensic evidence. After serving 16 years, their convictions were quashed in 1991 following a prolonged campaign for justice.
STEPHEN PARKER
Very recently is the case of Andrew Malkinson. In 2003, Malkinson was wrongfully convicted of a rape he did not commit, leading to a 17-year imprisonment. Despite maintaining his innocence, his appeals were repeatedly denied. Crucial DNA evidence, which could have exonerated him, was overlooked for years. It wasn’t until 2023 that his conviction was quashed after this evidence came to light.
To make things worse, England has a Criminal Cases Review Commission to investigate potential miscarriages of justice. It received multiple applications from Malkinson seeking a review of his conviction. However, the commission failed to act promptly and thoroughly. An independent review in July 2024 highlighted these failures, stating that the Commission’s inaction contributed significantly to Malkinson’s prolonged wrongful imprisonment.
STEPHEN BOTTOMLEY
And the UK may or may not be in the middle of another such case, although we stress that at this stage the conviction stands and we have no personal views on the matter.
In August 2023, Lucy Letby, a neonatal nurse at the Countess of Chester Hospital in England, was convicted of murdering seven infants and attempting to murder seven others between 2015 and 2016. The prosecution’s case heavily relied on expert medical testimony, particularly from a doctor who suggested that Letby had harmed the babies through methods such as injecting air into their bloodstreams, causing air embolisms.
Letby appealed, unsuccessfully, to the English Court of Appeal on two occasions.
Now, doubt has been cast on the reliability of this expert evidence. Just this year, an international panel of 14 medical experts, led by a retired Canadian neonatologist, reviewed the medical evidence presented at Letby’s trial. The panel concluded that there was no medical evidence to support the claim that Letby deliberately harmed the infants. Instead, they attributed the deaths and injuries to natural causes or substandard medical care, highlighting issues such as inadequate staffing and delays in treatment at the hospital.
Letby’s legal team has now submitted an application to the Criminal Cases Review Commission (CCRC) arguing that the new medical evidence undermines the safety of her convictions.
STEPHEN PARKER
In Australia, was the world-renowned case of Lindy Chamberlain in 1980. She was wrongfully convicted of murdering her nine-week-old daughter, Azaria, who disappeared from a campsite near Uluru.
Chamberlain maintained that a dingo took her baby, but she was convicted, based on circumstantial evidence and possibly public prejudice. In 1986 Azaria’s jacket was found near a dingo lair, supporting Lindy’s case. A Royal Commission ultimately led to the exoneration of Lindy and her husband Michael in 1988.
STEPHEN BOTTOMLEY
And in 1994 Andrew Mallard was wrongfully convicted of murdering a Perth jeweller. His conviction was based on a coerced confession and withheld evidence. After serving 12 years in prison, the conviction was quashed when it was revealed that crucial evidence had been suppressed, and investigative misconduct had occurred.
STEPHEN PARKER
Although these, and other examples we could give, are only a tiny percentage of cases in criminal justice systems, they are alarming, and reduce public confidence in the police, courts and the law as a whole.
Scholarly research into miscarriages of justice has identified several recurring themes that contribute to wrongful convictions across various legal systems.
STEPHEN BOTTOMLEY
Eyewitness testimony has been shown to be highly fallible. Misidentifications occur due to factors like stress, poor lighting, and the influence of suggestive identification procedures.
STEPHEN PARKER
Astonishingly, individuals sometimes confess to crimes they did not commit. This can result from coercive interrogation techniques, psychological pressure, or the individual’s mental state.
STEPHEN BOTTOMLEY
Faulty forensic analysis, including contamination of evidence and misinterpretation of data, have clearly led to wrongful convictions.
STEPHEN PARKER
Deliberate false testimony from witnesses, whether motivated by personal gain, coercion, or bias, can mislead juries and judges.
STEPHEN PARKER
Misconduct by law enforcement officials, such as withholding exculpatory evidence, tampering with evidence, or coercing witnesses, has been documented as a significant contributor to a number of wrongful convictions.
STEPHEN BOTTOMLEY
Defendants who receive poor legal representation, whether due to under-resourced public defenders or inexperienced lawyers are at a heightened risk of wrongful conviction. They may, for example, fail to challenge weak evidence or to present a robust defence case.
STEPHEN PARKER
Then there is so-called, Confirmation Bias. Investigators and prosecutors may develop a theory of a case early on and subsequently interpret evidence in a manner that confirms their initial beliefs, disregarding contradictory information.
STEPHEN BOTTOMLEY
Finally, there is the problem of insufficiently advanced scientific evidence. In 2023 Australian woman Kathleen Folbigg, who had spent 20 years in jail following conviction for the murders of her four infant children between 1989 and 1999, had her convictions overturned when new scientific evidence revealed the children had rare genetic mutations that could cause sudden death.
STEPHEN PARKER
Running throughout these themes is the prevalence of prejudices, against defendants because of their ethnicity, lifestyle or attitude in court. Prejudices which the criminal justice system fails to pick up, or itself has exhibited.
STEPHEN BOTTOMLEY
There is no way of knowing whether adversarial legal systems lead to more injustices than inquisitorial ones. The defenders of the adversarial system vehemently argue that it is better at protecting defendants.
On the other hand, the judge in an adversarial system has a largely passive role. No doubt if the judge sees something going wrong they may intervene somehow, but that isn’t really their role. In an inquisitorial system it is the judge or panel of judges who lead the direction of the case.
STEPHEN PARKER
Then there are instances of mass miscarriages of justice by governments. Here, the victims might not even go to court. They could lose their social security or other entitlements. Or they might be amongst such a large group of defendants that the system begins to accept that a crime must have been committed.
STEPHEN BOTTOMLEY
The Australian Robodebt Scandal exemplifies the first of these. Between 2015 and 2019 the Australian Government used a automated system of income averaging to determine that some people were not entitled to social security or must repay what the system said has been overpayments.
According to the Royal Commission appointed to investigate the affair, this caused stigma and shame, financial hardship and great suffering, possibly leading in some cases to suicides and family breakdown. The Government ignored findings from its own Administrative Appeals Tribunal that the scheme was unlawful.
STEPHEN PARKER
In the UK Post Office scandal, which is still unfolding, a software system called Horizon was implemented in the late 1990s which incorrectly showed that money was missing from a large number of post offices. Hundreds of post office managers were prosecuted. Some went to prison. Some committed suicide. Some had heart attacks. And all suffered.
Incredibly for an affair that was known about for several years, it was not until an ITV television series in January 2024, “Mr Bates vs The Post Office”, that the public really took notice. The series received critical acclaim for its portrayal of what has been called one of the greatest miscarriages of justice in British legal history.
STEPHEN BOTTOMLEY
So is there any reason to be optimistic, in the light of these samples, which are only a minority of the documented miscarriages of justice?
The legal profession is not blind to the problem. Around the world, groups of lawyers and law students, often working pro bono, have created very effective lobby groups and innocence projects to investigate and advocate for victims of wrongful conviction.
STEPHEN PARKER
Improvements in DNA technology perhaps give some cause for optimism, potentially proving innocence, or at least reliably pointing to guilt.
STEPHEN BOTTOMLEY
Perhaps the development of Artificial Intelligence will allow masses of evidence to be analysed more dispassionately and accurately; perhaps not. At this stage, technology arguably drove the miscarriage of justice in the Robodebt scandal, coupled with an unwillingness of public servants to oppose the wishes of the government. And blind faith in IT is a major factor in the UK Post Office Scandal, coupled with management cover-up and unprofessional lawyers.
STEPHEN PARKER
Perhaps more scrutiny of expert evidence is appropriate, and on the way. There are statistical techniques now that pick up flawed research and outright research misconduct. This means there are new ways of discrediting the basis of some expert evidence.
STEPHEN BOTTOMLEY
Perhaps repeated discussion of miscarriages of justice will keep reminding us that they do happen, and makes us vigilant.
STEPHEN PARKER
At the end of the day, beyond a reasonable doubt requires scepticism about everything, by everybody.
You’ve just said we should be sceptical about everything.
Further Reading:
Ken Crispin, The Chamberlain Case: The Legal Saga That Transfixed the Nation, Scribe Publications, 2013
https://www.nma.gov.au/defining-moments/resources/azaria-chamberlain-inquest?utm_source=chatgpt.com
Chris Mullin, “Error of Judgement: The Truth About the Birmingham Bombings, Chatto & Windus, 1986
Colleen Egan, “Murderer No More: Andrew Mallard and the Epic Fight That Proved His Innocence, Allen & Unwin, 2010.
https://robodebt.royalcommission.gov.au/publications/report?utm_source=chatgpt.com
https://committees.parliament.uk/publications/46112/documents/230204/default/?utm_source=chatgpt.com
Bryan Stevenson, Just Mercy: A Story of Justice and Redemption, Spiegal and Grau, 2015