Miscarriages of Justice

Miscarriages of Justice

Miscarriages of justice have probably occurred in all countries, and have probably occurred at all times. They are obviously events of life-changing importance to those who are wrongfully convicted, and the effects of such conviction and incarceration are unlikely ever to be forgotten. Perhaps because these events are so directly devastating for so few, the rest of the community may sometimes be guilty of attaching inadequate importance to the processes and outcomes involved. To heighten community awareness of what is needed if we are to minimize the incidence of such miscarriages of justice, we need both to cultivate awareness of past cases and also to study the patterns involved when processes go wrong. To secure the release of a wrongfully convicted person is a victory - for him or her - and for the community as a whole, but we need to go further than that. We need to reform institutional structures and processes and put in place a framework in which future generations can place greater confidence in legal outcomes.


Accurate statistics on the number of occurrences is lacking for a number of reasons. Firstly, because it is not in the interests of the police nor of the legal authorities to publicly acknowledge that miscarriages of justice have occurred, very few organizations are involved in collecting and collating the relevant data. Secondly, it would seem appropriate to separate miscarriages of justice on minor crimes (e.g. theft) from those on major crimes such as murder. Statistics disaggregated by type of conviction are needed. And thirdly, many miscarriages of justice only become apparent after a great deal of litigation over a number of years, so that details may be difficult to obtain. Such cases are sometimes reported only locally and perhaps on only one occasion. Because such cases are not automatically incorporated into a data base, they can therefore be difficult to discover. Nonetheless, as time goes by, more cases of miscarriages of justice in all countries are beginning to attract attention.

On occasions, a spike in the number of miscarriages of justice may occur because of volatile local circumstances. For instance, the IRA bombings in England in the 70s and 80s caused such a public outcry that there was increased pressure on the police to bring the perpetrators before a court in the shortest possible time. This pressure to act quickly led to wrongful convictions. The cases of the Birmingham Six, the Guildford Four, the Maguire Seven, and other innocent people who spent many years in jail for crimes committed by the IRA, are now well known.In the United States the growth and importance of Innocence Projects, combined with improved techniques in forensic DNA analysis, has led to an upsurge in the re-testing of crime scene evidence where mistakes were thought to have occurred. This re-testing has resulted in the exoneration of many prisoners who had been wrongfully convicted. In October 2012, it was announced that as a result of this process, the number of prisoners who have now been exonerated, following miscarriages of justice, has reached three hundred. In June 2017 this number is now just under 400.

In Australia, less publicity has been given to miscarriages of justice. But there have been a number of recent cases where new investigation has revealed that appropriate evidence did not find its way into court, as well as other cases where new forensic or DNA evidence has made the original decision ‘unsafe.’ There have even been cases where over-zealous police work has resulted in what is called ‘noble cause corruption.’ In the latter instance, an innocent person is targeted by the investigating police officers because that person has a connection to the victim and the crime, and no other obvious perpetrator can be found. Investigators then seek out evidence which can be used against that person and if some of that evidence has to be ‘massaged’, or even invented, the investigators argue that they are acting in a ‘noble cause.’ Andrew Mallard in Western Australia, Edward Splatt in South Australia, Alexander McLeod-Lindsay and Ziggy Pohl in New South Wales, as well as Kelvin Condren and Frank Button in Queensland, are notable examples. We will be able to add Graham Stafford’s name to this list if he is eventually cleared of killing Leanne Holland.

Not all cases involving a miscarriage of justice come to light. But even with those cases which have come to public notice, preparation of tables of accurate statistics requires further research and validation. Published statistics from different countries vary enormously, both in magnitude and reliability. For instance the Miscarriages of Justice Organisation in Scotland which was set up by Birmingham Six prisoner, Paddy Hill, following his release in 1991, claims that there have been over 5,970 miscarriages of justice in the U.K. between 1989 and 2010. As mentioned above, American Innocence Projects recently announced the exoneration of the ‘three hundredth’ wrongly convicted person. Innocence Projects tend to concentrate only on re-analysing past crime scene evidence for DNA profiles using the more up-to-date techniques that are now available. Consequently, three hundred almost certainly is an under estimation of the true or total number. Accurate Australian statistics await further research and compilation but there are several dozen cases of wrongful convictions where cases have either been quashed by the Courts of Criminal Appeal or where pardons have been granted.

How Long Can a Miscarriage of Justice Last?

Sometimes a miscarriage of justice is corrected quickly, but more often, it may take a considerable passage of time before new evidence comes to light which allows a conviction to be quashed.

One famous case where a miscarriage of justice was quickly remedied involved Oregon attorney Brendan Mayfield who was charged and jailed over the 2004 Madrid train bombings which killed 191 people and injured nearly two thousand more. Following the bombings on 11 March 2004, the Spanish authorities obtained partial latent fingerprints from plastic bags that contained detonator caps, and they sent digital images of these fingerprints to the FBI for analysis. The FBI searched through the Integrated Automated Fingerprint Identification System (IAFIS) and a fingerprint ‘expert’ matched the print to 37 year old Brendan Mayfield. On 6 May 2004 Mayfield was arrested and jailed. Spanish police, however, had matched the print to an Algerian national, known terrorist Ouhnane Daoud, and the FBI subsequently admitted that they had made an error in matching the print to Mayfield. Mayfield’s prints, which were on the IAFIS data base because of his military service, were very similar to the print sent to them by the Spanish authorities but were not a perfect match. On 24 May 2004, two and a half weeks after he was arrested, Mayfield was released. He was subsequently awarded (US) $2 million for wrongful arrest and incarceration.

Amongst major cases, Mayfield’s case may hold the record for the shortest time for a miscarriage of justice to last. At the other extreme, Fred McDermott’s case in Australia may hold the record for the longest time to elapse from date of the crime until the case was quashed. A New South Wales farmer, Henry Lavers, was murdered in September 1936. McDermott was later convicted of this murder but released in 1952 following a royal commission into the case. However, he was not acquitted. In 2006 a coroner found that McDermott had been the victim of a gross miscarriage of justice and the attorney-general agreed to a full appeal under the Crimes (Appeal and Review) Act. This appeal did not take place until 2012, thirty five years after McDermott’s death. So, it took a total of seventy six years after the actual crime for the New South Wales Court of Criminal Appeal to overturn his conviction.

Why do Miscarriages of Justice Occur?

The causes of miscarriages of justice are numerous and often complex, but they include the following:

  1. Misidentification by Eye Witnesses
  2. Failure to secure a crime scene until a full investigation has been carried out both by the investigating police as well as by the forensic experts
  3. Failure to keep crime scene samples separate at all times from reference samples from the victim(s) and possible suspects
  4. Inadequate police and detective training involving the scientific method and determining just when adequate reason has been established for discriminating between two or more explanatory theories
  5. Media pressure for an early conviction
  6. The temptation towards ‘noble cause’ corruption
  7. Under funding of public defender offices such as Legal Aid Queensland and the Aboriginal and Torres Strait Islanders Legal Service
  8. Issues of governance and management of state-run scientific services laboratories, such as maintaining the chain of custody for crime scene samples, avoiding contamination, and preserving complete and transparent laboratory records
  9. Inadequate funding of those laboratories which often prevent the scientists who staff them from keeping up to date by attending relevant interstate and international conferences
  10. False testimony by Expert Witnesses
Institutional Reform

Some countries have already acted to adopt institutional reform. For instance, the Criminal Cases Review Commission (CCRC) in Britain is an independent public body that was established in 1997 by the Criminal Appeal Act of 1995. Its purpose is to review possible miscarriages of justice in cases where new or fresh evidence has become available after the statutory appeals process has been exhausted. The Commission is based in Birmingham, which is appropriate, because it was the Birmingham bombings carried out by the IRA in November 1974 which resulted in the conviction of the ‘Birmingham Six’ in the UK’s most publicized miscarriage of justice case. The CCRC aims to enhance public confidence in the criminal justice system, and to offer those who have been wrongly convicted and who have exhausted the statutory appeals process, an avenue to have their cases re-heard by the courts.

The state of South Australia is currently following the path established by the British authorities. Independent investigators in South Australia estimate that about a dozen or more existing serious crime convictions in South Australia have grounds for a court appeal. South Australia has now introduced the new 'right-of-appeal' legislation allowing for a new appeal after the normal appeal process has been exhausted if there is 'fresh and compelling' evidence involving a substantial miscarriage of justice. Tasmania has now followed the South Australian legislation.

This now has implications for the other states. Since a country cannot have two different standards for justice, the South Australian initiative may compel other states to follow suit and also adopt a CCRC. Alternatively, there is a belief that it may be preferable to set up a national CCRC, which would have authority over State decisions. Such a body, if established, would replace the current process which involves the prerogative of mercy by the Governor -General on ministerial advice. As the Law Council of Australia has noted:

“This (current) process is inadequate because it relies completely on Executive discretion and the burden of preparing the material to be considered lies completely on the applicant, who has no power to compel the production of any material.”

A CCRC, similar to the British model, would avoid the inadequacies associated with the process currently in operation in Australia. A CCRC would be independent of the Executive, and “it would be able to use its investigative powers to refer a case to an appeal court for review if it considered that there was a ‘real possibility’ that the original conviction might not be upheld.”


Meaningful progress against wrongful conviction requires not only on-going scrutiny of contentious cases, but also attention to institutional detail and reform, if the incidence of future miscarriages of justice is to be minimized. There is little doubt that there are some prisoners who are still incarcerated in Australian jails, or in jails in other countries, who are in fact innocent of the offences for which they have been convicted. As a community we owe it to them to persist in our attempts to improve judicial procedures and to expose past wrongs. Indeed we also owe it to ourselves, since if others can fall victim to miscarriages of justice, we might ourselves be future victims.