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Is there a difference between an ‘unsafe conviction’ and a ‘miscarriage of justice’?

There are undoubtedly many people in prison who simply did not commit the crimes they were convicted of and by that I mean true victims of a miscarriage of justice. But there are even more whose convictions are unsafe.

To most people, an unsafe conviction is the same as a miscarriage of justice. In reality, however, there is a very real difference between the two concepts and for a number of reasons.

Miscarriages of justice receive widespread attention, the types of cases that end up on the front pages of the newspapers and on TV. Unsafe convictions which are overturned receive little by way of exposure. Both represent examples of tragic injustice.

So what are the differences? Miscarriages of Justice represent the minority of successful appeal cases where the appellant’s innocence is undeniably confirmed and often, very sadly, when the successful appellant has spent a number of years behind bars. The emotional effect of serving a prison sentence knowing you are innocent must be utterly destructive. Appeals in these types of case are often not contested by the prosecution. They are invariably based on pretty influential fresh evidence, such as advances in medical or forensic science.

An unsafe conviction, put simply, is a conviction which is not safe. All appeals against conviction are considered applying the ‘safety’ test. If a conviction is unsafe it should be overturned. If a conviction which is over- turned is regarded as a miscarriage of justice then no re-trial will usually follow, whereas with convictions which are overturned which are not regarded as miscarriages of justice will often result in a re-trial. Whether or not a re-trial will be requested by the prosecution will depend on a number of factors such as the availability and/or willingness of witnesses, the availability of evidence so on and so forth.

Perhaps the biggest distinction between an unsafe conviction and a miscarriage of justice is the fact that the overwhelming majority of unsafe convictions are not dependent on establishing true innocence. Criminal trials are fraught with procedural and evidential difficulties and often the trial process is such that an unsafe conviction results. The majority of the grounds of appeal received by the Court of Appeal following conviction represent perceived defects in the criminal process. Where such a defect under- mines the safety of the conviction then a conviction should be overturned. The Court of Appeal should not be considering whether an appellant is guilty or not but instead should simply restrict itself to whether the conviction is a safe one based on the grounds of appeal advanced.

There are many examples of the types of issue which could arguably make a conviction unsafe and they more often than not relate to procedural defects in the way the trial proceeded or the way in which the evidence was presented/not presented. Examples include:

  • Whether the Judge made any serious mistakes in the directions given to the jury;
  • Whether the Judge made any serious mistakes in any legal rulings such as wrongly excluding or including any evidence creating unfairness to the defendant (bad character, hearsay are just two examples of this);
  • Criticisms of trial Counsel;
  • Failure to call relevant witnesses.

What is important is whether any of the deficiencies in the trial process make the conviction unsafe. Any criminal trial must be fair and must apply the law and procedure correctly irrespective of any perceived guilt. The Court must follow the same approach when considering the merits of an appeal.

Appeals against conviction and sentence are not easy and require specialist knowledge and skill. Should you wish your case to be reviewed, contact us today.