Miscarriages of Justice: the Oliver Campbell case

Over at Prospect I have done a piece on the recent Oliver Campbell case.

Any person with an interest in miscarriages of justice should read the judgment in this case.

For what is striking about the appeal judgment is not so much that the convictions was quashed but just how close the court of appeal came to not quashing the convictions.

Indeed, if you read the judgment in a linear way, from start to finish (as opposed to how lawyers will tend to look at a judgment by skipping to the end), you have to wait until paragraph 133 before you see which way the court is going to decide this case.

Until this paragraph, the judgment reads as if all the grounds of appeal will fail: it is the judicial equivalent of a sudden brake turn on a lengthy journey.

Judges do not use words lightly, and so it is notable that the judge does not just say “unusual circumstances” but “very unusual circumstances” (emphasis added):

The exceptional nature of the case is again emphasised again a few paragraphs later (emphasis added):

In other words: the convictions were almost not quashed. It was a close-run thing.

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But what happens next in the judgment is disconcerting.

By way of background: when the court of appeal quashes a conviction it normally considers whether there should be a retrial.

In the circumstances of this appeal – where 1991 convictions have been quashed because of reliability of the evidence of things said in interviews in 1990, and where the appellant has served ten years in prison for the offences – you may think that putting a brain damaged defendant through a retrial would not a good course of action.

But the court of appeal comes very close to ordering a retrial (emphasis added – and please read the reasoning in full):

How this could be a “finely-balanced decision” would perhaps astonish any sensible person.

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The appeal judgment shows that Campbell was lucky three times: the Criminal Cases Review Commission made a reference in 2022 to the court of appeal (after it refused to do so in 1999), the quashing of the convictions almost did not happen, and the madness of a retrial in these circumstances was even more narrowly averted.

And a read of the judgment shows generally how difficult it is for any miscarriage of justice to be corrected – especially when the appeal relies on evidence that was before the original court, or on evidence that could have reasonably placed before the original court.

Of course: a justice system should be as much about quashing unsafe convictions as it is about imposing convictions.

But as averred in Prospect, the justice system of England and Wales imposes criminal liability with far more ease than it ever removes it. (Read the rest of my article here.)

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Also of interest are the Criminal Cases Review Commission’s reasoning for the referral in 2022 and the informative pages of the estimable barristers of Foundry Chambers who acted for Campbell (here and here).