Marian_Ang_phMiscarriage of Justice – When should an appellate court quash conviction?

Law has arguably no function more important than ensuring that the fundamental rights of everyone within its scope are protected from any form of illegitimate interference, and this encompasses the issue of when an appellate court should quash a conviction. In Scotland this question is addressed as whether there has been a miscarriage of justice, whilst in Northern Ireland and England and Wales this is approached as a question of whether a conviction is safe. Lord Kerr argues in his speech that miscarriage of justice and safety of conviction standards are essentially the same.

Miscarriage of justice and safety of conviction

Starting from the premise that criminal trial processes in Scottish law and those operating in common law countries have the same goal, ie. to render safe convictions, Lord Kerr reasons that the two tests are essentially the same for ‘if justice miscarries, an unsafe verdict will be the consequence and if a verdict in unsafe, how could it be said that that is other than a miscarriage of justice?’

Miscarriage of justice and safety of conviction are not tests in themselves, but rather standards. The same standard of injustice has to be reached whatever formulation is chosen, and a single test must be identified to determine whether that standard has been met.

The ‘reasonable possibility’ test

The issue of fairness lies at the heart of formulating a test flexible enough to accommodate the wide array of circumstances involved in criminal appeals[1]. Lord Kerr suggests that we should be relaxed about different wordings of the test that are adapted to the particular problems thrown up by a case, and instead focus on asking whether there is a reasonable basis for doubting the appellant’s guilt. This has been criticised as setting a higher standard than the test which was previously thought to prevail, whereby the court is ‘left in doubt whether the appellant was rightly convicted’.[2] However, Lord Kerr suggests that these two tests can be reconciled if ‘a real possibility’ signifies ‘no more than an acceptance that when one is left in doubt as to the safety of the conviction it is, by definition, unsafe’.[3] Alternative accepted formulations include ‘whether that evidence might reasonably have led to an acquittal’ (in the event of new evidence being relied on)[4] and ‘whether the defect in the proceedings was capable of affecting the verdict’[5].

Application of the ‘reasonable possibility’ test

What exactly is meant by the notion of a reasonable possibility that the jury might have reached a different verdict? According to Lord Kerr, it does not mean that the appellant has to establish as a matter of fact that the jury might have gone a different way, or even that the appellate court should be concerned to examine what the original jury at the trial might have made of the fresh evidence. Whatever the formulation, the primary focus of an appellate court must be on outcome rather than process. The appellate court must concentrate on whether the conviction is free from the reasonable possibility that it is unsafe (by examining for itself the impact of the new evidence or effect of the demonstrated defects in the original trial) rather than the route by which that destination is reached. Only those guilty beyond reasonable doubt should ever be convicted.

Non-devolution appeals

Much of the debate about the distinctions to be drawn between appeals which involved a devolution issue and those which do not compares whether an accused person has received a fair trial under Article 6 ECHR (which addresses procedural rights) against the arguably more flexible approach following a potential miscarriage of justice (which addresses substance of verdict). In McInnes Lord Hope wrote that a violation of Article 6 and inquiry into a miscarriage of justice were means geared to the same goal – whether there is reasonable basis for doubting the appellant’s guilt (in other words, a ‘reasonable possibility of unsafety’ test). Lord Kerr argues that this is essentially the same as the ‘reasonable possibility’ test. The ‘reasonable possibility’ test helps to clarify the distinction between the standard of injustice required for an appeal to succeed and the test for determining whether that standard is reached. Use of ‘miscarriage of justice’ to refer to both ignores such a distinction.



[1] See Lord Hope’s judgment in McInnes v HM Advocate [2010] UKSC 7, 2010 SC (UKSC) 28

[2]  R v Graham [1997] 1 Cr App R 302, 208 per Lord Bingham of Cornhill CJ.

[3] Taylor (Bonnett) v The Queen [2013] UKPC 8, [2013] 1 WLR 1144

[4] Lundy v The Queen [2013] UKPC 8

[5] Expressed by the Supreme Court of New Zealand.