Professor Graham Zellick, the outgoing chairman of the Criminal Cases Review Commission (CCRC), said the Court of Appeal should order retrials in cases that have a "lurking doubt" about the safety of the conviction.
In an interview with The Independent, Professor Zellick also called on judges to prevent "very dubious" expert evidence, including lip-reading and ear-prints, being presented to the jury. He argued: "It is far better that 10 guilty men go free than one innocent man is wrongfully convicted ... We know from bitter experience that juries get things wrong. The Court of Appeal ought to be more active in quashing convictions even though there has not been any irregularity in the trial process."
He added that when he had raised this argument with members of thejudiciary he had been "admonished" for asking judges to second-guess the jury. "They tell me that in this country we have trial by jury, so who are they to go behind the verdict of the jury which has seen all the evidence? Well, I say we have trial by judge and jury, not just jury."
Professor Zellick, pictured below, who has been in charge of the commission's referrals to the Court of Appeal for the past five years, said a more interventionist approach would allow the court to order a retrial when judges were unhappy about the safety of a conviction. "The Court of Appeal is even more reluctant in 2008 than in the 1990s to quash convictions because they think they are unsafe. We are more deferential to a jury now than in the 1990s when things were going wrong," he said.
Professor Zellick, a professor of law at University College London, cited the wrongful conviction of the solicitor Sally Clark, 42, as an example of the consequences of judicial reluctance to free immediately an innocent victim of a miscarriage. Mrs Clark was jailed in 1999 for killing her 11-week-old son Christopher in December 1996, and eight-week-old Harry in January 1998. An appeal in 2000 failed, but she was freed in 2003 after a fresh appeal following a referral from the CCRC. She was found dead last year. "Sally Clark should never have been convicted," said Professor Zellick. "She should have succeeded at her first appeal. It should never have taken two years' work by us [CCRC] and a referral before she was released, by which time she was broken in mind and body." The jury at her trial was told by an expert witness, Professor Sir Roy Meadow, that the probability of two natural unexplained cot deaths in a family was 73 million to one. Other experts said the odds were about 200 to one. Although not criticising the standing of the expert witnesses in the case, Professor Zellick said juries were not always capable of deciding between diverse expert opinions. "There have been miscarriages of justice caused by experts whose expertise is somewhat suspect. We are too casual about expert evidence in the criminal justice system." He said he was particularly concerned about lip-reading and ear-print evidence, which he described as "very dubious" for a jury. -link
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