Recently hpatey wrote about Restorative Justice, and the way in which it offers a more just and healing alternative to the more common punitive sentences of our legal system. Major advantages of this approach include the participation of the victims in determining a just restitution for the offender, an attempt for both victims and offenders to express their views, feelings and motivations, and a focus more on individuals and the community rather than the state. It must also be emphasised that those offenders who have participated in such programs have a lower rate of recidivism than the norm.
Another major aspect of the general problem of justice is in obtaining a correct finding of guilt. An incorrect conviction is hellish on the offender, unfair to victims or survivors of victims of the crime, and makes any form of sentencing automatically unfair and unjust. We’ve all heard about a growing number of cases where evidence (a stylish form in the media is DNA evidence) comes to light exonerating a number of people who have literally been in prison for decades. There is also a popular feeling that Crown Prosecutors are often more interested in getting a conviction than in obtaining the truth; this feeling centres around the idea that it is better for career advancement to have many convictions on the record.
Finally, there have been a number of cases in the news where people convicted went through the entire appeal procedure, and it wasn’t until an entity independent of the country’s Court system reviewed the information, and found good grounds for appeal. One of the most famous is the Birmingham Six, where six people were convicted of bombing a pub in England in 1975, and were found innocent in 1991. This was the inspiration for the movie In the Name of the Father, but of far greater importance were the legal changes.
When the trial ended, a Royal Commission was appointed, and four years later the Criminal Cases Review Commission was formed.
The Royal Commission’s report was presented to Parliament in July 1993 and recommended the establishment of an independent body to:
* Consider suspected miscarriages of justice
* To arrange for the investigation where appropriate
* Refer cases to the Court of Appeal where matters needed further consideration
The Criminal Appeal Act 1995 was subsequently passed, enabling the establishment of the Criminal Cases Review Commission as an executive Non-Departmental Public Body.
To date the Commission has reviewed more than 8,500 cases and referred more than 330 to the appeal courts. The Commission usually receives about 3 or 4 new applications every working day.
The Commission does not determine innocence or guilt; they determine whether there is evidence casting doubt on the validity of the previous conviction. The Commission is also independent of the Department of Justice, and is composed of lawyers, case workers, and Commissioners from the private sector. The Commission has wide investigative powers and can obtain and preserve documents from any public body in England. Of those referred by the CCRC for appeal, more than half of the convictions have been overturned.
The Commission is based out of Birmingham.
Canada has a similar procedure with somewhat similar methodology, but there are some important differences.
- It is within the federal Ministry of Justice, and is the responsibility of the Minister of Justice. The Criminal Conviction Review Group (CCRG), composed of lawyers , review and investigate the application, and make recommendations to the Minister. However, the CCRG reports directly through the Deputy Minister, and is physically separated from the rest of the Department (for whatever that is worth).
- They accept applications for cases where the full appeals process has been exhausted, and as in England guilt is not considered, but evidence pertinent to the correctness of the previous verdict or verdicts. It is also an “extraordinary” power of the Minister, implying seldom exercised.
If the information in your conviction review application satisfies the Minister that there has likely been a miscarriage of justice, the Minister can correct this injustice by granting any of the following remedies:
* ordering a new trial;
* ordering a new hearing for a person who was found to be a dangerous offender or a long-term offender; or
* referring a case to the court of appeal of a province or territory to be dealt with as if it were an appeal.
–Dept. of Justice
- The jurisdiction is a bit different as well, as criminal law is mostly a provincial responsibility. In cases prosecuted by the Attorney General of Canada (such as drug cases or criminal cases in the Territories), the review will be done by lawyers outside the CCRG.
From what I can tell from a cursory perusal of the web page, there are two difference that bother me a bit. The British system sends about 30 referrals to their appeals courts, of which about 20 convictions are actually overturned. In Canada, from the press releases, there are only a few cases where the Minister has acted, since the modern review process was instituted in 2002. Also, I would greatly prefer that the CCRG was independent of the Ministry, and that they could refer cases directly to the appeals system or to the Supreme Courts without resort to the Minister.
Overall, I’m happy we have a system to review convictions separate from the regular appeals system, with independence from the provincial courts and ministries of justice. I’d just like to see evidence of more action, and more independence to act. I guess the problem here involves provincial versus federal prerogatives, and the unwillingness of Ottawa to step on provincial toes.
Maybe we could do our usual thing, and have versions of the CCRG in each province, totally independent like ombudsmen?
So we technically have the appeal system and the CCRG to help make sure those convicted are actually guilty, and a hopefully growing movement towards Restorative Justice to help the victims and to justly punish and reform the offenders. I hope such actions and trends continue.