Lurking doubts

Recently the Privy Council has reminded us of the appropriate way to approach the question whether there has been a substantial miscarriage of justice in a case, requiring the quashing of a conviction: Dookran v The State (Trinidad and Tobago) [2007] UKPC 15 (7 March 2007).

The facts of the case, which are a tale of sex, love, jealousy, and death, do not need to be traversed here. At issue, in respect of the appeal by one of the two appellants, the daughter, was whether the Court of Appeal had applied the proviso correctly. That Court, having decided that her statement should not have been used in evidence, nevertheless concluded:

“In all the circumstances we hold that the case against this appellant was strong even in the absence of the statement and there was no miscarriage of justice.”

The Privy Council pointed out that this was the wrong test, para 14:

“On the contrary, the Court of Appeal were entitled to apply the proviso and uphold [her] conviction only if they could be satisfied that, without that evidence, a reasonable jury would inevitably have convicted her. The Court of Appeal did not apply that test and so their conclusion that there was no miscarriage of justice and that her appeal should be dismissed was fundamentally flawed.”

Given that the Court below had applied the wrong test, what should the Privy Council do? Obviously, it had to apply the correct test: would a reasonable jury inevitably have convicted? The other evidence against her was from an eyewitness (her sister) to the killing, who had been treated as a suspect when interviewed by the police. At trial, the prosecution case was that her evidence was supported by the appellant’s own statement. Having held that that statement should not have been used in evidence, the eyewitness evidence was unsupported. The Privy Council concluded, para 17:

“It is impossible to affirm that, without that corroboration from the admission statement, any reasonable jury would inevitably have rejected the criticism of [the eyewitness’s] evidence and relied on her evidence alone to convict [this appellant]. In these circumstances there is no room for applying the proviso.”

The other appellant was the mother of the first appellant (and, indeed, of the victim and the eyewitness). The Board summarised the basis of the argument for her as follows, para 28:

“Although reference to lurking doubt has been criticised from time to time as an unwarranted gloss on the language of the statute regulating appeal proceedings in England and Wales, it is really just one way in which an appeal court addresses the fundamental question: Is the conviction safe? In the vast majority of cases the answer to that question will be found simply by considering whether the rules of procedure and the rules of law, including the rules on the admissibility of evidence, have been applied properly. Very exceptionally, however, even where the rules have been properly applied, on the basis of the "general feel of the case as the Court experiences it", there may remain a lurking doubt in the minds of the appellate judges which makes them wonder whether justice has been done: R v Cooper [1969] 1 QB 267, 271, per Widgery LJ.”

In considering whether there was this sort of lurking doubt, the Board mentioned the following points. The mother’s statement was taken in circumstances not unrelated to those in which inadmissible statements had been taken (para 31). The trial judge seemed to have been concerned that too much weight might be given to her statement (para 32). There were factors which could have made here more vulnerable than an average person when interviewed in the police station (para 33). A material witness to the events in the police station was not available to give evidence at the trial (para 34). The factors affecting the credibility of the eyewitness also applied to this appellant (para 35). These matters led the Board to conclude:

“…their Lordships cannot avoid a residual feeling of unease about whether justice has been done in [the mother’s] case and so about the safety of her conviction. …”.

This case is a straightforward illustration of how appellate courts should approach the application of the proviso when complaints are made alleging the wrongful admission of evidence. It is noteworthy that the appellate court should not go about constructing a case against the appellant in place of the flawed case at trial. It should not try to explain away inconvenient circumstances in order to uphold a conviction. It should not, even, apply a high burden on the appellant of showing a reasonable doubt, in the sense of a doubt based on reason, or logic.