Richard Nobles

Understanding miscarriages of justice : law, the media, and the inevitability of crisis

1. Introduction 2. Problematizing miscarriage of justice 3. Remedying miscarriages of justice: the history of the Court of Criminal Appeal 4. Into and out of crisis: a recent history of media reporting on miscarriages of justice 5. Scientific evidence and the new Criminal Cases Review Commission: the scope for further miscarriages of justice and crisis 6. From understanding miscarriage of justice to reform Bibliography Index

The Right to Appeal and Workable Systems of Justice

This article explores the practicalities of a right to appeal. Appeals and appeal systems are usually conceived of in terms of a top-down hierarchy, with appeals functioning as an instrument for superior bodies to correct the decisions of and otherwise to control inferior ones. A fuller appreciation of systems of appeal places at least equal weight on the need for appeal bodies to establish stable, workable relationships with the bodies which they supervise. The need for any appeal system to sustain a workable system of justice refocuses attention from hierarchical control to problems of deference by the superior bodies towards the inferior ones. This way of looking at appeals has the potential to illuminate many recent developments, and can be illustrated by describing recent reforms and reform proposals to both civil and criminal justice.

Why do judges talk the way they do

The Hartian tradition of jurisprudence utilises linguistic philosophy to examine legal communications, most particularly those made by judges, and seeks to reach conclusions about the commitment of legal actors towards legal systems, the part played by morality, and what aspects of law involve the exercise of discretion. But this approach fails to take account of the nature of communication within modern society. If one approaches these issues through the application of communication theory, applying Niklas Luhmann’s concept of redundancy, our understanding alters radically. Systems theory explains how and why the communication resources available to legal actors are both limited and system specific. Whilst one can accept that actors use communications to achieve particular legal operations, one cannot attribute the meaning of these communications to their intentions, motivations or commitments. This conclusion and reasons for it change our understanding of long-standing and unresolved jurisprudential debates about the nature of judicial discourse.

The Never Ending Story: Disguising Tragic Choices in Criminal Justice

Pattenden, Rosemary English Criminal Appeals, 1844–1994: Appeals Against Conviction and Sentence in England and Wales

Misleading statistics within criminal trials.

Richard Nobles and David Schiff revisit the Sally Clark case and consider the presentation by non-statisticians of statistical evidence in court.

Public Confidence in Criminal Justice: The Lessons from Miscarriages of Justice

This article describes how the media understand miscarriages of justice, and how that understanding is distinct from the understanding of miscarriages of justice that determine the Court of Appeals decisions and enable it to reach the conclusion that a conviction is unsafe. It demonstrates how at particular times the media construct a story of a ‘crisis of public confidence’ in the criminal justice system, how such a story is periodic and recurrent, and how attempts to control or reduce the likelihood of such a story being developed tend to be unsuccessful, or even counterproductive.

Access to the law of pensions

This article uses the litigation in National Grid v. Laws to demonstrate two aspects of the law surrounding occupational pension schemes: the wide range of interpretations that are possible when construing pension scheme rules; and the enormous difficulties faced by scheme members when seeking to assert an interpretation of those rules that runs counter to an employer’s major commercial interests.

Legal Argumentation: A Sociological Account

This article utilises Luhmanns functional analysis to investigate the role played by legal argumentation within the legal system. Luhmanns sociological observations on this subject suggest an alternative to jurisprudential approaches that understand legal arguments and consequent decisions in terms of the relative strengths of the justifications offered in their support. His account examines the role played by legal argumentation in allowing the legal system to evolve in response to societys increasing complexity. The concepts he employs to analyse this evolutionary capacity of law, developed from their origins in information theory, are redundancy and variety. Beginning with the work of Dworkin (as one example of ‘a theory of justification’) the article opens up Luhmanns analysis to consider how legal argumentation operates both as a grounded form of communication, capable of identifying weak or unsustainable interpretations of legal texts, and a mechanism for evolving law in the direction of increasing complexity.

Civil disobedience and constituent power

This paper uses the example of civil disobedience to explore Luhmanns description of the constitution as structural coupling between law and politics. Civil disobedience highlights the paradox of constituent and constituted power. The claims made for constituent power provide a basis for challenging the current configuration and expression of constituted power. This paradox is first avoided in the legal system through that systems inability to recognise a legal right to disobey law. In turn, a political system that has, under conditions of modernity, increasingly second coded power as legality, has an ever decreasing capacity to include communications that acknowledge a right to disobey law. Civil disobedience is only able to operate within the political system in the form of protest, and is accommodated through the exercise of discretionary powers. However, juridification of those powers has the capacity to threaten this accommodation.

After Ten Years: An Investment in Justice?

The Criminal Cases Review Commission (CCRC) replaced a division at the Home Office, C3, which consisted of 21 staff, plus three staff at the Northern Ireland Office. The division received between 700 and 800 applications a year, of which around 10 per year were referred to the Court of Appeal (Criminal Division) (CACD). This division was accused of being slow, inefficient, reactive rather than proactive, and of showing too great a deference to the CACD. The Royal Commission on Criminal Justice’s (RCCJ’s) diagnosis of the perceived reluctance of C3 to refer cases to the CACD was that it reflected a constitutional problem: C3 was part of a Government department and, as such, was handicapped in making referrals by the doctrine of separation of powers, which requires the executive not to interfere with the judicial system (RCCJ, 1993: ch. 11).1