Rethinking Miscarriages of Justice: Beyond the Tip of the Iceberg

248 Pages·2007·0.791 MB·English

by  Michael Naughton (auth.)

Rethinking Miscarriages
of Justice
Beyond the Tip of the Iceberg
Michael Naughton
Rethinking Miscarriages of Justice
This page intentionally left blank
Rethinking Miscarriages
of Justice
Beyond the Tip of the Iceberg
Michael Naughton
Lecturer in Sociology and Law, University of Bristol, UK
© Michael Naughton 2007
Softcover reprint of the hardcover 1st edition 2007 978-0-230-01906-5
All rights reserved. No reproduction, copy or transmission of this
publication may be made without written permission.
No paragraph of this publication may be reproduced, copied or transmitted
save with written permission or in accordance with the provisions of the
Copyright, Designs and Patents Act 1988, or under the terms of any licence
permitting limited copying issued by the Copyright Licensing Agency, 90
Tottenham Court Road, London W1T 4LP.
Any person who does any unauthorized act in relation to this publication
may be liable to criminal prosecution and civil claims for damages.
The author has asserted his right to be identified as the author
of this work in accordance with the Copyright, Designs and
Patents Act 1988.
First published 2007 by
PALGRAVE MACMILLAN
Houndmills, Basingstoke, Hampshire RG21 6XS and
175 Fifth Avenue, New York, N.Y. 10010
Companies and representatives throughout the world
PALGRAVE MACMILLAN is the global academic imprint of the Palgrave
Macmillan division of St. Martin’s Press, LLC and of Palgrave Macmillan Ltd.
Macmillan® is a registered trademark in the United States, United Kingdom
and other countries. Palgrave is a registered trademark in the European
Union and other countries.
ISBN 978-1-349-28535-8 ISBN 978-0-230-59896-6 (eBook)
DOI 10.1057/9780230598966
This book is printed on paper suitable for recycling and made from fully
managed and sustained forest sources. Logging, pulping and manufacturing
processes are expected to conform to the environmental regulations of the
country of origin.
A catalogue record for this book is available from the British Library.
Library of Congress Cataloging-in-Publication Data
Naughton, Michael.
Rethinking miscarriages of justice / Michael Naughton.
p. cm.
Includes bibliographical references and index.
1. Criminal justice, Administration of–Great Britain. 2. Discrimination in
criminal justice administration–Great Britain. 3. Great Britain. Royal
Commission on Criminal Justice. I. Title.
HV9960.G7N38 2007
364.601–dc22 2007023134
10 9 8 7 6 5 4 3 2 1
16 15 14 13 12 11 10 09 08 07
For Amanda, David and Olivia
This page intentionally left blank
Contents
List of Tables x
Preface xi
Introduction 1
The aim of the book 3
Theoretical lens 6
The structure of the book 10
1 What is a Miscarriage of Justice? 14
Introduction 14
Popular discourses and what the criminal justice system
actually delivers 15
What, precisely, is a miscarriage of justice? 17
Public and political discourses 19
Miscarriages of justice from the perspective of the criminal
justice system 21
Governmentality and the birth of due process 26
Governing government 32
Conclusion 35
2 The Official Miscarriage of Justice Iceberg 37
Introduction 37
Towards a typology of miscarriages of justice 38
Exceptional miscarriages of justice 39
Routine miscarriages of justice 41
Mundane miscarriages of justice 41
Methodological issues 42
A critical pragmatist approach to the inclusion of all
successful appeals 46
Conclusion 51
3 Causation: Beyond the Official Miscarriage of Justice
Iceberg 53
Introduction 53
Theoretical perspectives 55
The focus on individual causes 59
Methodological approaches 68
vii
viii Contents
Procedural causes 69
Conclusion 78
4 Government 79
Introduction 79
The governmentality of the criminal justice system 80
The establishment of the Court of Criminal Appeal 81
The abolition of capital punishment 82
The introduction of the Police and Criminal Evidence
Act (1984) 82
The establishment of the Criminal Cases Review Commission 83
Power, knowledge and resistance 85
The limits of the existing governmental voice 90
Conclusion 93
5 Campaigns 95
Introduction 95
Campaigning organisations: diversity and complementarity 97
Campaigning organisations and governmentality – observing
the observers 101
Why the focus on exceptional cases? 105
The production of the raw material for governmentality 108
Achievements and limitations 114
Conclusion 117
6 Academia 119
Introduction 119
The academic response 120
Criminal Justice in Crisis and the Royal Commission on
Criminal Justice 123
Governmentality and changes to the criminal justice system 127
Conclusion 132
7 Human Rights 134
Introduction 134
Existing invocations of the Human Rights Act (1998) 136
The unlawfulness of the current scale of successful appeals
against criminal convictions? 140
Conclusion 157
8 Zemiology 161
Introduction 161
Conceptual and methodological issues 162
Contents ix
The wider harms of miscarriages of justice 165
Social harm 166
Psychological harm 170
Physical harm 171
Financial harm 173
Critical remarks 178
Conclusion 185
Conclusion 187
Notes 192
References 199
Index 222