Thursday, 12 August 2010

Beyond justice, anarchy reigns .... Judicial arrogance .... DNA .... No compensation

Joshua Rozenberg's trenchant comments about the proposed £2bn cuts in the Ministry of Justice budget may be read in The Guardian.  It would be ridiculous to argue that savings are not possible given that the Ministry's overall annual budget is £9bn.  Yet cuts in the wrong areas may well have major long term implications and may turn out to be false economies.

The Judges seem to have got on to their very high horses when it comes to the matter of allowing people to serve as jurors over the age of 70 - The Guardian 10th August.  There are thousands of fit and bright septagenarians who would be perfectly able to do civic duty as jurors and they might even be better able to sit on lengthier cases.  Judges and magistrates have to retire at 70.  There may be a case for some increase in that age - 72 or 75?  However, I don't see serving as a juror as the same thing as holding a judicial office.  There needs to be a retirement age for office holders in order for the system to be able to bring in new people.

The New Scientist has published a very interesting article about the use of DNA evidence in criminal cases - see here.  It is not necessarily anything like as infallible as many people think and what can be presented to courts as "gospel" is often little more than an interpretation.  Often, insufficient attention is given to how forensic evidence is presented and possible weaknesses are addressed inadequately in some cases.  [See the case of Hoey in the Crown Court of Northern Ireland where Weir J considered DNA evidence].

The Billie Jo-Jenkins murder is again in the news.  Her foster carer Sion Jenkins was refused compensation for having served 6 years in prison for her murder prior to him appealing in 2004.  The Court of Appeal ordered a retrial.  In fact there were two retrials and, on both occasions, the jury was unable to reach a majority verdict.  The Independent 2006 covered the formal acquittal of Sion Jenkins.

Compensation is payable for "miscarriages of justice" but it has to be shown beyond a reasonable doubt that there has been such a miscarriage - see Criminal Justice Act 1988 s.133 (as originally enacted).  When an application is made for compensation it is for the Secretary of State to decide whether there has been a miscarriage and, if the decision is in favour of compensation, the amount is determined by an assessor - (see CJA 1988 Schedule 12).  Given the history of the case - (appeal ordering a retrial and two undecided juries) - it is not possible to say beyond a reasonable doubt that there was a miscarriage of justice.  However, the case has an uneasy feeling about it.  When a retrial was ordered, the State was not able to secure a conviction by proving the case against Sion Jenkins beyond a reasonable doubt.  Instead, there were undecided juries.  Is it right that the formal acquittal does not have the same status as an acquittal by the jury or a quashing of a conviction by the Court of Appeal (with no retrial ordered)?

Addendum - 15th August:  The Guardian - Sion Jenkins: the Home Office decides that "not guilty" is different from "innocent" 

Addendum - 20th August: The Guardian - Sion Jenkins: "I don't want sympathy from anyone"   Sion Jenkins tells of his experiences in prison and refers to the process relating to compensation.


  1. "It is not necessarily anything like as fallible as many people think"
    Don't you mean infallible? A view held by just about everyone, not just many people. Do an Internet search of "Phantom of Heilbronn". An imaginary serial killer that the German police spent 15 years looking for.

  2. Conor - thanks - should have said it is not infallible. I have taken the liberty of amending the post !!

    Many people do not actually realise just how problematic DNA might be. My key point is that, in a trial, the weaknesses in forensic evidence need to be exposed just as do the weaknesses in any other form of evidence. This is not always done or not done well enough. The New Scientist article is useful in explaining the issues.

    The Phantom of Heilbronn is interesting - link here.

  3. what about "obtaining a pecuniary advantage" -

  4. Yes, Sion Jenkins had given false information when he obtained a post as a teacher. No specific criminal charge appears to have been brought against him. There could have been the possibility of a charge under what was then the Theft Act 1968 s16(2)(c) which referred to the defendant having been given the opportunity to earn remuneration in an office or employment.

    It interested me that, somehow, the jury was informed of this matter at the trial. On what basis this was done is not at all clear. Prior to the Criminal Justice Act 2003 there were only limited occasions when the accused's bad character could be adduced in evidence. The most usual exception was where the accused "lost his shield" by, for example, attacking the character of a prosecution witness.

    I also note that Jenkins' former wife made allegations that he was repeatedly violent in the home - see BBC

    As i said, the whole case has an unsatisfactory feel to it.

  5. His wife was a social worker too. So better equipped to deal with it than the average DV victim. Any hint of DV would surely have ruled them out as foster parents.

  6. The Jenkins case is another manifestation of the lately introduced concepts by any other term of not quite innocent enough. Restraining orders in DV matters against aquitted defendants have a certain unpleasant odour. There surely is a strong case of importing two facets of the Scottish legal system; juries of 15 [or 13]where a simple majority is enough for a verdict and perhaps more significantly the "not proven" verdict which is often the phrase used by JPs when pronouncing on a trial verdict and which descibes correctly the hurdle over which CPS must prove beyond reasonable doubt.

  7. Conor - yes, I have no doubt that had serious domestic violence come to light it would have prevented an adoption. Investigations into prospective adopters are now much more thorough than they were back in the 1980s/early 1990s when the application to adopt Billie-Jo would have been under consideration.

    The Court of Appeal was aware of the alleged domestic violence but it was not made known publicly and was not made available to the two retrial juries despite the law on "bad character" having been changed by the Criminal Justice Act 2003.

    Thees links address the DV aspect of the case more fully:


  8. Justice of the Peace - thanks for your observation. The Domestic Violence, Crime and Victims Act 2004 section 12 amended the Protection from Harassment Act 1997 to enable Restraining Orders to be made even on acquittal. - (1997 Act s5A) – “A court before which a person (“the defendant”) is acquitted of an offence may, if it considers it necessary to do so to protect a person from harassment by the defendant, make an order prohibiting the defendant from doing anything described in the order."

    There is no such verdict in English Law as "not proven". However, I have heard magistrates say that "the case is proved" or "the case is not proved". However, in my submission, it is wrong. The appropriate verdicts are respectively, guilty or not guilty.

    I have a lot of admiration for a number of aspects of Scots Law. Their jury of 15 with a simple majority verdict possible has merit. The English law majority verdict only dates from the Juries Act 1974. In my early days, a jury verdict had to be unanimous in order to convict. Thus, if they could not reach unanimity then they returned a not guilty verdict and there were no issues about juries failing to agree on a majority. I think that a case could be made for some reform in this area.

    However, I very much dislike the "not proven" verdict in Scots Law.

  9. Mike from Ottawa17 August 2010 at 22:44

    Considering that none of three juries could agree on a "not guilty" verdict, despite the high burden of proof being on the Crown, it seems a bit odd to conclude on the basis of the results of the trials that Jenkins is outright innocent. This does not have the same look to me as do the Canadian wrongful conviction cases of Donald Marshall Jr, Guy-Paul Morin and David Milgaard, where you had people who definitely did not commit the crime.

  10. Ed (not Bystander)18 August 2010 at 02:27

    I'm sure there's some kind of well-known phrase we use in common law jurisdiction for crime, "something until proven guilty". Can anyone help me with the first word?