Public concern about miscarriages of justice has been rekindled as a result of the Stephen Downing and Michael Stone cases. Stone's conviction was quashed and a retrial ordered. Downing's conviction, too, after he has spent 27 years in prison, will surely be overturned. Yet lawyers increasingly fear that the difficulties of rectifying an injustice are becoming almost insuperable.

When public unease was at its height a decade ago, there were perceived to be two specific problems: the unsuitability of the Home Office to determine what cases should be referred to appeal, and the intractability of Appeal Court judges in dealing with the cases that did come before them.

The 1996 Criminal Appeal Act addressed the first of these problems by creating the Criminal Cases Review Commission (CCRC) to reinvestigate cases of alleged miscarriage. At the same time, however, the Act exacerbated the second problem. Previously the Appeal Court used the "unsafe and unsatisfactory" formula in determining whether to quash convictions. In a critical amendment the Act substituted the test of a case having to be "unsafe".

Lawyers who made representations at the time were told that this would make no practical difference, as the term "unsafe and unsatisfactory" was tautologous. If that were so, however, why had it survived for so long? In any case, in a legal context, the words clearly could be differentiated.

Initially, however, the Act seemed to present no great problem, largely because the Court of Appeal appears to have granted the CCRC what in retrospect was a honeymoon period. When heard at appeal, most of the CCRC-referred cases were successful; 40 convictions have so far been quashed.

On the other hand, 13 appeals against conviction in cases referred by the CCRC have been turned down by the Court of Appeal. The key factor here, however, is when these appeals failed. Six have done so in the past three months. In fact, six of the past 11 CCRC cases in England and Wales have lost at appeal.

All of the cases were, of course, persuasive (they would not otherwise have been referred to appeal in the first place). One of the failures was in the high-profile case of Eddie Gilfoyle, who was convicted of murdering his wife at their home in the Wirral in 1992. (The defence case was that she had committed suicide.) By the time the case reached appeal it bore scant resemblance to that presented by the Crown to the jury seven and a half years earlier.

So the Court of Appeal appears at present to have a lofty disdain for CCRC-referred cases. By applying the straightforward "unsafe" test, appeal judges have been given the opportunity to consider the conviction in the round. In doing so they are substituting their own views for those of the jury - in other words, doing precisely what legal opinion has always held that they never should.

The current situation will lead only to further difficulties. First, the CCRC will necessarily be inhibited in making future references. Although its spokesmen maintain publicly that it is not unhealthy for some of its cases to be turned down (since they would otherwise be accused of setting their standards too high), the position is rather different in practice.

The Act requires the CCRC to refer cases that have a "real possibility" of success. If this "real possibility" is evaporating, then, legally, the CCRC itself must impose more stringent tests and refer fewer cases.

Second, leading lawyers appreciate only too well the problem of passing their camel of a case through the eye of the Appeal Court's needle. They also appreciate that it is, for all practical purposes, their sole chance of getting the conviction quashed. Accordingly, they will become ever more fastidious in preparing their cases, which will take even longer to come on at appeal. Some cases have already waited two years and still not been heard.

So, the time it takes for cases to get through the queue at the CCRC, then to be investigated, and then to come on at appeal is now reaching six years.

This situation is grave for those caught up in it: it represents an extraordinary waste of public money and it is fast replicating the logjam that originally led to the setting up of the CCRC.

Before the situation deteriorates further, legislative changes are needed. The CCRC should not be required to second-guess the reaction of the Appeal Court but should simply refer cases where it believes there is "a real possibility that justice may have miscarried".

Then, the "unsafe and/or unsatisfactory" terminology must be restored, and Parliament must make it clear to Appeal Court judges that they must not put themselves in the position of the jury.

If there is cogent new evidence, the appeal must be allowed, with a retrial if appropriate.

From Mr Campbell Malone
Bob Woffinden in his article on miscarriages of justice (Law, February 20) is right to draw attention to a critical situation which if not rectified will inevitably result in a loss of public confidence in the judicial process similar to the one experienced in the late 1980s.

The 1995 Criminal Appeal Act was intended to simplify the test to be applied by the Court of Appeal in quashing a conviction and lower the threshold for the introduction of fresh evidence. At the same time the wording was intended to reflect what appeared to be a more enlightened approach by the Court of Appeal in the early 1990s quashing a series of convictions such as the Birmingham Six and Stefan Kiszko, all of whom had previously been rejected on earlier applications to the same court.

Until the middle of last year in a line of authorities from R v Mullen to R v Rowe, Davies and Johnson the court was ready to interpret "unsafe" by reference to the fairness of the proceedings, even when it may have had no doubt about guilt, if it believed that it might have had an impact on the decision of the jury.

Towards the end of last year there is no doubt there was a clear pulling back from the implications of that approach and the court has reverted to the approach set out in R v Stafford and Luvaglio. This requires appellants to satisfy it of their innocence by the fresh evidence. Failing that, the conviction will stand, notwithstanding the fact that it was in following such an approach that the Court of Appeal was criticised for condoning miscarriages instead of overturning them.

The Criminal Cases Review Commission is already affected. So far this year I have had four applications refused where in its reasons the commission has relied on judgments of the Court of Appeal given last year dismissing appeals referred by it.

Yours,
CAMPBELL MALONE,
Partner, Stephensons solicitors,
16-18 Bradshawgate,
Bolton BL1 1DG