"Something has gone wrong with the system again." Those were the words of Michael Mansfield QC, head of chambers at 14 Tooks Court, capturing the anxious mood of a public meeting convened by those working and campaigning in the miscarriages of justice field. Lawyers fear that increasingly the appeal courts are upholding wrongful convictions and preventing juries from hearing new evidence.

"The time has come to redefine what the Court of Appeal (CA) is truly about," declared the silk, who was speaking after the conviction of Barry George - whom he represents - for the murder of TV presenter Jill Dando. "The CA should not become a second jury second-guessing what the original jurors would have found." He went on to call for a review of the "role and powers" of appeal judges to prevent them from using their discretion in an "anti-democratic" way.

The meeting was chaired by solicitor Campbell Malone, a partner at Manchester firm Stephensons who has represented many miscarriage cases. Malone and his colleagues believe that there is an alarming trend emerging in cases being referred from the Criminal Cases Review Commission (CCRC) but rejected by the courts. Six out of the past 11 CCRC referrals have failed on appeal.

According to Malone, "two schools of thought" are evolving in the courts. There are those judges that are "prepared to say that if a conviction is unfair, then it follows that it is likely to be unsafe". And then there are the others - those judges that are adopting "a tough line". Malone says: "They say it's their function, even if they have accepted that there is relevant credible fresh evidence, to determine whether a conviction is safe or not."

At the meeting, Malone listed a series of miscarriages that have become cause célèbres for campaigners, but to the surprise of many their convictions have been upheld in recent months. These include Stephen Craven, convicted of the murder of a young woman in a Newcastle night-club; Donald Pendleton, accused of murdering a Bradford newspaper salesman; and Eddie Gilfoyle, convicted of murdering his pregnant wife.

For Mansfield, the Gilfoyle case epitomises the new approach by the appeal judges. On 4 June 1992, Paula Gilfoyle, 32 and heavily pregnant, was found dead at the couple's home in Upton, a village on the Wirral. It appeared that she had hanged herself in the garage. However, the prosecution argument was that Gilfoyle had stage-managed the suicide by duping his wife into writing a suicide note.

Since the trial there has been a growing sense of disquiet about the safety of the conviction and Channel Four's Trial & Error lent the campaign its support. According to the defence team, the original jurors only heard one side of the story.

"The case came before the Court of Appeal on two separate occasions and by the time we finished it was quite different from the one that the jury had heard," Mansfield told the meeting. But jurors were never to hear new evidence which contended that the hanging was evidence of the woman taking her own life and not a murder.

Malone, who represents Gilfoyle, said: "The Court of Appeal seemed to adopt an approach in the case, which they have adopted in a number of cases last year and this year, where they say, 'This is fresh evidence but it remains for us to determine whether or not the conviction is safe'."

Glyn Maddocks, a solicitor in south Wales firm Gabb & Co who specialises in cases of alleged wrongful convictions, fears that the new system for looking into miscarriages is "almost inevitably" regressing to the bad old days of the 1980s when the criminal justice system was rocked by a series of scandals.

He says: "Everyone feels that the reforms that took place following the Birmingham Six and Guildford Four cases only went so far and didn't tackle the main problem - which was the Court of Appeal."

It was the Criminal Appeal Act 1995 that established the CCRC to replace the discredited Home Office unit C3 and spelt out the grounds of appeal.

According to Maddocks, the Court of Appeal has no power to consider and dismiss fresh evidence which could affect the outcome of an appeal. "How in heaven's name can senior judges make that assumption and where is the authority to enable them to do so?" he asks. "Parliament certainly doesn't give it to them. It's quite a remarkable twist of logic."

The CCRC is taking a bullish line and argues that the recent dismissals represent "too small a statistical example" to represent a trend. "Overall, looking at the 70 cases that have gone to appeal [in the life of the CCRC] about three-quarters have been quashed," says a spokesman. "We don't see any evidence that the position has changed fundamentally."

Solicitor Sally Clarke, who was convicted of murdering her two baby sons, had her case dismissed by the Court of Appeal last October. The meeting earlier this month was convened after Clarke's barrister, Michael Topolski of 14 Tooks Court, met Mansfield and Malone to discuss the Gilfoyle verdict and see if that could help his own case ("some hope," notes Malone).

According to Clarke's solicitor, John Batt, his client's case was supported by "some of the best brains in criminal law". "They said that her appeal could not fail on any objective assessment of the grounds of appeal," he says. The lawyer is a former senior partner and now consultant at London firm Batt Holden.

At the original trial at Chester Crown Court the jury was told that the chances of two babies from a single family dying of sudden infant death syndrome were 73 million to one. It was a statistic that was to develop a resonance with the tabloid press and the wider public. For example, The Sun gave a story about another similarly bereaved mother the headline: "It may be 73 million to one but it happened to me."

But the statistic was wrong. The CA conceded the figure was "erroneous" and "should have been cleared away as a distraction" but was reckoned not to be of such significance as to sway a jury. Batt argues that if the jury is given "seriously wrong evidence" it is not for the judges to second-guess it by deciding for themselves that it would not have ultimately swayed the jurors.

But that is exactly what they did, he reckons. "The CA in its judgment said that it was quite certain that the jury would have taken no notice of the statistic because it was a 'side show', and you can't do that unless you put yourself in the minds of the jury."

The Sally Clarke case has been provisionally accepted by the European Court of Human Rights at Strasbourg and Batt is also preparing a number of different grounds for appeal for the CCRC.

Barrister Susannah Arthur works with Campbell Malone at Gabb & Co and represented John Kamara, who walked free last year after serving nearly 20 years in prison for the murder of a shopkeeper in Liverpool.

Like many lawyers in this field, she fears the new intransigence of the appeal judges has an adverse knock-on effect with the CCRC. "They are absolutely terrified of the CA," she claims. "If the CA judges are usurping the position of the jury, what do you think the commissioners at the CCRC are doing?" Arthur believes that the commission is also going through the "second-guessing" process.

Of course, the CCRC rejects the proposition that the appeal judges are taking a harsher line. But according to a spokesman, a change of policy at appeal level would have to be reflected at CCRC level. "It would have to influence our thinking because we are charged to find a 'real possibility' of success for an applicant (under the Criminal Appeal Act) and obviously we have to bear that in mind."

Arthur is convinced that sensitivities of CCRC staff have been heightened as a result of the recent wave of dismissals. She refers to the recent case of John Snooks where the CA dismissively described the reference as "devoid of merit" and not an effective use of the limited resources of the CCRC or the courts.

The barrister is also concerned at the superficial treatment that applications are receiving as they come into the CCRC. She has one current case which was submitted to the CCRC with the endorsement of Michael Birnbaum QC, the barrister who represented Kamara. The silk had bolstered the submission with his own comments and eight separate arguments were made. But still the application was rejected with what, he believed to be, little regard for the new lines of attack.

Apparently, the silk wrote a stinging letter in response to the CCRC dismissal. "If I had been the lawyer or even the commissioner that had actually received this really damning criticism of them I think I would have gone and shot myself," says Arthur.

But, as the barrister points out, this case has the backing of lawyers, whereas more than two thirds of applications that find their way to the CCRC have no lawyers to fight their corner. More than 90 per cent of those cases that end up in the Court of Appeal have lawyers behind them.

Before taking on Sally Clarke's case, John Batt was mainly involved in private client work at his form in Wimbledon, London. He has known the solicitor since she was five and her father is one of his oldest friends. He claims to be "absolutely appalled" by what he has seen in Clarke's and other cases. "It has so affected me personally that whenever I see that someone has been convicted I wonder if they have been stitched up by the system as Sally was," he says.

"We have the best legal system in the world if you are guilty but it doesn't do you a hell of a lot of good if your are innocent."

See also:
Sally Clark / John Kamara / Stephen Craven
Deaf justice by Bob Woffinden
The role of the appeal court in the criminal justice system