Making a Murderer: Is our criminal appeals process any better?

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By Katie King on

The factually guilty routinely ‘let off on a technicality’, while the factually innocent stay in prison


We’re now four months into the new year, and Netflix users are still talking about 10-part documentary series Making a Murderer.

Viewers were totally transfixed as filmmakers followed the trial, conviction and sentencing of Wisconsin-based uncle and nephew duo Steven Avery and Brendan Dassey, for their part in the murder of photographer Teresa Halbach.

Regardless of the jury verdicts, the world is not convinced that the pair committed the crime. Over 520,000 people are so shocked by the “injustices” of the case that they have called for Avery to be pardoned.

Developments keep on coming. Kathleen Zellner — Avery’s new lawyer — hit the press last week when she reportedly claimed to have found “a couple” of suspects she believes may be the true murderer. And now it’s been announced that Dean Strang, lawyer and all-round good guy from the series, will be getting his own spin-off show.

There’s a wealth of documentaries on Netflix and other video sharing sites. Making a Murderer was one of many to be released in December — so why is everyone still talking about it?

Because the story screams “something needs to be done here”. There is — at least in the eyes of the viewers — a good chance that Avery and Dassey are innocent. That the men have been framed, set up by the police, that the real murderer is still on the loose.

Spectators have been quick to pile the blame onto the US criminal justice system, with words like “corrupt” and “shady” being bandied around. We’re quick to shake our heads and condemn the system’s handling of the case, and the fact that the men are still locked up. But had the very same verdict been returned across the pond under the English courts’ jurisdiction, I’m not all that confident our criminal appeals system could handle it any better.

England has done its fair share of locking up innocent people — just look at the stories of Angela Canning and Sally Clark, and plenty others. As pointed out by criminal law lecturer Hannah Quirk earlier this year, the police are under intense media pressure to catch someone, anyone, and this institutional strain can lead to impulsive arrests.

The criminal justice system is far from infallible, and hence we have an appeals system to act as a procedural safety net for if and when things do go wrong. It’s pretty difficult to access: as pointed out by blogging barrister Dan Bunting, the US — compared to the UK, that is — “has much more to offer a convicted defendant” by way of appeal route. Here, there’s nowhere else to go but the Court of Appeal, and it’s not all that easy to get there. Very few reach the Supreme Court, and only then on technical questions of law.

But what might surprise the public more is the sort of cases that do reach the appeal courts. In law, it’s wrong to frame the conviction of a factually innocent person as a miscarriage of justice. The French legal system makes a distinction between an appel, an appeal on grounds of facts, and a cassation, an appeal on a point of law, but no such distinction exists in England. No matter what the media reports, miscarriage of justice victims are, in a surprising number of cases, factually guilty — but have managed to wangle themselves out of a hefty punishment because of a technicality.

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A conviction handed down in the Crown Court can be appealed in the Court of Appeal under s1 of the Criminal Appeals Act 1968. Under s2, the Court of Appeal can only allow an appeal against the conviction if it is “unsafe” — and it’s not the factual innocence or guilt of the convicted that determines this “safety”. In R (Adams) v Secretary of State for Justice, the Supreme Court made clear that the appeal courts’ jurisdiction concerns due process, not factual guilt. Lord Phillips went as far as to say that it a principle of “great constitutional importance” that the Court of Appeal cannot and does not make a declaration on factual innocence. While the factually innocent are left to rot, it’s the victims of due process errors that are reaping the benefits of the appeal courts.

So how do you go about appealing the conviction of an innocent person?

Enter the Criminal Cases Review Commission (CCRC). Set up in 1997, the CCRC is an “independent” public body that has the power to send a case — one that has already exhausted the judicial appeal route — back to the Court of Appeal, if this case is a suspected miscarriage of justice.

Hooray, sort of.

The CCRC parades itself as a wholly independent body, but that it is not. It is effectively shackled to the Court of Appeal. The CCRC cannot send a case back to the court unless it considers that “there is a real possibility that the conviction, verdict, finding or sentence would not be upheld were the reference to be made”, under s13(1)(a) Criminal Appeal Act 1995.

Professor Michael Naughton quips that this test is a “statutory straightjacket”, because it means that a case can only be referred to the Court of Appeal if the appeal is likely to be successful. And, surprise surprise, appeals are more likely to be successful if granted on technical, legal reasons, and not because of factual innocence.

The situation is undeniably unjust. Just have a read of Attorney General’s Reference (No 3 of 1999), where the offender was able to appeal his conviction for the rape of a 66 year-old woman — described by Lord Steyn as “horrendous” and “of the utmost gravity” — because of a technicality.

Yet the reason for this discrepancy is depressingly predictable: judicial resources are scarce, and the Court of Appeal doesn’t want to busy itself with time consuming, fact-based appeals.

Disapprove and denounce the convictions of Avery and Dassey all you like, but it doesn’t seem our criminal appeals system is all too hot on factual miscarriages of justice either.

It’s difficult to see a way out of this hole. This certainly isn’t just a case of simple legal reform. Criminal trials are, and always have been, highly technical affairs — a shift in institutional focus is at best unlikely. The CCRC, on the other hand, is a recent development. It’s more amenable to change, more able to accept wide-ranging reforms, and more able to fulfill its public mandate.

So focus here. The Innocence Network UK has a pretty good suggestion — repeal the real possibility test, and replace it:

with a test that allows the CCRC to refer a conviction back to the Court of Appeal if it thinks that the applicant is or might be innocent.

Only then will we have a proper recourse available to the factually innocent, the Averys and Dasseys of England.


Naughton, M (2009). The Criminal Cases Review Commission: Hope for the Innocent?. Basingstoke: Palgrave Macmillan.

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