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There is widespread acknowledgement that the criminal justice system, and in particular the trial and appellate processes, are failing women. Emma Torr reports on a system in crisis and hope on the horizon
Recent reports have highlighted the problems in the prison system in England and Wales with mass overcrowding in extremely poor conditions, exacerbated by short prison sentences and extended court backlogs. It is clear that our prison system is at breaking point. This is even more apparent within the female prison estate. Despite the number of women in prison being much lower than for men, female prisons house some of the most vulnerable and marginalised women in our society.
I am the Co-Director and in-house barrister at APPEAL, a charity and law practice that challenges wrongful convictions and promotes a fairer justice system. We receive letters from men and women who are struggling to challenge their convictions and sentences. The ones from women are all the more poignant when you begin to understand the reasons why they come to be involved in the criminal justice system in the first place.
Many of our female clients have faced extreme childhood adversity during adolescence and early adulthood and have experienced domestic abuse and/or coercive and controlling behaviour. As a consequence, our clients have physical difficulties and varying mental health difficulties, and some are profoundly unwell. This is reflected by recent Ministry of Justice figures which estimate that seven in 10 women in prison reported that they had been a victim of domestic violence and (82%) report that they have mental health problems compared with just over half of men (59%).
Some women we act for have been convicted of ‘offences’ when they ought not to have been, others have been convicted of offences which are not reflective of their offending, for example murder when the fair and just outcome ought to have been manslaughter. In our view these amount to miscarriages of justice.
The road to achieving justice for these women is a long and uncertain one. For those who have already had an unsuccessful appeal or have received a negative advice from trial counsel, finding a second opinion from another lawyer who can advise on the case using public funds can often be an impossible task.
There are now so few specialist lawyers advising on criminal appeals undertaking publicly funded work. The Court of Appeal itself has noted an increase in unrepresented defendants. In addition, the Criminal Cases Review Commission (CCRC), the statutory body that is able to refer cases to the Court of Appeal once an appeal has been refused, has seen the number of applications supported by a lawyer has significantly drop from a third to 3%.
Unsurprisingly, research undertaken by Lucy Welsh at the University of Sussex shows that those applications to the CCRC which have legal representation are much more likely to succeed than by an individual who has submitted an application themselves. The CCRC only refers around 2% of applications – your chances of being in that 2% are far higher if you have access to a specialist appeal lawyer to advise and draft a cogent application.
There are many obstacles in the way of achieving a positive outcome in a criminal appeal, not least access to public funding and securing the help of a solicitor, but there are significant issues that face women when it comes to this work. One of the most notable, and there are many reasons for this including the adversarial process in which women are tried, can best be described as a poor understanding of trauma and abuse by some practitioners representing women defendants who are victims of abuse. Working with individuals who have been exposed to trauma and whose personalities are complex and have developed in this context, is an important skill which most practitioners develop over a period of many years. Those who experience abuse do not feel comfortable disclosing their history and trauma to lawyers with whom they have not yet built up any trust, male practitioners even less so. Add into the mix learning difficulties, mental health issues, cultural obstacles against disclosing abuse and distrust of anyone with authority/in power, which is how clients may view their legal team, you have the perfect storm leading to justice miscarrying.
Because of the way in which the system operates, women are not give the time and space to acknowledge events and often truthful accounts are suppressed and only emerge when it is too late and after the trial process. In some cases women are so traumatised and damaged that they suffer from amnesia and are unable to recall the relevant event. At APPEAL, we hear many times stories of how women have only felt safe and secure enough to disclose the full extent of abuse or trauma until they have already served a proportion of their sentence in prison. By which time it is too late to turn the turn the clock back and present this evidence to the jury. The damage has already been done.
Unquestionably, the biggest hurdle for any appellant to overcome is convincing the Court of Appeal Criminal Division that a conviction is unsafe. While there is a high bar to overturning a conviction, this is ultimately much harder to achieve if the appellant, in this case a woman who experienced abuse, goes on to provide a different account to the one originally presented at trial. No matter what the compelling reasons are for doing so and even if this different account is supported with independent evidence and an expert, usually a psychologist, neuropsychologist or a psychiatrist, is able to give an expert opinion relating to the reasons for the change in account, an appellant will still need to grapple with ‘the one trial policy’. The Court of Appeal will often see their new account as ‘self-serving’ and will question why the evidence wasn’t presented to the jury? In short, why should an appellant who has effectively ‘lied’ at first instance, be given a second bite of the cherry?
The credibility of an appellant will be at the forefront of the court’s mind when deciding the safety of any conviction. However, the complexity of the abuse and the reasons for delayed reporting need to be properly understood if there is to be any prospect of correcting miscarriages of justice like these.
One example is the case of B who was convicted of causing harm to her child in the context of a domestic argument. B and her then partner were charged with causing the child’s injuries. During the trial proceedings B was sat in the dock next to her ex, who despite bail conditions preventing contact would continue to harass her and even broke into her address the very night before she was due to give evidence, which was documented in police records. In evidence she told the jury that the baby had fallen accidentally. This was untrue. Her co-accused blamed her for the injuries and portrayed B as an inadequate carer for the child. So under his complete control at the time, this was an unforeseen turn of events – she was effectively ‘ambushed’ when he gave evidence at the trial. She was found guilty by the jury and sentenced to six years’ imprisonment. Her partner who had a history of violence and drug addiction was convicted of the lesser offence of allowing injury to a child and received a sentence of 18 months’ imprisonment.
Some years later, APPEAL took on the case and learnt that there had been a history of physical and sexual abuse in the relationship and instructed a leading psychologist to review our client’s mental health at the time of the index offence. The expert diagnosed complex PTSD due to the years of abuse at the hands of her partner, which she commented was ‘one of the most severe cases of PTSD, which was akin to torture’.
The appeal against sentence succeeded and the length of sentence was reduced, but the Court of Appeal rejected B’s appeal against conviction. Although the court agreed that there was evidence of abuse in the relationship, the Court of Appeal was not persuaded by B’s new account of how the injuries occurred. In the court’s view this was not credible testimony.
Here lies the difficulty – how do you properly assess the credibility of an appellant, either in the context of a change in account as was the case with B, or if the court is presented with an appellant who has no memory of the index offence? The answer is that there should be less of a fixation on inconsistencies in an appellant’s evidence and, in its place, a greater understanding of the deeper reasons for any departures from previous accounts, particularly in cases where expert opinion undermines the notion that the appellant’s evidence is ‘self-serving’.
There ought to be a more curious way of assessing these issues because a departure from a previous account can often be explained through the prism of domestic abuse/coercive and controlling behaviour and supported by expert evidence.
There is widespread acknowledgement that the criminal justice system, and in particular the trial and appellate processes, are failing women. Many women’s organisations, including the Centre for Women’s Justice, have consistently campaigned for reform where the law disproportionately disadvantages women, such as cases involving domestic homicide. Clare Wade KC’s Domestic Homicide Sentencing Review in 2023 recommended a number of changes in this area, which have since been adopted.
The most recent announcement – that the Law Commission will review the law relating to homicide offences, including full and partial defences to those offences, and the existing sentencing framework for murder – is to be welcomed, particularly the assessment of whether the law reflects a modern understanding of the effects of domestic abuse.
The Independent Sentencing Review led by David Gauke will also consider, among other issues, whether the current sentencing framework should be amended to take into account the specific needs or vulnerabilities of women.
In addition to the Law Commission’s ongoing review of the defences to homicide for women who kill their abusers, this is a momentous opportunity to correct the unbalances within the system which leave the voices of many women unheard and misunderstood.
Notwithstanding the difficulties these cases pose, APPEAL will continue to bring relevant convictions before the CACD and the CCRC, work alongside other organisations and promote reform so that those who have experienced abuse are no longer convicted and sent to prison where they continue to be traumatised by a system that does not recognise their needs.
Emma Torr is a barrister and Co-Director of the charity and law practice APPEAL. She represents individuals who have suffered a miscarriage of justice. Before joining APPEAL Emma practised in criminal defence.
Recent reports have highlighted the problems in the prison system in England and Wales with mass overcrowding in extremely poor conditions, exacerbated by short prison sentences and extended court backlogs. It is clear that our prison system is at breaking point. This is even more apparent within the female prison estate. Despite the number of women in prison being much lower than for men, female prisons house some of the most vulnerable and marginalised women in our society.
I am the Co-Director and in-house barrister at APPEAL, a charity and law practice that challenges wrongful convictions and promotes a fairer justice system. We receive letters from men and women who are struggling to challenge their convictions and sentences. The ones from women are all the more poignant when you begin to understand the reasons why they come to be involved in the criminal justice system in the first place.
Many of our female clients have faced extreme childhood adversity during adolescence and early adulthood and have experienced domestic abuse and/or coercive and controlling behaviour. As a consequence, our clients have physical difficulties and varying mental health difficulties, and some are profoundly unwell. This is reflected by recent Ministry of Justice figures which estimate that seven in 10 women in prison reported that they had been a victim of domestic violence and (82%) report that they have mental health problems compared with just over half of men (59%).
Some women we act for have been convicted of ‘offences’ when they ought not to have been, others have been convicted of offences which are not reflective of their offending, for example murder when the fair and just outcome ought to have been manslaughter. In our view these amount to miscarriages of justice.
The road to achieving justice for these women is a long and uncertain one. For those who have already had an unsuccessful appeal or have received a negative advice from trial counsel, finding a second opinion from another lawyer who can advise on the case using public funds can often be an impossible task.
There are now so few specialist lawyers advising on criminal appeals undertaking publicly funded work. The Court of Appeal itself has noted an increase in unrepresented defendants. In addition, the Criminal Cases Review Commission (CCRC), the statutory body that is able to refer cases to the Court of Appeal once an appeal has been refused, has seen the number of applications supported by a lawyer has significantly drop from a third to 3%.
Unsurprisingly, research undertaken by Lucy Welsh at the University of Sussex shows that those applications to the CCRC which have legal representation are much more likely to succeed than by an individual who has submitted an application themselves. The CCRC only refers around 2% of applications – your chances of being in that 2% are far higher if you have access to a specialist appeal lawyer to advise and draft a cogent application.
There are many obstacles in the way of achieving a positive outcome in a criminal appeal, not least access to public funding and securing the help of a solicitor, but there are significant issues that face women when it comes to this work. One of the most notable, and there are many reasons for this including the adversarial process in which women are tried, can best be described as a poor understanding of trauma and abuse by some practitioners representing women defendants who are victims of abuse. Working with individuals who have been exposed to trauma and whose personalities are complex and have developed in this context, is an important skill which most practitioners develop over a period of many years. Those who experience abuse do not feel comfortable disclosing their history and trauma to lawyers with whom they have not yet built up any trust, male practitioners even less so. Add into the mix learning difficulties, mental health issues, cultural obstacles against disclosing abuse and distrust of anyone with authority/in power, which is how clients may view their legal team, you have the perfect storm leading to justice miscarrying.
Because of the way in which the system operates, women are not give the time and space to acknowledge events and often truthful accounts are suppressed and only emerge when it is too late and after the trial process. In some cases women are so traumatised and damaged that they suffer from amnesia and are unable to recall the relevant event. At APPEAL, we hear many times stories of how women have only felt safe and secure enough to disclose the full extent of abuse or trauma until they have already served a proportion of their sentence in prison. By which time it is too late to turn the turn the clock back and present this evidence to the jury. The damage has already been done.
Unquestionably, the biggest hurdle for any appellant to overcome is convincing the Court of Appeal Criminal Division that a conviction is unsafe. While there is a high bar to overturning a conviction, this is ultimately much harder to achieve if the appellant, in this case a woman who experienced abuse, goes on to provide a different account to the one originally presented at trial. No matter what the compelling reasons are for doing so and even if this different account is supported with independent evidence and an expert, usually a psychologist, neuropsychologist or a psychiatrist, is able to give an expert opinion relating to the reasons for the change in account, an appellant will still need to grapple with ‘the one trial policy’. The Court of Appeal will often see their new account as ‘self-serving’ and will question why the evidence wasn’t presented to the jury? In short, why should an appellant who has effectively ‘lied’ at first instance, be given a second bite of the cherry?
The credibility of an appellant will be at the forefront of the court’s mind when deciding the safety of any conviction. However, the complexity of the abuse and the reasons for delayed reporting need to be properly understood if there is to be any prospect of correcting miscarriages of justice like these.
One example is the case of B who was convicted of causing harm to her child in the context of a domestic argument. B and her then partner were charged with causing the child’s injuries. During the trial proceedings B was sat in the dock next to her ex, who despite bail conditions preventing contact would continue to harass her and even broke into her address the very night before she was due to give evidence, which was documented in police records. In evidence she told the jury that the baby had fallen accidentally. This was untrue. Her co-accused blamed her for the injuries and portrayed B as an inadequate carer for the child. So under his complete control at the time, this was an unforeseen turn of events – she was effectively ‘ambushed’ when he gave evidence at the trial. She was found guilty by the jury and sentenced to six years’ imprisonment. Her partner who had a history of violence and drug addiction was convicted of the lesser offence of allowing injury to a child and received a sentence of 18 months’ imprisonment.
Some years later, APPEAL took on the case and learnt that there had been a history of physical and sexual abuse in the relationship and instructed a leading psychologist to review our client’s mental health at the time of the index offence. The expert diagnosed complex PTSD due to the years of abuse at the hands of her partner, which she commented was ‘one of the most severe cases of PTSD, which was akin to torture’.
The appeal against sentence succeeded and the length of sentence was reduced, but the Court of Appeal rejected B’s appeal against conviction. Although the court agreed that there was evidence of abuse in the relationship, the Court of Appeal was not persuaded by B’s new account of how the injuries occurred. In the court’s view this was not credible testimony.
Here lies the difficulty – how do you properly assess the credibility of an appellant, either in the context of a change in account as was the case with B, or if the court is presented with an appellant who has no memory of the index offence? The answer is that there should be less of a fixation on inconsistencies in an appellant’s evidence and, in its place, a greater understanding of the deeper reasons for any departures from previous accounts, particularly in cases where expert opinion undermines the notion that the appellant’s evidence is ‘self-serving’.
There ought to be a more curious way of assessing these issues because a departure from a previous account can often be explained through the prism of domestic abuse/coercive and controlling behaviour and supported by expert evidence.
There is widespread acknowledgement that the criminal justice system, and in particular the trial and appellate processes, are failing women. Many women’s organisations, including the Centre for Women’s Justice, have consistently campaigned for reform where the law disproportionately disadvantages women, such as cases involving domestic homicide. Clare Wade KC’s Domestic Homicide Sentencing Review in 2023 recommended a number of changes in this area, which have since been adopted.
The most recent announcement – that the Law Commission will review the law relating to homicide offences, including full and partial defences to those offences, and the existing sentencing framework for murder – is to be welcomed, particularly the assessment of whether the law reflects a modern understanding of the effects of domestic abuse.
The Independent Sentencing Review led by David Gauke will also consider, among other issues, whether the current sentencing framework should be amended to take into account the specific needs or vulnerabilities of women.
In addition to the Law Commission’s ongoing review of the defences to homicide for women who kill their abusers, this is a momentous opportunity to correct the unbalances within the system which leave the voices of many women unheard and misunderstood.
Notwithstanding the difficulties these cases pose, APPEAL will continue to bring relevant convictions before the CACD and the CCRC, work alongside other organisations and promote reform so that those who have experienced abuse are no longer convicted and sent to prison where they continue to be traumatised by a system that does not recognise their needs.
There is widespread acknowledgement that the criminal justice system, and in particular the trial and appellate processes, are failing women. Emma Torr reports on a system in crisis and hope on the horizon
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