Post-Conviction Review: Questions of Innocence, Independence, and Necessity

Fiona Leverick , Kathryn Campbell, Isla Callander

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Abstract

Alongside a growing recognition of the existence of miscarriages of justice, there has been a parallel development of schemes to address wrongful convictions after the normal appeals process has been exhausted. This Article addresses the question of what constitutes the proper role for such schemes, drawing on a comparative examination of the respective schemes in Canada, Scotland, and North Carolina. It puts forward four arguments. First, it argues that there is a clear need for post‐ conviction review schemes to operate outside of the courts, supported by investigative resources and the power to compel the production of evidence, and for them to be independent from government. Second, it argues that such schemes should not restrict their remit to cases in which fresh evidence emerges, but should be empowered to refer cases back to the court of appeal where there has been a procedural impropriety that casts doubt on guilt. They should not, however, be permitted to refer cases back to the court where there is overwhelming evidence of guilt, despite the seriousness of the procedural breach concerned. While there is a good argument that a court should overturn a conviction where a serious breach of procedure calls into question its moral authority to adjudicate, this argument does not extend to a post‐conviction review body, which sits one step removed from the conviction process and is likely to lose public confidence if it refers cases where there is overwhelming evidence that the convicted person is factually guilty. Third, it argues that while there is no reason in principle to restrict review to serious cases or to cases where the convicted person is living, these are not unreasonable restrictions to place on a scheme if limited resources exist. Finally, it argues that post‐conviction review bodies concerned primarily with the review of individual applications are not ideal for playing a wider role in systemic reform, which would be a more effective undertaking by an affiliated body with a broader based membership.
Original languageEnglish
Pages (from-to)45-84
Number of pages40
JournalStetson Law Review
Volume47
Issue number1
Publication statusPublished - 30 Sep 2017

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