Convicting The Innocent: Lessons Learnt

CONVICTING THE INNOCENT: LESSONS LEARNT CONVICTING THE INNOCENT: LESSONS LEARNT By Michelle Shahid (Bertha Justice Fellow at the Foundation for Fundamental Rights) The strength of our criminal justice system depends on its accuracy - its ability to convict the guilty and exonerate the innocent. In Pakistan, a failure of justice is no longer an exception to the norm: thousands of people have been wrongfully convicted in a system defined by official indifference to innocence and error. While miscarriages of justice occur daily through the negligence of one or more actors of the criminal justice system, these instances largely go unnoticed and consequently, unaccounted for. A recent report by the Foundation for Fundamental Rights and Reprieve, The Pakistan Capital Punishment Study, reveals a harsh reality: in the 9 years from 2010 to 2018, the Supreme Court overruled decisions made by lower courts in 78% of capital cases, of which 39% were acquittals. Thus, nearly two in every five prisoners sentenced to death were determined to have been wrongfully convicted and may in fact be innocent of the crime for which they had been convicted, if their cases reached the apex Court at all. These statistics reveal systemic flaws in Pakistan's criminal justice system, resulting in grave, often irreversible, miscarriages of justice. Behind these miscarriages of justice, there are serious evidential and prosecutorial failings at the trial and the High Court levels, and unquestionably, human lives at stake. As FFR's study reveals, the Supreme Court of Pakistan has effectively been forced to 'correct' evidential errors made by the lower courts in capital cases. However, lack of accountability of the police, prosecutors, judges and jail officials inevitably paves way for a justice system that permits malpractice at each stage of the process - from arrest, to trial, appeal and post-conviction review. The Pakistan Capital Punishment Study further elucidates the most recurrent reasons for which a conviction is found to be unsafe by the Supreme Court, providing direct evidence of the pervasiveness of acts that constitute miscarriages of justice in Pakistan. The Supreme Court's most serious criticisms of proceedings in the lower courts have arisen from reliance on dubious eye-witness testimony, especially where that testimony is not corroborated by independent physical evidence. In 70% of the cases where the Supreme Court acquitted the accused, the reason for the acquittal was that the lower courts wrongly relied on weak witness testimony. Moreover, in 74% of the acquittals in capital cases from 2015 - 2018, the apex Court found that the trial court had imposed a death sentence without sufficient evidence to prove the guilt of the accused, specifically where the evidence produced was based on weapons. Improper identification of the accused and flawed identification parade procedures further exacerbates the miscarriages stemming from the justice system. According to the study, in one of six judgements where an acquittal was ordered, the Supreme Court found that the trial court had sentenced an accused to death despite him not having been properly identified as the culprit who caused the fatal injury. In one out of eleven acquittal cases from 2015 - 2018, the Supreme Court found that the lower courts had sentenced an accused to death by relying on an identification parade that did not follow proper procedures, meaning the accused spent years on death row without being properly identified as the guilty party. In addition to the evidentiary failings at the trial level, irregularities at the investigation level, which the Supreme Court finds indicative of police misconduct, take several forms, such as an unexplained delay in registering the First Information Report (which serves as the initial report of the crime and the basis for all future investigation) or in conducting the post-mortem examination. In cases where the Supreme Court identified signs of police corruption in the course of the criminal investigation, it overwhelmingly found the evidence insufficient to prove the accused guilty beyond a reasonable doubt and thus acquitted on all charges. The frequent references to untrustworthy and suspicious evidence make clear that the Supreme Court itself recognizes the prevalence of corruption and falsity in police investigations. Unsurprisingly, in 14% of reported cases where the Supreme Court acquitted the accused, it found that a confession relied upon by the lower courts was involuntary, retracted or obtained using improper procedure during the investigation stage. Lack of criminal intent also remains one of the foremost causes of the high rate of acquittals - a review of capital cases from 2015 to 2017 showed that in 40% of acquittals, the Supreme Court found that the prosecution had failed to establish the very basic element of "intention, guilty mind or motive" of the accused. Each of the systemic failings described above constitute human rights violations, that the supreme law of the land, the Constitution of Pakistan, guarantees for all citizens, including those that have been accused of committing a criminal offence. Where investigations and trials are conducted without conforming to criminal justice safeguards and are rife with negligence at various stages, convictions cannot be said to be "fair" under Article 10-A and "in accordance with law" under Article 4 of the Constitution. Any consequent deprivation of liberty and life, therefore, violates Article 9 of the Constitution. Moreover, condemning innocent persons to live in squalid, overcrowded conditions is nothing short of undignified, degrading treatment, violating Article 14 of the Constitution. These violations compel the conclusion that Pakistan's justice system is unreliable; where its failure infringes Fundamental Rights, liability must ensue. Even the most efficiently functioning legal systems are prone to mistakes that can have dire consequences on individuals and communities. Persons who have spent years in prison struggle to adjust to life after their incarceration and are often unable to find employment. For this reason, most criminal law jurisdictions affirm the right of individuals to seek compensation from the State for wrongful convictions. A redressal mechanism in several jurisdictions stems from Article 14(6) of the International Covenant on Civil and Political Rights (ICCPR). It states: "6. When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him." The United Nations Human Rights Committee, in its General Comment No.32 (2007), expounded upon Article 14(6), stating that "It is necessary that State parties enact legislation ensuring that compensation as required by this provision can in fact be paid and that payment is made within a reasonable period of time." The ICCPR and the UN Human Rights Committee cumulatively emphasise the need for a legislative framework for payment of compensation to victims of miscarriage of justice. Pakistan, despite being a signatory to the ICCPR, is yet to incorporate a compensatory regime in its domestic law - a grim reality for a system oriented more towards the need to secure blame through convictions than to impart justice. Compensatory regimes: A comparative analysis While several legal systems have adopted Article 14(6) of the ICCPR, these also present widely divergent views on what course of events and which factual scenarios fall within the net of statutorily recognized and consequently, compensable miscarriages of justice. In the UK, for example, a two pronged and thereby highly exclusionary definition is employed. For a claim for compensation for a miscarriage of justice, the Criminal Justice Act, 1988 requires, firstly, that the conviction be reversed or the convict be pardoned on the grounds of a 'new or newly discovered fact' and additionally, the individual whose prior conviction has been quashed by the Court must also show 'beyond reasonable doubt' that they 'did not commit the offence,' unless the non-disclosure of this fact was wholly or partly attributable to the applicant. The test for compensation, therefore, requires the applicant to establish that a new fact proves his innocence beyond reasonable doubt, effectively introducing a third verdict, other than 'guilty' and 'not guilty,' or 'factually innocent.' The consequence of recognizing a verdict of 'factually innocent' in claims of compensation is such that there now exists a differentiation between two tests: the criminal one (whereby the applicant is declared 'not guilty' and acquitted of all charges or is pardoned) and the following, separate, civil one (for which a new fact must establish innocence beyond reasonable doubt). This places the applicant as innocent in the eyes of the criminal law but requires a different and stricter level of proof to substantiate the civil claim to compensation. In assessing any compensation payable under the Criminal Justice Act 1988 as is attributable to suffering, harm to reputation or similar damage, the statute specifically requires the assessor to consider (a) the seriousness of the offence of which the person was convicted and the severity of the punishment suffered as a result of the conviction, and (b) the conduct of the investigation and prosecution of the offence. Notably, not only does the assessment criteria require a consideration of the offence and punishment suffered but also recognizes and compensates the victim for harm suffered as a consequence of prosecutorial and police misconduct. Perhaps, a more generous scheme compensating victims of miscarriages of justice is that of New Zealand's Ministry of Justice's Guidelines on Compensation for Wrongful Conviction and Imprisonment (May 2015). The Guidelines outline the eligibility criteria of claimants for compensation and stipulate a mechanism for the award of compensation - an individual is eligible for compensation if he is imprisoned following a wrongful conviction that is subsequently set aside and is, at a minimum, innocent on the balance of probabilities, meaning that a claimant only has to show that, based on the evidence produced, it is more probable than not that he is innocent of the charges for which he had been convicted. In making awards for compensation, it is not only that the standard of proof is more lenient than in the UK but also that the process of claiming is subject to different requirements. Whereas, in a criminal trial only legally admissible evidence is allowed, in contrast, for claims of compensation conducted under the Guidelines, the Queen's Counsel is able to receive any evidence which has a bearing on the issue - this may include evidence that for one reason or another was not heard at trial and evidence which was adduced but not received for the purpose of the appeal. New Zealand also allows for victims of miscarriage of justice who do not fall under the eligibility criteria for compensation and ex gratia payments, to seek compensation where exceptional circumstances are found to exist and where it is in the interests of justice. It is notable that New Zealand's compensation regime stretches beyond pecuniary losses and makes provision for non-pecuniary losses as a portion of compensation and also provides for a public apology or statement of innocence - an applaudable step towards restoring the claimant's dignity and liberty, lost as a consequence of the State's failure to achieve the ends of justice. Conversely, in the United States, the fundamental criteria for establishing a miscarriage of justice, laid down in Title 28 of the Code of Law of the United States, is an "unjust conviction", coupled with imprisonment. An unjust conviction is one in which a conviction is overturned on appeal or revision, or the convict is accorded presidential pardon on the grounds that he was innocent of the crime he was charged, convicted and punished for. A claimant, therefore, is required to establish a miscarriage of justice in the district court of conviction and obtain a Certificate of Innocence, which then allows him to claim damages in the US Court of Federal Claims. The standard of proof for obtaining a Certificate of Innocence is of preponderance of evidence (Abu Shawish v. US 898 F. 3d 726 (7th Circuit, 2018)). Accordingly, a claimant must "allege and prove" that the acquittal or reversal was based on a finding that he "was not guilty of such offence" and also, that he did not commit any of the acts he was charged with. A claimant is eligible to make a claim also where his conviction has been reversed or set aside and upon retrial, he has been found innocent of the charges against him. Alternatively, he may file for damages if, in addition to a subsequent acquittal or reversal of conviction based on a finding of 'not-guilty', he demonstrates that his acts or omissions in connection with the charge did not constitute an offence. In conducting these proceedings, the Court enjoys wide discretion to call for and accept additional evidence, as well as to regulate its own proceedings. While guidance can be sought from the jurisdictions outlined above, greater insight into the nature of miscarriage of justice in Pakistan can be had by comparison with India. Like Pakistan, India has not yet instituted a formal law to provide redressal to instances of miscarriage of justice. However, recently, the High Court of Delhi in the case of Babloo Chauhan @ Dabloo v. State Govt. of NCT of Delhi [247 (2018) DLT 31], highlighted the urgent need for a legislative framework for providing relief and rehabilitation to victims of wrongful prosecution and asked the Law Commission of India to undertake a comprehensive examination of the aforesaid issues and make a recommendation thereon to the Government of India. The Law Commission, in its Report, Wrongful Prosecution (Miscarriage of Justice): Legal Remedies, recommended an amendment to Indian Code of Criminal Procedure, 1973, which would incorporate a redressal mechanism for victims of miscarriage of justice. The Law Commission of India's Report peruses the standard of miscarriage of justice envisaged under Article 14(6) of the ICCPR as well as by western jurisdictions and concludes that while quashing a conviction based on "new or newly discovered fact" has its own merits for the purposes of a claim for compensation, this standard fails to encapsulate all instances of miscarriage of justice prevalent in India's criminal justice system. The Law Commission noted that limited technical advancement and lack of zeal of investigative agencies in India hardly left any scope for discovery of "new facts proving factual innocence of the convict". Moreover, in the absence of advanced DNA databases and other tools of forensic investigation that exist in developed countries, proving factual innocence in India is improbable and therefore, problematic. Systemic failings in India mean that an individual, in his interaction with the justice system, undergoes prolonged incarceration, torture in police custody, tampering of evidence, prosecutorial misconduct and delays in legal proceedings, before he is finally acquitted. In view thereof, a definition of wrongful conviction must account for the various injustices suffered by an innocent person, noting that the same is not covered under the limited parameters provided under Article 14(6) of the ICCPR. Therefore, the Law Commission proposed that the standard to determine whether a miscarriage of justice had occurred should be of wrongful prosecution, including both, malicious prosecution and prosecution instituted without good faith. Malicious prosecution is defined as prosecution without "reasonable or probable cause" i.e. honest belief in the guilt of the accused, founded upon the existence of circumstances which would lead an ordinary, prudent or cautious man to the conclusion that the person charged was probably guilty of the crime. Whereas, prosecution without good faith has been expounded in light of the definition of "good faith" stipulated in Section 52 of the Indian Penal Code, which states that no act is done in good faith if it is done without "due care and attention" - where due care denotes the degree of reasonableness in the care sought to be exercised when holding an office or duty requiring skill or care. The standard of proof is recommended to be of 'balance of probabilities.' Accordingly, the Commission recommended the establishment of special courts, designated to hear claims filed by aggrieved persons. A claim can be taken for harm or damage to body, mind, reputation or property as a result of the wrongful prosecution, and can be initiated by the accused person himself, his agent or in case of death, the accused's legal heirs. In awarding compensation, the court must include pecuniary as well as non-pecuniary assistance to effectuate rehabilitation of the victims. Non-pecuniary assistance shall also include a specific provision for removing any disqualification attached to the conviction (for example, custody of children or exclusion from employment opportunities). The Commission also recommended that guiding principles for determination of pecuniary compensation may be provided, including gravity of the charged offence, severity of punishment, length of incarceration, damage to health, loss of opportunities and damage to reputation. A way forward While a comparative analysis of redressal mechanisms in other jurisdictions is instructive, a compensatory regime in Pakistan must be contextually appropriate. The definitions of miscarriage of justice adopted by comparative jurisdictions recognize that, in spite of reasonable diligence of state actors and a trial conducted in good faith, there are circumstances where there is a failure to dispense justice. Moreover, in these jurisdictions, obstruction of justice, including by way of false evidence, false witness testimony and evidence tampering, are punishable offences. While analogous provisions can be found in the Pakistan Penal Code (such as malicious prosecution), complaints are rarely filed under these provisions and those who obstruct justice are rarely prosecuted. A definition of miscarriage of justice, therefore, must reflect the reality of Pakistan's criminal justice system, where negligence and misconduct at investigation and trial are the most recurrent causes of wrongful convictions, as revealed by the findings of The Pakistan Capital Punishment Study. In drafting a law that establishes a redressal mechanism for such instances in Pakistan, it is also imperative to remain cognizant of Fundamental Rights of the wrongfully convicted that are violated as a direct consequence of their interaction with the criminal justice system and the ensuing miscarriage of justice. In awarding compensation, factors taken into consideration must include loss of liberty, emotional harm, loss of reputation and loss or interruption of family or other personal relationships, loss of livelihood, including loss of earnings, loss of future earning abilities, loss of property or other consequential financial losses resulting from detention or imprisonment and costs incurred by or on behalf of the person in obtaining a pardon or acquittal. A legal system that prides itself in dispensing justice on the basis of innocent until proven guilty, must now atone for and prevent these devastating tragedies. Disturbing trends of high rates of acquittals show how broken the criminal justice system is and the urgent need for reform. In the fight for justice, Pakistan must not forget those that have suffered due to the system's own failings. Even one innocent person in prison is one too many.