Families at war? Relationships between ‘survivors’ of wrongful conviction and ‘survivors’ of serious crime

Abstract

Following the quashing of an unsafe conviction, the appellant and their supporters often rejoice that their quest for justice has been successful and that the appellant has been released from their wrongful imprisonment. For the survivors of crime involved in the criminal case, including those suffering bereavement after homicide, the appellant’s release from the Court of Appeal (Criminal Division) can engender feelings of resentment and hostility. This article will examine relationships between survivors of wrongful conviction and survivors of crime often involved in the same criminal case. The article argues that the antipathy between the families contributes to undermining both parties’ desire for emotional healing and recovery.

Keywords

Families survivors trauma victims wrongful conviction

Introduction

A particular dilemma within miscarriages of justice discourse, and one not examined in previous literature, concerns the relationship of the wrongly convicted and their supporters with the ‘survivor’ of crime (where alive) and secondary victims, often suffering bereavement following homicide. For survivors of crime, the conviction of the defendant represents the achievement of justice and an opportunity to begin the long process of healing and recovery. When the defendant’s conviction is subsequently quashed by the Court of Appeal (Criminal Division) (CACD), many survivors come to believe that the Court of Appeal has robbed their family of justice and undermined their emotional equilibrium. The problems are often exacerbated when the wrongfully convicted then seek to persuade the investigating police force to reopen the case and seek compensation.

Appellants claiming wrongful conviction in England and Wales have at their disposal the appeals process by which they hope to see their convictions quashed. A subsequent development established by the Criminal Appeal Act (1995) is the Criminal Cases Review Commission (CCRC or the ‘Commission’), which has the power to order reinvestigations of alleged miscarriages of justice and to send cases back to the CACD under s. 17 of the Criminal Appeal Act (1968). The Commission was formally established on 1 January 1997 and is an independent public body able to receive applications from appellants whose claims of wrongful conviction emanate from England, Wales and Northern Ireland (Hungerford-Welch, 2009). The Commission considers the applications of appellants whose previous appeals against conviction have failed but where they continue to challenge the validity of the conviction. The CCRC, however, operates under a number of constraints, including that referrals are dependent on new evidence or arguments not heard at trial or an earlier appeal (Criminal Appeal Act 1995). When weighing up the likelihood of a referred case being upheld by the CACD, the Commission only refers where there is a ‘real possibility’ of success, which again is dependent on the quality of any new evidence (Hungerford-Welch, 2009: 702). The issue of what constitutes a ‘real possibility’ has been discussed in the Divisional Court during a judicial review hearing regarding a CCRC decision in R v Criminal Cases Review Commission, ex Pearson [2000] 1 Cr App R 141. The Lord Chief Justice, in relation to the ‘real possibility test’, indicated that it ‘plainly denotes a contingency which in the Commission’s judgement is more than an outside chance or bare possibility but which may be less than a probability or likelihood or racing certainty’.

For some factually innocent appellants the appeal process appears designed to hinder rather than facilitate examination of an alleged miscarriage of justice (Naughton, 2010). The process by which a citizen appeals against wrongful conviction means that during any hearings prior to submitting an application to the CCRC, the appellant has usually used their new arguments or evidence, thus making a fresh application to the Commission on the basis of additional new evidence or argument even more problematic. A recent Open Meeting at the House of Commons on 30 November 2010, chaired by John McDonnell, MP for Hayes and Harlington, debated the question of whether the CCRC is fit for purpose in light of the numbers of cases being refused a referral by the Commission. As of December 2012 the Commission has received 15,710 applications. The number of cases referred by the CCRC to the CACD following a reinvestigation currently stands at 512 referrals, with 328 referred cases being quashed at the Court of Appeal (CCRC, 2012). A general concern with the approach being taken by the CACD and CCRC led to the formation of the Criminal Appeal Lawyers Association (CALA), a body which seeks to promote ‘better representation for those persons seeking to appeal their convictions’ (CALA, 2010). Despite criticism of the CCRC from isolated quarters (Naughton, 2012; Woffinden, 2010), the Commission remains the only body with the authority to send suspected cases of miscarriage of justice back to the Court of Appeal.

The response of many alleged victims of miscarriages of justice is to set up a campaign group against the alleged wrongful conviction. For those appellants who are refused an appeal or a referral by the CCRC, the role and function of their campaign can change, with some campaigners campaigning against criminal justice legislation, in addition to campaigning against the conviction. The decision to campaign can be viewed as a symbolic act of counter discourse where the appellant and their family refuse to accept the Court’s decision to convict. What follows is a campaign against wrongful conviction in addition to using the procedures and appeal mechanisms instituted by government. The procedures used by appellants include seeking leave to appeal from a single judge and, where appropriate, submitting an application to the CCRC.

For the survivors of crime the process of appeal can be protracted and enervating. Many appeals against conviction can take several years to be referred to the CACD, and during this time many ‘survivors’ of crime feel that justice has been placed ‘on hold’ until such time that the Court of Appeal dismisses or allows the appeal. A second issue experienced by an increasing number of ‘survivors’ is the growing number of quashed convictions, under the Criminal Appeal Act 1968, s. 7, which are ordered back to the Crown Court for retrial because ‘the interests of justice so require’ it. Any retrial means that witnesses called to give evidence at the first trial might have to do so again. For the survivors of crime the process of facing the defendant again and having to experience the procedures of the criminal trial can be daunting and highly stressful. Similarly, the appellant who continues to protest their innocence and who has already been through the process of one criminal trial, imprisonment and appeal then faces the prospect of being reconvicted for an offence they say they did not commit.

The purpose of the article is to examine relationships between ‘families at war’ and examine the extent to which feelings of antipathy and mistrust frustrate the abilities of the actors to recover from their experiences of trauma. The article will begin with an examination of the consequences of victimization, including the subject of secondary victimization and the extent to which engagement with the procedures and practices of the criminal justice system can exacerbate their feelings of victimization. Following wrongful conviction, appellants who are released by the Court of Appeal often indicate that their wrongful imprisonment has left them suffering from mental health issues, including post-traumatic stress syndrome (Jamieson and Grounds, 2005). The effects of this on family life, should they return to the family home, can be catastrophic, with appellants sometimes indicating that their close relationships have suffered ‘a profound estrangement’ (Grounds, 2004: 173) and that their imprisonment has caused severe distress to other family members. The challenge for the survivors of wrongful conviction and for the survivors of crime is that after release from the Court of Appeal both sets of ‘survivors’ are faced with the dilemma of how to reorganize their journey of recovery and make sense of the criminal case. Relationships between survivors of wrongful conviction and survivors of crime are often more complex in cases that concern the death of a spouse or child. These cases and others require sensitivity of approach during data collection, particularly as many survivors of crime remained hostile towards the released appellant despite the quashing of the conviction. The article will examine these relationships and also consider the role of the media in perpetuating narratives that obstruct both families’ desire for resolution.

‘Survivors’ and ‘victims’

Most appellants and their supporters active in campaigning against wrongful conviction do not view their activities or personal identification as that of a ‘passive’ victim, but as survivors actively protesting against injustice. What is significant in many cases was that those participants involved in wider justice movements whose preferred term was ‘survivor’ employed this terminology within their own campaigns against miscarriages of justice. In these circumstances the campaigners appear to have adopted the cultural nomenclature of other groups and used these meanings to contribute to their own understanding of personal identity. Michael O’Brien, whose case became known as the Cardiff Newsagent Three, was finally released on bail following 11 years in prison in 1998 before his conviction for murder was finally quashed in 1999. After the quashing of the conviction he stated that, ‘I don’t look on myself as a victim of a miscarriage of justice but as a survivor’ (Campbell, 2008). One issue for O’Brien was that he had actively fought against the criminal justice system and had emerged as a survivor (O’Brien, 2008). Walklate (1993) suggests that although the argument is sometimes framed in oppositional terms it is possible to see ‘victim’ and ‘survivor’ as denoting different aspects of the existential journey of the individual. In situations where individuals have experienced a traumatic event they might be ‘active or passive victims’ or ‘active or passive survivors’ depending on their own path to recovery (Walklate, 2004: 54). Differences in how campaigners use the victim or survivor motif did not, however, create division or argument between activists campaigning against miscarriages of justice. They were sanguine about the use of either term, believing that what was important was the personal journey of appellants and supporters and the degree to which they were able to challenge the criminal justice system. The survivors of crime likewise employed both terms and during their journey of recovery chose terminology that reflected their current feelings and emotional equilibrium. Some ‘victims’ who were active in third sector organizations employed the use of ‘survivor’ when representing their particular self-help or support group but privately continued to describe themselves as a ‘victim’ of crime. For the purposes of this article the participants will be referred to as ‘survivors’ as this was the preferred term of most participants. The survivors of wrongful conviction will also be referred to as ‘appellants’.

Methods used in the current study involved a range of qualitative data collection techniques including participant observation with 132 participants at family events, campaign meetings, rallies and demonstrations, and judicial hearings. The participants were observed over three years, and during the course of the study 55 of these participants were interviewed regularly over a 2-year period. Thirty interviewees were male and 25 were female; 27 interviewees were primary survivors of wrongful conviction. Later interviews were conducted with 21 ‘survivors’ of crime, some of whom were directly involved in the criminal cases of appellants interviewed for this study. This group comprised 12 female and 9 male interviewees. Eleven victims were still suffering bereavement following the murder of a family member. Six of these victims had campaigned against the activities and campaigns of appellants, believing them to be guilty of their offences despite their quashed convictions.¹

The consequences of victimization

Any analysis of the harm caused by victimization needs to recognize that victims are not one homogenous group and that different people react in contrasting ways. The impact and harm caused by victimization can be acute and multifaceted (Shapland et al., 1985). Different types of victimization impact on the psychological, emotional, social, physical and financial well-being of victims in different ways, and these difficulties can be severe over short periods of time or can last for many years (Parkes, 1993; Riggs and Kilpatrick, 1990). This applies equally to the consequences of victimization experienced by survivors of wrongful conviction (Jamieson and Grounds, 2005). There is no one response to a trauma, and although it is possible to discern patterns of behaviour for the purpose of understanding victimization, it can never be assumed that a particular crime or injustice will generate a specific or stereotypical response from a victim (Newburn, 1993; Paterson et al., 2006). The participants described a range of responses following their trauma, including depression, anxiety, nightmares and headaches. Personal relationships often came under pressure through deterioration in communication, intimacy and sexual function, leading to estrangement (Freedy and Hobfoll, 1995). What was significant for the survivors interviewed in this study was that the quashed conviction continued to generate significant discord between the two sets of families.

In addition to the suffering experienced by survivors of crime there has been a growing awareness that some might experience secondary victimization through involvement with the procedures and processes of the criminal justice system, leading to what Dunn and Shephard (2006: 267) refer to as ‘re-victimization’. This might involve the emotional impact of giving evidence in court (Dunn and Shephard, 2006), or insensitive questioning by the police (Zedner, 2002) or the adversarial system, which by focusing solely on the prosecution and defence might undermine the needs of victims (Dignan, 2005; Ellison, 2001). The adversarial system similarly involves cross-examination, which is considered one of the most significant forms of secondary victimization, particularly in rape trials (Sanders and Jones, 2007; Soothill and Soothill, 1993).

Burton et al. (2007) have examined Home Office funded research into the use of special measures for vulnerable and intimidated witnesses giving evidence in court and argued that support for witnesses is fundamental to the administration of justice. Despite calls for better witness support many ‘victims’ continue to be re-traumatized by their court experiences. Soon after her own cross-examination, Francis Andrade, a victim of sexual abuse, committed suicide midway through her two offenders’ trial. The victim’s family said that ‘she had been traumatized by the hostile, aggressive and unrelenting experience of giving evidence in court’ (Jenkins and Bannerman, 2013). They later demanded better and more focused support for vulnerable witnesses. The experience of cross-examination has led to some victims choosing to avoid involvement in the criminal process, which in turn can lead to miscarriages of justice through crimes being unreported (Cretney and Davies, 1997; Hall et al., 2009).

An important factor raised by most participants in the current study was that during the police investigation and criminal trial they were at their most vulnerable, psychologically and emotionally. The survivors of crime argued that ‘it was enough to just get through the day, never mind giving evidence in court’ (Survivor of Crime: Participant 16). The appellants similarly indicated that at the point of being wrongfully charged they were unable to cope with the stress and anxiety of being ‘the defendant’ in a criminal trial. Most appellants indicted that their cross-examination had been hostile and combative and had left them traumatized. Significantly, six appellants stated that their cross-examination had been so upsetting that they had experienced difficulty focusing on the remainder of their trial. A survey of witnesses in 2000 found that a fifth of witnesses stated they had felt intimidated by the process of giving evidence (Whitehead, 2001). A later survey found that 33 per cent of witnesses indicated that their experiences had persuaded them never to testify again (Angle et al., 2003).

Most survivors of wrongful conviction indicated that they continued to have nightmares regarding their police questioning, with some commenting they had been intimidated, bullied and in two cases physically abused, by police officers. Their experiences during the criminal trial continued to affect many appellants, with nine survivors stating that they still suffered from panic attacks concerning their court experiences. Surprisingly, six released appellants indicated that although they still visited other appellants in prison establishments in England and Wales, they were not prepared to enter a court room again, such was their profound unease regarding their trial experiences. A survivor of wrongful conviction stated:

I know it sounds strange I go back in prisons to help other miscarriage victims but I can’t bring myself to go back to court … I’m sometimes asked to attend an appeal or a retrial but I can’t do it … it’s too much for me. (Survivor of Wrongful Conviction: Participant 17b)

The survivors of crime argued that they felt marginalized by the judicial process and that they had received limited support. As one interviewee commented:

I hadn’t been in a trial, it felt it was me on trial … I was helped by someone from the Old Bailey, supporting witnesses … but I still have bad feelings about things and giving evidence. (Secondary Victim of Crime: Participant 41)

The experience was just as traumatic for the survivors of wrongful conviction. In all cases the appellants and their family indicated that they did not receive any assistance from witness support staff despite the trial leading to the potential incarceration of the defendant. A survivor of wrongful conviction indicated:

We were on our own when we got to court … the trial was one of the worst moments of my life … no-one supported us … when I looked around I realized it was us against all of them. (Survivor of Wrongful Conviction: Participant 17)

Other appellants and their family discussed the criminal trial in relation to the survivors of crime who attended the tribunal. Eight appellants were given bail by a judge in chambers and walked to the Crown Court for their trial rather than being transported from a local prison. The participants expressed their frustration that they had been verbally abused when they entered the Crown Court, sometimes for the waiting benefit of media journalists and photographers. Family members of one participant complained they had been ‘spat on’ and ‘jostled’ when they first arrived at court to attend the criminal trial. An interviewee commented:

We were really nervous when we arrived but the other lot were waiting for us … My husband was spat on and they shouted terrible things at us. (Secondary Survivor of Wrongful Conviction: Participant 3)

This statement is illustrative of other comments made by the families of appellants later freed by the Court of Appeal. Fourteen families spoke of the trauma they had experienced while attending a protracted trial and the enmity which developed between the two families. For some families, the criminal trial marked the first time that the defendant’s family and the victim’s family had faced each other, leading to later feelings of animosity.

The issue of secondary victimization is significant in relation to family members, who campaign for, and support, a defendant or appellant (Savage, 2007). This theme is examined by Grounds (2004) who suggests that family members supporting a survivor of wrongful conviction often suffer from symptoms associated with post-traumatic stress disorder (PTSD). Rock (1998: 40), examining self-help groups supporting those suffering bereavement after homicide, similarly uses the language of PTSD to describe the impact of their experience, arguing that the bereaved can feel ‘numb, shocked, anxious’. These feelings also resonate in the experiences of survivors of wrongful conviction and their families. Research on the psychological effects of wrongful conviction and imprisonment is limited, although notable research has been conducted by Simon (1993) and Grounds (2004, 2005). Twenty-seven survivors of wrongful conviction indicated they continued to suffer from moodiness, depression, insomnia, panic attacks, irritability and other symptoms associated with PTSD. During their prison years, 11 survivors had been assaulted and bullied and all had experienced feelings of isolation while they protested their innocence. Most released appellants indicated that their lives in prison had been dominated by their legal case and with campaigning against the conviction, and that this continued post-release. For many families, the continuance of the campaign represented another obstacle to the family returning to some semblance of normality. An interviewee stated:

From the moment he got out he hasn’t stopped campaigning … his conviction has been overturned … now it’s getting the case reopened … our life together isn’t what I thought it was going to be. (Wife of Appellant: Participant: 22)

The survivors of wrongful conviction had difficulty with issues of adaptation in their new environments. From living in ordered and predictable settings the participants had problems adapting to home life and with living with family members. Grounds (2005: 171) suggests that at a psychological level survivors of wrongful conviction cope with their prison suffering by ‘blocking off painful feelings’ and isolating themselves from the prison regime, and back with their families they often continue to adopt the same strategies of ‘withdrawal, self-isolation and uncommunicativeness’. This can have the effect of creating tension in the home as family members struggle to understand the behaviour of the released appellant. There is evidence that the suffering of the wrongfully convicted and their ability to adjust following release is exacerbated by their sense of injustice that they have been imprisoned by the state for something they did not do.

‘Survivors’ of wrongful conviction and ‘survivors’ of crime

The adversarial system of justice sometimes calls the original victim and/or the victim’s family to the criminal trial to give evidence against the defendant or simply to be observers of the criminal trial. After conviction, survivors sometimes achieve a degree of resolution when the perpetrator has been convicted. This supports Ming (2008), who after campaigning for the law on double jeopardy to be changed witnessed Billy Dunlop, the killer of her daughter Julie Hogg, being sentenced to life imprisonment in 2006. Following the conviction of Dunlop, Ming expressed that she was now able to ‘… put everything related to the case in a big red box which I have labelled history’ (Jardine, 2008). Other survivors of crime coping with bereavement after homicide suggest that reopening their case following the quashing of the conviction might create additional stress for the family. After the release from the CACD of the men convicted of murdering Carl Bridgewater, the father of Carl Bridgewater commented that:

I think if the case were reopened it would be too traumatic for the entire family. I don’t think people realize what we have gone through. I wouldn’t want it to start all over again. (Varma, 2008)

Criminal cases where the appellant’s conviction is quashed by the CACD mean that the ‘offender’ suddenly becomes a ‘survivor’ of miscarriages of justice. This can create tensions between the two groups of ‘victims’. The psychological and emotional shift for survivors of crime and successful appellants can sometimes appear insurmountable and leave the parties unable to heal. Sixteen appellants indicated that the response of the original survivors of crime was one of mild hostility and suspicion. At times defendants and appellants had been met with verbal abuse when entering the criminal court or when leaving it. What is significant is that, despite the quashing of the conviction, 13 survivors of wrongful conviction indicated that the antipathy between their family and the original survivors of crime remained. An interviewee commented:

I’ve seen them [the victim of crime and their family] in town a few times but it never goes well … we just get abuse all the time. (Survivor of Wrongful Conviction: Participant 8)

The animosity felt by a survivor of crime centred on the fact that their son had been murdered nine years earlier and they believed the appellant had ‘got off with murder’. A parent of the deceased and interviewee suggested:

He walks around but what about us and how we feel … he might have got off with murder … but that doesn’t make it right. (Survivor of Crime: Participant 63)

The trauma experienced by people over the death of a spouse or child is particularly acute, with survivors often sharing that ‘in a single instant, their lives were fundamentally changed’ (Wortman et al., 1997: 109). Rock (1998: 30) similarly comments on bereavement after homicide and states that the homicide of a child generates ‘a mode of bereavement probably quite unlike the “normal” grieving process’. A consequence of the severity of such experiences is that ‘victims’ often suffer from PTSD, which is regarded as ‘the most common and severe type of post-trauma mental health problem that can occur’ (Freedy and Donkervolt, 1995: 9). The consequences are often so extreme that Wortman et al. (1997: 109) question whether victims ‘ever fully recover’. Nine participants indicated they were not able to cope with their loved one being dead while they continued to live. This level of secondary victimization is often severe, with the survivor feeling confused, emotionally damaged and helpless (Rando, 1993). In cases where the death is the responsibility of someone, feelings of anger and rage are directed against the perpetrator. A participant still coping with the death of her daughter to homicide commented:

Life will never be the same … her murder destroyed everything for me, for us, and I can’t forget … I don’t want to feel bitter and angry but I can’t forget or forgive. (Survivor of Crime: Participant: 70)

The need to experience resolution and achieve justice similarly resonated in the statements made by survivors of wrongful conviction and their supporters. For 16 participants their campaign focus post-release was aimed at trying to persuade the police to re-open the investigation (Campbell, 2011) and, where appropriate, to seek the prosecution of police officers they believed had committed malfeasance during the police investigation. Robert Brown was wrongfully convicted in 1977 for the murder of a 51-year-old woman in Manchester. After 25 years of wrongful imprisonment his conviction was finally quashed in 2002 at the CACD. Yet Brown continues to campaign for justice and particularly that police officers he believes committed perjury at his trial in 1977 be investigated (Allison, 2004). The reasons for participants seeking a prosecution against alleged malfeasance by police officers appeared to be two-fold. Firstly, nine participants believed their emotional recovery from wrongful conviction was being frustrated because specific police officers had not been brought to justice. Secondly, that by not prosecuting the offending officers it was less likely the case would be reopened. This might have consequences for their own emotional equilibrium and possibly for the original victim’s family. This resonates in a statement made by Ann Whelan, who sought to persuade the Crown Prosecution Service to prosecute police officers involved in the investigation into the murder of Carl Bridgewater because of alleged malfeasance. Following the successful appeal of the Bridgewater Four which involved her son, Michael Hickey, Whelan commented:

Michael will only go forward when the people responsible for knowingly putting him in prison are behind bars themselves. (BBC News, 1998)

The survivors interviewed for this study continued to suffer from the trauma caused by the original offence, with participants on both sides of the criminal case suffering from symptoms associated with post-traumatic stress disorder. Importantly, 18 survivors of crime were actively seeking resolution for themselves and justice for the primary ‘victim’, usually the deceased. Three survivors of wrongful conviction believed that the conviction of the person responsible for the original offence would not only provide justice for the family of the deceased but enable them to move on with their lives. A survivor and interviewee commented:

I know I’m out of prison but it can’t stop until whoever murdered her [the victim] is brought to justice … when that happens then I can start my life again. (Survivor of Wrongful Conviction: Participant 11)

The survivors of crime, likewise, sought resolution and the conviction of the person responsible for the offence. An interviewee commented:

My life will never recover but getting justice for him was important to me, for all of us, but watching [name of appellant omitted] leave the court made us feel we were starting all over again. (Survivor of Crime: Participant 71)

Fourteen survivors of crime indicated that they felt hostile towards the appellant despite the appellant’s protestations of innocence. After the offence the ‘victims’ often used avoidance techniques whereby reminders of the trauma (places, people, sounds and smells) were avoided (Freedy and Donkervolt, 1995). Six families who had experienced the death of a spouse or child remarked that knowing the appellant had returned to the victim’s home town compounded their sense of grief and frustration at the criminal justice system. One interviewee commented:

Knowing I could see him walking this street … at any time makes me feel really angry and dejected … I’ve stopped going to the other end of town in case he sees me … it’s the courts and judges who have done this. (Survivor of Crime: Participant: 58)

Even after the quashed conviction, 11 survivors of crime believed that no further investigation was required. The prosecution had secured the conviction of the defendant despite the conviction being subsequently quashed. What followed for some appellants and survivors of crime involved in the same investigation was a war of attrition in which both families used their feelings of antipathy towards one another to justify and promote their preferred narrative account of the circumstances surrounding the offence. The husband of a murdered spouse commented that in relation to calls for a new investigation:

I’m not really interested in that … the police thought he’d done it [the appellant] and him paying for clever lawyers … doesn’t change that … he’s totally ruined our lives. (Secondary Survivor: Participant 68)

For the survivor of wrongful conviction originally charged with the murder, the reaction of the original victim’s family led to feelings of anger and frustration. Most survivors resented the behaviour of the other family because the campaign to persuade the police to reopen the investigation was being undermined by the family of the deceased. A survivor of wrongful conviction commented:

I call for the case to be opened and they just pour water on the idea … it allows the police to hide behind them … they don’t realise they’re just pawns in the hands of the police. (Survivor of Wrongful Conviction: Participant 43)

Both families had sought psychotherapy at different stages of their journey, but the acrimony between the survivors of crime and survivors of wrongful conviction had stymied their respective abilities to heal. For some appellants their current predicament meant they had been unable to discuss their own specific experiences surrounding the criminal investigation because they had ‘buried’ particular thoughts and events to protect their inner self (Varvin and Rosenbaum, 2003). During the process of conducting participant observation, the sharing of ‘stories’ did, however, provide the participants with opportunities to share their frustrations and concerns (Rosenthal, 2003).

For the survivors of wrongful conviction, persuading the police to reopen the investigation represented an important dimension towards their recovery. Throughout the trial process the defendant is accorded the ‘presumption of innocence’ whereby they are assumed ‘innocent until proven guilty’ and the ‘standard of proof’ required to convict is guilt ‘beyond reasonable doubt’ (Ashworth, 2002; Dennis, 2002). During appeal proceedings the appellant and defence do not have to ‘prove innocence’ as this is not the purpose of the appeal and as such the term is rarely used in court (Nobles and Schiff, 2002b; Roberts, 2003). The appeal court considers itself the ‘court of review’ and its role is only to determine whether a conviction is ‘safe’ or ‘unsafe’ (Hungerford-Welch, 2009). For many survivors of wrongful conviction their recovery is bound up with their desire to ‘prove’ their factual innocence. The complication for 15 survivors of wrongful conviction was that they believed their campaign was being undermined by the other family. In six other cases the survivors of crime openly stated that they still believed the appellant was responsible for the offence.

Another area of campaign dispute concerns the issue of appellants seeking compensation from the Ministry of Justice. Ten appellants were financially destitute, had lost careers and were often unable to work because they continued to suffer from post-traumatic stress. The survivors had applied for compensation because they believed they were entitled to be compensated for the years they had been wrongfully imprisoned. The subject, however, inflamed many survivors of crime, who suggested that the appellant was trying to profit from the offence. As one interviewee commented:

We lost everything and now he’s trying to get millions in compensation … it’s always the victims who suffer … I don’t think he should get anything, he’s lucky to be out. (Victim of Crime: Participant 62)

For the appellant and their family the issue of compensation appeared to be linked to notions of justice and their desire for the state to acknowledge their ‘innocence’ and wrongful conviction. This supports Campbell and Denov (2004: 155), who comment that the wrongfully convicted sometimes seek compensation ‘… more for its symbolic rather than its actual value’. The notion of seeking compensation for symbolic value appears to have strengthened since the Supreme Court (UKSC, 2011) ruled on legal definitions of miscarriages of justice for the purposes of compensation in R (Adams) v Secretary of State, Re MacDermott’s Application and Re McCartney’s Application. The Supreme Court decision, although not stipulating that only a clear demonstration of innocence would suffice when interpreting what constituted a miscarriage of justice, emphasized that an appellant would have to show that ‘… on the facts … the applicant should not have been convicted’ (UKSC, 2011, para. 178). Following the Supreme Court judgment five claimants refused compensation challenged the decision of the Secretary of State to do so in Ali and Ors, R (on the application of) v Secretary of State for Justice (2013). In relation to the cases of Ali and George, the basis for the refusals was that another jury, properly directed, might convict. The Court, however, allowed the application of Lawless on the basis that the claimant’s unreliable confessions were owing to his ‘psychological makeup and pathological behaviour’ and that ‘in the absence of the confessions there was simply no case’ (para. 185). Following these decisions, the term ‘miscarriage of justice’ continues to remain synonymous with notions of factual innocence or that the appellant could not have committed the offence. The discourse of innocence, issues of compensation and the ruling by the Supreme Court appear to motivate many survivors of wrongful conviction to redouble their efforts to ‘prove innocence’ by campaigning to have the case reopened with a view to securing the conviction of the offender. The heightened awareness felt by some appellants that they had to ‘solve the crime’ before they could heal created further tensions between the two families. Fourteen survivors of crime were not prepared to support campaigns by the ‘other’ family, either for compensation or to reopen the investigation. In the case of compensation, most survivors of crime indicated that they did not believe the appellant should profit financially from the case. The survivors of wrongful conviction, however, stressed that compensation was primarily sought for their wrongful imprisonment and because their lives, and their lives of their family, ‘had been destroyed by the state’ (Participant 61, meeting in a public house).

Although 14 of the 21 survivors of crime interviewed indicated mild to severe antipathy for the released appellant, seven participants, two of whom had lost a family member to homicide, indicated that they held no animosity against the successful appellant or their family. The survivors of crime continued to seek answers, particularly in relation to the processes and procedures of the criminal justice system, including why evidence held by the prosecution had not been made available at trial to the defence and the original victim’s family.

Perhaps one of the hardest aspects of being involved in a criminal case involving a serious offence concerns the media and their role in reporting the case. For most defendants, appellants and survivors of crime the often intense media interest can erode personal space and frustrate their abilities to grieve and come to terms with their loss. Forty-three survivors affected by wrongful conviction suggested they were suspicious of the media because of earlier misleading reports regarding the criminal case. Most accepted, however, that in terms of campaigning against a wrongful conviction the media were an essential component in terms of generating public support and in influencing politicians (Nobles and Schiff, 2002a). The campaign of wrongfully convicted appellants often led them into direct opposition against the family of the deceased ‘victim’, with the respective campaigns of both families being fought out in the media.

The media and campaigns for justice

Although most appellants and their supporters were sympathetic towards the survivors of crime, 17 participants expressed their frustration at the other family, particularly if they had ‘used’ the media to denigrate the appellant to help secure the conviction or dismiss the appeal. A survivor of wrongful conviction commented:

After the conviction they were always giving interviews and running me down … even when I was with the Commission they were still trying to ruin the investigation … I can’t forget the things they said … they ended up keeping me in for longer. (Survivor of Wrongful Conviction: Participant 40)

The media, in some cases, appeared to use the tension between the two families to construct news stories that helped create particular narratives that ‘mythologized’ some of the primary actors in the story, including the defendant. Rock (1998: 231) comments on the media’s desire for ‘neutrality and balance’ and that this is sometimes accomplished by ‘aligning spokesmen or women from opposing positions’. A complication for some survivors of wrongful conviction is when the media juxtapose their role and campaign against an alternative campaign aimed at securing the appellant’s continued incarceration. Two participants discussed earlier newspaper interviews given by survivors of crime while they were awaiting a decision by the Commission. Although they could understand the suffering of the other family, they could not accept their desire to provide interviews to news media to criticise any subsequent re-investigation. One participant indicated:

The other family knew the CCRC were investigating my case so why give interviews … they could have waited … I wanted justice but they wanted retribution or revenge or something. (Survivor of Wrongful Conviction: Participant: 7)

Three survivors of wrongful conviction expressed disquiet that their campaign as the sister, mother or wife of an appellant was sometimes undermined by the female counterpart from the original victim’s family. A male appellant convicted of murder was supported by his sister, who similarly led his campaign for justice. A significant challenge for the campaign was when the deceased victim’s sister campaigned that the appellant should remain incarcerated for life. The ‘dispute’ between the two women was considered ‘newsworthy’ and presented additional problems for the campaign. When the appellant’s campaign received favourable press, other journalists sought the ‘other’ sister’s response. The female activist campaigning for her incarcerated brother commented:

If I do anything for the campaign I’m always on lookout for a response a week later … I usually get some nasty comment from [Secondary Victim’s name omitted] but she’s got her job to do and I’ve got mine. (Survivor of Alleged Wrongful Conviction: Participant: 1)

The issues of female representation in the media and the role of ‘mothers’ and other females leading campaigns are highlighted by other cases in which the female lead campaigner is challenged by other female campaigners representing the ‘original’ ‘victim’ of crime. The case involving Helen Newlove, the widow of murdered Garry Newlove, and Janet Cunliffe, the mother of convicted Jordan Cunliffe, is a noteworthy example of two women leading different campaigns initiated by the same case but with markedly divergent aims (Allison, 2010). Thirty-two participants involved in this study were women campaigning for a son, husband or brother. In some cases the media appropriate the females leading oppositional campaigns in order to present a symbolic confrontation between two females. One problem for the survivors of crime and survivors of wrongful conviction was that some appeared to ‘accept’ the roles created for them by the media and willingly entered into symbiotic relationships with particular journalists and publications to further their cause. In the short term this appeared to provide both parties with opportunities to strengthen their campaign by generating public interest. However, it also frustrated attempts by the released appellants and the survivors of crime to negotiate the adoption of new roles and identities not inhibited or circumscribed by their feelings of victimization.

The additional tensions created at the time of the first tribunal, sometimes assisted by the media, enabled journalists to achieve journalistic imperatives and news values when constructing their narrative account of the offence and criminal proceedings (Jewkes, 2004; Mason, 2010). Most appellants and their supporters had experienced traumatic days during the criminal trial or appeal, often involving the other family. Periods of confrontation leading to verbal or physical abuse appeared to be orchestrated by the media, who wanted to present the story of two discordant families. An interviewee commented:

Whenever we had trouble with the victim’s family outside the court the press were always there for the pictures … most of time they’d been put up to it by a tabloid newspaper. (Secondary Survivor of Wrongful Conviction: Participant 27)

It appears that the adversarial system of justice which, by its very nature, encourages confrontation between two opposing sides contributes to exacerbating the levels of tension and hostility between the appellant and the ‘survivors’ of the offence. Despite the quashing of the conviction, deep-seated resentments continued, with some survivors of wrongful conviction unable to forget past behaviour and comments made by members of the other family. Similarly, the survivors of crime (where alive) and the secondary survivors of crime often found coming to terms with the quashed conviction of the appellant traumatic and disturbing. For other survivors, however, their ability to accept the Court of Appeal’s decision and the vicissitudes of the criminal case, including the role of the media, provided them with the strength to continue their fight for justice.

The struggle for resolution and healing

The views of the survivors of crime and survivors of wrongful conviction suggest there are parallels and commonalities between them in relation to how each group has coped psychologically and emotionally with the impact of the criminal case. Both sets of survivors stated they had suffered psychologically and emotionally, with most also indicating they had suffered financially and socially as a consequence of the offence and criminal case. Most survivors of crime suggested that following the criminal trial they became estranged from earlier friendship groups and had adopted new friendship ties with other ‘survivors’ attending self-help groups as a means of receiving support (Rock, 1998). The survivors of wrongful conviction similarly indicated that, following their conviction and imprisonment, they had lost friends and that after their appeal they had developed new friendship ties with other survivors from the miscarriages of justice community. Attendance at miscarriages of justice support groups provided them with support, empathy and solace. The survivors on both sides spoke of their feelings of alienation and marginalization and that their experiences had altered their outlook on life. Both sets of survivors prioritized notions of justice, resolution and closure, but sometimes from different perspectives. For some participants who were still suffering the traumatic death of a spouse or child, the appellant’s successful appeal increased their sense of frustration that justice had been achieved and then lost. Wortman et al. (1997) suggest that anger and guilt sometimes imbue the process of loss following the death of a spouse or child. Following the successful appeal, most survivors of crime described their feelings of anger that the appellant had been released. Some participants experienced feelings of ‘self-blame’ (Miller and Porter, 1983) for not having done more to help secure the prosecution case at appeal.

The difficulties experienced by both families appear to have their roots in the adversarial system of justice. Although the strengths of adversarialism lie in the autonomy of the parties, because of the use of examination and cross-examination to elicit facts and in the independence of the bar and bench from government interference (Davies et al., 2009; Sanders et al., 2010), the system is not without its detractors, particularly in relation to how ‘it resolves, or fails to resolve conflicts’ (King, et al., 2009: 39). Trials often employ the language of confrontation and characterize the process as a competitive battle in which terms such as ‘equality of arms’² reflect lawyers’ belief that an adversarial trial is a battle to be won (Australian Law Reform Commission, 2000, para. 1.118). The appellants and survivors of crime indicated throughout the study that the adversarial process of confrontation had contributed to their anxiety regarding their involvement in the criminal justice process. What is also significant is that the process of adversarial confrontation continued to affect the recovery of both families following the quashed conviction.

Sixty-three participants indicated they had received counselling following the offence or wrongful conviction and 32 continued to receive counselling or psychotherapy. Twelve survivors of wrongful conviction had received psychiatric intervention organized by the Miscarriages of Justice Support Service (MJSS). The organization helps released prisoners and families before and after release, with contact usually being made following a referral by the Criminal Cases Review Commission (Banks, 2008). As resources are allocated for ‘survivors’ to help them cope with and ameliorate the consequences of their victimization, further support might usefully be directed at helping survivors of crime and the survivors of wrongful conviction resolve their differences, and, additionally, to assist both families to contextualize the criminal case and their part in it, including the suffering which it generated.

A possible solution might be the creation of a forum similar to models used in restorative justice but with the important difference that it would not be a victim−offender meeting, but a meeting involving the survivors of crime and survivors of wrongful conviction − families separated by misunderstanding and personal tragedy. It is not the purpose of this article to propose alternative models or paradigms of justice, but to argue that if the adversarial system continues to leave significant numbers of ‘survivors’ failing to cope with the aftermath of quashed convictions, then measures might profitably be employed to support and mediate between the parties.

‘Survivors’ and restorative justice

Restorative justice paradigms seek the restoration of victims and offenders through mediated encounters where the parties discuss what happened, why it happened and how offenders could make amends. Meetings involve narrative and the promotion of understanding, addressing emotional issues and reparation (Bennett, 2006; Daly, 2005; Dignan, 2005). The key processes concern ‘empowerment, dialogue, negotiation and agreement’ (Ashworth, 2009: 225), and what is restored is ‘whatever dimensions of restoration matter to the victims, offenders and communities affected by the crime’ (Braithwaite, 1999: 6; Schiff, 2006). Serious crimes and wrongful convictions affect communities and families within those communities. Many appellants following their release returned to their family home, sometimes residing within a short distance of the survivors of crime. Community restoration might focus on location but could similarly include restoration of other communities involved in the miscarriage of justice, particularly where the offence concerned race, religion or sexual orientation (Braithwaite, 1999). In addition, many survivors of wrongful conviction are intimately involved in the miscarriages of justice community, many of whom remain stakeholders in the process of supporting the appellant post-release. They, too, might seek to be involved in the process of restoration through attendance at a mediated meeting.

Most survivors involved in this study sought opportunities to talk about their experiences, often through self-help groups, as a means of contributing to their recovery. Throughout the process of conducting participant observation and interviews with survivors of crime, appellants and their families, and disclosure by participants regarding past experiences and trauma, authentic and intimate dialogue was stimulated, enabling the participants to reassess their own beliefs, preoccupations and attitudes. Three participants involved in the same criminal case as survivors of wrongful conviction expressed interest in miscarriages of justice and how the experience of wrongful conviction had affected the appellant and the lives of the secondary survivors of crime. Other survivors of crime had little interest in the successful appellant’s family and were still learning to cope with their anger and resentment towards the appellant. Seven appellants who initially indicated feelings of hostility at the beginning of the study were to modify their views, with one participant commenting:

I do feel differently about them … we were all messed up by it but talking about them to you and talking about me has changed things a little. (Survivor of Wrongful conviction: Participant 28, meeting at a public house)

By the end of the study, attitudes had changed, with 14 participants, including survivors of crime and survivors of wrongful conviction, suggesting that they were receptive to the idea of a one day meeting with the other family to assist in their own search for meaning and closure. Restorative justice processes have been used successfully in a variety of situations and environments, but to date, the suffering of significant groups of survivors of crime and their relationship with the survivors of wrongful conviction have been ignored. The use of restorative justice to mediate between the survivors is one which might usefully contribute to the parties’ healing and recovery and help draw a community together still affected by the offence and by the miscarriage of justice. The prospects for initiating such a scheme are good as there is a desire on behalf of many survivors from both parties to engage with the criminal case and to discuss their concerns. Most sought acknowledgement and understanding of what they had been through and wanted others to appreciate and understand their struggle. Decisions would need to be made as to who would fund and facilitate such a scheme, but these issues are not insurmountable when juxtaposed against the benefits that might accrue to families still learning to manage their experiences.

Conclusion

When an appellant rejoices that their conviction has been quashed by the Court of Appeal, their immediate joy is usually tempered within weeks of release as they – as a ‘survivor’ − learn to adjust to their new environment. Despite struggling to cope with issues of adaptation, the successful appellant and their family are able to celebrate that their period of wrongful imprisonment has ended. For the survivors of crime, however, the release of the appellant from the Court of Appeal reignited their feelings of anger and despair. Many survivors of crime expressed feelings of enmity against the successful appellant and their family despite having witnessed the quashing of the conviction in the Court of Appeal.

During the criminal trial, they had attended either as an observer or witness to give evidence in support of the prosecution case. The survivors of crime indicated that the defendant’s conviction had provided them with a degree of resolution and represented the beginning of their path to recovery. The release of the appellant disrupted their equilibrium and, for some survivors of crime, the hostility they felt towards the defendant following the conviction returned upon the appellant’s release by the Court of Appeal. Despite this reaction, other survivors of serious crime felt limited hostility towards the appellant, and their frustrations were directed towards failings within the criminal justice system and particularly in relation to the criminal investigation. What is significant is that those survivors of crime or successful appellants who had rejected overtures by the media to excoriate the other family appeared more disposed to seek reconciliation after the quashed conviction.

For the survivors of wrongful conviction their feelings towards the survivors of crime were mixed. Some were able to understand the emotional needs of the other family, particularly when they had lost a close family member to homicide. Other appellants, however, were frustrated and irritated by the other family because they believed they had either contributed to the wrongful conviction or prolonged their incarceration by undermining their campaign for release. This usually involved survivors of crime contributing to newspaper articles undermining any new evidence being investigated by the Criminal Cases Review Commission, or narratives aimed at damaging the appellant’s character. A second issue was that most released survivors of wrongful conviction continued with their campaign post-release, usually to persuade the police to reopen the investigation. Most successful appellants believed their current campaign had been undermined by the survivors of crime, leading to the criminal case not being re-investigated. Despite appellants and survivors of crime indicating they sought ‘justice’ and ‘resolution’, the activities and feelings of antipathy between the actors appeared to encourage those families involved in the same case to undermine each other. The ‘survivors’ had been ‘caught up’ in the criminal justice system and adopted views on the other family in response to the presentation of ‘evidence’ by the police or the media. Following the quashed conviction, many survivors of crime appeared unable to reassess the appellant’s claims in light of their changed legal position, and continued to harbour feelings of resentment against the appellant and their family. The survivors of wrongful conviction were often similarly wedded to the idea that their suffering had been exacerbated by the original secondary ‘victims’ through their involvement with the media and sometimes by their behaviour at the criminal trial.

I could discern no patterns or variations in relation to particular groups on the basis of gender or types of crime. While six survivors of crime suffering bereavement following homicide expressed strong reactions towards the appellant, others within this group demonstrated high levels of insight and compassion towards others involved in the criminal case. It is also difficult to disentangle the feelings and responses of participants as their responses might also be linked to their particular circumstances, including issues of poverty, social exclusion and deprivation. Despite the complexities of these relationships, an important factor exacerbating the level of hostility between the survivors on both sides of the criminal case appeared to be the degree to which the participants had sought to undermine each other either prior to the criminal trial or during the process of appeal. This sometimes involved the news media, but in three cases the opposing families indicated they both resided on the same housing estate and that this had contributed to increased enmity levels between the parties.

The article has traced the roots of confrontation between the parties and suggests that the adversarial system of justice and the role of the news media in reporting criminal trials contribute to the inability of some survivors of crime and survivors of wrongful conviction to rebuild their lives following the quashed conviction. During the process of data collection some participants initiated discussion on the ‘other’ family and began a dialogue with the researcher regarding their experiences in relation to the other ‘survivors’ in the criminal case. Most participants suggested that their feelings of antipathy towards the other family continued to affect their ability to heal and find closure. Engagement with this study encouraged the participants to empathize with the ‘other’ family and to state that at some point they would consider meeting the appellant to assist the process of healing and recovery. The article has argued that a mediated meeting between the parties, drawing on the practice of restorative justice, might contribute to the families’ ability to contextualize their experiences and assist the survivors’ desire for resolution. Scope remains for further comparative research into relationships between survivors of serious crime and survivors of wrongful conviction involved in the same criminal case. The results of further research might usefully contribute to relieving the pain and trauma experienced by families recovering from the aftermath of a quashed conviction.

Footnotes

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