We wake up this morning to the news that Amanda Knox and Raffaele Sollecito have been cleared of the murder of Meredith Kercher on appeal.
Having read the news this morning I cannot say exactly why they were cleared because I wasn’t in court to hear the ruling and the press are reporting some very bizarre factors that I cannot imagine were on the minds of the judges. For example, the BBC in its 10 factors that helped Knox’s case, lists such things as a “PR campaign” launched from Seattle and the presence of supporters in the courtroom. I can confidently say that neither of these things would be likely to have any impact upon an English or Welsh court.
Perhaps the most informative thing in the BBC reports are that the Italian justice system has a very lenient appeals system where the court simply investigates the weakest aspect of the prosecution case. If true then it certainly does explain why Italy has a very low prison population.
In the UK, the appeal court will consider the entire case not just the weakest or strongest aspects of it. In England and Wales, the Court of Appeal will only interfere in a verdict if they find that the conviction is “unsafe”. A conviction can be unsafe for any number of reasons, but broadly the two big headlines are new evidence and an error in the trial process.
New evidence must be something that is genuinely new and was not available to the defence at the time of the trial. This is a very difficult test to overcome. Often there will be evidence available to both sides that is not used for tactical reasons in the trial. When this happens the Court of Appeal will assume that the decision not to use the evidence was taken either by the defendant or on his direct instructions. Showing that this is not the case means saying that your trial lawyers either misled you or did not do their jobs properly. You may not be surprised to hear that conviencing a bunch of senior lawyers that another bunch of senior lawyers are incompetent isn’t easy and I say that as somebody who has summoned a client’s former defence team (including two QC’s) to give evidence at the Court of Appeal! If the court decides that he evidence was available and that the defendant chose not to use it then the evidence is highly unlikely to be admitted and the conviction will stand.
An error in the trial process could be anything from inadmissible evidence being adduced before the jury or it could be an error by the judge in directing the jury or during the summing up.
Assuming that you have found either new evidence or a fault in the trial process you are still not home and dry yet! You still need to show the judges that the outcome of the trial would have been different had the new evidence been available at the trial or if the error had not occurred.
Even those of us who conduct appeals regularly and are good at them can tell stories of cases lost at the last hurdle because while the Court of Appeal accepts there was a serious error by the trial judge they still conclude that the rest of the evidence was sufficient to convict. It’s a very frustrating thing to have happen.
Would Amanda Knox and Raffaele Sollecito have been cleared on appeal in England and Wales? It’s difficult to say but what I am sure about is that they would have had a very difficult time clearing their names in an English appeal court.