Andrew L. Urban
The costumed theatre of our law courts take us back to the mindset of the 1800s when there was no such thing as a pesky appellate process. But the courts are still hanging on to a sense of infallibility – or at least a determined reluctance to correct mistakes.
The law courts of England (and later Australia) have never been favourably disposed towards appeals and the overturning of convictions. Until the mid 1800s, it was the era of finality over certainty and while by then judges acknowledged mistakes could occur, they insisted: “Better that some innocents suffer than that the system lose certainty.” It was the system that had to be protected, not the innocent. Things have changed …a little. Advocates for justice now urge courts to adhere to the Blackmore formulation that “it is better ten guilty go free than one innocent suffer.”
It was the Beck case that led directly to the creation of the Court of Criminal Appeal in England, as recently as 1907.
Beck’s case is often cited as the first modern acknowledgment that wrongful convictions require institutional correction. The system finally admitted systemic fallibility. After exploring wrongful convictions since 2013, it seems to this writer that the system is still hanging on to a sense of infallibility – at least a determined reluctance to correct its mistakes.
For example, the 20th-century case of Timothy Evans demonstrates how old assumptions persisted. His 1950 conviction for the murder of his wife and child was based largely on his confession – based on the assumption that a man would not confess falsely. This assumption was deeply entrenched long before psychology disproved it. His confession was inconsistent, repeatedly changed and contradicted by physical evidence. Evans alleged coercion, threats and manipulation. This reflects the 19th-century judicial stance that police misconduct was exceptional, not systemic. Factual innocence was still not seen as an appellate question. This was exactly the pre-appeal mindset.
Evans received a posthumous pardon in 1966 but his conviction was not quashed until 2003. See what I mean? This mirrors the 18th-century model: error is acknowledged politically, not judicially. And Evans was not unique. The same mindset appears in Bentley, Ellis, Kiszko and – famously – the Birmingham Six. Yes, doubts existed, courts acknowledged unease but refused to say “the conviction was wrong”.
Of the cases we have examined on this blog, there are several examples of that mindset still being very much alive, with many appeal courts seemingly stuck in a past mindset. The modern idea that a court can say “we convicted the wrong person” is historically recent. Earlier systems assumed:
juries did not err, or
error was God’s will, or
error could be cured by the Crown’s mercy, not courts.
So there are three answers to the question ‘when did courts accept that wrongful convictions occurred’:
Social acceptance: always
Before ~1800: courts largely denied the possibility in doctrine, even while correcting errors via mercy
Executive acceptance: 18th century (pardons)
19th century: courts began acknowledging factual error without formal mechanisms to correct it.
Judicial acceptance: late 20th century: appellate systems explicitly recognised wrongful convictions as legal phenomena capable of judicial correction.
The Evans case demonstrates that the existence of appeal courts did not, by itself, mean courts accepted wrongful convictions as a judicial phenomenon. For decades after appeals were introduced, English courts retained an inherited belief that factual error was beyond their remit, that confessions were inherently reliable, and that correction lay in executive mercy rather than judicial reversal — a mindset rooted in 18th- and 19th-century criminal justice.
With the 1975 IRA pub bombing case known as the Birmingham Six, courts finally accepted wrongful convictions, openly admitting institutional misconduct. The appeals revealed multiple failures; there was explicit recognition of police fabrication and forensic error. It was a turning point with wrongful conviction recognised as a legal category.
Australia inherited English criminal procedure without reform. There were no meaningful appeals; a heavy reliance on confession and character; and Executive mercy dominated
Wrongful convictions were resolved by Governors’ pardons, Imperial intervention and quiet releases. Courts almost never admitted error. Institutional reluctance remains a barrier to correcting error.
In Australia, States gradually expanded criminal appeal rights but still focused on legal error and there were very limited factual reviews. Courts openly said they were not a “second jury” This is why cases like Colin Ross (1922, Victoria) failed on appeal despite profound evidentiary weakness.
Australia did not possess a modern criminal appellate system at Federation. Although colonial Supreme Courts and later the High Court of Australia could hear appeals from the nineteenth century onward, criminal appeals were for decades confined largely to legal error. Courts did not regard factual innocence or wrongful conviction as a judicial issue until the latter half of the twentieth century, with effective appellate correction of miscarriages of justice emerging only very late and unevenly across the states.
This matters for wrongful convictions because most 19th-century Australian convictions were effectively unreviewable; early 20th-century appeals existed in form but not substance; many historic wrongful convictions failed not because courts lacked power, but because they lacked conceptual acceptance of fallibility
This brief history might explain why the lives of so many innocents are ruined by courts that have yet to fully catch up to contemporary mindsets of justice.
Research compiled with the assistance of LIA.