It is a well-trodden story that it can take many years to overturn a wrongful conviction and when such convictions are linked to notoriety or politics the task can be even greater. It took the Shrewsbury 24 just 49 years to get their conviction put right and this was only achieved through a significant fight and campaign.
The Court of Appeal in quashing the convictions concluded that the destruction of original witness evidence at the time denied all the applicants a fair trial and accordingly quashed the convictions.
2 Further matters emerge from the Appeal:
Firstly, a reminder of how the Court should approach old convictions:
The test to be applied in assessing the case - in historic cases of this kind the court reminded itself was to apply the relevant statutory provisions as in force at the time of the original events, but the common law is to be applied as understood at the time of the Court of Appeal Review. Lord Bingham C.J. put the matter succinctly in R v Bentley  1 Cr. App. R. 21:
“5. Where between conviction and appeal, there have been significant changes in the common law (as opposed to changes effected by statute) or in standards of fairness, the approach indicated requires the Court to apply legal rules and procedural criteria which were not and could not reasonably have been applied at the time. [...]"
See for example - PR EWCA Crim1225,  2 Cr App R 22 (227) where the Court recognised the need to stay a case on the basis of lost evidence was a matter of exceptional relief but one which should still be deployed in appropriate cases referencing the case which we brought before the Court R v Anver Sheikh [ 2006 ]. Where records missing would answer a specific allegation and the trial process cannot find another way to realistically cure the problem then the case on those allegations should not proceed and no conviction can be safe.
The second matter that is worth mentioning is the Courts comments over the interrogation of old historic cases by the Court and the challenges in brings. It is worth repeating what the Court said in full:
"This trial took place nearly 50 years ago, in the pre-digital era, when the court records (self-evidently in paper form only) were retained for a set period following the convictions and any subsequent appeals, and thereafter destroyed. Serendipity governed what, if anything, survived beyond that date, perhaps in the chambers of counsel, the offices of solicitors, with the relevant investigating police force, at the National Archive, with the accused or with others with an interest in the proceedings.
This case provides the clearest example as to why injustice might result when a routine date is set for the deletion and destruction of the papers that founded criminal proceedings (the statements, exhibits, transcripts, grounds of appeal etc.), particularly if they resulted in a conviction. At the point when the record is extinguished by way of destruction of the paper file (as hitherto) or digital deletion (as now), there is no way of predicting whether something may later emerge that casts material doubt over the result of the case.
Given most, if not all, of the materials in criminal cases are now presented in digital format, with the ability to store them in a compressed format, we suggest that there should be consideration as to whether the present regimen for retaining and deleting digital files is appropriate, given that the absence of relevant court records can make the task of this court markedly difficult when assessing–which is not an uncommon event –whether an historical conviction is safe.
This is a really important intervention from the Court and one which should be heeded seriously if future injustice is to be avoided.
There is simply no reason why in the future a full digital record cannot be preserved of the whole trial, the winner can only be justice.