A miscarriage of justice is when someone has been wrongly convicted, whether because they were wrongly accused, key material was withheld from the defence, and/or there has been a procedural irregularity.
In the specific context of undercover policing, potential miscarriages of justice occur when protesters were convicted and it was not disclosed that there was an undercover among them, who (for example) was also arrested.
It is part of the Terms of Reference of the Undercover Policing Inquiry (UCPI) to determine whether it thinks a miscarriage of justice has taken place and, if so, refer the matter to the Miscarriages of Justice Panel.
The Inquiry has designated a category for this – Category I – and a number of people have been accepted as core participants on this broad basis. These include cases such as Drax Coal Train, Stop Huntingdon Animal Cruelty, Fairford Coaches and the Good Easter Hunt Sab.
According to the Inquiry website:
The Inquiry refers any suspected cases to the Miscarriages of Justice panel, which was set up by the Home Office, who sponsor the Inquiry. The panel consists of two senior members of the Crown Prosecution Service and two from the police. Following the referrals, the panel considers whether further action is required, which could include referral to the Criminal Cases Review Commission.
The Criminal Cases Review Commission (CCRC) is a government organisation which looks at claims of miscarriages and determines whether a recommendation should be made to the courts to overturn a conviction.
The UCPI made its first referral to the Miscarriages of Justice Panel in June 2021 in relation to the ‘Star and Garter’ case, after it was revealed that undercover HN298 ‘Mike Scott’ was among the anti-apartheid protesters convicted for blockading the South African rugby team in 1972. The CCRC recommended overturning the convictions which successfully occurred for the three individuals who applied.
In July 2023, the Inquiry made a second referral to the Miscarriages of Justice Panel, this time in relation to the undercover HN13 ‘Barry Loader'. He had been involved in two incidents in 1977 and 1978. In both, he was arrested for insulting behaviour following anti-fascist protest; he was acquitted at the first, but convicted along with others during the second trial in his false name.
In May 2024, the CCRC announced it had made the referral:
Barbara White was convicted of obstructing police and assaulting an officer in April 1978. In September 1977 as a member of the Communist Party of England (CPE) she took part in a march opposing a demonstration by the National Front in Barking, East London. During this, there was a confrontation which led to eight people being arrested.
One of the eight arrested was an undercover police officer, who stood trial in the name of ‘Desmond Barry Loader’ (HN13). At the time of trial, evidence suggests the court was made aware there was an informant among the defendants, but it does not suggest the prosecutors, or the court were made aware that one of the defendants was an undercover officer.
After a thorough review by the CCRC and an investigation looking into undercover police officers by the Undercover Policing Inquiry (UCPI), the CCRC believes there is a real possibility this conviction would be overturned by the Crown Court as an ‘abuse of process’.
The CCRC is appealing for any of the other people convicted of offences connected with this protest to come forward so that their cases can also be considered.
The third referral by the Inquiry was in December 2024, for the conviction of Chris Baillie, who had been convicted of an attack on a butcher's shop in 1985. Baillie gave evidence of the role of HN10 Robert Lambert 'Bob Robinson' in the incident in November 2024. In December 2024 Lambert himself gave evidence, and three days later Mitting referred Baillie's conviction to the Miscarriages of Justice Panel, stating 'his conviction must be overturned'. On 27 January 2025, Baillie's conviction was quashed at Kingston Crown Court.
In 2011, climate activists convicted for the 2009 Ratcliffe-on-Soar power station protest successfully took their case to the court of appeal when the role of the undercover EN12 Mark Kennedy 'Mark Stone' became clear. In that case, they appealed directly to the Court rather than going through the Criminal Cases Review Commission.
Also prior to the establishment of the Undercover Policing Inquiry, the CCRC also looked at the case of John Jordan, who had been convicted of assaulting a police officer. He had been prosecuted alongside the undercover HN14 Jim Boyling ‘Jim Sutton’, with the latter using their false identity in proceedings. Following a recommendation from the CCRC, Jordan’s conviction was also overturned by the courts.