PI Brief Update

Criminal Case Review - Dr Mark Burgin

24/06/25. Dr Mark Burgin considers how a criminal case should be reviewed to fairly consider if there is material evidence that has not been considered.

Any criminal justice system will inevitably put some innocent people in prison. This is not a society problem as long as there is a prompt system of Criminal Case Review to identify those wrongly imprisoned and fairly reconsider their cases. The greater the delay and less efficient the system of Criminal Case Review the more injustice will occur.

When people are released after decades behind bars trust in the system will be knocked. When the public learns that evidence that could have freed the person was not considered for much of that time this turns to anger. People will only support a criminal justice system if it deals fairly with people. Once there is concern that the system locks innocent people up and throws away the key then this support will disappear.

It is important therefore to have an effective and efficient system for Criminal Case Review. The funding for this area should reflect the difficulties in rest of the criminal justice system. At times of difficulty additional funding would be required to reassure the public that innocent people wrongly convicted are not forgotten.

Specialist reports

Many criminal cases rely upon specialist expertise and if the experts were inadequate this should be addressed. For instance, if the case is one of fraud then a fraud expert should provide evidence of how the fraud works and the roles. If it is a statistical case such as the cot death cases then a statistician should provide evidence.

A logical error such as assuming that each cot death is independent can be identified easily. Cot deaths are known to cluster because of genetic similarities between the children as well as due to criminal activities. Recognising that there may be a different explanation could lead to further investigations such as genetic testing.

It often requires an expert to identify that an aspect of the case is not within their expertise. They can then advise that a correct expert would be able to provide new evidence on a specific area. I am often asked to provide a steer on complex cases because I am not a specialist so can take a broader view.

Forensic evidence review

The evidence available in many cases is much greater than it is possible to review. Often there is material evidence in this evidence and even if disclosed there may not be resources available to sift through it all. In many cases the responsibility to consider the evidence will fall on a specialist expert who may not have the correct expertise.

A cardiologist may not recognise the significance of neurological changes or may disregard them because they are not their speciality. Having an expert who has training in forensic evidence review can ensure that all the evidence has been reviewed. They can then ask the lawyers to get specific papers looked at by the right specialist.

Many forensic evidence review experts will also transcribe the records. This has several advantages first that the records can then be read in a short time and in a chronological order. The forensic evidence expert will ensure that each complex document has been analysed so it is easier to read. All the information will be easy to copy and paste rather than referring to the original each time.

Disability report

Most of those in the criminal justice system have a disability. Understanding the nature of that disability is critical to understanding why they are where they are. Innocent people are often caught in criminal cases because they lack the capacity to engage with the issues. Disability analysis can explain why they cannot explain themselves.

I am often asked to assess disability in those facing criminal justice system. This experience has taught me that many disabilities are hidden. Some people have a clear reason for their offending that would act as a mitigating factor. Others do not appear capable of what they were accused of and an alternative charge might be appropriate.

Courts have presentencing reports and probation reports which can give some information in this area. Having a detailed holistic disability report has the advantage of providing the court with a deeper understanding of who the person is. Some defendant lawyers would prefer the court not to know but even the most troubled person has a story that can help identify an appropriate disposal.

Conclusions

Criminal Case Review can only be completed if the reviewers have access to all the material information. If they are unaware of a specialist area of evidence that could be useful, not been able to read all the material on a complex case or understanding the person’s disabilities then their job is incomplete.

Lawyers involved in taking a criminal case to review should consider whether a low cost report from an expert in disability, forensic evidence review or just a steer on what other evidence might be available would be worthwhile. When cases are overturned it is usually many small things working together rather than a massive breakthrough.

As public coverage of a recent case has shown it is not the decision that people are concerned about, it is the process. The Criminal Case Review must use a robust and comprehensive approach. People understand that innocent people will be imprisoned and expect the Criminal Case Review system to search for evidence that might have been missed.

Doctor Mark Burgin, BM BCh (oxon) MRCGP is a Disability Analyst and is on the General Practitioner Specialist Register.

Dr. Burgin can be contacted on This email address is being protected from spambots. You need JavaScript enabled to view it. and 0845 331 3304 websites drmarkburgin.co.uk and gecko-alligator-babx.squarespace.com

Disability Analysis: A Practical Guide by Mark Burgin | 18 Oct 2024

This is part of a series of articles by Dr. Mark Burgin. The opinions expressed in this article are the author's own, not those of Law Brief Publishing Ltd, and are not necessarily commensurate with general legal or medico-legal expert consensus of opinion and/or literature. Any medical content is not exhaustive but at a level for the non-medical reader to understand.

Image ©iStockphoto.com/Stephen Barnes