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Wrong questions, soft targets

ANALYSIS. Kim Evans on three important events looking at the investigation of miscarriages of justice in the last three weeks. ‘Whilst there are problems with the Criminal Case Review Commission , it has become a soft target,’ said veteran defence lawyer Campbell Malone at the launch of Wrongly Accused (part of the JusticeGap series last month). ‘The real problems are with the Court of Appeal.’

It is important that the Criminal Case Review Commission does what it feels is right, even if that runs the risk of disapproval from senior judges, reflected Henry Blaxland QC in his address to the Criminal Appeal Lawyers Association (CALA) conference last week. The troubled relationship between the two bodies was a theme of three meetings looking at miscarriages in as many weeks.

The CALA conference came shortly after the Innocence Network UK symposium and the JusticeGap debate. CALA definitely had the most apposite title: Miscarriages of Justice: Who cares?

At our Justice Gap debate, Francis FitzGibbon QC, of Doughty Street Chambers, kicked off proceedings by asking why should anyone care about the wrongly convicted. ‘The answer is most people don’t,’ replied David Jessel, who campaigned for the creation of the CCRC through programmes like Rough Justice and Trial & Error. Both series currently have ended – that latter being signed off by the head of Channel 4 with the dismissal that it was ‘all a bit 1980s’. Sadly, the subject might have gone out of fashion but (of course) never went away.

Anyhow, it was good to see ‘Wrongly Accused’ quoted from during Blaxland’s speech to the CALA conference – the silk generously called it an ‘important’ collection. Thanks. It is free – and you can download it HERE.

Following the JusticeGap debate, the Innocence UK Network’s symposium featured speakers including Chris Mullin, Bruce Kent, Prof Michael Zander QC, Laurie Elks, and Jessel as well as lawyers including Mark Newby and John Cooper QC. Sue Caddick, the sister of Eddie Gilfoyle, made a moving speech on his behalf. During the CALA conference, CCRC chairman Richard Foster referred on a number of occasions to the fact that although the symposium was concerned with the work of the CCRC, they had not been invited.

In his speech to the symposium Prof Zander rejected INUK’s analysis of the CCRC and did not support its proposals for reform. INUK has called for the ‘real possibility’ test as laid down by statute to be replaced with one of ‘innocence’. This, says INUK, would allow the CCRC to refer a conviction back to the Court of Appeal if it thinks that the applicant is, or might be, innocent.

Zander was on the Runciman Royal Commission whose report led to the creation of the watchdog. He was asked to consider whether the CCRC lived up to what was envisaged. His answer was that the Commission as established by the Criminal Appeal Act 1995 did ‘broadly live up to what the Royal Commission envisaged’.

‘If I were to suggest something that has perhaps NOT lived up to what the Royal Commission envisaged, it would be the Court of Appeal’s excessive deference to jury decisions. That is the cause of much of the problem for which INUK blames the CCRC.’
Prof Zander

Safety, not innocence
Richard Foster defended the CCRC, saying quite categorically that the CCRC ‘cares as much about innocence as anyone’. The commission receives around a thousand applications every year, most from convicted persons claiming innocence, and the starting point is that someone who protests their innocence is entitled to have that claim investigated. One of the main criticisms of the CCRC is that they do not investigate the cases before them and that claims are dealt with ‘on paper’.

Foster explained that their test is ‘safety; not likelihood of innocence, with ‘safety’ being a broader test of innocence. He said it is not necessary to prove innocence, only that the conviction may be unsafe, although of course the commission is interested in innocence. He went on to say that at the heart of justice is the right to a fair trial and that the focus of the CCRC is not just on the individual, or on the individual case, but safety, and the upholding of the safe trial process.

Foster explained that the organisation has suffered a 30% cut to its budget although its caseload remains unchanged. Even with the cuts he claimed the CCRC is 50% quicker in dealing with cases, currently taking six months for a review decision – in his mind its not a ‘failing’ organisation. Around 40 to 50% of cases referred are murder, rape, terrorism and the more serious cases of robbery. The rate of referral back to the Court of Appeal in real terms is almost 7%. Around half the applications received are from people who have not yet begun the appeal process, or which concern cases out with the commission’s jurisdiction. Foster said that ‘if the figures were higher, it would mean that the entire criminal justice system were in a parlous state’.

Foster went on to tell the conference some of the problems facing the CCRC other than the cuts to their budget. Under the Criminal Appeal Act 1995, section 17 the CCRC has sweeping powers to obtain material held by public bodies and that includes files, materials and samples. Foster said that increasingly public bodies had gone private causing difficulties with the CCRC’s s17 powers .

Some of the cases referred are 20, 30, and even 40 years old, making the tracking down of evidence, or even paperwork difficult. There is currently some debate as to whether the commission will have to look at the case of Dr Crippen, a relative is considering referring the matter – news that caused some consternation amongst lawyer-delegates with clients in prison. He said that 40% of referrals turn on matters such as non-disclosure or police corruption. A high proportion of those needing to have their cases looked at by the commission are in custody and struggling with literacy – a new ‘easy to read’ form was introduced, causing a surge in applications.

Under the radar
Finally, Foster told the conference of the case of a young girl who had been convicted in the Magistrates Court of stealing a passport, a fact she readily admitted. She had been sentenced to a four-month detention and training order. However, this child had been trafficked into the country at 15, imprisoned, beaten and raped, forced to work as a prostitute. When arrested she was at the airport trying to flee the country and seek asylum elsewhere. This illustrated that shocking miscarriages of justice can take place at all levels within the criminal justice system, not just at the higher levels. Foster is not concerned with the cases that receive the maximum publicity – they take on a momentum of their own. It’s the ones that may slip under the radar that concern him the most.

Fresh evidence
Henry Blaxland told the conference that in his view, a far greater obstacle to an applicant to the CCRC than the ‘real possibility’ test is the statutory requirement that a reference to the Court of Appeal is made on the basis of ‘fresh evidence’ – evidence or argument not raised at trial on appeal. In practical terms this means that many referrals depend on new evidence, and this in turn raises the question of how the court is likely to approach not only the decision whether to receive that new evidence, but how it affects the safety of the conviction. He continued that although the CCRC has to confine itself to new evidence, unless there are exceptional circumstances, it does not mean that the past history of the case is irrelevant. Fresh evidence, which on its own may appear to be of relatively little weight, may tip the scales. It can be the straw which breaks the camel’s back.

In conclusion Blaxland said that if the CCRC is to continue to maintain public confidence then it needs to be prepared to refer cases to the Court of Appeal in which it feels that justice may have miscarried, even where grounds of appeal are hard to identify. Such cases often involve failures by the trial lawyers (an issue referred to by Malsen Merchant in his Wrongly Accused essay, and Gareth Peirce during the JusticeGap debate), a notoriously unpopular complaint in the Appeal court, or that the court has dismissed the first appeal in a plainly unsatisfactory manner. Blaxland spoke of the ‘transparent and unremitting hostility towards the appellants and those responsible for getting the case back before the Court of Appeal’.

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