Victims of miscarriages of justice faced the prospect of longer times behind bars as the Criminal Cases Review Commission struggles to cope with applications running at 50% higher for the second year on the run.
Two years ago the watchdog simplified its application form in an effort to assist prisoners with literacy problems and, as a result, the CCRC which usually receives less than a thousand applications every year, received 1,470 applications last year and 1,625 the previous year. In its annual report presented to Parliament last week, the embattled watchdog confirmed what it called a ‘permanent upward shift’ in the volume of applications.
The CCRC has repeatedly called for more funding and in 2008 the retiring chair Graham Zellick went so far as to call staff ‘angry and dispirited’ as a result of the pressures on the organisation. As reported on the JusticeGap earlier in the year, the present £5.1m budget is 25% less in real terms than it was when Zellick issued his warning predicting ‘melancholic challenges’ for his successor.
Although the chair Richard Foster welcomed ‘the modest increase’ of £450,000 for the last two years to assist with the dramatic surge – ‘the first such increases we have had for the best part of the decade’.
‘But the blunt fact is that with applications to the Commission running at 50% higher than a decade ago, a much more significant increase is needed if we are not to face lengthening queues, unsatisfied applicants and miscarriages of justice left unaddressed.’
Richard Foster, CCRC chair
According to Richard Foster, the group’s ‘two key challenges’ were funding and threats to its section 17 powers. The Criminal Appeal Act 1995, s17 was introduced to give the CCRC unprecedented power to force public bodies to release documents and materials in connection with investigations. However a major limitation the full implications of, not anticipated in the mid-1990s when the CCRc was established, is that section 17 does not cover private documents. ‘A large number of organisations which were in the public sector when we were set up are now in the private sector, including former local authority care homes and forensic science services,’ said Foster. Successive governments had promised to extend its powers to cover the private sector but so far had ‘failed to deliver on this promise’, he added.
Foster also flagged up the to the ‘controversial changes to the criminal legal aid regime’. ‘We will be keeping a weather eye on the applications we receive in the next few years to see whether cuts to criminal legal aid have a discernible impact on the number or type of cases that we refer for appeal,’ he said.
A total of 31 referrals were listed to be heard in the appeal courts during 2013/14. Of the 30 cases that proceeded to appeal, 22 appeals were allowed and eight were dismissed – meaning appeals were allowed in 73% of the referrals (up on the long-term average of 70%). Critics have long argued that the figure should be closer to 55% to better reflect the statutory test for referrals (that there was a ‘real possibility’ the conviction would be overturned).
The CCRC annual report quoted Master Egan QC, registrar of Criminal Appeals, in his overview of the year published in September 2013. Egan called the Court of Appeal’s relationship with the CCRC was ‘a strong one’.
‘Where the Commission refers a case it should be emphasised that our Court does not always quash the matter referred. This is as it should be; were it to be otherwise, it would be an indication that the Commission was setting the bar too high.’
Master Egan QC
Waiting times for prisoners’ applications, always a stress point for the CCRC, were significantly high. According to the annual report, its target time for allocating cases where the applicant is in custody is less than 26 weeks – in 2003/14 the actual average time was 35 weeks.
Meanwhile the watchdog has responded to criticisms on the JusticeGap following the Supreme Court ruling in the Kevin Nunn case in relation to post conviction disclosure. Inside Justice director Louise Shorter said that the judgment placed ‘an important new duty‘ on the Commission ‘not to refuse arbitrarily to investigate cases’. Shorter cited the case of Victor Nealon.
Justin Hawkins, the CCRC’s head of communication, insisted that this was ‘not a new duty, but a continuation of the position as it has always been at the CCRC’.
‘Contrary to what has recently been suggested on Justice Gap, our inquiries are not now and never have been, limited to cases where it has already been demonstrated there is a reasonable prospect that a conviction will be quashed – a limit of that kind would be ridiculous and totally contrary to the point and the ethos of the CCRC.’
Hawkins said that if the work proposed had ‘a reasonable prospect of yielding a result, and if the possible results, considered at their highest, could be meaningful in the relation to the safety of the conviction then, quite simply, we will get the work done’. ‘What we tend to resist are proposals for purely speculative testing where it is a finger in the wind with no rationale based on the likely probative value of the work. We make no apology for that,’ he said.
Jon is editor of the Justice Gap. He is a freelance journalist. Jon's books include The First Miscarriage of Justice (Waterside Press, 2014), The Justice Gap (LAG, 2009) and People Power (Daily Telegraph/LawPack, 2008). Jon is a journalism lecturer at Winchester University and a visiting senior fellow in access to justice at the University of Lincoln. He is twice winner of the Bar Council's journalism award (2015 and 2005) and is shortlisted for this year's Criminal Justice Alliance's journalism award