Barbed wire, Flickr under creative comms licence, Terry Freeman

Barbed wire, Flickr under creative comms licence, Terry Freeman

Next Tuesday (February 3) the House of Commons Justice Select Committee holds the last public session in its inquiry into the Criminal Cases Review Commission (CCRC) when the Commission itself will be giving oral evidence.

All evidence is accessible on the Justice Committee’s site HERE

Last week (January 20) I gave oral evidence together with Lord Runciman, chairman of the Royal Commission on Criminal Justice. I was asked by the chair, Sir Alan Beith:

‘How could a change be brought about in which the Court of Appeal was more ready to question the jury’s decision?’

I gave the Committee what, apologetically, I said was a feeble answer:

‘Perhaps the Lord Chancellor could invite the Lord Chief Justice and the chairman of the CCRC to set up a committee of former or present members of the Court of Appeal, former or present members of the CCRC and independent experts, with a lay chairman, to try to hammer out a way forward. It is absolutely crucial. The whole issue of what is wrong with the system is, fundamentally, the attitude of the Court of Appeal to jury decisions.’

In a Supplementary Note of Evidence submitted this week, I withdrew that suggestion and replaced it with what I think is a more promising proposal.

There is no dispute regarding the constitutional importance of the jury’s decision as to whether the defendant is guilty or not guilty. That is central and fundamental. The question is only whether anything can be done if in a particular case it seems that the jury got it wrong. That depends first on whether the jury’s verdict is guilty or not guilty.

The system tolerates jury acquittals against the weight of the evidence or contrary to law. There is no appeal against a jury acquittal. However, if the jury makes the wrong decision by finding the defendant guilty, the Court of Appeal is potentially there to rescue the situation. It was for that, in light of the Adolf Beck miscarriage of justice case, that in 1907 parliament created the Court of Criminal Appeal. The trouble is that the Court basically refused to play its assigned role.

Among the reasons given, the most prominent or focal one, is the constitutional centrality of the jury’s decision. This is not, and has never been, a persuasive reason. Yes, no one should be convicted of a serious offence save by a verdict of the jury. But if there are solid grounds for the view that the verdict is against the weight of the evidence, there has to be a way to deal with the situation. In declining – for over a hundred years – to play the role assigned to it by statute, the Court of Appeal has been in serious dereliction of its principal and indeed, constitutional responsibility.

Second guessing
I believe that the real reason for the Court’s restrictive approach is the understandable fear that if it showed itself willing to second guess the jury’s verdict, it would be deluged with too many appeals requiring reassessment of the evidence.

Whatever the reality of that fear in regard to first appeals after conviction, it has no reality in regard to appeals after a referral by the CCRC. The Commission has rightly built up a fine reputation both generally and especially perhaps for the quality and diligence of its investigations. The Court of Appeal Criminal Division, in its written evidence to the Justice Committee’s present inquiry said:

‘From the point of view of the CACD, the current functions and form of the CCRC work well and have led to a valuable working relationship. In the past, CACD has found the CCRC very efficient particularly in conducting directed investigations and we would be concerned if any changes (either formal or informal) to the structure affected this.’

The CCRC is an efficient, competent, responsible body.

If, after investigation, the Commission believes that there is serious doubt as to whether a conviction is safe, the Court of Appeal should be required by statute to consider whether it agrees – and if so, to quash the conviction. This would not require the court to consider whether the appellant was innocent – only whether there was sufficient doubt about the conviction to make it ‘unsafe’. A jury verdict about which both the CCRC and the Court of Appeal have serious doubt should not be allowed to stand. It is unacceptable in such a case that the system should say: ‘The jury has reached its decision after hearing the evidence and seeing the witnesses and that is the end of the matter.’

This would not undermine or usurp the jury’s role. The existence of an appeal court does not undermine or usurp the trial court. An appeal is there to review the result of the trial process. The jury’s role is to decide whether the prosecution has proved its case beyond a reasonable doubt. The Court of Appeal’s task is to decide whether the jury’s verdict is safe or unsafe. They are different questions, involving different tests, answered by different bodies with different capacities and different responsibilities.

Fail/Safe element
The Court of Appeal – now aided by the CCRC – is the fail/ safe element in the system. For the fail/safe system, as it were, to fold its hands and look the other way is dereliction of duty.

The proposed new statutory provision would put the CCRC into a very different relationship with the Court of Appeal. The Commission would be raised to a kind of partnership with the Court of Appeal. Instead of having to consider, as now under s.13(1) of the 1995 Criminal Appeal Act 1995, whether there is a ‘real possibility’ that the Court of Appeal will act, it would only have to consider whether, after investigation, it had a serious doubt about the jury’s decision on the evidence. The Court of Appeal would then be required to give that question full substantive consideration. I believe that would give momentum to a transformation of the constitutional relationship between the Court and the Commission which could be a long-desired paradigm shift.

Establishment of what became the CCRC was recommended by the Runciman Royal Commission on Criminal Justice. The Royal Commission’s main reason for recommending the establishment of the new body was that it would be an infinitely better vehicle for investigating cases than C3 Department in the Home Office. That has unquestionably proved to be the case. But at present the full benefit of the CCRC’s investigatory work can be thwarted by the combination of the “real possibility” test and the Court of Appeal’s historic aversion to reconsidering a jury’s verdict. The proposed new statutory provision would build on and give full value to the CCRC’s capacity to investigate and evaluate cases.

The new test would obviously have to apply not only to cases where there is no new evidence but also to cases where there is new evidence. Would it result in an avalanche of cases being referred to the Court of Appeal?

It is likely that the new approach would initially result in referrals of a number of cases (maybe two dozen) that were seriously considered for referral by the CCRC but which were not referred because of the Court of Appeal’s restrictive attitude both to jury decisions and to fresh evidence. Because of the extensive work always undertaken by the Commission before a referral is made, that would however happen gradually, a few per year.

Once the backlog had been dealt with, one can confident that the flow of cases referred by the CCRC as a result of the new approach would reduce to a small and manageable number, probably as low as one or two cases per year.

The CCRC has shown itself to be a very cautious body. Section 13(2) of the 1995 Act gives it the power to refer a case to the Court of Appeal “in exceptional circumstances” even though there is nothing new. In the twenty years of the CCRC’s existence this power has never once been used. The Commission, equally has never used its power under s.16(2) to refer a conviction case to the Home Secretary for exercise of the royal prerogative of pardon.

Its non-use of ss.13(2) and 16(2) suggests that the worry should be of under rather than of over-use. But the proposed new power should embolden the Commission to refer troubling verdicts. If the Court of Appeal rejects the appeal and the Commission feels strongly about the case, the new power should embolden the Commission to refer the case back and if that fails, and the Commission still feels strongly, to ask the Home Secretary to grant a pardon.

The Runciman Royal Commission’s Report said (para.46, p.171) that where on reading the transcript and hearing argument the Court of Appeal had a serious doubt about the verdict, it should exercise its power to quash. It added:

‘We do not think that quashing the jury’s verdict where the court believes it to be unsafe undermines the system of jury trial. We therefore recommend that … it be made clear that the Court of Appeal should quash a conviction notwithstanding that the jury reached their verdict having heard all the relevant evidence and without any error of law or material irregularity having occurred if after reviewing the case, the court concludes that the verdict is or may be unsafe.’

I was a member of the Runciman Royal Commission. I regard that one of the most important of our 352 recommendations.

The proposal is simple: the CCRC should be given the power to refer a case to the CA where it considers that the conviction is against the weight of the evidence heard by the jury, but taking into account also any fresh evidence that has since emerged.

The Court has been extremely resistant to reconsidering the evidence. Legislation strengthening the position of the CCRC as the filter for the Court of Appeal in these especially difficult cases could be a game-changer.

 

 

Profile photo of Michael Zander QC About Michael Zander QC
Professor Michael Zander QC is Professor Emeritus of Law at LSE. He was a member of the Runciman Royal Commission on Criminal Justice. His books include Cases and Materials on the English Legal System (9th ed., 2003), The Law Making Process (6th ed., 2004), A Bill of Rights? (4th ed., 1997) and The Police and Criminal Evidence Act 1984 (5th ed., 2005).

Print Friendly

6 Comments

  • James Colton January 29, 2015 11:21 pm

    What we have here is no more than a propaganda exercise. It would be ‘political suicide’ for Michael Zander, QC, FBA, (born 16 November 1932[1] in Berlin) to examine corruption in the English Courts. Mr Zander states: “The question is only whether anything can be done if in a particular case it seems that the jury got it wrong.” Procedural liabilities take a back seat; better-put procedural corruption plays no part in this inquiry. Judges are above the law when it comes to misleading the Jury and hoodwinking the defendant. Of course, he can only get away with it by collusion with the Prosecution and defence lawyers.

    How many cases do the CCRC refer back to the Court of Appeal on proof of judicial corruption ‘ZERO?’

    For example in my case, my lawyers refused to make a defence statement (one of many procedural defects) on the orders of the trial judge. The Court of Appeal (single judge) stated “(1) “The time had long expired for service of a defence statement before your trial team was instructed. In any event you suffered no prejudice from the failure to serve a statement because you were not cross-examined on this matter, nor was it the subject of an adverse comment in the judge’s summing-up”.

    These words are words of a corrupt judge sitting at the Court of Appeal.

    The importance of a ‘Defence Statement’ as stated by https://www.justice.gov.uk and https://www.justice.gov.uk/courts/procedure-rules/criminal/docs/2011/crim-pr-form-part22-defence-statement-aug-2011.pdf

    Part 2: Nature of the defence
    Attach as many sheets as you need to give the information required. Under section 6A of the Criminal Procedure and Investigations Act 1996, you must:
    (a) set out the nature of your defence, including any particular defences on which you intend to rely;
    (b) indicate the matters of fact on which you take issue with the prosecutor, and in respect of each explain why;
    (c) set out particulars of the matters of fact on which you intend to rely for the purposes of your defence;
    (d) indicate any point of law that you wish to take, including any point about the admissibility of evidence or about abuse of process, and any authority relied on; and
    (e) if your defence statement includes an alibi (i.e. an assertion that you were in a place, at a time, inconsistent with you having committed the offence), give particulars, including – (i) the name, address and date of birth of any witness who you believe can give evidence in support of that alibi,
    (ii) if you do not know all of those details, any information that might help identify or find that witness.
    Signed: ……………………………………

    The Act ((Criminal Procedure and Investigations Act 1996, section 5 & 6; Criminal Procedure and Investigations Act 1996 (Defence Disclosure Time Limits) Regulations 2011; Criminal Procedure Rules, rule 22.4) States WARNING: Under section 11 of the Criminal Procedure and Investigations Act 1996, if you (a) do not disclose what the Act requires; (b) do not give a defence statement before the time limit expires; (c) at trial, rely on a defence, or facts, that you have not disclosed; or (d) at trial, call an alibi witness whom you have not identified in advance, then the court, the prosecutor or another defendant may comment on that, and the court may draw such inferences as it thinks proper in deciding whether you are guilty”. This Act is incompatible with Article 6 of the European Convention of Human Rights (b) “to have adequate time and the facilities for the preparation of his defence”. I wanted to make a defence statement but prevented from making one. See Malcolm v R. [2011] EWCA Crim 2069 (01 September 2011). http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Crim/2011/2069.html&query=defence-statement&method=boolean

    THE ART OF CROSS-EXAMINATION INTRODUCTION (19) http://www.gutenberg.org/files/40781/40781-h/40781-h.htm#Page_121
    “How little can the ordinary business man realize the value to himself of having a lawyer who understands the habits of thought and of looking at evidence—the bent of mind—of the very judge who is to preside at the trial of his case.”
    Discretion to stay proceedings
    http://www.cps.gov.uk/legal/a_to_c/abuse_of_process/#general

    The leading case on the application of abuse of process remains Bennett v Horseferry Magistrates’ Court. This case confirmed that an abuse of process justifying the stay of a prosecution could arise in the following circumstances: i. where it would be impossible to give the accused a fair trial; or ii. where it would amount to a misuse/manipulation of process because it offends the court’s sense of justice and propriety to be asked to try the accused in the circumstances of the particular case.
    Google ‘A Jury in the Dark’ What is clear if you do not know your rights at trial- well thank goodness hanging is no longer available for the innocent.

  • Christy Walsh January 30, 2015 10:40 am

    James Colton (deceased) raises what is often an important contributing element of miscarriages of justice ‘procedural’ irregularities. It is an area all too often ignored or avoided even though it is probably arises somewhere in most if not all miscarriage cases.

    Zander observes in his article that the Court of Appeal has historically been deficient in “its assigned role”.

    • James Colton February 13, 2015 8:29 pm

      Hi Christy

      Just read your comment and read your plight to clear your name. I am just starting my campaign so not dead yet?

      Take care

      James Colton

    • christy walsh February 14, 2015 1:33 pm

      James

      Very sorry about that, I had read somewhere that you had died and I assumed one of your supporters was using your name to emphasis their point on your behalf. It is better you are a live doing it yourself and you made good points above.

  • george skelly January 31, 2015 4:02 am

    I agree fully with Mr Zander’s views re. the Court of Appeal’s historic reluctance to usurp a jury’s verdict, particularly in capital cases. Lord Goddard, for example, was notorious for using this “constitutional supremacy” as a smokescreen for refusing to hear new evidence (Rowland v Regina 1947; Kelly & Connolly v Regina 1950. and Devlin & Burns v Regina 1952). Yet, there was no statute or impediment in Common Law for the Court of Appeal to hear new evidence and make a judgement. It was merely a convention agree by successive members of the Court of Criminal Appeal. Indeed in one particular xcase (Wallace v Regina 1931) the Court actually quashed the capital conviction by reason of the Jury’s “perverse decision” which it ruled was no based on the evidence.
    Although I agree with the analysis of the Court of Appeal’s conduct and misplaced rationale, I do feel that there is a problem of equal importance within the attitudes and procedures within the Criminal Cases Review Commission. For instance it often gives the impression of hiding behind the “Real possibility” test in order not to refer cases, the merits of which it has second-guessed itself. And although it has wide-ranging investigatory powers it often does not use them – even in order to resolve the legitimacy or otherwise of an applicant’s argument. My view is that the CCRC has now retrenched into a reluctance to refer even the most meritorious of cases because of its past referrals of frivolous or undeserving cases and the subsequent admonishments of the Court of Appeal (e.g. Ruth Ellis v Regina). In 2001 the CCRC did refer the 1950 capital convictions of George Kelly & Charles Connolly and these were were posthumously quashed in 2003. (my book The Cameo Conspiracy- Waterside Press 2011 covered this case). The appeals were allowed because of new evidence proving the suppression of evidence by the police. In 2008, in the case of Devlin & Burns (both hanged 1952) I made application to the CCRC for referral to the Court f Appeal on the same grounds as the Kelly, Connolly appeals, citing the same senior police officer in both cases. My applications was supported with eleven bundles of new, hitherto suppressed evidence and contemporaneous statements from witnesses who had been threatened by the police to change their evidence. Yet although the CCRC questioned the veracity and authenticity of these signed statements, it did not see fit to investigate for itself in order to ascertain the truth or otherwise, the result being the rejection of this evidence and the CCRC’s blanket refusal to refer to the Court of Appeal. If it felt the application did not meet the “real possibility” test, it did not even consider using its under-used power to refer the case under ” in exceptional circumstances”, nor did it consider recommending to the Home Secretary the Royal Prerogative for a pardon.
    My book (Murderers Or Martyrs, Waterside Press 2013) with a Foreword by former Attorney-General Lord Goldsmith, deals fully with this case and includes all the new evidence.
    Finally, I feel most strongly that the Justice Select Committee on February 3rd should be made fully aware of the relevant facts as elucidated here. At the very least I trust it will finally recommend replacing the “real possibility” test with that suggested by Mr Zander

    Mr George Skelly, BA (Hons), Dip.Lit (Oxon)

  • David sturgess February 26, 2016 5:55 pm

    The police know the game and investigate nothing and as my evidence of perjury in the trial refuse to investigate perjury until a judge orders it. The police in my case even have hidden fresh evidence and not reported it to the ccrc. As this would prove also the officer in charge lied also in my trial. Now to appeal anything g of the ccrc ypu have to do this through a judicial review it’s all a game thousand locked up as o was on perjury lies and revenge. The police just further set you up and refuse to take evidence that does not help their case the hnp now cost is greater than the 3 arm forces and nhs service 98000 every day 50% like me inercent of all charges.
    The ccrc are full of police officers this and judge are now a cruupt system

Add Comment

Your email address will not be published. Required fields are marked *

Skip to toolbar