The row over the efficacy of the Criminal Cases Review Commission (CCRC) continues to rumble on. The body set up after the Runciman report into the dreadful catalogue of miscarriage of justice cases in the 1970s and 80s is accused of failing in its task because, it is said, too few cases are being referred back to the Court of Appeal. The CCRC is variously accused of being too timid in its dealings with the Court of Appeal, of being too cautious in its approach and being keener on preserving its much-fabled 70% success rate to the detriment of cases that deserve to be referred back to the Court of Appeal.
In recent years there has been a lot of debate over whether the test that the CCRC uses to determine whether to refer a case back to the Court of Appeal should be amended in the hope of encouraging more referrals. The present test applied by the CCRC to all cases it considers is whether there is a real possibility that the conviction would not be upheld by the Court of Appeal. That phrase ‘reasonable possibility’ has been interpreted by the Court of Appeal to mean that there is ‘more than an outside chance or bare possibility but which might be less than a probability, or a likelihood, or a racing certainty’. I am sure that was intended to help but I am not sure I am much clearer after reading it than I was before. I guess it means it has to be somewhere between hopeless and a good chance of success which is probably obvious from the phrase itself.
Various suggestions have been made that changing the terms on which the CCRC operates might improve the number of referrals. I have even done so myself, a few years ago when I suggested that the situation might be improved if the CCRC was able to refer a case in which it thought there was ‘a real doubt about the safety of the conviction’. But any such suggestion presupposes that the problem here is with the CCRC, when it actual fact it may well be that the problem lies with the Court of Appeal rather than the CCRC.
An unholy agreement
Since its inception in 1907 the Court of Criminal Appeals or the Court of Appeal Criminal Division as it is known these days has been a conservative institution. Whether it is out of a concern that the supremacy of the jury in finding the facts on which a conviction is based should not seem to be undermined or more probably simply because the majority of the judges work on the basis that juries usually get it right and they don’t want to have the system clogged up with endless appeals, the fact remains that the Court of Appeal has never been keen to encourage more appeals than are entirely necessary to maintain public confidence in the criminal justice system.
You might have thought that given the litany of appalling miscarriage of justice cases which hardly reflected well on the English courts that the Court of Appeal would have welcomed this new institution, charged with helping the Court to right obviously wrong convictions, with open arms. The reality is however rather different and an unholy agreement has been thrashed out between the two institutions in which there is no doubt who is boss. In return for agreeing to uphold decisions of the CCRC when it declines to refer a case, the Court of Appeal has made it quite clear that it is not the role of the CCRC to refer any old case in which it thinks there might have been some error on the part of the judge but only those where something has obviously gone badly wrong. As a barrister who has tried and failed to judicially review a decision of the CCRC not to refer a case I can vouch for the fact that the High Court when considering any such challenge is very keen to emphasise the role of the CCRC as the sole arbiter of which cases should be referred back and if the CCRC declines to do so the High Court has been resolute in supporting the decision of the CCRC.
What has been noticeable by its absence in this debate has been any contribution from the judges.
The House of Commons justice committee was recently reported to be annoyed by the lack of engagement from those whose job it is to handle cases referred back to them by the CCRC (see here). However there was apparently a late written submission by the recently retired former Chief Justice, Lord Judge. He is quoted as recycling that old chestnut that neither the CCRC nor the Court of Appeal ‘had the advantage of seeing witnesses and observing their body language in the way the jury had’. This is a well-worn excuse by the Court of Appeal not to interfere with an apparent miscarriage of justice for fear of undermining the authority of jury verdicts. With respect, that is nonsense.
What we all want from our justice system is one that in the words of the criminal procedure rules, ‘convicts the guilty and acquits the innocent’. No one in his or her right mind wants the wrong person to be convicted. Not only is that unjust but it also means the real culprit remains free to offend again. But any justice system is subject to human frailty and as a result we cannot guarantee that all jury verdicts are free from bias and prejudice and perhaps more importantly are correct. That is why we need a system of review of verdicts so that if there is a real doubt about the verdict that can at least be considered. But to suggest that this somehow undermines jury verdicts is little more than a smokescreen and a sorry attempt by the Court of Appeal to duck its responsibilities.
In the vast majority of cases where the verdict is seriously in question the issues that arise do not involve the honestly of the jury’s verdict. Few cases raise a doubt about that. Lord Judge also claimed that there are many cases in which juries had to decide which of two people were telling the truth and that it was impossible for the Court of Appeal to tell from reading transcripts of their evidence who was telling the truth. Such cases however rarely lead to appeals. If the question of whether a conviction is safe or not depends on which of two people are telling the truth, since that is quintessentially an issue for the jury it is hard to see how such a case would give rise to any point of appeal, at least on that issue.
An appalling vista
What cases involving potential miscarriages of justice do raise are issues about the conduct of the police investigating the case, the lawyers handling the case before and at trial and the competence of the judges trying the case. These are issues the Court of Appeal has always had difficulty in facing up to. Many will recall Lord Denning’s famous line in relation to the Birmingham 6 when he described as ‘an appalling vista’ the idea that the six men has confessed because they had been threatened and beaten up by police and prison officers. To Denning the very idea was an affront so awful that he refused to contemplate the possibility the men had been maltreated and dismissed their attempt to bring a case against the prison officers involved.
If you think of any of the major miscarriage of justice cases in the last 40 years or so they almost always involved issues relating to confessions obtained by the police through threats and the actual use of violence, police officers cheating by burying inconvenient evidence so as to deprive an innocent person of the evidence that would have proved their innocence, bent scientists who considered their loyalty to their paymaster rather than the ends of justice, scientists who were simply incompetent to analyse properly the result of their tests, police officers who started with a theory about the offence and then sought the evidence to prove their theory. They also include cases where prosecution lawyers have either as a result of incompetence, complacency or occasionally something more sinister failed to make proper disclosure of material in the possession of the prosecution, which should have been revealed to the defence because it might have assisted the defence to show the police case was false.
Nor can the role of defence lawyers be overlooked.
It is perhaps not fashionable to dwell on this and certainly defence lawyers labour under huge constraints especially in an age of increasing cuts in legal aid when compared to the resources available to the state in prosecuting but anyone who has done much work on such cases knows of instances in which the defence lawyers did a very poor job and have to bear some responsibility, even if limited for the fact these miscarriages have occurred. But the problem most assuredly does not lie with juries who can only deal with the evidence put before them. If the evidence is hidden or distorted by prosecutors no one should be surprised if occasionally the jury gets it wrong but it is clear that the responsibility for this lies elsewhere. The Court of Appeal is simply avoiding their responsibility when claiming that they cannot be expected to intervene.
In a further reported claim the former Lord Chief Justice was said to be worried that if the Court of Appeal disagreed with the CCRC and dismissed a case referred back this would again undermine public confidence. It was said that public confidence in the original verdict could never be restored. Quite apart from the fact that this ignores the reality that in the 30% of the cases referred back in which the Court of Appeal dismisses the appeal it is already the case that the two bodies do disagree about the safety of a conviction, the logic of this argument would appear to be that it would be better if no one challenged a verdict for fear of undermining public confidence. As I said earlier what we all want is a system in which errors are corrected and if the price of achieving that is that on occasions there will be continuing disagreement about the safety of a conviction that is a small price to pay for ultimately getting it right.
Dr Dennis Eady from Cardiff University was right when he told the MPs that the problem here lies with the Court of Appeal. It does.
As others have already pointed out there is little point in changing the terms on which the CCRC refers cases back to the Court of Appeal if that body simply continues to dismiss cases which are referred. I have no doubt that the CCRC could do with another million pounds in order to do its work properly and they should be given the money. But what is urgently needed is a change of culture on the part of the judges who make up the Court of Appeal.
They need to stop seeing appeals as being a dreadful waste of time, effort and public money but rather as an essential part of the process of ensuring, as far as possible, that verdicts are correct. If that is to be achieved the judges in the Court of Appeal need to be far more receptive to appeals where a serious argument can be presented that justice has failed. They should welcome the opportunity to correct a miscarriage of justice, that after all is what they are supposed to be there for.
Mark George QC
Mark George QC is a highly experienced defence trial advocate of more than 30 years' experience. Mark works from Garden Court North chambers