The veteran journalist Bob Woffinden describes the creation of the Criminal Case Review Commission (CCRC) as having ‘set back the pursuit of justice in the UK by more than twenty years’ at the House of Commons’ justice committee earlier this year.
Des Thomas, a former senior police officer, describes the CCRC as ‘a badly managed, inept organisation that lacks the knowledge required to conduct high quality and valid reviews’.
They were among a number of strident critics of the CCRC who contributed to the recently concluded inquiry into the CCRC by the House of Commons Justice Select Committee.
The Select Committee, in a rather lukewarm assessment, opined that the CCRC was performing ‘reasonably well’. The Select Committee urged the Commission to be ‘less cautious’ in making referrals to the Court of Appeal (Criminal Division). It did not favour any change to the ‘real possibility’ test, nor any greater use of the Royal Prerogative option. It recommended the provision of more resources to enable the CCRC to cut delays, the extension of the CCRC’s powers to obtain relevant material to cover private sector bodies and stressed the need for lessons learned at the CCRC to be fed back into the criminal justice system more effectively. Finally, the Select Committee suggested that the Law Commission should consider the test to be applied by the Court of Appeal when considering an appeal against conviction.
A persistent thread running through the more strident criticisms of the CCRC asserted a manifest failure to refer sufficient cases, including a number of ‘obvious’ miscarriages of justice. It was further claimed that the CCRC did not investigate cases thoroughly enough, being far too content to rely upon desk-based reviews. The depth of these criticisms led a number of commentators to conclude that the CCRC was not fit for purpose.
Counter-balancing these views were the opinions from a number of academic researchers who had been granted access to the CCRC’s internal files and did not consider the CCRC a failed or failing organisation. As one of that group of academic researchers fortunate enough to have been granted access to the inner workings of the CCRC I want to explore some of the many reasons behind the relatively small number of cases that the CCRC refers to an appeal court. These observations are based upon examination of more than 400 case files and semi-structured interviews with commissioners and staff at the CCRC.
The CCRC’s role: an overview
The first point, often overlooked by applicants or their advisers, is that the CCRC is not there to champion the cause of the wrongly convicted. Comparisons with the organisation JUSTICE, which formerly did champion individual cases, are misguided. The CCRC occupies a unique position within the criminal justice landscape. First, it regards itself, very overtly, as an inquisitorial component within an adversarial legal system. This is often the source of tension with representatives accustomed to operating in an adversarial manner who adopt that approach in their dealings with the CCRC. A second unique feature of the CCRC is that, ultimately, it is charged with the responsibility of performing a predictive test of what another body (an appellate court) might do. The forensic application of the ‘real possibility’ test is, however, a relative rarity since in most cases there is little or no prospect of a case being referred to the relevant appeal court. Much of the discussion at the recent select committee hearings was focussed on whether the ‘real possibility’ test should be modified, but my findings convinced me that changing the test would have little, if any, impact on the number of cases referred. At its heart the test, however phrased, is a filter mechanism differentiating those cases which merit referral from those that do not. Changing the test to one designed to achieve more referrals, in the view of the select committee, would mean referring cases where there was less than a real possibility of the conviction being quashed—a strange proposition.
To understand why so few cases require the forensic application of the real possibility test we need to consider what the CCRC is looking for when it considers an application. In laymen’s terms it is looking for ‘something new.’ The Criminal Appeal Act 1995 puts it rather more formally by setting as a normal pre-condition for a referral:
‘… in the case of a conviction, verdict or finding, because of an argument, or evidence, not raised in the proceedings which led to it or on any appeal or application for leave to appeal against it …’
The importance of providing ‘something new’ cannot be overstated. The CCRC is, as recognised by the Select Committee, overwhelmed with applications, particularly since it introduced an ‘easy read’ application form in 2012. The delays in reviewing cases have become unacceptably long and the Select Committee has recommended the allocation of another £1m per annum to the CCRC to address this.
Frankly, the quickest way for the CCRC to eliminate applications is to identify those that contain no fresh evidence or argument and reject them for failing to do so. There is a risk that the pressure on the CCRC arising from addressing delays could result in miscarriages of justice being overlooked.
This may seem a trite point, but I have deliberately extracted the single word ‘review’ from the Commission’s full title. I do so to stress a point that seems to be misunderstood. The CCRC is not the Criminal Cases Re-Investigation Commission. Where a review leads the Commission to have concerns over a case it will carry out, or arrange for a police force to carry out, a re-investigation of a case. However, that is not the norm. Each application is reviewed to a basic level, but only those which raise something new receive a more in-depth review, which in some cases will develop into a very detailed and lengthy re-investigation.
The CCRC has a finite budget and resources. It has to use those resources prudently. Accordingly, it places a very clear onus on applicants to provide ‘something new’. Even then it will not simply accept every assertion made by an applicant. An applicant may make all manner of assertions about witnesses or complainants perjuring themselves. The CCRC does not just take those at face value and launch a detailed investigation. Similarly, requests for forensic or psychiatric testing to be carried out will not automatically be met. The CCRC will consider whether, in the context of a case as a whole, such testing might be of significance.
There is, nevertheless, a cause for concern here and the delays in a case reaching review currently stand at about six months for an applicant who is in custody and considerably longer for one who has served his sentence. A review in a complex case involving significant numbers of documents is likely to take at least 12 months or more. If, and it is a large ‘if’, the case is then referred to the Court of Appeal it simply takes its place in the queue. There is no ‘fast track’ for the CCRC’s referrals. From application to potential acquittal at a retrial could, fairly routinely, take three or four years.
What is the picture that emerges from analysing significant numbers of applications? Are there, as some of the CCRC’s critics would suggest, large numbers of cases being refused referrals when they clearly have merit?
The three most common grounds of application
I analysed a random sample of cases. By initially focussing on the application form and any supporting submission I was able to identify a very clear pattern. I later tested my findings in interviews with staff and commissioners and found confirmation of recurrent themes.
Three themes featured, alone or in combination, in a large number of applications. Collectively they effectively comprise one request. Those themes were:
- That the service provided by the legal representatives for the defendant was inadequate and had resulted in a wrongful conviction.
- That the prosecuting authorities had, to some degree, behaved in an improper manner. This might include withholding evidence, pressurising witnesses, fabricating evidence or other malpractice.
- That the trial judge was, in some manner, prejudiced against the defendant and had colluded, to some degree, with the prosecutor in order to ensure that the defendant was convicted.
These assertions, usually without any supporting evidence, were used either singly or in any combination to try to convince the CCRC that the applicant had been wrongly convicted. In essence, they could usually be distilled to an assertion that the verdict of the jury was misguided and that the applicant should be entitled to a re-run of the trial. A common feature of the Commission’s refusal letters was an explanation to the applicant that it was not part of CCRC’s function to examine cases simply because an applicant was unhappy with the outcome of his original trial.
I tested these findings in semi-structured interviews with staff and commissioners. There was an over whelming measure of agreement amongst the 11 interviewees that the three reasons I had identified featured in their most common reasons.
Of course, the fact that these are the most common reasons which applicants put forward does not mean that they automatically lack merit. Inevitably, there are cases where one or more of these factors have resulted in a miscarriage of justice. However, faced with large volumes of such assertions the prospect of the CCRC identifying something new in such cases is inevitably very slim.
The difficulties for applicants do not end there, however. The CCRC has to take into account, or cope with, a wide range of other issues when considering an application. Some of these may not be readily apparent to the external observer and it is worth exploring how some of those factors impact upon a potential referral.
A lack of data
In a world of instant digital availability, I was struck by the number of cases I encountered in which the CCRC was unable to access records relevant to its investigations. In one case the only reason the CCRC knew that the applicant had been convicted of an offence was because he told them so in his application. Although the CCRC tried to locate case papers from the Court authorities they were thwarted by the effects of a reorganisation and no papers could be found. In the absence of such basic material the application was refused. The outcome was not the result of any unwillingness to search on the part of the CCRC or the Court Service.
In other cases the CCRC was reduced to trying to piece together elements of a case from sources such as the judge’s trial notebook or even Counsel’s papers from trial. A total lack of data or the construction of a partial file meant that some cases, which might have been meritorious, simply had to be refused.
A number of the cases I reviewed concerned convictions arising from a brawl. Quite often the outcome was a very serious injury, or even death. Reading the papers on these cases quickly illustrated just how difficult they could be. The participants were usually young people, often under the influence of alcohol or other substances. The incidents happened late at night or in the early hours, often either in a nightclub or in the street in the vicinity. As a result lighting conditions were often poor. In consequence witness statements were often confused and contradictory.
Someone convicted of a serious offence arising from such a brawl is likely to have had the benefit of a jury warning from the trial judge about the dangers of identification in such circumstances.
But what is the CCRC to make of applications arising from these incidents? Realistically these cases generally do not lend themselves to the production of any fresh evidence likely to exculpate a defendant.
Delayed allegation sex cases
Anyone who has been involved in defending an individual charged with sex offences where there has been a significant delay in the complainant making the allegations will be aware of the difficulties involved. Although the CCRC has access to documents to which the defendant and his team may not have access, the CCRC faces many of the same problems which a defendant faces. Records have been destroyed, undertakings have changed hands—moving into and out of the private sector perhaps. The result is that a significant number of these cases simply become intractable.
Lack of power to obtain documents
The CCRC enjoys extensive powers to obtain access to documents and other material held by public bodies. It uses these powers on a routine basis to ‘freeze’ documents pending a possible full review. However, the CCRC has complained for a number of years now that, unlike its Scottish counterpart, it has no powers to obtain documents or materials from private bodies. During my research I only identified one case in which this prevented an investigation from proceeding (a newspaper declined to say whether it had a financial arrangement with a complainant in a sex case). With the privatisation of forensic science work this problem seems likely to be exacerbated and the select committee’s strong recommendation that the CCRC be afforded this power is welcome.
Code of practice on victims
The last 15 years has seen an interesting shift in the criminal justice system in this country. If the Runciman Commission’s recommendations1 saw a move to protect individuals suspected of criminal offences the climate had changed by the early part of this Century. The greater focus on victims of crime became evident in a number of ways and it may not be readily apparent that it also has had a significant impact upon the CCRC. The Code of Practice for the Victims of Crime introduced in April 2006 specifies that the CCRC is one of the bodies to whom it applies.
For the vast majority of applications that the CCRC receives the Code of Practice is relevant. Very few crimes are ‘victimless’ and given that the CCRC’s staple diet is murder and serious sexual offences the way that it handles these is important. The CCRC has published its own memorandum on the subject explaining that it will exercise caution before investigating some cases – because of the potential impact on victims. So, for example, an assertion by someone convicted of a serious sexual offence that the complainant has subsequently retracted the complaint will not just be taken at face value. The CCRC will consider whether it is appropriate to reopen the case by talking to the victim. In some cases I reviewed it decided not to do so because the assertion made by the applicant was not corroborated by any independently verifiable evidence.
Another factor that may not be apparent to the external obser ver is the sheer volume of repeat applications which the CCRC receives. I came across one case in which the applicant had applied and been refused seven times. The CCRC has had to issue a policy statement about the treatment of such applications, indicating that in extreme cases it will decline to respond to an applicant or insist that any further applications come from a legal representative. However, the process of checking whether the latest submission from a persistent applicant does raise any different point still engages the use of the CCRC’s resources.
Discretion not to refer
The CCRC has the power to refer a case where it considers the real possibility test is satisfied but it is not obliged to do so. A policy statement issued by the CCRC sets out some of the circumstances where it might choose not to refer even though it considered there was a real possibility in respect of a application. I found this most commonly used where one or two offences among a large number of offences might be quashed, but unless there was likely to be any impact on sentence the CCRC would not refer the case.
Though the CCRC is obliged to give reasons, it is, however, prohibited from issuing a statement of reasons as a public document. One of the frustrating consequences of this for the CCRC is that it is not permitted to explain publicly that it has not referred a case because its investigation uncovered evidence strongly probative of an applicant’s guilt. There were a number of relatively high profile causes celebres in which such evidence was uncovered.
The CCRC is recognised by the Supreme Court as an important safety net within the criminal justice system. It has been urged by the Justice Select Committee to be ‘less cautious’ in making referrals. Academics who have conducted research within the CCRC have, in differing ways, come to a broadly similar conclusion
However, the notion that it is sitting upon a large number of ‘obvious’ miscarriages of justice does not seem to me to borne out by the evidence of those who have been granted access to the CCRC. I harboured doubts about the refusal to refer 26 cases that I described as ‘troubling’. But they were drawn from a period of 10 years of the CCRC’s operation. In none of those cases did I think the case was an ‘obvious’ miscarriage of justice. Indeed, in one of them which was subsequently referred to the Court of Appeal the conviction was upheld as safe.
The reality, it seems to me, is that most applications to the CCRC have little prospect of success. They raise nothing new. Even if they do raise something new there are still other significant hurdles to overcome to get to the point where the real possibility test is applied.
That is when the real difficulty arises, because the CCRC is trying to predict an unpredictable and restrictive Court of Appeal. Some critics suggest that a bolder approach by the CCRC will bring about a change to a more receptive approach by the CACD. It is not clear why that would be the outcome given Professor Zander’s assessment that:
‘For more than 100 years, since the 1907 Criminal Appeal Act, the appeal court has notoriously shown itself extremely reluctant to overturn jur y verdicts. No one has yet thought of a way of overcoming that reluctance.’
The Select Committee adroitly passed that challenge to the Law Commission recommending that it examine the appeal test applied by the Court of Appeal. I would welcome a change at the Court of Appeal and an adoption of the less restrictive approach suggested by the Runciman Commission, particularly a greater use of retrials. Even the adoption of such an approach would not, in my view, see a sudden huge influx of cases from the CCRC. For the reasons set out above, there are only a limited number of cases in the pipeline that would merit referral. The vast majority will continue to fall by the wayside for precisely the same reasons that they have failed hitherto.
Originally published in Archbold Review, Issue 5 of 2015
© 2015 Thomson Reuters (Professional) UK Ltd
Dr Heaton is an associate tutor at the school of law in the University of East Anglia