Please imagine the following scenario.
Government minister to senior person in public organisation:
‘An extensive evidence-based review by a democratic Governmental Committee has identified some serious concerns about the procedures and practices of your organisation.’
Senior person from that organisation:
‘Well I can assure you there is absolutely no problem at all with the procedures and practices of our organisation.’
‘Oh right; well that’s completely re-assuring. So sorry to have unnecessarily bothered you with this. Please be assured that the matter will go no further.’
If you think that could never happen please read on and think again.
On the day 25 years ago when the Birmingham Six were cleared, the Home Secretary announced the establishment of the Royal Commission on Criminal Justice (RCCJ) which reported in 1993. The RCCJ recommended the formation of what became the Criminal Cases Review Commission (CCRC) and stated clearly their view that:
‘It should 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 maybe unsafe.’
RCCJ para 46 page 171
The Criminal Appeal Act 1995 failed to do this and CCRC referrals were clearly tied into the requirement for new evidence or legal material irregularity – neatly in line with the traditional approach of the Court of Appeal that had so often failed to secure justice for the Birmingham Six and many others.
In March 2015, the House of Commons Justice Select Committee (JSC) produced its report on the CCRC. The most significant (in my view) recommendation made by the JSC was that:
‘The Law Commission should be asked to review the Court of Appeal’s grounds for allowing appeals. Such a review should include consideration of the benefits of a statutory change to allow and encourage the Court of Appeal to quash a conviction where it has a serious doubt about the verdict, even without fresh evidence or fresh legal argument. If any such change is made, it should be accompanied by a review of its effects on the CCRC and of the continuing appropriateness of the “real possibility” test.’
So 22 years after the RCCJ’s recommendation the Justice Select Committee had moved towards the same view. Their recommendation was based on extensive well-informed written and oral evidence. This was encouraging stuff – a democratic body drawing an evidence-based conclusion.
Minister of Justice Michael Gove dismissed this proposal in a letter of 30th September 2015 to Bob Neill, MP, then newly appointed Chair of the JSC:
‘I can confirm that we have considered the recommendation made in the Twelfth Report of the 2014-15 Session. We note the views expressed by the former Lord Chief Justice, Lord Judge, and we do not believe that there is sufficient evidence that the Court of Appeal’s current approach has a deleterious effect on those who have suffered miscarriages of justice. As such, Ihave decided not to implement the Committee’s recommendations on this issue.’
Former Lord Chief Justice, Lord Judge, had made a late submission to the Justice Select Committee. Having consulted with the Current Lord Chief Justice, Lord Thomas, he wrote to the Justice Select Committee as follows:
‘I see no reason why within the current structural arrangements, the CCRC is not in fact entitled to refer a case to the Court of Appeal on the basis that there is a “real possibility” that the verdict of the jury is against the weight of the evidence. That maintains the “real possibility” test and does not disturb the constitutional arrangements… . If the CCRC were to refer the case on simply the “real possibility” basis, the CACD could not fail to discharge its statutory obligation. It would examine the whole of the evidence, with argument on both sides. It would not regard the task as “too burdensome”. At the end of the hearing, of course, while accepting that the reference was well made it might not agree that the verdict is unsafe.’
In other words, the Court of Appeal will under current statutory provision and practice consider cases regardless of whether there is new evidence or legal material irregularity – new evidence is not required. For want of a better term ‘lurking doubt’ can justify a CCRC referral on the basis of a ‘real possibility’ that the conviction will be quashed. The JSC recommendation is therefore quite unnecessary.
Well, it would be – if this was true.
Lord Justice Judge’s comment would not only appear to fly in the face of the evidence provided to the JSC from experienced practitioners and the evidence of Court of Appeal practice since its formation in 1907, but it also stands in complete contradiction to his own pronouncements in the Court of Appeal, notably in the case of R v Pope 2012. This contradiction was noted by the JSC report (paragraph 26):
‘As a matter of principle, in the administration of justice when there is trial by jury, the constitutional primacy and public responsibility for the verdict rests not with the judge, nor indeed with this court, but with the jury. If, therefore, there is a case to answer and, after proper directions, the jury has convicted, it is not open to the court to set aside the verdict on the basis of some collective, subjective judicial hunch that the conviction is or may be unsafe. Where it arises for consideration at all, the application of the “lurking doubt” concept requires reasoned analysis of the evidence or the trial process, or both, which leads to the inexorable conclusion that the conviction is unsafe. It can therefore only be in the most exceptional circumstances that a conviction will be quashed on this ground alone, and even more exceptional if the attention of the court is confined to a re-examination of the material before the jury.’
R v Pope (2012) EWCA Crim 2241, Lord Judge
So consideration of ‘lurking doubt’ cases would be an exception built upon an exception based on an inexorable conclusion – perhaps more accurately termed a snowball’s chance in hell.
Naively I, and a couple of colleagues, wrote to Mr Gove suggesting that there might be something of a democratic, evidential, and objectivity deficit in allowing the Court of Appeal to decide that its own practices do not need to be reviewed. We also asked him for a meeting so that we could more specifically explain these difficult concepts to him. The outcome was a response from Justice Minister Mike Penning which had a familiar ring:
‘In considering the arguments put forward we are not convinced that the Court of Appeal takes too rigid a view of its powers. We are particularly mindful of the view of the judiciary on this matter as, for example, in the evidence provided to the JSC by Lord Judge. It is for this reason that we chose not to invite the Law Commission to review the Court of Appeals grounds for allowing Appeals.’
That, Mr Penning, does not answer the concerns we have raised about the democratic process, transparency, objectivity and hard evidence, it simply re-states the problem that we have raised with the same brevity and disrespect displayed by Mr Gove in his response to Mr Neill. Mr Penning then concludes:
‘I remain committed to support those people who may have been subject to miscarriages of justice and I am supportive of the work of the CCRC.’
I am puzzled by this admirable commitment and how it seems to sit so comfortably with the apparent proviso that any attempt to change things for the better will be resisted.
The release of the Birmingham Six 25 years ago has been associated with a time of ‘justice in crisis’ (I joined Liberty at that time in support of their campaign with that title). In my view, the picture now is far worse than it was then. We now see fundamental reductions in due process over the last quarter century, abandonment of the standard of proof in historical abuse accusations, concerns over joint enterprise, mass imprisonment and overwhelming numbers of desperate people seeking help from the CCRC and every other organisation that might conceivably try to assist. Above all, the appeals system still fails to ensure that wrongly convicted people will have a fair chance of having the injustice inflicted on them corrected.
I may be an eternal pessimist but as far as miscarriages of justice are concerned, faced with the declared support of Mr Penning and the re-assurance of Lord Judge, I can only hope that the next 25 years will not be quite as bad as they probably will be.
Dr Dennis Eady is founder of South Wales Liberty (now South Wales Against Wrongful Conviction) and case consultant at Cardiff Law School Innocence Project