Richard FosterINTERVIEW: This week the Court of Appeal began its review of the case of footballer Ched Evans, convicted and jailed in 2012 for raping a 19-year-old woman. The referral follows a 10-month investigation by the Criminal Cases Review Commission (CCRC) turning up new evidence not raised at trial.

This qualifies as super-speedy work for the chronically underfunded and massively oversubscribed miscarriage of justice watchdog – the House of Common’s justice committee last year heard that it took the group eight months just to look at a new case (13 months if that applicant was out of prison).

I ask Richard Foster, chair of the CCRC, why the rush in the case of the former Sheffield United striker; and why do some cases that have attracted huge concern (for example, Eddie Gilfoyle or Colin Norris) seem forever lost in the system.

‘One reason is the number of further representations that we receive from the very same people who are telling us get on with it,’ replies Foster, adding that it would be ‘invidious to name names’. ‘I can think of a couple of very high profile cases which have been under review for a considerable period of time where we have been criticised by the campaigners and where we have sent provisional statements of reasons to them and, a few months down, the line we are still waiting to get representations in,’ he adds.

Another reason, Foster offers, is the CCRC’s ‘preparedness to go the extra mile’ to ‘entertain a second, third, even fourth review of the same case’.

Ched Evans is a relative-speaking straightforward first application. This time last year, an inquiry by the House of Commons’ justice committee concluded that the delays at the CCRC had become ‘unacceptable’. ‘We recommend that the CCRC should, as a matter of urgency, be granted the additional £1 million of annual funding that it has requested until it has reduced its backlog,’ they said.

The MPs cited the Gilfoyle case which, they noted, was ‘still undergoing investigation, four and a half years after application’. Foster makes the point that in the Gilfoyle case the material from the CPS weighs in at 17 lever arch files.

The fact that Ched Evans case was fast-tracked through the CCRC gives the impression that it was being given special treatment because of the huge media interest.

‘We don’t approach things in that way,’ insists Foster, who was chief executive of the Crown Prosecution Service before joining the Commission. He won’t be drawn on the specifics of the case other than to say that the CCRC has a policy on the prioritisation of cases – for example, ‘if someone is very ill and they might die; if there is evidence that might be unattainable if we wait too long; if there is a risk because of the high interest in the case that evidence might become contaminated’.

Justice committee
The justice committee concluded that the watchdog  was ‘performing reasonably well’. Foster says it was ‘a good report for us’. The MPs did urge the watchdog to be ‘less cautious’ and refer more cases back to the Court of Appeal. ‘If a bolder approach leads to five more failed appeals but one additional miscarriage being corrected, then that is of clear benefit,’ it said.

The most significant recommendation made by the MPs was for the Law Commission to review the Court of Appeal’s grounds for allowing appeals of possible wrongful convictions. A recommendation welcomed by the CCRC because, as it pointed out in its latest annual report, ‘irrespective of the basis on which this Commission refers a case, only the Court of Appeal can quash a conviction’.

Michael Gove rejected that call last year after having been reassured by a somewhat begrudging and late submission from the judiciary (more here). ‘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,’ wrote our Lord Chancellor. Lord Judge did offer to appear in person before the MPs but that offer came too late for the MPs.

The inquiry revealed to what extent to the CCRC had been starved of funds. ‘For every £10 that my predecessor had to spend on a case a decade ago, I have £4 today,’ Foster told the MPs. He reckons that the Commission had suffered ‘the biggest cut that has taken place anywhere in the criminal justice system’.

Since then there has been ‘good new and bad news’, as Foster puts it. ‘Over the last decade we have had our budget cut in real terms by about a third and we have seen our workload increased by about 70%,’ Foster tells me. The volume of applications to the Commission dramatically shot up in the last two years — simply because the they re-wrote the application form to make the language more accessible for prisoners with literacy problems. ‘You put those two things together and, in real terms, the budget that we have got compared to a decade ago is hugely reduced,’ Foster adds.

The ‘good news’, as he puts it, is that the Ministry of Justice in the last two years has ‘made a real effort to maintain our position – and not make it any worse’. For just a £1 million – ‘the cost of one of the Navy’s Tomahawk missiles’, as he told the committee – the CCRC could eliminate its queues. The government (again) ignored the MPs’ urgent recommendation that the Commission be given the extra money. ‘Sadly, we have not. I am not surprised by that,’ Foster says.

What is potentially good news for the CCRC is a bill going through parliament to bolster the its section 17 powers to force public bodies to release documents and materials. Crucial powers that the CCRC was granted under its founding statute and which have been seriously eroded as those bodies increasingly move into the private sector, notably the Forensic Science Service, probation, parts of the police and health service.

The bill does ‘a great deal of what we would like it to do’, says Foster. Under the new power, the CCRC will have apply to court for permission unlike its public sector powers.

Safety net
Bob Woffinden in a recent article for Proof magazine argued accused the CCRC of having ‘institutionalised miscarriages of justice’. ‘It is as though we have created a situation in which the authorities can afford not only to be complacent about the judicial system’s failings, but can even exacerbate them; the CCRC will be there to clear up the resulting mess,’ the journalist wrote.

‘The conviction rate in murder cases was about 45% at the start of the 1960s. By the end of the decade, it was over 90%. What had changed in the interim was the abolition of capital punishment. This appears to demonstrate that juries will bring in guilty verdicts more readily when they know their decisions are not going to be irreversible.’
Bob Woffinden

Unsurprisingly, Richard Foster declares himself ‘totally unpersuaded’ by the veteran journalist’s arguments and his analysis of jury behaviour. ‘All the evidence is that they approach the issues on the basis that they are supposed to approach the issue: did they do it or didn’t they do it,’ he says.

Of course, Foster says, if punishments are ‘exceptionally Draconian’ then that severity alone will give juries pause for thought. ‘But that’s quite a different argument from saying that because there is a safety net it doesn’t matter if people fall. Nobody goes on a trapeze, saying they won’t hold onto the rope because they know there is a net.’

Foster is particularly incensed about coverage in the Daily Telegraph of the Commission’s asylum work (Revealed: Government body helps asylum seekers quash convictions for illegal entry to Britain). Since 2012, the Commission has referred 40 cases to the relevant appeal court, including eight to the Court of Appeal. Tory MP, Peter Bone was on hand to provide the newspaper with the necessary outrage. ‘This is Alice in Wonderland. If you do this, you will undermine deterrence and encourage more and more people to come in by illegal routes,’ Bone said.

Foster points out that Telegraph article appeared to completely misunderstand the issue. ‘It’s central point was that, because we get convictions quashed, asylum seekers then get refugee status. Of the 40 cases that we have referred, only two involved people who had not already been granted asylum status before we referred them.’

As he explains, the very fact that they have been granted leave to remain is often one of the strongest grounds for referring a case (i.e., the referral is made on the basis that a genuine refugee was prosecuted for not having documents like a valid passport).

The Telegraph reckoned that the CCRC had ‘fast-tracked dozens of asylum-seeker cases, making up a large proportion of its workload’. Foster insists they make up ‘between 2 and 3%’ of the caseload. ‘It is a high proportion of the referrals that we had made where the convictions have been quashed. That shows that they are a group of people who have been badly treated by the system.’

The paper attacked the CCRC for its ‘campaigning’. ‘Damned if you do, damned if you do not’, says Foster. ‘The justice committee said that we ought to do more to feed back into the justice system if we see systemic failure. Then we do, and we are criticised as if we are “campaigning”.’

Some have been a bit sniffy about the Commission’s enthusiasm for asylum cases. Aren’t they just ‘low hanging fruit’? ‘Well, they aren’t for the individuals concerned,’ Foster replies. ‘A lot of the cases we have referred concern professionals – teachers, doctors and nurses – who had discovered because they have a conviction they cannot work. There is a double-damage to the system.

Finally, what value does the CCRC see in those organizations campaigning around and investigating miscarriages? ‘The biggest value that they can have is in their dealings with the applicant, and assisting the applicant in thinking about how they can apply to us with new evidence, understanding the system and helping them,’ he says. What doesn’t help anyone is groups ‘hanging on to a case’, says Foster.

A few years ago it was claimed that university innocence projects were looking at over 100 cases. The Commission points out that in the 12 years of the innocence movement they have only received around 25 applications from universities – and half of them from one university (Cardiff). With an analogy that is not going to go down well with university innocent projects, Foster says: ‘If you think that you have a terminal illness, would you rather have your case considered by medical students in the bar on Friday night – or would you rather send it to a consultant oncologist?’

‘We are, after all, the only avenue back to the Court of Appeal if existing rights of appeal have been exhausted. The longer it takes for a case to come to us, the greater the delay and, of course, the older the evidence.’
Richard Foster

‘The great difference between campaigning organisations and ourselves is that they can pick and chose,’ continues Foster. ‘We get about 130 applications a month. We have to look at every single case to assess the merits.’

Profile photo of Jon Robins About Jon Robins
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

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  • Christy Walsh March 24, 2016 10:03 am

    ‘We are, after all, the only avenue back to the Court of Appeal’

    That is not strictly true. After the CCRC declined to refer my case back to the Court of Appeal in 2005 I successfully brought my case directly before the Court of Appeal. Without legal assistance I argued that the Court of Appeal retains jurisdiction over cases in exceptional circumstances where the CCRC have failed to make a referal. Judgment here:

    • Dr Andrew Green March 24, 2016 6:09 pm

      You did succeed, Christy, and I admire you greatly for it. But I tried hard with Susan May to follow in your footsteps, and the appeal judges in London weren’t having it – I think they didn’t dare to let your case stand as a precedent.

  • Ange Droz March 24, 2016 10:50 am

    The hard working students who give their time voluntarily to pore over papers, write to prisoners and family members are supervised. They work diligently and the slur on the projects is both unfair and unfounded.

  • Andrew Green March 24, 2016 10:55 am

    It’s a shame that Richard Foster, who is to be admired for running an organisation whose efficiency has significantly increased on his watch despite reductions in funding, should spoil this interview by a gratuitous slur on university innocence projects and the students who give many hours of their time to them. IP applications may be routed through applicants’ solicitors and so not be registered as originating from IPs by the CCRC. He would be very welcome to visit Sheffield’s Miscarriage of Justice Review Centre (of which I’m a director) and see for himself the painstaking and inspired work that students do, and the applications they are currently drafting and which will soon arrive on the desks of his staff. He would find the students completely sober, although passionate about reviewing our clients’ claims of innocence.

  • Professor Claire McGourlay March 24, 2016 11:42 am

    As a Co-director at Sheffield University I echo Dr Andrew Green’s comments. We are dealing with 11 cases and propping up an underfunded, faulty, criminal justice system. I am appalled and the comments and they are very misinformed. As Andrew says please feel free to visit us Richard. The students work incredibly hard (giving up a lot of weekends and a lot of days and evenings) and we are making very good progress on many of our cases-soon to land on a desk near you!! We now have the same work model as Cardiff and as you might care to appreciate running a free service is never easy and I think most projects are doing a pretty good job with limited resources and as we work more effectively together you will see more cases coming your way. I have 20 students making their way to Cardiff next month for the 10th Anniversary of the Cardiff project – all weekend listening to people talk about appeal work and setting up networks. Your comments have stuck in my throat and probably in the throats of many of these hard working students! Also how many of your caseworkers are qualified lawyers? FOOD for THOUHGT….

  • Professor Claire McGourlay March 24, 2016 2:01 pm

    Also, one thing I forgot to mention is that INUK is no longer a network it is 1 person at Bristol. So using the old figures from INUK about numbers is not even correct or up to date and indeed Cardiff were not even part of INUK at that point.

  • Chloe Bennett March 24, 2016 5:33 pm

    As a student, who dedicates a lot of time to miscarriages of justice I am very disappointed to read these comments. Students working on cases of miscarriages of justice are dedicated, passionate and willing to help people who otherwise may not be able to afford the help they need. The line ‘hanging on to a case’ is one that particularly strikes me, as these complex cases often require a lot of time spent on the case before justice can be achieved. If people working on such cases simply gave up, a lot of victims of miscarriages of justice may not have seen their case overturned. Additionally I would add we treat our cases very seriously, with meetings in a dedicated legal clinic, rather than a bar as is indicated. I know that the client’s I have worked with have benefited from our help and will continue to do so, despite these belittling comments.

  • Doug Scott March 24, 2016 10:13 pm

    As a case manager at Sheffield’s Miscarriage of Justice Review Centre I would like to add that Mr Foster’s comments about our work are offensive and incredibly inaccurate. Myself and my group have been working on a CCRC application for over two years now and it is a very time consuming commitment to juggle along with a law degree and other activities. Our weekly meetings do not take place down the local pub but in dedicated building with some brilliant legal minds who are trying to overcome complex legal issues for our client. The irony of Mr Fosters comments is that myself and other members of the group have spent Friday evenings reading cases, forensic reports and drafting letters instead of going out to the pub.

    I sympathise with the funding that the CCRC get and applaud their increased efficiency over the past year but innocence projects should be getting encouragement from the CCRC and not these de-moralising and patronising statements. My group are very close to finishing a very professional and detailed application and I hope that it will be of great assistance to the CCRC when they review our clients case. I also hope that it will change Mr Foster’s view of innocence groups and that it will highlight that we are a very dedicated, bright and enthusiastic team who I believe our crucial in combatting the ever increasing cuts to our justice system.

  • Christy Walsh March 25, 2016 12:31 pm

    Dr Green & Prof McGourlay

    I think it very arrogant of both of you to believe that the Innocent Project is beyond criticism no matter how well meaning its voluntary contributions.

    While voluntary contributions from those who would give up their time to work on miscarriage of justices is often invaluable and might even be the only avenue open to victims the CCRC also make valuable point to the issue in the article above.

    Voluntary assistance is not always helpful or done in the best interests of the victim. Those who volunteer their time can sometimes have their own agenda’s or they can inadvertently make the process more cumbersome. This last point is what I think the CCRC are concerned with. For example, when I was in prison those working voluntarily on my case have asked to see specific legal documents; as a prisoner I had no access to a photocopier and so I was faced with either providing the document or losing valuable help or support; hence many important legal documents were lost but particularly an invaluable forensic report was lost and even the CCRC could not locate another copy of it.

    My experience with the CCRC has not been the negative experience others have experienced. I have often found the CCRC to be quite efficient and helpful. That is not to say that I have not had my conflicts with them, I have.

    Christy Walsh

    • Andrew Green April 2, 2016 11:56 am

      I am sorry if Claire and myself come across as arrogant. We are always willing to listen to criticism of the MJRC and innocence projects in general, and to improve our service in response to it. We are far from perfect. But students in our project have been unjustly maligned by Richard Foster’s unconsidered comments, and are right to respond in strong terms.
      We are not normally critical of the CCRC. On the contrary, we are aware of cases in which they have done brilliant work. Under Richard Foster’s management, the CCRC has become more efficient and open to communication, and we value their advice. We support them publicly and are strongly in favour of the CCRC receiving increased financial support. It was therefore very hurtful to read the remarks about innocence projects, and we hope this will not mark a step backwards in our co-operation.
      Personally I have been hoping that we will be able to invite you to Sheffield to speak at our conference in early October. I have long wanted to meet you and I think that we have a lot to learn from you knowledge and experience.

  • Martin Glasgow March 25, 2016 1:16 pm

    Thirteen months investigation if your not in prison. All my applications were dealt with within three months, which, equates to no investigation. I know this, due to carrying out my own investigation and if the CCRC had investigated they would have found what I have. Their remit is to pass any findings that would help any future applications of which they did not, because they did not investigate. My findings show that it can only be that the administration staff and most probably everyone else at the CCRC are taking financial incentives not to investigate my case.

  • James Cairns March 26, 2016 5:17 pm

    I would like to reiterate Chloe’s comments. This perception that Richard has of student projects ‘hanging onto’ cases is a huge oversight of the valuable work that students do for the wrongfully convicted. His comments paint student projects out to be hindrances slowing down the process of bringing genuinely successful appeals. Nothing could be further from the truth.

    Student projects do not hang on to cases but instead are frequent contributors to any appeal or application to the CCRC. I think Richard does identify this to a limited extent but in a throw away comment. In many instances the group of students will send materials that they have investigated to the client’s instructing solicitor or to their family who are sometimes the ones writing the application and who will ultimately submit those applications. Students too are often in frequent contact with the individual in prison or their families, and often follow any suggestions that the client has to offer – there is no hanging on to cases! In many instances this opens the process up to wider investigation than a solicitor or the CCRC could feasibly pursue with their limited time and resources.

    Also this medical analogy is equally misleading. Firstly, because ‘law is just like medicine’ comparisons are dubious in any circumstances, not least because medical diagnoses are based on science whereas legal issues are clearly not. But secondly, student groups do not operate in a pub on a Friday night and if they did then client’s would not apply in their droves to have their cases reviewed by them. Student groups frequently give up time out of their days from Monday to Sunday in dedicated offices, receiving advice from academics and solicitors and ensuring that the appropriate procedures are followed. These bodies act as professionally as they can given their limited resources but can and do give the most valuable resource of time to cases that desperately need them.

    What Richard’s comments unfortunately fail to appreciate, in painting student projects out to be ill-informed untrained organisations, is that in many cases student groups may appear to the client as the only body willing to take a punt on them, follow a lead and sometimes uncover evidence that would never have been found out by professionals with the pressures of case turnover. At best, Richard’s comments are a gross oversimplification of the processes that students undertake. Just because cases may have no innocence project links on face value does not mean that there has been none. It is a shame to see the Chair have come to such conclusion.

  • Christy Walsh March 28, 2016 12:05 pm

    Moderation should not be used as a mask for censorship. I have noticed that when I post comments that contradict the NGO narrative (NGO’s are good and the CCRC are bad) they never get posted. The reality is that both NGO’s and the CCRC each have their flaws only NGO’s (and The Justice Gap) believe that they are above criticism.

    • Profile photo of Jon Robins
      Jon Robins March 31, 2016 9:06 am

      Sorry for delay. I have been away. We have never not run a comment because we don’t agree with it. Sometimes (very rarely) we don’t run comments – that’s often because they relate to a commenter’s own case. Hope that makes sense. Jon

      • Christy Walsh March 31, 2016 11:13 am

        Thank you and it does; I was too hasty. Christy

  • George Skelly April 2, 2016 9:58 pm

    I have nothing but contempt for the CCRC. See the Chapter, “Epilogue: The Shame Of The CCRC” in my book, Murderers Or Martyrs, describing how it made the flimsiest excuses and cited the most trivial of reasons for not sending an overwhelmingly clear case of a miscarriage of justice to the Court of Appeal!
    It does not surprise me that Richard Foster before his appointment as Director of the CCRC was the CEO of the Crown Prosecution Service! As others have commented here, the abiding impression of the CCRC is one of patronising and talking down to applicants and their representatives. For example, its response to every item of previously undisclosed evidence (eleven bundles of it!) that I submitted was a desparaging, “Mr Skelly believes” or “Mr Skelly says…” The fact that it was totally objective evidence from Police and Home Office files, and not what I “believed” or I “said” cut no ice with the CCRC and its objectionable patronising and dismissal of me and my application. And because it refused to act in the interests of justice, the bodies of the two young men wrongly hanged all those years ago, still rot in ignominy behind prison walls.

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