INTERVIEW: 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’.
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.
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.’
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.’
‘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.’
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