This is a response from the chair of the Criminal Cases Review Commission, Richard Foster to two open letters published on the Justice Gap – from Professor Julie Price of Cardiff Law School Innocence Project (here) and Professor Claire McGourlay of the Miscarriages of Justice Review Centre at Sheffield University (here).
They took issue with comments made by Richard Foster in an interview on the Justice Gap. In answer to a question about the value of university innocence work, he said: ‘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?’
Firstly, I want to make it clear that it was not my intention to cause offence to anyone when I made what I thought was a light-hearted comment about stereotypical student life. I was a student myself. I currently have one of my children at university and another about to go there. I am well aware of how hard today’s students work compared with my own generation.
So to be clear, my comments were not meant as a ‘put-down’ of hardworking students who generously give their time to university pro bono projects such as those at Cardiff, Sheffield and elsewhere. Their efforts are, as the CCRC has consistently said, admirable.
But there was a serious point I was trying to make. University pro bono projects, whatever names they now choose to go by, cannot do the Commission’s job for it.
It is good to hear it restated that students working pro bono on cases are serious, hard working and well-motivated. They need to be since the work is often thankless and the issues involved and their impact on the lives affected could hardly be more serious. But, for all their fine qualities, their good leadership and with the best will in the world, they are not in a position to do the key things that only the Commission can.
As I said in the interview, we are to all intents and purposes the only route back to the appeal courts. The decision about whether or not to refer a case is entrusted to this Commission and this Commission alone. We cannot properly make that decision until we have investigated the case ourselves.
In order to help us to investigate and make decisions we have far reaching statutory powers to obtain casework material, we have a highly skilled, qualified and experienced workforce and, although I may wish it were a good deal more, we have a budget of more than £5 million a year.
University based pro bono bodies cannot call upon our powers and resources. The legislation under which we were set up does not allow it. The information we obtain is often highly sensitive and personal. We are not entitled, either in law, or as a matter of proper respect for the rights and feelings of those concerned, to share it freely with third parties. To do so would be highly unprofessional and could in the end compromise our ability to obtain the material we need. In any event, we certainly cannot substitute the judgment of others about referability for that of our own.
That is why we have concentrated on making the following central points to the various university based bodies with which we have engaged in recent years. We have said that, in our view, they should play to their strengths by focussing their efforts on helping their clients to articulate what they think went wrong with their case; by bringing some structure and legal knowledge into what are often deeply muddled accounts of events; and by using their skills to develop a serious alternative case theory and providing focussed and insightful submissions based on it. If they can do that, they will be doing as much as a good legal representative might.
We have also urged such projects to take special care in striking an appropriate balance between the dual interests of, on one hand, assisting clients who are relying on them for practical help and, on the other hand, of enhancing the educational experience of the students. There will sometimes be a tension between those two aims. That balance should always be struck in favour of the client.
Above all we have encouraged them to get applications to us as soon as they reasonably can. To help with this we set up a dedicated phone line for students and their leaders to call or Skype the Commission for free, no strings expert guidance on casework questions; sadly, so far at least, it has only ever been used on a handful of occasions by a disappointingly low number of projects.
We do not now and never did give a hoot about the structure or the internal politics relating to the various university based pro bono bodies interested in miscarriages of justice. All we have ever cared about are the cases and the fact is that, over the last decade or so, university based pro bono projects (numbering around 40 at the high water mark) have only made around 25 CCRC applications between them. All of those have come from just six universities with, Cardiff, responsible for more than half of the total. To put it another way, the Commission receives more applications in an average week than we have received in total from all the pro bono projects to have operated in the UK since the first one appeared in 2005.
Notwithstanding that some projects may have had input into a handful of other cases in other ways, this simply does not seem to be enough. There may be some signs that things are improving. I sincerely hope so, but it is as yet too early to say.
So, finally, and for the avoidance of doubt, the Commission’s position, as we have set out on a number of occasions (perhaps most clearly here in a speech to a university pro bono event) is this: we respect the dedicated, conscientious and hardworking students and staff of the various university based pro bono units around the country. We encourage them all to make focussed, well reasoned applications to us. As far as the CCRC is concerned, an application that reaches us is better than one that does not. We genuinely, actively welcome applications from you – if you are working on cases the circumstances of which mean that they will have to come to the Commission if they are ever to make any real progress towards appeal, you need to make those applications to us and the sooner you can do that, the better.
Richard is chair of the Criminal Cases Review Commission. He was chief executive of the Crown Prosecution Service from 2001 to 2007 and prior to that director of Welfare to Work Delivery, responsible for New Deals from 1998 to 2001. He is also chair of the Refugee Council