Sketch by Isobel Williams, R v Jogee,

Sketch by Isobel Williams, R v Jogee,

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.


Profile photo of Richard Foster About Richard Foster
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

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  • Holly Greenwood April 20, 2016 10:12 am

    I think we should use Foster’s comment to expose a very real problem. I am sure a prisoner would rather have a lawyer working on their case than law students, but the reality is that there are not lawyers able to work on these cases due to the complete lack of funding available. Innocence projects and other law school clinics are filling a gap there.

    However, I agree that as university clinics we should work towards being more transparent about the number of cases we are working on and how long we have had them.

  • Julie Price April 21, 2016 7:36 am

    Your comments are noted – thank you for responding. Representatives from a group of universities and others with active projects have concerns about some questions (eg. those posed in my open letter) that remain unanswered, so we will write to you privately.

    We hope you will engage constructively with us as your stakeholders – there are important issues that need to be addressed, in our shared view.

  • Michael Naughton April 21, 2016 11:03 am

    Julie – do you really think that writing privately when the original letter was open and the questions that you asked remain unanswered and are also of interest to others who are not part of your cadre of university and other “representatives”?

    In the spirit of the original letter and questions, do you not agree that everything should be discussed in the public domain and transparent to all who work in this area but are not part of your group?

    Is this really working together?

  • Michael Naughton April 21, 2016 11:40 am

    Mr Foster, if only things were so simple.

    You fail to acknowledge that the Supreme Court in Nunn accepted in broad terms that the CCRC is in the main a (desktop) review body with investigatory powers that it can employ at its discretion and that innocence projects and others working to assist alleged innocent victims of wrongful convictions should, rightly, have access to exhibits and disclosure so that applications to the CCRC can be as strong and persuasive as they can be.

    Other crucial impediments to overturning the convictions given to the innocent that were identified in the Parliamentary Justice Committee Report are also sidestepped, perhaps most importantly s.13 of the Criminal Appeal Act 1995, which shackles the CCRC to the appeal courts and profoundly undermines its independence from the perspective of criminal appeal criteria.

    Anyone interested in reading more about the limits of the CCRC in dealing with applications from alleged innocent victims of wrongful conviction and imprisonment can access an extensive range of publications on the INUK website under “Publications”:

    This said, I do agree that not enough applications or submissions have been made to the CCRC on behalf of clients by innocence projects or other university pro bono schemes that purport to assist innocent victims of wrongful convictions.

    One of the main reasons that INUK ceased operating as an umbrella organisation for member innocence projects was because of the high volume of complaints from prisoners that the innocence project that their cases was referred to was doing little or nothing on their case.

    Moreover, the end of year reports from the member innocence projects at the time were not forthcoming or evidenced that little or no casework was being undertaken.

    In response, we felt that it was simply no longer ethical to refer cases to universities that were not working on the cases and in line with the caseworking protocols that they had signed up to and that if all concerned in this area operated independently then the good could be distinguished from the bad.

    We continue to receive regular complaints from clients whose cases we referred to universities in good faith and in the interests of working together and having the highest number of eligible (where the person(s)might be innocent and there was something that could be investigated to determine whether the claim of innocence was valid or not)cases investigated, but are powerless to be able to police those universities and we never thought that we would have to.

    We welcome the news from Julie that universities are starting to work together to reinstate the basic structures that INUK created – a database of cases to avoid conflicts and duplication of effort; minimum standards of client care; client care contract; etc,.

    Regular training for any and all staff and students working on innocence projects or other university wrongful conviction schemes is also essential if cases are to progress past the merely learning about the claim of innocence stage; the alleged innocent victim’s story.

    We celebrate the contribution that we made in pioneering this new form of clinical legal education in the UK and truly hope that the meaningful collaborations that were longed for within the INUK model can materialise under some new form of organisation.

    INUK was set up because vulnerable innocent victims of wrongful convictions and imprisonment and their families wrote in their droves that they were so desperate for assistance.

    The situation has only worsened and the problem increased with the savage cuts to legal aid.

    Innocent victims of wrongful conviction and imprisonment, their families and society as a whole are failed by universities who enter this arena if they are not prepared to properly fund and support such challenging and potentially rewarding work, which must always prioritise the needs of the client and case progression over student education.

  • Michael Naughton April 22, 2016 2:23 pm

    Mr Foster,

    To add to the observations and points that I have already made, the phone line for innocence projects and other university wrongful convictions pro bono schemes that was devised in collaboration with INUK may have failed to generate many users for two interrelated reasons:

    1. As it only comes into play when investigations into alleged wrongful convictions are actually being conducted, it may be that innocence projects are not undertaking as many investigations as they might or should?

    2. On the other hand, a low response rate could be because the CCRC may not be trusted by the innocence projects, which may be very understandable.

    As much as you say that you genuinely welcome applications from innocence projects, the reality is that innocence projects and the CCRC are not on very friendly terms and most applications from innocence projects have not fared well, despite praise from CCRC Commissioners and CRM’s in public forums that they are of the highest quality applications that the CCRC receives.

    This brings us back to the issues noted by the Supreme Court in Nunn, the Justice Committee Report and the reason why INUK and the innocence projects were established in the first place.

    Put simply, the CCRC is simply not the body that was envisaged by the RCCJ and can and does fail innocent applicants who are not felt to fulfil the ‘real possibility’ and fresh evidence tests dictated by the appeal courts.

    This is not a personal slight on you, Mr Foster, or anyone else who works at the CCRC. It is merely to explain the implications of the 1995 Act on how the CCRC reviews cases, which is not about whether applicants are innocent but, rather whether there conviction may be unsafe in the eyes of the appeal courts, which does (at least from the perspective of INUK and the innocence projects undermine notions of the CCRC’s independence and impartiality, etc.

    Indeed, I would argue that it is the CCRC’s wish to be seen as some sort of state funded innocence project (a viewed that many in the United States and around the world have of the CCRC based on visits by CCRC representatives who have said as much) that adds to the confusions and tensions and not only questions the appropriateness of the CCRC for innocent applicants who do not have fresh evidence and do not fulfil the real possibility test, it profoundly and fundamentally undermines any notion of the integrity of the CCRC and the part that it plays in the criminal justice system.

    The glaring tensions is that the CCRC can and does fail to assist innocent victims of wrongful convictions and imprisonment whilst referring the convictions of guilty applicants to the appeal courts which are then overturned on points of law.

    I have been saying this for over 10 years and this debate does not get resolved. Nor does it or will it go away. It simply goes round and round, which isn’t helped when you seem to wilfully fail to acknowledge such impediments under the existing arrangements in favour of blithe defensive justifications that you are merely doing what you are supposed to be doing under the terms of the presiding legislation.

    Mr Foster, it is true that the CCRC is working to the legislation, but is it not time for you to publicly acknowledge the honest truth that the existing legislation (real possibility test; need for fresh evidence, etc) can and does fail innocent applicants, which will also bring into clearer focus that the CCRC and innocence projects are somewhat at cross-purposes?

    The reality is that if the innocence projects are failing to assist the innocent then the CCRC (working to its governing legislation) is at least partly to blame and this has to be recognised and taken responsibility for.

    You have said on many occasions that you and all your staff are committed to assisting the innocent, which should mean that we really are all in this together and should not be at loggerheads and contenting ourselves with exchanging insults and scoring points.

    The problem is, and the thing that most confuses many, is that you/the CCRC are talking about/looking for legal innocence, which can include the factually guilty, and innocence projects are talking about factual innocence, which is an entirely different concept with different caseworking and appeal criteria implications.

    This needs to be acknowledged and made clear as the passing the buck from the innocence projects to the CCRC to the innocence projects and back and forth again and again can be conceived as a perverse and immoral parlour game that plays with the lives and freedom of innocent victims of wrongful convictions and their families.

    They deserve better and those working in the area of wrongful convictions and who genuinely want to assist the innocent (factually innocent) have, at least to my mind, a moral duty to give them better if we are to continue to be involved with this work.

    When innocence projects send applications that are not appropriately or insufficiently investigated by the CCRC then the innocence project will be likely to take even longer on subsequent applications as the CCRC has shown that it cannot be trusted to undertake the work that you say that you can (but are not obliged to) do.

    In this scenario, just as the CCRC becomes more cautious in response to Court of Appeal knock-backs, innocence projects will likely similarly adopt a more cautious approach with further applications or they may simply give up altogether have many have done amid confusion about the validity of the innocence projects when they are not seen to be “succeeding”.

    Blaming the innocence projects for holding onto cases or not submitting applications on cases that they are not fully certain about or have legitimate doubts about whether the CCRC will undertake enquiries or dna testing, for instance, that the innocence project application requests (supported by reports from leading independent forensic scientists) seems disingenuous, to say the least.

    Is it not time to get around a table and discuss the tensions between innocence projects and the CCRC in an honest and constructive way and move beyond the blame game?

    Can all involved not try to truly work together to give help and real hope to innocent victims of wrongful convictions and their families to whom we have a clear personal and professional moral duty that must, surely, supersede all else?

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