To be a cheerleader or a critic? As the Criminal Cases Review Commission (CCRC) faces a review of its own, this is the question for us all, writes Mark Newby. It used to be the trend that independent bodies such as the Commission were subject to review by parliamentary select committees; however a new trend by the self-declared ‘anti-quango’ Coalition government is the ‘non-departmental triennial review’.

• You can download Wrongly Accused: who is responsible for investigating miscarriages of justice? ([art of the Justice gap series) HERE.
• To make your submission to the CCRC triennial review visit HERE.

Undoubtedly the main driver for this review is one of cash and the stakes in the current atmosphere couldn’t be higher for the CCRC, the body set up to review miscarriages of justice. The CCRC was established as an executive non-departmental public body (NDPB) on January 1^st 1997. The idea of the triennial review is that Government departments are required to review their sponsored NDPBs at least once every three years.

The stated aims are:

• to provide a robust challenge of the continuing need for individual NDPBs – both their functions and their form; and
• where it is agreed that a particular body should remain as an NDPB, to review the control and governance arrangements in place to ensure that the public body is complying with recognised principles of good corporate governance.

Leaving the ivory tower
Interestingly, this week the CCRC met with stakeholders for a conference in Birmingham and the signs appear that the Commission is actively exploring justice issues – rather than the self-congratulatory events of past.

This event followed hot on the tracks of other events held with students as well as outreach events in prisons. It appears at last the commission is leaving its Ivory Tower under the leadership of a new chairman.

The challenges are great for the CCRC and, as chair Richard Foster noted, there had been an explosion in applications this year added (see David Jessel’s article HERE) to by the commission’s efforts to give easier access to those making applications. This brings forward the prospect of greater delays or a consideration of whether more routine cases including sentences and the lower courts cases should still be considered.

Lurking doubt
The audience was treated to a challenging review by Professor Michael Zander, one of the players instrumental in the creation of the commission in the first place. He believed the CCRC was doing what the Runciman Committee had expected but clearly there was room for improvement. In particular, he argued that the CCRC was not doing enough over cases where they had a ‘lurking doubt’. Prof Zander suggested the committee should do more to exercise the Royal Prerogative power asking the Home Secretary to consider a pardon in cases where they had a real concern.

Steve Heaton, an academic researcher, had been given access to CCRC files for a study and had concluded that the commission was delivering good value in terms of its investigations. The question remains however that many cases do not get to the point where the full resources of the commission are deployed but sifted out at a premature stage.

One of the new commissioners Angela Flower, who has risen from the ranks of the Commission, spoke of the limited resources that the CCRC has (with case review managers down from 50 to just under 30 and consequent reductions in support staff).

Finally, in the afternoon the audience was treated to an interesting presentation by Andrew Rennison the Forensic Science Regulator which only served to flag the serious issues that still arise over the closure of the FSS Service and the maintenance of consistency in less well-regarded expert disciplines.

Overall the conference demonstrated a genuine desire on the CCRC at least to address issues, probably motivated by the forthcoming review and the greater impact on limited resources they face.

This led to Richard Foster, pointing to the paradox, in light of the CCRC’s creation on the back of campaigning, to accept the case for it to be (on occasion) more campaigning over miscarriage issues. It was also accompanied by a promise to be more adventurous especially when the court declines a case the commission supports. However like the past promises to be bolder such statements are easy to make and need to be assessed in the light of real results.

Deadline approaching
And so back to the future, the deadline now set for submissions to the NDPB review is fixed for 14^th December and anyone considering making a submission faces two key questions. Firstly whether they should make a submission at all and if so what their approach to the review ought to be.

To some extent the first question may be a ‘no brainer’ as it is implicit in seeking change to be prepared to enter into a dialogue over the current format of the commission and how it approaches its task. In fact one of the commission’s past failings itself was to rebuff criticism but not seek engagement over future direction.

In an atmosphere of an increasingly restrictive Court of Appeal the potential importance of the Commission has never been greater provided it can tackle the issues that prevent it being a truly effective independent body for identifying miscarriages of justice.

The potential questions of the consultation are significant and deserve a careful approach. Some key questions include:

• Do you think we need to continue providing the functions of the CCRC to assess cases for evidence of wrongful conviction or sentence?
• The statutory test the CCRC is required to apply when deciding whether or not to refer a particular case for appeal is the ‘real possibility test’ (set out in section 13 of the Criminal Appeal Act 1995). Is this the right test for the Commission to apply? If not, what would be better?
• What should be the future structure of the Commission?

When answering this question you may wish to consider the following questions, which are in line with Cabinet Office guidance on triennial reviews:

• Should it be moved out of central Government (e.g. into local government or voluntary/private sectors)?
• Does it need to be an arm’s length body?
• Could the function be delivered as part of a government department?
• Could the function be delivered by a new executive agency and what would be the benefits of creating a new agency?
• Is there any scope to merge the functions with any other body?
• If it should remain an arm’s length body, should there be changes to the structure and membership of the Commission?

There are also other questions about the CCRC’s powers and the sort of cases the commission reviews.

Any observer would note from the above that the questions being addressed to the commission are fundamental and far-reaching. They are complex and for example the form of the test for referral is a matter, which could occupy academics and commentators at length.

Not a vote winner
The phrasing of the questions is of course weighted towards cost savings and reform leading to an assessment of value for money and what the commission actually delivers and at what cost.

All of this against an atmosphere in which the plight of the wrongfully convicted is unlikely to secure politicians any votes.

No contributor should welcome any suggestion that the commission’s current status should change and the prospect of the commission being swallowed up into some other organisation or the Ministry of Justice is not a step, which even the harshest critic, should be prepared to contemplate.

We do not want to return to Department C3 at the Home Office.

So if we are to become cheerleaders for the commission and call for its independence to be maintained, what else would we need to press for?

There are arguably some easy hits that would increase the effectiveness of the commission. We need to see the powers of the commission increased and to extend the powers of the commission in seeking disclosure to private bodies as well as public bodies. It can no longer be sustainable that we have one system for obtaining disclosure in the Crown Courts and a more restrictive basis of access to material in the Commissions review process.

Of course, more resources for the commission are desperately needed however this review and the current climate are unlikely to achieve that. However the focus of the consultation might provide an answer in terms of the scope of the commissions work.

It may be questionable now whether in the light of the limited resources available that the CCRC should still be dealing with applications from a Magistrates’ Court case or indeed routine cases that ask it to review sentence. It may be time to say that the commission should be concentrating on miscarriages from the Crown Court upwards only.

The commission is also drawn into work elsewhere – for example, investigating jury issues on the direction of the Court of Appeal and we have seen in recent days a new policy over such investigations promulgated by the Court of Appeal. Funding for these sorts of enquiries should also be considered and whether such work should be subject to further resources.

This forthcoming review ultimately is unlikely to address the essence of the problems, which face the commission, the test for referral, its rate of referral and its symbiotic relationship with the Court of Appeal.

We have seen in recent days criticisms of the IPCC and the robustness of its investigations and approach to death in custody cases. There is an on going challenge for any organisation that stands apart from the state, given a reviewing function, to be robust, challenging and willing to confront difficult and complex issues.

This is perhaps a longer game with the CCRC but one in which the commission must be seen to making significant strides forward with. In the meantime critics might be best advised to find their inner cheerleader so as to ensure we do not end up with a review body changed for the worse.