Miscarriage watchdog blames drop in referrals on ‘low success rate’ in Court of Appeal and lack of lawyers willing to take cases on

The Criminal Cases Review Commission referred just 19 cases back to the Court of Appeal last year out of a total of 1,439 applications in what it described as ‘a challenging year’. In its annual report published yesterday, the miscarriage of justice watchdog has cited a ‘low success rate’ in the Court of Appeal and a lack of lawyers willing to represent applicants as a result of legal aid cuts as contributing to the recent marked drop-off in referrals. Over its 21 year history the CCRC has referred on average 33 cases a year but last year the Birmingham-based group hit an all-time low sending only a dozen cases back to the appeal judges.

Of this year’s 19 referrals, a total of eight concerned asylum seekers convicted of entering the country with false documentation. Even with the asylum cases, the CCRC’s referral rate is just 1.23% down from an average of 3%. Over the last 12 months, six appeals were heard in relation to CCRC referrals; four convictions were quashed; and one conviction upheld.

In the introduction, the chief exec Karen Kneller called the group’s elimination of its backlog ‘a significant achievement’. ‘[Money] has been tighter even with standstill budgets and workloads higher than we would have liked,’ she wrote.  The Commission identified as a ‘major threat’ to its achieving its aims ‘the securing of sufficient resources’ from Government. Over the last year the CCRC has cut the waiting time for a review to start from 22 weeks for those in custody to a maximum of 13 weeks for all cases. The time taken for an initial decision to be made on review was almost 33 weeks as compared to a 28 week target.

Kneller suggested that most applicants were more concerned with the CCRC’s waiting times than having their convictions overturned. ‘Outside of the Commission people tend to focus on the number of referrals that we make or, even more narrowly, on a tiny handful of high profile cases. Inside the Commission we know that for the majority of our applicants who are unrepresented, the most important thing is the time taken to work on their case and the time we take to complete it.’

The chief exec claimed that the commission had given ‘a great deal of consideration’ to the reasons behind the fall in the number of referrals. ‘[We] need to ensure that we don’t make incorrect assumptions about what may be going on. We do know from experience that a single issue or theme can lead to a high number of referrals. We have seen that to a limited extent in this year’s 19 referrals.’

• Since starting work the CCRC has looked into almost 23,000 applications
• It has referred around one in every 35 for appeal at an average rate of 33 cases a year
• 67% of CCRC referrals have been successful
• More than 90% of  referrals have related to Crown Court cases
• Murder accounts for 23% of referrals.
• In the past, 68% of applicants have bot had lawyers – that has now shot up to 80%

The CCRC has always denied that it is overly-deferential to the Court  of Appeal and that its statutory ‘real possibility’ test forces the Commission to ‘second-guess’ the court; however, this year it acknowledges that it has revised the test in light of an increasingly conservative court. ‘Whilst the “success rate” of our referrals is not directly relevant to the “referral rate”, a low “success rate” may well cause an adjustment in our assessment of ‘real possibility’ in individual cases,’ the report reads.

In the decade up to 2015, the commission’s ‘success rate’ ranged between 61% and 77%; but in 2016, it fell to 53% and again to 46% the following year. It said: ‘During the current reporting year, only six CCRC referrals were considered by the appeal courts. Four appeals were allowed and two were dismissed. This gives a “success rate” for 2017/18 of 66.7%.’

The CCRC also recognised that a lack of lawyers willing to help applicants was hindering referrals. Only a quarter of applicants had a lawyer compared to one third in the past. According to a 2008 study from the University of Warwick, there was a striking disparity between the prospects for success of those applicants with lawyers compared to those without: 82% of represented applicants got their cases past a first ‘screening’ stage compared to only 50% of unrepresented applicants.

‘Good legal representatives undoubtedly have a very important role in CCRC applications. We are concerned that the position with criminal legal aid is having an impact on the willingness of individuals and firms to do pro bono work in potential miscarriage of justice cases. We question whether the current conditions are acting as barriers to new representatives securing funding post-conviction, in which the trial representatives’ advice on appeal (which may or may not be good quality) is a key factor.’
CCRC

The CCRC also cited the ‘lack of a major new theme’ – such past themes included sex offences, ‘shaken baby’ and sudden infant death cases, as well as, asylum-seeker cases (although, as explained above, they were heavily represented in this year’s referrals). It didn’t identify joint enterprise as a theme. The CCRC received around 103 applications following the Supreme Court’s ruling in 2016 in R v Jogee that ‘the law had taken a wrong turn’ in 1984 but only referred its first case last year.

Another trend was how increasingly lawyers who specialise in appeals were challenging CCRC rejections through the courts by way of judicial review. The CCRC was the subject of a total of 38 challenges last year, four more than in the previous financial year. No applications were conceded.

The CCRC chair Richard Foster, who retires in October, attacked the Coalition’s 2014 scheme for compensating miscarriage of justice victims which has ‘all but stopped compensation payments’. The scheme is currently being challenged in the Supreme Court. The issue of compensation was ‘usually seen from the perspective of the individual seeking compensation’. ‘This is entirely understandable,’ Foster continued. ‘But equally important is that the State, and its agents, reflect on errors that they have made particularly where these could and should have been avoided such as disclosure failures or poor investigative processes.’

‘So perhaps those concerned with designing and administering compensation arrangements could usefully focus not just on whether the victim ought to be compensated but also on whether, if a wrongful conviction occurred through clear failure on the part of the State, the State ought to be expected to pay. Not just for the purpose of individual recompense but also to focus minds on failures of the State and its agents in a particular case and accordingly to stop mistakes recurring.’
Richard Foster

Foster also warned police and prosecution that they could be held to account for the kind of disclosure failures seen in the Liam Allan and other cases this year. In 2016 the CCRC identified disclosure failings as the ‘biggest single cause of miscarriages of justice’. A complainant’s allegations must be treated with ‘the utmost seriousness and investigated accordingly’. ‘But justice must also be even handed,’ he continued. The prosecution team was ‘under every bit as much of a duty to pursue sensible lines of enquiry which might exculpate the accused as it is to pursue lines of enquiry to build the case against them’, he said. Failure to do so is a failure to act professionally, impartially and in the interests of justice. … Police or prosecutors who are guilty of such professional shortcomings should expect to face commensurate professional consequences.’