The chair of the cross-party group of politicians has sought reassurances from the government over the independence of the miscarriage of justice watchdog following concerns about political interference raised in reports in the Justice Gap and The Times.

In the article (‘Ministers bullied justice watchdog’, say lawyers), it was reported that the Ministry of Justice put pressure on the Criminal Cases Review Commission (CCRC) and, in particular, insisted on changes to the terms of commissioners’ tenure. The article appeared in The Times and the Justice Gap (you read the unedited version here).

In a letter to the new Justice Secretary Robert Buckland, the chair of the all-party parliamentary group on miscarriages of justice Barry Sheerman wrote that, given that the CCRC was ‘meant to be an independent body, the implications of this are wide-ranging and deeply concerning’. ‘I would like to seek reassurances from you that steps are being taken to uphold and guarantee the independence of the CCRC,’ the Labour MP added.

The article referred to a legal challenge to a CCRC decision to not refer the case of a prisoner convicted of armed robbery on the basis that that the group was not sufficiently independent of the Ministry of Justice. The prisoner’s legal team argued that the MoJ unlawfully forced changes on the watchdog body and commissioners were threatened with removal.

‘We do not feel bullied,’ the CCRC later tweeted; adding that it was ‘spurious’ draw connections between the commissioners’ security of tenure and the independence of its decision-making.

The CCRC is required by statute to have 11 commissioners and it takes approval of three to refer a case back to the Court of Appeal. Ten years ago almost all commissioners were employed on full-time equivalent contracts with salaries and pensions. As has been previously reported in The Justice Gap, not a single commissioner is full time and all but one are employed on a minimum one-day-a-week contracts. Their daily rate is just £358 which compares to £642 for a Crown Court recorder.

As a response to an article by JG editor Jon Robins for the Byline Times about the Oliver Campbell case, the CCRC tweeted:

Again, @ccrcupdate would invite Mr Campbell and his reps to publish the @ccrcupdate decision doc giving detailed reasons why we could not refer the case for appeal. People could then evaluate it for themselves. Unfortunately the law prohibits @ccrcupdate from publishing the doc

— CCRC (@ccrcupdate) August 9, 2019

We contacted Campbell’s lawyers who have agreed to make his statement of reasons public. You can read it here.

‘A poisonous relationship’
Meanwhile, the leading appeals lawyers highlighted the ‘poisonous’ relationship between the CCRC and the Court of Appeal. In an evidence session before the APPG, Michael Birnbaum QC called the ‘predictive test’ (i.e., the CCRC can only refer cases where it believes that there is a real possibility that the court will overturn the conviction) ‘a systemic problem’. ‘… I don’t think makes sense, and I think it’s become an obstacle. I think that the CCRC is now a good deal less effective than it was a number of years ago,’ he told the Westminster Commission last month.

The lawyer called for reforms so that the CCRC ‘could act more independently of the Court of Appeal’s view and could take its own view as to whether it thought the conviction was unsafe and could refer, on that basis’. ‘I just think at the moment it gets very cowed by criticism of the court, from the Court of Appeal, and very afraid of criticism,’ he added.

Henry Blaxland QC said that there was ‘a very good case’ for substituting the predictive test with the Scottish CCRC’s test which allows its commission to refer where they conclude that ‘a miscarriage of justice may have occurred’. However, he added that there was ‘an inescapable logic’ about the ‘real possibility’ test because the Court of Appeal was ‘ultimately going to be the body which has to determine whether or not the conviction is safe’. The QC went on to call the relationship between the Court of Appeal and the commission ‘quite poisonous in the last five years or so’.

Michael Birnbaum described the relationship between lawyers and the CCRC as ‘almost adversarial’ where ‘[they] take fairly early on a decision that they’re not going to refer this case’. ‘Then then they give you a PSOR [Provisional Statement of Reasons] and you say, “I’m sorry, a lot of this is rubbish. You haven’t understood our points. And their excuse is… “The limited time we have to go and visit people and see people, we should go and see the applicants who are unrepresented.”’

Kirsty Brimelow QC told the APPG  that the experience of lawyers in her chambers (Doughty Street) that the CCRC was ‘not particularly seen as a functioning body, and it’s not seen as accessible’.

The lawyers also highlighted the complete lack of progress on reviewing joint enterprise convictions overturned since Jogee.There years on since the Supreme Court ruled that the law had ‘taken a wrong turn in 1984 and only conviction had been overturned. As Blaxland put it: ‘You can’t blame the CCRC for not referring more cases because, both the Supreme Court and Court of Appeal have made quite clear that as a matter of policy – they haven’t quite said that – but the effect is now as of policy that they’re not going to open old convictions.’

‘I’m afraid [joint enterprise] is one of the greatest sources of injustice, which is still festering within the system. There are a significant body of, mainly young people, who have been wrongly convicted of murder because they’ve been convicted under the old system.’
Henry Blaxland QC

Birnbaum called the post-Jogee situation ‘a terrible muck-up by the judiciary – terrible, awful – and to some extent by people like us who didn’t realise that they’ve done it’. He continued: ‘You might have expected the Court of Appeal to have the humility to say “Well, actually it is our duty to try to seek out the cases in which there’s been injustice.”’

As the session drew to a close, Henry Blaxland QC asked if he could add one more parting shot. He said: ‘Eddie Gilfoyle. That’s all I need to say. The failure to refer Eddie Gilfoyle’s case is astounding.’