Attempts by the Court of Appeal to ‘fetter’ the miscarriage of justice watchdog were ‘not just improper but unconstitutional’, according to the government’s independent law reform body which has highlighted concerns about the independence of the criminal appeals process. As a lead-up to a final three month consultation round, the Law Commission yesterday published a more than 700 page consultation document which proposes scrapping the controversial statutory test that has to be applied by the Criminal Cases Review Commission (CCRC) on the basis that it has been ‘hindering’ the victims of miscarriage of justice.
The new paper calls for reform of the ‘incoherent’ and ‘indefensible’ legal framework surrounding miscarriage of justice compensation which since 2014 has required applicants to prove their innocence ‘beyond a reasonable doubt’. It’s a change that has effectively cut off compensation for many applicants. The Law Commission noted ‘the sharp drop-off’ in successful compensation claims: in 2021-22, just four applicants were successful and £231,600 was paid out and for a recent two-year period (2017-18) not a penny was released. This can be contrasted with 2011-12 where £1,284,725 was paid out in relation to just three successful applications. ’We consider that imposing the criminal standard of proof on an applicant is indefensible and inconsistent with the fundamental principles that underline our criminal justice system,’ the report bluntly states.
The Law Commission noted the willingness of the government to introduce legislation to compensate the victims of the Post Office ‘Horizon’ scandal indicating a ‘clear priority’ to provide compensation to those who have suffered ‘the trauma of wrongful conviction’. This was ‘in stark contrast’ to the meanness of the statutory scheme, it noted. The Law Commission quoted Mark Alexander, a prisoner maintaining his innocence, who points out that sub-postmasters have now been offered settlements in excess of a maximum £1m cap on the statutory scheme.
‘Requiring people to prove their innocence beyond reasonable doubt is contrary to fundamental principles of both criminal and civil law, and can present an insurmountable obstacle to obtaining compensation for injustice,’ commented Professor Penney Lewis, commissioner for criminal law. ‘We think that if a person can prove their innocence on the usual standard of proof – the balance of probabilities – they should be compensated.’
The government asked the Law Commission to look into the criminal appeals system on the day that the conviction of Andrew Malkinson was overturned following a recommendation of the 2021 Westminster Commission on Miscarriages of Justice which was set up by the All-Party Parliamentary Group on Miscarriages of Justice. Malkinson was imprisoned for 17 years for a rape he did not commit, with his fight to clear his name hampered by grave errors by the CCRC. The CCRC rejected his case twice and led to an innocent man being wrongly imprisoned for 14 years longer than he might.
Prof Lewis said that the Law Commission received persuasive evidence that the CCRC’s ‘real possibility’ test could lead the CCRC to ‘focus its investigations too narrowly and so neglect lines of inquiry that might exonerate a person’. ‘Rather than focusing on what the appeal court may do, we think the CCRC should first form its own view as to whether a conviction may be unsafe.’
‘The criminal appeals system serves a crucial function in society,’ explained Prof Lewis. ‘It not only ensures that miscarriages of justice are corrected but that the criminal law is applied consistently and predictably. As the Post Office scandal has demonstrated, anyone can be a victim of a miscarriage of justice. Our proposals seek to ensure that those who are wrongly convicted can effectively challenge their convictions.
Matt Foot, co-director at APPEAL, welcomed the Law Commission’s provisional adoption of reforms proposed by APPEAL which ‘if implemented will boost the effectiveness and accountability of the CCRC, make it easier for wrongful conviction survivors to get the compensation and support they need, and help ensure that vital evidence on cases is not prematurely destroyed’. ‘However, we know from our work on behalf of Andrew Malkinson and many others that our country’s failing appeals system needs a complete overhaul. We’ll be pushing for bolder changes aimed at making sure that wrongly convicted people can access the evidence they need to prove their innocence, the CCRC no longer rejects cases without doing proper investigation, and that Court of Appeal judges stop upholding convictions which clearly shouldn’t stand.’
Foot called for the Government to implement new compensation arrangements backed by the Law Commission right away ‘as too many innocent people have been denied the means to rebuild their lives’.
An unnecessary evil
In a striking section of the 700-plus pages paper, the Law Commission expressed concern about damage done to the CCRC by ‘senior judicial figures’ interfering with the organisation’s discretion. ‘Given that the CCRC’s discretion was granted by Parliament, for another body to fetter its discretion in the way the Court of Appeal has done is arguably not just improper, but unconstitutional,’ it said. ‘We are concerned that senior judicial figures in the past should not only have done this, but consider it wholly appropriate.’
The Law Commission quoted a former deputy chair of the CCRC, Alastair MacGregor writing for the Justice Gap: ‘To recognise that there can be downsides in the making of over-ambitious referrals is neither to run scared of ambition nor to be excessively in thrall to the Court of Appeal. It is simply to recognise the realities of the situation.’ According to the Law Commission, such an attitude ‘comes close to an acknowledgment that the CCRC fears that over-ambitious references may incur the displeasure’ of the Appeal judges which was ‘something which may even threaten the CCRC’s independence, and possibly even its existence. That is not a healthy state of affairs’.
The Law Commission also highlighted political interference by the Ministry of justice into the workings of the CCRC which was exposed in the Gary Warner case in 2020 – and reported on the Justice Gap. The report indicates that damage done to the watchdog has been long-term. ‘We recognize that – as with the problems in the relationship with the MoJ identified in Warner – these issues may now have been resolved. However, we are concerned that they may have been resolved, or at least resulted in, the CCRC changing its approach to the exercise of its discretion.’ Attempts by the Court of Appeal to influence the exercise of the CCRC’s discretion – ‘and in some past cases to issue public rebukes’ – have had ‘an adverse’ effect on the way that the commission operated and contributed to ‘the culture’ at the CCRC which ‘facilitated… the failings’ that contributed to the wrongful conviction of Andrew Malkinson.
The Law Commission quoted a former CCRC commissioner Laurie Elks in 2008 on political interference with the CCRC complaining that the MoJ seemed to regard the CCRC as ‘an unnecessary evil’. ‘This has been an uncomfortable relationship for all concerned, and the Commission has had to endure quite obtrusive regulation involving cuts in funding; reductions in the number and role of Commissioners; and persistent criticisms at times of aspects of the way it performs its business’.
At the heart of the Warner challenge were changes unilaterally imposed by the MoJ to the tenure and pay of the eleven CCRC commissioners. From the start of the CCRC in 1997 until 2012, commissioners were appointed for five year terms on a full-time or near full-time basis on hefty salaries (£93,796 in 2013) plus a pension. Commissioners are now appointed on minimum one-day-a-week contracts for three-year terms. They no longer receive a pension and are paid on a £358 daily rate significantly less than a basic judicial rate (e.g., £502 a day for a judge in the first tier tribunal) on which the initial salaries were based. The Law Commission noted that of CCRC commissioners ‘are still envisaged as having a “status equivalent to that of High Court judges” which we agree’ it would be ‘helpful in establishing their position in relation to the Court of Appeal… [and] this requires changes to the terms of their appointment’.
Statutory straightjacket
As previously reported, the Law Commission looks set to recommend scrapping the problematic statutory test that has dogged the miscarriage of justice watchdog body requiring it to second-guess the Court of Appeal in a move that would enable previously unsuccessful applicants to have a another chance at justice. Under the present test, the CCRC can only refer cases of alleged wrongful conviction back to the Appeal judges when there is a ‘real possibility’ that such a conviction would be overturned. According to the Law Commission, concerns about the test were first raised by the House of Commons‘ home affairs committee in 1999 and more recently critics have argued that the ‘statutory straightjacket’ has led to an increasingly timid watchdog and the recent crash in referrals..
The Law Commission reports that out of 35 responses, only one organisation defended the test – the Crown Prosecution Service. The Law Commission favours a non-predictive test introduced through primary legislation. The CCRC had written to the Law Commission last December asking how any new test might ‘interact’ with cases that the CCRC has previously turned down – adding that there were 25,000 former applicants who could ‘legitimately asked for their cases to be reconsidered’.
According to the Law Commission, it would be up to the CCRC to ‘develop an internal policy’ for deciding whether to reconsider an application. The paper quoted the academic Dr. Hannah Quirk, who also called for scrapping the test, but reckoned that ‘in 95% of cases’ changing the test would make no difference. The Law Commission noted responses that ‘criticised aspects of the culture and working arrangements’ of the CCRC. ‘Changing the test would not necessarily affect these,’ it added.
The Law Commission makes the case for an inspectorate to ‘review the quality of investigations by the CCRC’. It argues that because of the relatively small size of the CCRC this role could be adopted by HM Crown Prosecution Service Inspectorate
It concluded that the was ‘force in the view’ that the Court of Appeal ‘took too narrow a view’ of whether fresh evidence could have led a jury to acquit which, it noted, was characterised by APPEAL as ‘deference to a given jury’s verdict of guilty’ as opposed to ‘deference to the principle of trial by jury’. Concerns were raised about the so-called ’lurking doubt’ doctrine where Appeal judges can theoretically quash a conviction if there was ‘some lurking doubt’ without fresh evidence butt rarely do. Paul Taylor KC, Edward Fitzgerald KC and Kate O’Raggallaigh called it a ‘powerful tool’ to rectify miscarriages of justice. APPEAL called it a ground of appeal that ‘could and should form a vital safeguard in our criminal justice system’ but which had ‘all but fallen into extinction’.
The Law Commission acknowledged the failure of the courts to get to grips with joint enterprise cases following the Supreme Court ruling in Jogee. It was ‘provisionally satisfied’ that the substantial injustice test imposed by the Court of Appeal in the immediate after of the Supreme Court ruling that the courts had taken wrong turn (here) ‘risked hindering the correction of miscarriages of justice’. ‘It is possible that the high threshold applied to cases based on Jogee maybe deterring applicants from seeking leave to appeal their convictions or the CCRC from referring them.’ It acknowledged the force of ‘evidence and arguments made’ in respect of ‘race, and particularly young black men and boys’ in relation to joint enterprise.
