Passing the buck

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Michael Zander QC considers the Justice Committee’s Report on the Criminal Cases Review Commission

The House of Commons Justice Select Committee’s report on the Criminal Cases Review Commission (CCRC) makes several strong recommendations but on the central topic it passes the buck to the Law Commission.


With a 30 per cent budget cut together with a 70 per cent increase in applications, the report says that the CCRC has become seriously under-resourced, leading to increasing and unacceptable delays. It needs an extra £1m of annual funding.

The CCRC’s power to require public bodies to disclose documents, the report says, should apply equally to private bodies, such as insurance companies or privatised forensic science services. There was no excuse for the failure by successive governments to implement this obviously needed reform which had universal support. The report says an appropriate clause should be included in the first Criminal Justice Bill introduced by the next government.

Both those recommendations will be uncontroversial. There will, by contrast, be some who disagree with the Committee’s suggestion that because of the severe funding problem, the CCRC should have the power only to investigate cases coming from the magistrates’ court if it considers that such investigation is in the public interest and, similarly, a discretion to reduce its caseload by not investigating cases only raising questions about the sentence. The report says that although every miscarriage of justice has serious consequences for the convicted person however minor the offence, the effect of overturning a miscarriage in serious cases was much greater and that the CCRC was originally envisaged as a body to deal with serious cases.

Referrals to the Court of Appeal

The central issue considered by the Select Committee, however, was referral of cases to the Court of Appeal. The Criminal Appeal Act 1995 s 13(1) requires that a referral be made if there is a “real possibility” that the conviction would not be upheld. The report distinguishes three aspects to the debate about the referral system: the “real possibility” test itself, the CCRC’s treatment of the test and the Court of Appeal’s approach to criminal appeals.

Some witnesses suggested that the CCRC’s investigations were more about whether there was a real possibility of the conviction not being upheld than whether there had actually been a miscarriage of justice – a suggestion strongly denied by the CCRC’s Chairman. Various alternative tests had been suggested. The Committee concludes that while changing the test might allow the CCRC more scope to display its independence of the Court of Appeal, “by definition the only additional referrals which a change to the test alone would allow would be those with less than a real possibility of success”.

On the question whether the test was applied properly, the Committee recommends that the CCRC be bolder in making referrals. “If a bolder approach leads to five more failed appeals but one additional miscarriage of justice being corrected, then that is of clear benefit.” The Commission’s Key Performance Indicators include a targeted success rate for referrals of between 60% and 80% – and in fact around 70% are successful. The Justice Committee suggests that the targeted success rate be somewhat reduced.

The complaint about the Court of Appeal was that it was overly reluctant to interfere with a jury’s verdict unless there was new evidence or some material irregularity. The Committee said that it was important that the jury system not be undermined, but properly directed juries “may occasionally make wrong decisions”. It was concerning that there was “no clear or formal mechanism to consider quashing convictions arising from decisions which have a strong appearance of being incorrect”. Any change in this area would require a statutory amendment to the Court’s grounds for allowing appeals, which would qualify to some extent “the longstanding constitutional doctrine of the primacy of the jury”. But that, the report says, should not stand in the way of ensuring that innocent people are not falsely imprisoned.

Over to the Law Commission

This is the central core of the Committee’s report but it makes no recommendation. Instead it proposes that the Law Commission consider the benefits and dangers of a statutory amendment “to allow and encourage the Court of Appeal to quash a conviction where it has a serious doubt about the verdict, even without fresh evidence or fresh legal argument”.

The Law Commission has the means and methods for undertaking a deeper study of this issue than the Justice Select Committee. But the Law Commission will come up against exactly the same difficulty that has thwarted all previous attempts to deal with the problem of the Court of Appeal’s undue reluctance to overturn jury decisions. No one has yet thought of a way to achieve that.

This article first appeared in Criminal Law & Justice Weekly.

KEY RECOMMENDATIONS from the JUSTICE COMMITTEE INQUIRY INTO THE CCRC
The “real possibility” test and grounds for allowing appeals

  • The CCRC should be less cautious in its approach to the “real possibility” test, and reduce the targeted success rate in its key performance indicators accordingly.
  • The Law Commission should conduct a review of the Court of Appeal’s grounds for allowing appeals, including the current application of the constitutional doctrine of the primacy of the jury; and a subsequent review of the “real possibility” test in light of any change.

Funding and resources

  • The CCRC is struggling to cope with a sharp increase in its workload alongside low resource levels and should urgently be granted the additional £1m of annual funding it has requested until the backlog is cleared. The Ministry of Justice should also engage with the CCRC in longer term budgetary planning.
  • To focus its limited resources “on more deserving cases”, the CCRC should have a discretion to refuse to investigate sentence-only cases; and the power to refuse cases from the magistrates’ court where to investigate would not be in the public interest.

Investigatory powers and the criminal justice system

  • The CCRC’s power to require public bodies to disclose documents under s 17 of the Criminal Appeal Act 1995 should apply equally to private bodies; and the enforcement options for this power be increased. No new Criminal Justice Bill should be introduced without the inclusion of such a clause.
  • The CCRC should develop a formal system for regular feedback into all areas of the criminal justice system, from the police and Crown Prosecution Service through to the courts and the Ministry of Justice, on its understanding of the issues which are continuing to cause miscarriages of justice.

Investigations and processes

  • Whilst the CCRC “will never convince its most vociferous detractors”, it “could be doing more to ensure that its work and processes are well understood”.
  • The CCRC must be “more intelligent” in how it assigns Case Review Managers to investigations. It also needs to “engage more fully” and meet with applicants more often.

Contributor Michael Zander QC

Emeritus Professor, LSE

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Michael Zander QC

Michael, QC hon causa, is Emeritus Professor LSE. He taught at the London School of Economics (1963-98), was The Guardian’s Legal Correspondent from 1963-88 and in 2015 was awarded the Halsbury Legal Award for Lifetime Contribution.