The case, coupled with several others and with the work of BBC’s Rough Justice programme, impelled Parliament to confront the issue and to establish the Criminal Cases Review Commission (CCRC). Decisions about cases that had already been unsuccessfully appealed were transferred from the political
prerogative of the Home Secretary to the new, independent body constituted of lay and legal Commissioners. The Criminal Appeal Act 1995 confers on the CCRC a range of investigative powers and requires the Court of Appeal Criminal Division to hear the Commission’s references as fresh appeals. Now in its 17th operational year, the Commission’s work covers cases from England, Wales and Northern Ireland with a separate counterpart in Scotland. As an inquisitorial body within an adversarial system, the CCRC occupies a unique and influential position.
Hosted at UCL’s Judicial Institute in central London and chaired by investigative journalist David Rose, the CCRC’s recent conference for stakeholders provided an opportunity for reflecting on progress and identifying the challenges. Delegates represented the Police, Crown Prosecution Service, miscarriage of justice campaign groups, solicitors and the Bar, together with judges, academics and students with interest in wrongful convictions.
Court of Appeal support
Lord Justice Treacy gave the opening speech. As Chair of the Sentencing Council, his Lordship acknowledged that “the task of any responsible and civilised legal system is to develop mechanisms designed to minimise miscarriages of justice”. He explained that the Court of Appeal’s approach to “fresh evidence” is governed by legislation that provides a “checklist” of elements for the court to consider including its “admissibility” and the reasons why such evidence was not produced at trial. However, as the Lord Justice explained: “In recent years there has been very clear recognition by the court that the factors in the checklist are subordinate to an overall test of what is necessary and expedient in the interests of justice.” His Lordship was a strong supporter of the CCRC, commending the Commission’s sensitivity when interviewing jurors for investigations carried out on behalf of the court and noting that, “in making references, the Commission focuses with a degree of realism on the points which can properly be argued”. On behalf of the court, Treacy LJ said: “We value very highly the work done by the Commission and we wish it well for the future.”
Funding and investigation concerns
Richard Foster, the CCRC’s third and current Chairman, saw no room for complacency, telling the conference: “Although the criminal justice system has improved considerably in recent years, we see no reduction in the level of miscarriages – we refer about one case a fortnight.” The majority of those are quashed. Foster reflected on the organisation’s early days and current challenges. In 1997, his predecessor had stated that the Commission had “too many cases and too few resources”. That refrain has not changed. Since the pioneering period, policies and practices have been developed from scratch and application volumes have risen dramatically, partly because of the introduction of an “Easy Read” application form to cater for low literacy levels in prison. Funding has been dramatically reduced and although process improvements have yielded efficiency gains, thoroughness cannot be sacrificed for speed.
Foster warned that without more resources, queues would only lengthen and miscarriages would risk going undetected. January 2015 sees a Justice Select Committee inquiry into the Commission’s work, where the CCRC Chairman said he would repeat his view that the Commission now needs an uplift of £1m to its £5.5m budget to function effectively. Of equal concern was the erosion of the CCRC’s investigative powers. The Commission is able to obtain material from public bodies through Statutory Notices but the power does not currently extend to private bodies. With privatisation and the migration of public services to the “third” sector, the distinction is becoming blurred. Increasingly organisations, including forensic providers, care homes and welfare services, hesitate or decline to provide assistance to the Commission as they are fearful of breaching data protection laws. Successive governments have promised legislation to remedy this but none has done so, leading Foster to ask: “What more is needed to get passed into legislation something which enjoys all-party support, would save money, improve the administration of justice and, crucially, help us to right wrongs which would otherwise go uncorrected?”
Mick Creedon, Chief Constable of Derbyshire, gave a perspective on the changing nature of police investigations with digital technology, electronic surveillance and regulation through the Police and Criminal Evidence Act 1984, Criminal Procedure and Investigations Act 1996, Regulation of Investigatory Powers Act 2000 and the European Convention on Human Rights. Creedon explained: “We now have pieces of legislation that dictate what happens at every stage of the criminal justice process, at what time it happens, and to whom it happens.” He also candidly acknowledged that disclosure presented and continues to present major issues, but pointed to the differing public perception of convictions overturned because of evidence that suggested innocence and defective processes where “loopholes” were exploited. The Chief Constable also spoke out for victims and witnesses, emphasising the importance of ensuring that they were treated with dignity and properly protected. Ultimately, he said, “no witnesses could only mean no justice”.
The afternoon gave a more critical perspective with solicitor Mark Newby urging the CCRC to undertake more proactive reviews, to challenge the Police and to search for evidence rather than to accept assurances that it had been lost or had never existed. This was important in historic sex abuse cases and Newby cited cases where it was established that defendants were innocent of allegations of child abuse, a subject that Conference Chair, David Rose described as being one of society’s few remaining taboos. Newby also drew attention to the plight of Victor Nealon. He was released in June 2014 after 17 years’ imprisonment. It was on the third application to the Commission that his case was referred to the Court of Appeal which quashed the conviction due to fresh DNA evidence. He was discharged with £46 but no address at which he could stay, and the Ministry of Justice has refused his claim for compensation.
Newby’s concerns on reviews were echoed by Professor Carolyn Hoyle of Oxford University. Professor Hoyle is leading an externally funded research project covering the Commission’s investigative and decision-making processes. The CCRC has facilitated access to its archives and open interviews with personnel. Hoyle’s initial findings suggest some differences between the CCRC’s investigators. Some appear to be more prepared to go “beyond the bundle” than others, to ask questions, or to conduct crime scene visits, or to speak with those connected with the case be they experts, representatives or police officers.
Value of pro bono
In panel discussions, the Commission responded with contributions from staff explaining that investigations and interviews were determined by evidential value and that references are made whenever the statutory test is met. The Commission also commended the pro bono work done by professionals, law clinics and university projects in assisting applicants to assemble information and to highlight lines of inquiry.
The Commission’s contribution to society is important. Miscarriages of justice remain a reality, as are the challenges to the organisation charged with their investigation. The CCRC Chairman’s concluding words provide an apt statement of aspiration: “We can’t know whether a particular person is telling the truth or not. We do not know whether they committed the crime they are accused of or not.” But, he said, people are entitled to be taken seriously when they approach the CCRC claiming to have been the victim of a miscarriage of justice. “Detailed, thorough, impartial investigation may confirm what they are saying – or it may tell us otherwise. But the possibility that what they are saying may indeed be the truth must always, always be our starting point. How different might the case of the Birmingham Six have been had it been approached from the beginning in that spirit?”