Our Six Point Plan for an effective miscarriage of justice watchdog

Following tonight’s Panorama programme questioning whether the public miscarriage of justice watchdog – the Criminal Cases Review Commission (CCRC) – is fit for purpose, the Centre is offering a Six Point Plan for transforming the body.

1. MORE INVESTIGATION

The CCRC must do more investigation if it is to improve its success in identifying miscarriages of justice. This sounds obvious, but too often the CCRC declines to obtain and review police documents, interview witnesses or arrange for new forensic analysis on the grounds that doing so would be “speculative”.

This is particularly true given that we now know the extent to which prosecutors and police routinely fail to disclose vital evidence to defendants. Frequently, the only way to identify whether disclosure failings have occurred in a case is to review all available police and CPS documentation. The CCRC currently refuses to do this on the grounds that it is a “fishing expedition” and “not proportionate” – but until it changes its approach, it will fail to reliably identify unsafe convictions caused by disclosure violations.

Internal CCRC documents obtained by the Centre under the Freedom of Information Act confirm as much. In its September 2017 Board Minutes, one of the CCRC’s own Commissioners expressed doubts about its ability to discover instances of non-disclosure in cases.

2. MORE ACCOUNTABILITY

If the CCRC get their decision wrong, there is nowhere else for an innocent person to turn. Remarkably, there is currently no effective means for challenging incorrect decisions by the CCRC, such as its refusal to order DNA testing or refer a case for a fresh appeal. This lack of accountability is shocking given that the CCRC is the last hope for victims of miscarriages of justice.

The expensive, lengthy “remedy” of judicial review is no cure at all when it comes to the CCRC’s decisions. Judicial review can only be used to challenge the lawfulness of CCRC’s decisions – not whether or not they have in fact made the right one. The CCRC’s own complaints procedure is not up to the job either – it cannot be used to challenge an erroneous CCRC decision not to refer a case for an appeal.

A new mechanism should therefore be introduced whereby an independent arbitrator can review and reverse CCRC decisions when they get it wrong.

The case of Victor Nealon illustrates exactly why such a mechanism should be introduced. He spent an extra decade in prison for a crime he did not commit because on two occasions the CCRC refused to carry out DNA testing which would later exonerate him. Had the CCRC’s earlier decisions been possible to effectively challenge, he may not have lost those years behind bars.

The CCRC should additionally start recording how much time staff are spending on case reviews and require them to keep complete lists of the documentation they have actually read. At present, the failure to record this information makes it even harder to prove when their case reviews have been inadequate.

3. NEW LEGAL TEST

Currently, by law the CCRC can only refer a case for a fresh appeal if it thinks there is a “real possibility” that the appeal court will quash the verdict.

This forces the CCRC – which is meant to be an independent body – to be dependent on the trends it thinks it has identified in the Court of Appeal’s attitudes and thinking when assessing cases. Under the current legal framework, the CCRC is expressly discouraged from making an independent assessment of whether it thinks a miscarriage of justice has occurred in a given case.

The Scottish CCRC has a different statutory referral test and is arguably more effective in rooting out miscarriages of justice because of it. This test allows the body to refer a case when it believes “a miscarriage of justice may have occurred” and that it is in the “interests of justice” to refer it.

As the Justice Select Committee urged in 2015, the Law Commission should conduct a review of the CCRC’s current legal test. The Government’s failure to order such a review is inexcusable.

4. MORE RESOURCES

Alongside these other changes, the CCRC clearly needs additional resources to be able to do its job properly. According to its Chair, the body experienced a 30% budget cut alongside a 70% increase in its workload.

It is implausible that this shortage of resources has not had a negative impact on the quality of the CCRC’s case reviews and – consciously or unconsciously – its decisions about whether to carry out specific instances of investigation in cases.

An urgent £1m-a-year funding boost called for by the Justice Select Committee in 2015 has so far not materialised. The Ministry of Justice must now finally grant this. £1m is a tiny amount in the context of its £6.6bn budget and it is certainly a price worth paying if it helps innocent people win their freedom.

5. LESS DEFERENCE

Until the statutory test changes, the CCRC should in the meantime be less cautious in referring cases to the Court of Appeal. The Justice Select Committee urged this back in 2015, yet since then the proportion of cases referred by the CCRC has dropped to a mere 0.77% - the lowest it has ever been.

Worryingly, the CCRC appears to be more concerned about what the Court of Appeal thinks of it rather than the risk that it fails to identify a genuine miscarriage of justice.

Indeed, internal documents obtained by the Centre reveal that “CCRC reputation with the Court of Appeal” is one of its official operational risk factors – one which was raised from “moderate to severe” in 2016 after a string of critical judgments from the Court. If the CCRC is concerned that a prisoner is innocent but that the Court of Appeal may not agree, the CCRC should increase the scope of its investigation to find more evidence.

The current deferential attitude must change. The CCRC should acknowledge that the most important risk for it to mitigate against is the risk that it fails to grant an innocent person access to a hearing at the Court of Appeal.

6. MORE TRANSPARENCY

The CCRC should share more information with people whose cases they are reviewing and their representatives. Currently, the CCRC routinely refuses to provide details of the work it has carried out on cases, let alone their basis of their findings (such as what police officers have told them, or the contents of documents they have obtained). This denies applicants and their lawyers the opportunity to scrutinise and inform the CCRC’s work on cases, and the quality of their reviews is worse for it.

Currently, the CCRC hides behind section 23 of the Criminal Appeal Act 1995 to maintain these levels of secrecy. But the case of R v Secretary of State for the Home Department, ex p. Hickey (No. 2) [1995] 1 WLR 734 actually provides the CCRC with a wide discretion to share information with applicants so that applicants can make their best case for a referral to the Court of Appeal. The CCRC should adopt a more liberal interpretation of the Hickey judgment and work on the presumption of sharing information that it has gathered unless there is an overwhelming reason why it shouldn’t.

James Burley