The Criminal Cases Review Commission began its work on 31 March 1997. It was created by the Criminal Appeal Act 1995, 25 years ago. It came into being after some appalling miscarriages of justice under the previous system of consideration by Home Office ministers. That system was clearly not working in the interests of justice nor was it transparent. The CCRC was a necessary and timely addition to our criminal justice system and it has done a great deal to right wrongs and to bring justice where there was none. But nothing stands still and everything needs to be re-evaluated in the light of changing circumstances and experience.
In 2019 the All-Party Parliamentary Group on Miscarriages of Justice decided to examine more closely the work of the CCRC and see whether improvements to this aspect of the appeals process were necessary. This week the Group reported its findings.
The report considers the current test for referring cases to the Court of Appeal, and the way that it is applied by the CCRC. Under the 1995 Act, the CCRC is empowered to refer cases directly to the Criminal Division of the Court of Appeal if it considers that there is ‘a real possibility’ of success at appeal. The report considers that the predictive nature of this test has encouraged the CCRC to be too deferential to the Court of Appeal. The report, therefore, considers that the test acts as a brake on the CCRC’s freedom of decision. It recommends that there should be a more objective test: that the CCRC is to refer a case if it considers the conviction may be unsafe, the sentence may be manifestly excessive or wrong in law, or that it is in the interests of justice to make a referral. This would encourage a different and more independent mindset. Meanwhile, until the test is amended, the report urges the CCRC to be bolder in applying the current test and to adopt a broader interpretation of its power to refer cases in exceptional circumstances where there has not been an appeal. The report additionally recommends that the Law Commission should review the test applied by the Court of Appeal under the Criminal Appeal Act 1968, to allow it to quash a conviction where it has serious doubt about the verdict, even without fresh evidence or new legal argument. The review should also address concerns about the retention and disclosure of evidence.
The report looks at the quality and scope of the CCRC’s investigations. It recognises some excellent investigative work, but it also finds that financial constraints and an increased caseload have compromised the CCRC’s ability to carry out its role effectively in all cases. It points to the risk that a target-driven culture prioritises speed over thoroughness and that this can compromise effective investigation. Without increased resources, the CCRC cannot examine all relevant documents, carry out enough face-to-face enquiries and take advice from external forensic experts. The report also expresses serious concerns about the non-disclosure or destruction of exculpatory material. It recommends changes to the retention of documents and that the CCRC should have additional powers to obtain information and material from public bodies in a timely manner.
The report examines the relationship between the CCRC and those who apply to have their convictions reviewed. It found insufficient communication in relation to both the progress of and approach to cases, which undermines trust in the CCRC. Judicial review of the CCRC after the event is not an effective substitute for a thorough examination of, and a real dialogue about, an applicant’s case. The report recommends that the CCRC should be more open with applicants and their representatives, disclosing actions taken, providing meaningful regular updates and fuller statements of reasons for its decisions. It also recommends that the Criminal Appeal Act 1995 should be amended to allow wider disclosure of material to applicants and to permit the CCRC, with the authority of the applicant or in anonymised form, to publish statements of reasons where this is in the public interest.
The report considers the specific issues for juveniles, as well as cases of alleged wrongful convictions arising from joint enterprise. It commends the CCRC’s efforts to reach out to juveniles. This would be enhanced if there were a specialist unit established within the CCRC specifically to deal with youth justice cases. In addition, the report recommends that the role of advocacy services in under-18 custodial establishments should be extended to include advice on and during applications to the CCRC. It also recommends that the ‘substantial injustice’ test in joint enterprise cases should be reviewed as a matter of urgency by the Law Commission because it poses a real risk that miscarriages of justice remain unidentified or unremedied.
A lack of adequate funding stand in the way of many reforms that are necessary, with the report concluding that the Ministry of Justice should:
- provide increased funding to the CCRC so that it can recruit additional case review managers and put in place the other changes that are recommended;
- raise the financial eligibility criteria for advice and assistance with CCRC and Court of Appeal matters;
- increase the rates payable to solicitors for work undertaken under the legal aid scheme to allow more solicitors to undertake the work on a financially sustainable basis.
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[Image credit © Crown Copyright)