The wrong righters

“Sometimes practising lawyers lose a bit of perspective and they need to take a look elsewhere before they’re quite so critical,” says Professor Graham Zellick, the legal academic who took over as chair of the Criminal Cases Review Commission (CCRC) in November 2003.

He is talking about widespread criticism of the recent Home Office decision not to award compensation to Angela Cannings, who was wrongly imprisoned for 18 months for the murder of her two babies. The issue of compensation for miscarriages of justice is not within the CCRC’s remit, which was set up seven years ago to review suspected miscarriages of justice after confidence in the criminal justice system sank in the wake of the Birmingham Six and the Guildford Four. But Zellick points out that most countries do not even have a mechanism for compensating those that have been convicted wrongfully, and the CCRC is similarly unique. No doubt he would also like lawyers to acquire “a bit of perspective” before passing judgment on the CCRC.

Since the CCRC opened its doors, defence lawyers have repeatedly attacked the Birmingham-based body for being overly cautious in referring cases back to the Court of Appeal and for being overly sensitive when referrals are rejected by the appeal judges.

Last summer the court rejected the case of Anthony Stock, who was convicted for his alleged part in a brutal attack by four men on the manager of a Tesco store in Leeds 34 years ago. He failed to clear his name because his appeal was “based on no new material”. Glyn Maddocks, a lawyer who specialises in miscarriage of justice cases at South Wales firm Gabb & Co, complains that there is “virtually nothing left of this conviction”. He also makes the point that the judges’ emphatic rejection was a blow to the CCRC. “Every time they make that criticism of the CCRC, it just knocks them back a bit further,” he says. The word from members of the CCRC is that they were “furious” at being “humiliated” by the appeal judges, he reports.

“Humiliated” is not the right word, insists Zellick. Instead, the former vice-chancellor and president of the University of London opts for “profoundly disappointed” to sum up the mood at the CCRC. “That’s because we aren’t technicians,” he says. “We’re committed to doing what we’re doing – the quest for justice – and [a result like that] isn’t humiliation, but it’s the nature of the business.”

Contrary to what its critics think, he insists that having appeals dismissed does not undermine the CCRC. “When the court raps us over the knuckles, there isn’t an element of humiliation but concern – and the court doesn’t always get it right,” he insists. He cites two recent cases where he has serious concerns at the “highly questionable” comments of the appeal judges, who could not see the force of the new information that justified the appeal. There is a clear frustration that the CCRC, which prepares the case for a referral, is not able to make its voice heard in court.

The CCRC’s success rate (the percentage of its referrals to the appeal judges that are subsequently quashed) is approximately 70 per cent. Experienced defence lawyers, such as Campbell Malone, chairman of the Criminal Appeal Lawyers Association, want to see a bolder CCRC. He reckons that crucial figure should be closer to the halfway mark. “They are, on occasion, too cautious, particularly when there are new cases involving expert evidence when there’s an issue as to whether or not it’s fresh,” he says. “They sometimes forget that the court does have a general discretion and will do what it thinks is the appropriate thing in the interests of justice.” Under the Criminal Appeal Act 1995, the CCRC can refer a case where there is a “real possibility” that the court would quash a conviction (or sentence).

Zellick is absolutely adamant that such criticisms fail to understand the CCRC’s statutory role and have “no regard for common sense or public interest”. He continues: “‘Real possibility’ doesn’t mean bare possibility, and it doesn’t mean, as Lord Bingham has said, ‘racing certainty’.” Referring more borderline cases back to the appeal judges would be counterproductive. “It would damage the reputation of the commission very considerably, raise appellants’ expectations needlessly and would be costly and fruitlessly add to the already considerable burdens of the Court of Appeal,” he says. “So what conceivable public interest would there be?” Nor does he want to become too fixated by the figures. Last year the CCRC successfully referred 28 cases on the trot back to the appeal judges – but he adds that the run turned out to be “a statistical fluke”.

The CCRC has received 6,647 applications since it opened its doors in March 1997 and the level of new applications has levelled at around 900. Another bugbear for defence lawyers is the underresourcing of the CCRC, which means that innocent prisoners spend their lives locked up while their applications are caught in the backlog.

“At the moment we’re struggling because we’re experiencing budgetary pressures,” Zellick acknowledges. He reckons he needs 50 case review managers to clear the backlog – and this would mean that those in custody would have to wait a year to have a case reviewed and those at liberty would have to wait two years. At the moment the waiting times are 15 months and 27 months respectively; however, the problem is worsening and the number of case review managers could soon drop to under 40.

The Lawyer meets Zellick immediately before a BBC camera crew interviews him about the case of Donna Anthony, another mother convicted of killing two of her babies. His predecessor, Sir Frederick Crawford, did his best to keep the CCRC out of the press. Zellick takes a very different view. “We’re a public body, accountable to Parliament and funded by the taxpayer,” he says. “One of our fundamental tasks, when rejecting an application or referring a case, is to reassure the public that they can have confidence in the system. You can’t do that as a secretive organisation.”

As a result of the Cannings judgment, the criminal convictions of 28 mothers have been referred by the Attorney General to the CCRC. Zellick has warned that more miscarriages will take place unless expert witnesses are brought under control. They can make “quite a nice living out of just being expert witnesses”, argues Zellick.

So does he back a more rigorous form of accreditation for experts? “On the whole, we aren’t talking about charlatans in the sense of people pretending to be experts without any qualification,” he says. But what would have been the difference if Sir Roy Meadow, the discredited paediatrician whose evidence led to the wrongful jailing of Cannings, had been accredited or registered? he asks.