Is justice being served by the Cases Review Commission?

A year ago the Home Office and the Northern Ireland office handed over their files on alleged miscarriages of justice to the Criminal Cases Review Commission. Paul Taylor examines how well the new body is performing its task. Paul Taylor is a barrister at Doughty Street Chambers.

Until the Criminal Appeal Act 1995, the decision as to whether to refer a case to the Court of Appeal (Criminal Division) lay in the hands of the Home Secretary.

However, following a series of high-profile miscarriages of justice cases, the Royal Commission on Criminal Justice recommended the establishment of an independent review body.

The Criminal Cases Review Commission (CCRC) was thus established under the 1995 Act, which also abolished the reference power of the Home Secretary. The new body has much wider powers than the Home Secretary had in particular it can make references in relation to either convictions or sentences (or both) arising from indictable and summary matters. It also has substantial powers relating to investigation.

So one year on, how effective has the CCRC been in performing its role?

Even before the CCRC was on its feet, commentators were expressing concern over the proposed set up. The body was seen as being unlikely to perform its functions in relation to alleged miscarriages of justice any more effectively than successive Home Secretaries had under the previous power.

Private Eye seemed to sum up the concerns when it called the proposed body: “a toothless commission whose inquiries will be conducted by the police (who made the mistakes which led to the injustices) and whose only power is to refer a case to the Court of Appeal (which made the mistake in the first place).”

In reality, it may be that much of the early criticism was ill-founded. Having visited the CCRC and discussed its responses to applications with a number of solicitors, it seems to the author that the CCRC has certainly embraced its role with enthusiasm, seeking to be “user friendly” and to implement fresh methods of working in this sphere.

It is also taking a proactive approach to its investigative role. Within its first year of operation it had commissioned expert forensic reports in relation to semen, blood, finger prints, ballistics, ESDA testing, linguistics and fire reconstruction, as well as from psychiatrists and psychologists.

The CCRC has also worked with television companies in examining documentary footage and, in one case, door-to-door media inquiries unearthed critical information that had previously been overlooked.

In another application, where the trial transcript was unavailable due to the age of the case, the case workers reconstructed the details of the proceedings from the daily coverage that had been given to it in local newspapers.

So far as resources are concerned, the Home Office seems to have adopted a relatively flexible approach in the

CCRC's budgetary allowances, meeting specific costs as and when they arise.

This appears to meet one of the chief questions raised by the CCRC's critics whether there would be a sufficient allocation of funds, particularly for the investigative activities. In the first 12 months of its operation, there does not appear to have been any serious difficulties in this area.

The case workers and commissioners also seem to be pursuing a more open approach to their interaction with legal representatives. Case workers can generally be approached for advice on procedure at any stage, and while there is no right to discuss the matter in face-to-face meetings, the case worker and commissioner assigned may request a meeting with the legal representative and applicant to identify the issues and discuss the progress of the case. This can be done by the applicant being visited by the parties in prison. Alternatively, the CCRC has an arrangement with Winson Green Prison to have certain lower categories of prisoner transported to the CCRC premises to be interviewed.

Attempts have been made to keep the procedure for initiating an application relatively straightforward. Either the applicant himself or someone else can fill in an application form and submit it to the CCRC.

An initial assessment of the case will then take place and, if necessary, documents in the hands of the police or other public bodies can be secured and sought. An investigating officer can also be appointed by the CCRC to carry out inquiries. This can, for example, involve drafting in a different police force to the one that carried out the initial investigation leading to the conviction or sentence in question.

Before a reference is made, however, three criteria must generally be fulfilled.

It is the way in which the CCRC interprets these provisions that may provide the real test of its effectiveness:

(a) the CCRC must consider that there is a “real possibility” that the conviction, verdict, finding or sentence would not be upheld were the reference to be made;

(b)(i) in the case of a conviction, verdict or finding, this consideration is because of an argument, or evidence, not raised at trial or on appeal; or (b)(ii) in the case of sentence, because of an argument or point of law not so raised; and

(c) the appeal against the conviction, verdict, finding or sentence must have been heard or leave to appeal refused.

The CCRC can, however, in “exceptional circumstances” still refer a case to court, even though the criteria set out in (b)(i) and (c) are not fulfilled.

The terms “real possibility” and “exceptional circumstances” are ambiguous and the parliamentary debates on the Criminal Appeal Bill in Hansard provide little assistance in seeking to interpret them.

Some commentators have argued that in many ways these provisions are more restrictive than the Home Secretary's previous powers.

The approach of the CCRC to this criteria is said to be on a case by case basis, although the following factors became apparent from a discussion at the CCRC:

There is no percentage value which must be reached in terms of “real possibility” before the commission will make a reference;

It is the safeness of the conviction that is in issue and not the innocence of the applicant;

“Lurking doubt” cases where a number of factors which alone would not justify a reference, may do if considered cumulatively; and

applications relying on inadmissible evidence may provide a basis upon which the commission will launch its own investigations.

While this criteria does leave the possibility of a restricted interpretation, the ultimate deciding factors in considering whether “a real possibility” or “exceptional circumstances” exist will be both the ethos that manifests itself among the individual commissioners in their willingness to refer cases and, perhaps more importantly, the response of the Court of Appeal to such references.

It seems likely that the approach of the CCRC will reflect the general trend of the Court of Appeal in applying the “unsafeness” test to appeals generally. Overall, it is difficult to know what criteria one should apply in seeking to test the CCRC's effectiveness. Is it the thoroughness with which it conducts its investigations and responds to the allegations that a particular case involves a miscarriage of justice? Or is it by the number of cases referred to the Court of Appeal, or the number of convictions referred which are ultimately declared unsafe, or whose sentences are reduced?

The CCRC is clearly in its very early stages and only time will reveal its true effectiveness. It does, however, seem that it is the borderline cases involving no single, obvious ground of appeal but a series of “lurking doubts”, or initially inadmissible evidence requiring further investigation, that will provide the true litmus test of the CCRC's effectiveness.

These are often the cases that involve the most extensive research, and by their very nature are most likely to involve a serious miscarriage of justice.

The CCRC received 252 cases from the Home Office and, up to 31 March 1998, it had received 1,348 applications. Of these, 12 cases have so far been referred to the Court of Appeal, with two cases having been decided one conviction and one sentencing.

This figure for the number of cases decided is obviously an insufficient basis upon which to try and draw any conclusions. Indeed, in the only reference involving a conviction to have been decided so far, Mahmood Mattan, the new evidence suggesting the conviction was unsafe appeared to be strong in any event so it is not the best guide to the long-term effectiveness of the CCRC.

The Court of Appeal did, however, state that “the CCRC is a necessary and welcome body, without whose work the injustice in this case might never have been identified”. (Mattan's conviction for murder was quashed nearly 46 years after he was hanged in Cardiff prison.)

So, 12 months after the CCRC started its work in earnest is there a cause for celebration? The answer is a mixed one. Yes, in so far as it is seems to be genuinely seeking to be “user friendly” in the application procedure, the subsequent consideration by case workers and commissioners, and liaison with the applicant or his legal representatives. It is also proactive in its investigative role.

However, in deciding if there really is a positive new approach to the power to make references, there is, by the very nature of the young age of the CCRC, a very limited statistical basis to analyse. It may be best to hold off the celebrations for at least another year.