Given the apparent public put-down of innocence projects by Richard Foster, chair of the Criminal Cases Review Commission, in one sentence of his recent interview (‘If you think that you have a terminal illness, would you rather have your case considered by medical students in the bar on Friday night – or would you rather send it to a consultant oncologist?’), and the number of comments, including from students, I thought it appropriate to pen a response in a similarly public way, so…
Dear Mr Foster
I congratulate you on engaging with the Justice Gap, but I join others in condemning your ‘bar’ analogy, whilst declaring my gratitude to you for not going the whole hog and suggesting that our submissions to the CCRC are made on the back of a fag packet.
At Cardiff Law School Innocence Project we take your slur very seriously, and on behalf of our hard-working, dedicated, enthusiastic, professional students, I invite you to withdraw your comment.
In these times of austerity, I also invite you to work more creatively with your ‘stakeholders’. The referral in your analogy to someone with a terminal illness is perhaps a Freudian slip – it seems to indicate that you recognise that those who come to innocence projects or indeed the CCRC are unlikely to be cured under the current system. We concur.
Here are some facts, opinions and questions that underpin those invitations and observations.
As the article points out, Cardiff has been responsible for more than half of the university applications to the CCRC: on 12 different cases, 15 applications in all including three re-applications (one referral by you to the Court of Appeal, which conviction was successfully overturned).
Additionally, we have drafted and submitted (often in conjunction with experts) a further seven substantive responses to various Provisional Statements of Reasons. In total, 22 pieces of high-quality evidence-based pieces of work were prepared largely by our students, and we are very proud to say that.
Each of those submissions has resulted from (often) years of painstaking research and analysis, undertaken by our students (always sober) under staff supervision. All but one of our submissions passed your initial sift, and went on for a ‘full’ case review by the CCRC (i.e., we raised sufficient doubt on the safety of the convictions to persuade your organisation to further look into the cases).
Substantial footwork is a necessity, not a luxury
It is a fallacy to suggest that all we need to do is to pass things to the CCRC and you’ll deal with them. Representatives from the Commission who have spoken at student events have made it clear that applications have to present significant new evidence.
This is not easy and the low level of referrals from such projects perhaps suggests that most have taken the Commission’s advice on board. It is clear that unless new evidence or a new line of argument can be proposed, then the proverbial cat in hell has more chance of passing your initial sift. Speaking only for Cardiff (but I’m sure that other university projects will concur), our operation is thorough and professional, even if our casework takes longer than is ideal, but we are not claiming to be beyond criticism.
Like you, we are operating on a shoestring, but unlike you we lack any powers to obtain documents or evidence for re-testing. That is perhaps where you could, and should, be more willing to work constructively with us, in the interests of those wrongly convicted who fall foul of the current statutory framework hurdles.
Lessons from Hillsborough?
We have dealt with more than 30 cases of people who may be wrongly convicted. This is admittedly a tiny number compared to your operations, and not all of ours reach a stage where we can realistically make a referral to the CCRC or Court of Appeal.
We conclude that your organisation is still reluctant to accept the possibility of problems with police investigations, and their potential consequential impact upon the safety of a conviction. Professor Carolyn Hoyle also addressed this when presenting her research at the Criminal Appeal Lawyers Association conference in November 2015: ‘Decision making at the CCRC: Responses to claims of police misconduct and poor legal defence at trial.’ One of her key conclusions was that the CCRC applies a high threshold for impact of misconduct on safety of conviction.
We are not suggesting for one second that police issues feature in most cases. However, where we see evidence of this, we have regularly presented you with detailed reports from not just one (because you have questioned his expertise despite impressive career credentials), but often two highly-qualified police forensic experts. We have spelled out to you the effect of those issues upon the integrity of a conviction, in several cases, yet still you refuse to refer those to the Court of Appeal to let them decide. Why?
Statutory constraints and/or timidity?
Are you reluctant to refer more cases because you know that the Court of Appeal will not readily accept such arguments? Fair enough – we know the limitations of your statutory remit.
Your interview with Jon Robins reminds us that you ‘welcomed’ the Justice Select Committee’s (JSC) 2015 recommendation that the Law Commission should review the Court of Appeal’s grounds for allowing appeals. However, we detected little recognition of the need for change in the CCRC’s submissions to the JSC.
So, with this in mind, how have you responded to the Justice Secretary declining to follow the JSC recommendations, and his reasoning? You regularly stress your independence, which you must, of course. But those democratically-reached recommendations, based on evidence, have been blown out of the water by a single politician seemingly acting on the word of a senior member of the judiciary.
The CCRC is independent of politics and the judiciary – so may I ask, please, what are the CCRC’s plans to react to that? We (with one tiny voice) have written to Michael Gove about not implementing the JSC recommendations.
In your latest annual report you say: ‘The Commission welcomes that recommendation as the appropriate way to take forward any further discussion.’ You are a key person in the criminal appeals arena – have you written to Mr Gove? If not the CCRC, then who is going to press the government on these matters? If it helps, those of us at the other coalface could provide you with examples from a different perspective to yours, of why this has to be addressed by politicians.
Please excuse these questions if the CCRC is already on the case, but it is difficult, if not impossible outside of your website and annual reports, to be aware of what actions the CCRC takes wearing its watchdog hat.
Delays and money
Delays of eight months (for in-custody cases) and 13 months (non-custody) before the CCRC even starts to look at a new case are noted. However, one of our clients on licence was told to wait three years for the review to start, although that has since been shortened a little. Is that acceptable?
Your introduction to the latest CCRC annual report says: ‘We look to the new government to deliver on these recommendations’ (that the CCRC gets an additional £1million a year, to eliminate its “unacceptable” queues). You lament the government ignoring this JSC recommendation. You are ‘sadly…not surprised’. But my question is – what are you doing about it?
Please don’t think we are naïve; between 2010 and 2015 central government spending on criminal justice fell by 18% in England and Wales (source: Centre for Crime and Justice Studies).
Also, while we’re on the subject of ‘holding on to cases’, you say one reason for delays is ‘the number of further representations that we receive from the very same people who are telling us get on with it’. Our own experience is that once a case is under review, we are rarely (and not regularly) informed of progress unless we ask. We know that to respond at length would divert a Case Review Manager (CRM) from valuable casework, so it’s a difficult balancing act, but lack of CCRC engagement is a problem.
Further and better particulars
In relation to some high-profile cases that have been on your books for an eon, you say you have sent Provisional Statements of Reasons (PSOR) and a few months down the line you are still waiting for representations, hence the delay. I’d be interested in more information on this please.
- We have some cases that took upwards of two years to reach the PSOR stage. Then when the PSOR was issued, we were given just one month to respond. Admittedly, this has sometimes been extended by kindly CRMs but never further than three months.
- In our experience, delays occur in the CCRC reaching a decision. Once a PSOR is given, it is usually a rejection, and in our view often an unreasonable one. At that point, time is needed to properly respond to points made – one month is not generally sufficient to respond meaningfully. In fact, in our experience most clients do not complain about the delays but they are devastated when the PSOR is issued containing what they (and often we) consider to be weak reasoning and a cursory level of “investigation”.
We note your strategy in your business plan and annual report on working more efficiently to deal with delays. However, as your report indicates, your referral rate dropped, so “speeding up” doesn’t necessarily equate to improvement in outcome.
Before we leave the thorny subject of delays, one person we know claims the dubious record of being your longest customer. His case was with the CCRC for 12 years (starting before your tenure, admittedly), with a short break for a threat of Judicial Review. In his words: ‘What other public body is given a job to do and still hasn’t finished it ten years later?’ Indeed. Massive national infrastructure projects aside, I think he has a fair point. In this person’s case even at the end of ten years he remains devastated by rejection of his case based on weak reasoning and cursory investigation.
Your reluctance to be described as campaigners is understandable – I share your pain.
University projects are educators first and foremost but have been drawn into this uncertain political world because of the dire situation that we have experienced first-hand. It is refreshing to see that the CCRC has recently put out calls for research project interest, but please also talk to us more creatively as regards casework, Mr Foster.
There is now no network or single individual that dominates this landscape a decade on. Those doing pro bono casework are a pretty approachable extremely loose alliance of foolhardy souls who have become reluctant ‘campaigners’ out of necessity.
Perhaps this ‘c’ word, and the ‘collaboration’ one, are two that should be embraced by the CCRC, in this period of increasing difficulty for us all. But we all need to recognise the need for change so that all of our work can be more effective in redressing injustice.
See you at the bar?
Anyway, over to you, Mr Foster. You know where we are if you fancy a chat. We’ll be in our under-resourced diligent student-filled offices with a cup of tea, not in the pub.
Professor Julie Price
Director, Cardiff Law School Innocence Project