#CCRC20: The basics

Working daily on possible miscarriages of justice cases, we naturally assume that everyone knows what this work involves, and what the role of the Criminal Cases Review Commission (CCRC) is. That is a bit presumptuous of us. So ahead of our series of articles over coming weeks about issues we have faced and some thoughts from our innocence project students, we wanted to set out some basic information for those less familiar than we are. You can read Professor Julie Price’s introduction to the series (here).

A few years ago, if you googled ‘CCRC’, the first entry would have been ‘City of Cambridge Rowing Club’. But (thankfully) now you’ll be directed first to www.ccrc.gov.uk, whose website is in admirably plain English.

‘The Criminal Cases Review Commission is the independent organisation set up to investigate suspected miscarriages of justice… in England, Wales and Northern Ireland.’ They use the word ‘investigate’ on their web pages. It could be argued that this word is misleading. Our experience is that they ‘review’ as their name suggests, and they don’t ‘investigate’ in the natural and full meaning of the word. Our articles over coming weeks will look at that issue.

The CCRC is independent of the courts, the police and people claiming they are the victims of a miscarriages of justice. However, as many critics have pointed out and as our articles will also highlight, this is arguably not ‘independence’ in the pure sense of the word because of the wording of the statute that created the CCRC. It was set up about as a response to a series of high profile miscarriages of justice such as the infamous ‘Irish’ cases known as Birmingham Six and the Guildford Four.

The CCRC employs about 90 people. About 40 of these are ‘case reviewers’. Some of those have legal backgrounds, and others don’t.

So – if you have been convicted of an offence in a Crown Court and you say this is a wrongful conviction – what can you do?

There is a very short window (28 days) after your conviction during which you can appeal, although you can (in theory) make an application to appeal ‘out of time’ after that. That can only be on a point of law. Just because you think the jury got it wrong or that your legal team did a bad job, that is not in itself enough for an appeal. We wonder how many people sitting on a jury making very difficult decisions on someone’s life have any inkling that in reality there is very little realistic chance of someone successfully appealing a conviction. If jury members realised that, would it affect how they make their decisions?

Usually, your solicitor would need to ask the view of your barrister as to whether there may be grounds to appeal. In many (or most) cases there will be no grounds. There is also in reality very little, if any, legal aid available in many cases for someone to get advice on an appeal.

Where does the CCRC fit in?

The CCRC can usually only look at applications from someone who has already had an appeal. If you have had an unsuccessful appeal, or if you have not been allowed to appeal, you have no option but to apply to the CCRC if you want to challenge your conviction again. There is no fee payable to the CCRC, and you don’t need a lawyer to do this for you, although it is often said that if you have a lawyer you have a better chance of getting past the CCRC’s first sift.

Your application has to be in writing, and the CCRC have created an ‘easy read’ form to help. They get about 1,500 applications every year.

If they decide a case is eligible for them to review, it goes (after waiting in their queue) to a Case Review Manager (CRM). Each CRM works on a number of different cases at the same time.

Decisions about whether to refer a case to the Court of Appeal have to be made by three Commissioners, compared to a single Commissioner making a decision not to refer.

There are meant to be at least 11 Commissioners, appointed by Her Majesty as these are public appointments. The background of these Commissioners varies – currently including legal, scientific and journalism.

Volume of work

Since it was set up in 1997, by the end of February 2017 the Commission had received 21,934 applications for review and had completed 20,961 of them (including 631 referrals). It had 665 cases under review. Only a tiny percentage of applications received by the CCRC (about 2.8%) end up being overturned by the Court of Appeal.

Vision and Aims

The CCRC’s website explains its vision:

• To enhance public confidence in the criminal justice system
• To give hope and bring justice to those wrongly convicted
• To contribute to reform and improvements in the law based on our experience

It also sets out its six values and its four aims. The first aim is ‘to investigate cases as quickly as possible and with thoroughness and care’. Our articles will give examples of how we have found that works in practice. We think that people may be surprised at how excessively long this whole process takes, and how extremely difficult it is to overturn a conviction.

The CCRC’s processes

How the CCRC does its work is explained in part through about 30 formal ‘memoranda’ on its website. For example, ‘Communicating with applicants’ explains what an applicant can expect by way of communication. This explains among other things that the identity of commissioners making decisions will not be revealed until the end of a review. As regards meeting applicants, their protocol says, ‘In appropriate cases, the Commission will meet with the applicant’. Many people have called for meetings with applicants to be more commonplace, but clearly that carries a resource implication for the CCRC.

When will the CCRC refer a case to the Court of Appeal?

The CCRC explains that to enable them to refer a case back to the appeal court, they will almost always need to identify some new evidence or other new issue that might provide grounds for a fresh appeal and that they cannot perform a ‘re-run’ of a trial just because the evidence of the defence was not accepted by the jury and the evidence of the prosecution was. This is where, in our view, huge difficulties lie. Members of the public (jury members included) do not appreciate how massive a hurdle this is for someone challenging a conviction. Our project regularly sees cases where it is clear to us that an original conviction may not be safe. To always require “new” evidence or argument is artificial and unfair, in our view. People maintaining innocence, with good reason, should not be tied (as is often the case) to decisions made and actions taken (or not) by their original defence lawyers. Quite often the evidence was there all along, but it wasn’t properly considered, for all sorts of reasons. We think it is grossly unfair that someone has to stay convicted because of these artificial rules and an unhealthy obsession with the “finality” of the jury verdict.

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There is a lot more information on the CCRC’s website than we have covered here. This is just a taster for those new to this, and perhaps in particular for fans of Netflix’s Making A Murderer, to see how our system is different from that in the USA.

In some of our articles over coming weeks, we’ll give examples of our dealings with the CCRC, based on about 40 cases we have reviewed over the last 12 years at Cardiff Law School Innocence Project, and 15 cases we have submitted to the CCRC outlining our serious concerns. Some of what we say may surprise you. If you work in criminal appeals you won’t be surprised; instead, you will probably share our concerns about the integrity of our system. Our system does nothing, in our experience, to offer any assurances that wrongful convictions can be overturned in anything other than a tiny number of cases. There simply is no political or other will to address this very real problem.

And with politicians understandably fixated on Brexit, there has probably never been a worse time to hope to gain meaningful political support for calls for change.