The miscarriage of justice watchdog has suffered the ‘biggest cut’ of any part of the criminal justice system since 2010 and its caseload has more than doubled over the same period, according to a parliamentary investigation published today.

Two years ago the All Party-Parliamentary Group on Miscarriages of Justice commissioned an inquiry into the Criminal Cases Review Commission (CCRC) after the number of cases of people claiming to be wrongly convicted sent to the Court of Appeal crashed – from an average of 33 referrals a year to just a dozen in 2017 or less than 1% of the people who applied to the body every year.

The inquiry, known as the Westminster Commission, heard concerns that the CCRC’s independence had been undermined by the government ‘unlawful interference’. The watchdog was set up in 1997 on the recommendation of a royal commission following a series of scandals including the Birmingham Six, the Guildford Three, Cardiff Three and Stefan Kisko with the task of sending the cases of people wrongly convicted back to the Court of Appeal for review.

• This is the unedited version of an article that first appeared in the Guardian this morning (here).
• The report is out at 9AM today.

The Westminster Commission, co-chaired by the conservative peer Lord Garnier QC and cross-bencher Baroness Stern, heard that the watchdog body received just £5.93m in 2019 compared to £9.24m in 2004. Its report reveals that the average workload for case review managers climbed from 12.5 in 2010 to 27 in 2017. The CCRC’s chair told the Westminster Commission that the Birmingham-based group ‘ideally’ needed 45 case review managers but had just 31.

As well as calling for more funding, the Westminster Commission said the CCRC ‘needs to demonstrate its independence from government’. Lord Garnier said: ‘At the start the CCRC took on its new role with great enthusiasm; but over 25 years it’s suffered from funding problems. It’s not an organisation that’s high in the political stratosphere, it doesn’t command attention from ministers and budget-setters.’

‘We need to re-instil that sense of independence in the CCRC and its leadership which the originating legislation envisaged,’ commented Garnier, a former solicitor general. ‘It has become something of a Cinderella public body, metaphorically stuck right at the end of some dark corridor within the Ministry of Justice. It needs to be out there punching above its weight.’

Garnier pointed out that that CCRC was ‘operating in a completely different way’ to that envisaged when it was set up almost 25 years ago. The report shines light on what a 2020 court judgment called a ‘dysfunctional relationship’ with the Ministry of Justice (MoJ).

The CCRC is obliged by statute to have 11 commissioners and until 2012 those commissioners were on salaries with holiday, sick pay and a pension; however in 2017 commissioners were recruited on minimum one-day-a-week contracts with none of the benefits. The Westminster Commission heard that the overall level of commissioner resource fell from 8.8 full time equivalent posts in 2014 to just two and a half by 2019. These changes were implemented following a review by the MoJ and, according to the inquiry, faced ‘strong opposition within the CCRC’.

The inquiry refers to CCRC board minutes which record commissioners being told by a senior civl servant that if the ministry’s recommendations were not introduced their appointments ‘might be terminated or not renewed’. The foreword of the subsequent MoJ review noted that the minister would be taking ‘a keen interest’ in the ‘timely implementation’. A submission by the human rights group JUSTICE said this ‘suggests an unlawful interference by Government with the independence of the CCRC’.

Three former commissioners told the Westminster Commission about their concerns. ‘I cannot see how one-day a week commissioners could ever fulfil the duties for which they were appointed… they would find it almost impossible to be anything other than “rubber-stamping” decisions,’ said one. It takes the agreement of three commissioners to send a case back to the Appeal judges.

David James Smith, a commissioner who left the organisation in 2018, said: ‘No-one should be under any illusion about the CCRC’s importance to society and especially to the criminal justice system. It is the backstop when things go wrong in criminal trials, the place of last resort when all else has failed. Those considerations weighed heavily as a Commissioner.’

He said that he welcomed the Westminster Commission’s focus on issues of the CCRC’s independence and the terms of appointment of its Commissioners. ‘There was a strong sense among Commissioners, during my time there that the MoJ was trying to change the Commission by stealth. The CCRC is a statutory body. We used to say at board meetings, if the MoJ wants to change the CCRC it should go back to parliament, and let MPs decide.’

David James Smith added that he agreed with the Westminster Commission that the CCRC looked ‘very different now to the organisation envisaged and intended in the 1995 Criminal Appeal Act by which it was created’. He continued: ‘The switch from salaried to fee paid Commissioner terms, the reduction from full or nearly full-time Commissioners to appointments on one or two days a week, over three years instead of five, might not sound important, but it has the effect of pushing Commissioners to the edges of the very organisation they are supposed to lead and defend against the government and the courts. ‘ He pointed out that, as the report notes, it has ‘shifted the balance of power to the executive who, however ever able they may be, are civil servants, in the employ of the state, as opposed to Commissioners who are appointed on Royal Warrant precisely to preserve the CCRC’s independence’.

‘Commissioners should be at the very heart of the CCRC’s work, overseeing investigations as well as meeting in Committees of three to decide on referrals back to the court of appeal. But on one or two days a week how will they ever find the time or acquire the expertise and understanding the role demands? And if independence is eroded how can the public be sure that decisions are being freely made?’
David James Smith

Glyn Maddocks QC, special adviser to the APPG on Miscarriages of Justice, shares the concern that reforms were foist upon the CCRC. ‘That change appears to have taken place via the backdoor, without scrutiny and having been imposed by the MoJ against the CCRC commissioners’ wishes whose very role was to guard the organization’s independence. That’s alarming.’

Maddocks continued: ‘ The risk of wrongful conviction is at least as great today as it was in the bad of days of the 1970s and 1980s, perhaps more so. Our criminal justice system is under unprecedented stress as a result of sustained underinvestment and a court backlog exacerbated by COVID-19. More than ever we need a watchdog fit for a purpose. Let’s make sure we get one.’

Both the CCRC and the MoJ insisted that he watchdog’s independence had not been compromised. A CCRC spokesman insisted that there was ‘a strong culture of independence’ in the organisation. ‘[There] has never been any interference from Government in CCRC casework, and the CCRC would not tolerate it if there were,’ he added.

‘Miscarriages of justice can have a devastating impact and we are committed to providing the Commission with the resources it needs to continue its vital work,’ said a Ministry of Justice spokesperson. ‘The CCRC always has and continues to work independently and to suggest otherwise is completely untrue.’

Interview with Lord Garnier: ‘Referrals to the Court of Appeal are the only thing that matters’

‘I’m not so naive to think every person who says he is innocent or wrongly convicted is innocent or wrongly convicted,’ Lord Edward Garnier QC tells the Justice Gap. ‘People have selective memories and prisoners have a lot of time on their own to think up reasons why they should not have been sent to prison. Nevertheless, even if there is a tiny proportion of prisoners wrongly convicted or wrongly sentenced, that’s an affront to our justice system. I accept our justice system is based on human interaction and therefore likely to be imperfect.’

Referrals
The Westminster Commission began its inquiry more than two years over concerns about the falling number of referrals. The CCRC has repeatedly undermined concerns about a decline in the number of cases sent back to the Appeal judges  – for example, its chair Helen Pitcher said that referrals were not ‘the be-all and end-all’ and chief exec Karen Kneller wrote that most applicants were more concerned with the CCRC’s waiting times than having their convictions overturned.

What did Lord Garnier make of such claims? ‘The response from the CCRC to say that referrals were not the “be-all-and-end-all” is somewhat to miss the point. If you look at the history of the CCRC and earlier, as far as the wrongly convicted are concerned the referral to the Court of Appeal is the only thing that matters.’

The CCRC explained that low number of referrals was explained by reference to a fall in the number of ‘thematically linked cases’. Was he surprised? ‘Yes, I was. One needs to unbundle that. If you do, then in recent years there have actually been quote a few linked referrals amongst the low numbers of referrals.’ He cites by way of example the disproportionate number of recent linked cases (e.g., immigration and subpostmaster cases)]. The Westminster Commission report usefully identifies those linked cases. ‘The rates would be even lower without such cases,’ it observes.

Real possibility test
The Westminster Commission calls for a new statutory test to replace the ‘problematic’ real possibility test. The CCRC can only send those cases back where it believes there is a ‘real possibility’. Critics have long argued that this encourages the CCRC to be ‘too deferential’ to the Appeal judges. ‘A new statutory test would give the CCRC permission to be bolder,’ Garnier says.

Independence
Today’s report leads on the fraught issue of the watchdog’s independence from the Ministry of Justice. The Justice Gap has reported on the Gary Warner case extensively (here) in which  a convicted armed robber, whose application to the CCRC had been rejected, argued that the group was not sufficiently free from government control to be independent.

Judges Fulford and Whipple last year rejected his case but they agreed with his lawyers’ analysis, at least for a two-year period (2016 to 2018). ‘The relationship between the CCRC and the MoJ was very poor during this period, even dysfunctional,’ they agreed. ‘The poverty of this relationship undoubtedly tested the CCRC’s ability to remain independent of MoJ, and to be seen to be so’.

‘In the Gary Warner case, reading between the lines of his judgement, there is a lot of pressure from officials for a quiet life,’ reflects Lord Garnier.

The case drew on CCRC board minutes which record opposition from a number of the then commissioners to recommendations of an MoJ review and seeming pressure from the ministry for the CCRC to adopt the reforms. The Westminister Commission cover this. It states: ‘According to the minutes… , commissioners were told that if the recommendations were not implemented their appointments might be terminated or not renewed. This was later recognised to have been an error. However, the foreword to the review stated that the departmental Minister “will be taking a keen interest” in the “timely implementation” of the recommendations” 2 and that “the Chair of the CCRC will be held accountable for the implementation of the recommendations and reporting on progress”. In JUSTICE’s view, this “suggests an unlawful interference by Government with the independence of the CCRC.”’

On this point a CCRC spokesperson said: ‘… the court dismissed the application in that case, concluding that the CCRC is both operationally and constitutionally independent from Government’. That is an interpretation of the judgment that has been disputed (here).  The CCRC goes on to say: ‘Although the Court found that the relationship between the CCRC and MoJ had been poor during the period 2016-2018, it concluded that that was not the case now, adding that: “The fair-minded and informed observer, knowing the facts as they currently stand, would not conclude that there was a real possibility that the CCRC was biased by its association with MoJ.”’

At the start of the Westminster Commission report, it is stated that the change in role of commissioners has ‘undermined the spirit and purpose’ of the legislation that established the CCRC. It then goes on to note: ‘The CCRC is operating in a completely different way’. Critics observe above that that is a process that happened ‘by stealth’ and ‘through the backdoor’.

‘I don’t know if it was done by deliberate “stealth” but it has come about because it could be done that way,’ comments Garnier. ‘If you were an applicant or lawyer you might have noticed that you were pushing boulders up hill a bit more and that the CCRC was getting a bit more sclerotic or less responsive.’

A new way of thinking about miscarriages of justice
‘When the CCRC started, it emerged out of legislation following some appalling miscarriages of justice such as the Birmingham Six,’ the peer explains. ‘Previously, a Home Office minister provided what was then the very narrow gateway through which references to the Court of Appeal were made. It was extremely difficult. It usually took journalistic interest, media pressure and campaigns to persuade a Home Secretary to refer a case to the Court of Appeal. It was a rather scattergun or blunderbuss approach and clearly wrong. The Act that created the CCRC engendered a whole new way of thinking about miscarriages.’

What next? ‘We will use our report as a springboard to raise the issue in parliament; but we hope that members of parliament, academics, journalists, lawyers and practitioners will also use it to promote discussion,’ Garnier says. ‘It is important that after 25 years the work of the CCRC should be re-examined and thought about. If there are things that can be improved, why not?’