Until we read the recent remarks by Richard Foster, chair of the Criminal Cases Review Commission (CCRC, or the Commission for short), published in the Justice Gap, members and directors of innocence projects and other similar projects based in UK universities (IPs) thought they were developing a good relationship with the CCRC. (In answer to a question about the value of university innocence work, he said: ‘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?)
After all, most of our work leads to the submission of applications to the Commission on behalf of our clients, so it’s in our interest to co-operate and be on good terms with its staff.
However, with throwaway remarks comparing CCRC staff to consultant doctors and members of IPs to drunken students, Richard Foster has decided to characterise IPs and their members as less competent than the CCRC’s ‘highly skilled, qualified and experienced workforce’, backed by an annual budget of over £5 million and ‘far reaching statutory powers to obtain casework material’. On that basis he advises IPs in somewhat condescending tones to limit our work to reviews of defence files and clarifying what our clients appear to be telling us.
Predictably angry responses from those of us who work in IPs has led Foster to restate his position in more tactful terms.
He reminds us of what we know only too well, that the CCRC has the power to obtain material which is essential to support a successful referral to the Court of Appeal, Criminal Division (CACD) – material which IP members can lay their hands on only as a result of a struggle, if at all. For that reason, IPs should leave full case reviews to the CCRC. He repeats the advice given by David Robinson, a case review manager from the CCRC, to the conference hosted by Sheffield University School of Law in 2013, that IPs should mainly interpret and put in order clients’ ‘muddled and confused accounts’. We may also develop alternative case theories and offer ‘concise, informed and insightful submissions to the Commission.’
In disagreement with this proposition that IPs should play no more than a supportive role of this kind, I will explain why innocence projects are unlikely to restrict themselves to a simple review of defence files and a visit to a prisoner, and would indeed be wrong to accept such a restriction, despite the fact that the culmination of our work on a case must normally be an application on behalf of the client to the CCRC.
Possibilities open to IPs
David Robinson advised IPs to do what ‘a good legal representative’ might do. IPs may not have much money, but they do have resources and opportunities which enable them to support clients’ applications to a far greater extent than most legal advisers. They have far more person hours available than any law firm struggling to survive on the limited funds available to assist clients dependent on legal aid.
They are able to take advantage of being embedded in academic institutions whose facilities we use and whose staff we can consult. They can often obtain help from the same experts that the CCRC might use, who are willing to work with us pro bono, and draw on advice from highly experienced solicitors and counsel who are also willing to advise pro bono.
They carry out objective reviews of cases, being no more participants in an adversarial system than the CCRC is.
David Robinson advised IPs to ‘be realistic about what you are going to be able to actually do on a case – in most cases it is going to be impossible for you to get your hands on the kind of undisclosed material that we rely on so often in order to find reasons to refer cases. In our experience, the non-disclosure of material that might have assisted the defence or undermined the prosecution case is the single largest cause of wrongful convictions but it is also, without any doubt, one of the most difficult areas to investigate.’
IPs are very well aware that our main task is to work out what important material has been withheld from the defence and then to obtain it. For us, persuading the CCRC to actually make use of its section 17 powers is a last resort. We can make better submissions to the Commission if we have already seen the material we need and integrated it into our submissions.
The UKSC decision in the Nunn case provides support for our requests for undisclosed material.
‘Miscarriages of justice may occur, however full the disclosure at trial and however careful the trial process. A convicted defendant clearly has a legitimate interest, if continuing to assert his innocence, to such proper help as he can persuade others to give him… Quite apart from the defendant’s interest, the public interest is in such miscarriages, if they occur, being corrected. There is no doubt that there have been conspicuous examples of apparently secure convictions which have been demonstrated to be erroneous through the efforts of investigative journalists, or of solicitors acting on behalf of convicted persons or, sometimes, of other concerned persons (para 36).’
The police and prosecutors ought to exercise sensible judgment when representations are made on behalf of convicted persons. If there appears to be a real prospect that further enquiry will uncover something which may affect the safety of the conviction, then there should be co-operation in making it. It is in nobody’s interests to resist all enquiry unless and until the CCRC directs it (para 41).
This judgment follows the House of Lords in ex parte Simms and ex parte O’Brien (1999), which overturned refusals by prison staff to permit journalists to interview prisoners. Lord Steyn’s view was:
‘It has been demonstrated on the hearing of the present appeals that in recent years a substantial number of miscarriages of justice have only been identified and corrected as a result of painstaking investigation by journalists… [The prisoners] seek to enlist the investigative services of journalists as a way to gaining access to justice by way of the reference of their cases to the Court of Appeal.’
The reasons given for the need for the contributions made by journalists were given by the very experienced and successful defence and criminal appeal lawyer Gareth Pierce, quoted approvingly by Lord Steyn in his speech. They include the following:
There is no legal aid for investigations (except in very limited and exceptional circumstances). Although the CCRC was expected to be able to conduct investigations into cases far more pro-actively than the Home Office had been able, it finds itself seriously under resourced and underfunded. The report of its Chairman this year to the House of Commons Home Affairs Committee spoke of incoming cases being required to wait at least two years before they can be assigned to a case worker. The cases with the best opportunity remain those which have arrived at the Commission fully researched and investigated with new evidence compellingly presented (emphasis added).
The Commission may regard this view expressed 17 years ago as no longer valid, but the same view was held by Nunn’s legal team in 2014 ‘that in order to demonstrate to the CCRC that this is a proper case in which it should launch a review, the claimant needs, via his solicitors, to re-investigate the several matters which they have identified and perhaps more’. The UKSC did not dispute the usefulness of thorough investigation by representatives and others preceding the making of an application to the CCRC and designed to persuade the CCRC to conduct a thorough review of the issues raised by the applicant and of the case in general.
The need to persuade the CCRC
Why would lawyers, journalists and, in turn, organisations such as Innocent which support and advise prisoners who claim to have been wrongly convicted and their families and personal supporters, and subsequently IPs, take the view that it is necessary to persuade the CCRC to conduct thorough reviews of cases by seeking fresh evidence themselves before compiling applications?
One reason is that applicants are advised in clear terms that they cannot apply to the CCRC unless they have fresh evidence. The application form states:
‘For us to send your case to the appeal court we usually have to show them something new and important which will make them think in a different way about your case. It normally needs to be something that has not been heard by a court before. We will be unable to help you if you only repeat the same points that were made at your trial or appeal.’
On the basis of this and the appellate and administrative court decisions (ex parte Pearson in particular) lawyers routinely advise potential applicants that they must have fresh evidence before they can apply to the CCRC.
Potential applicants who have no idea of what significant undisclosed evidence might exist are likely to give up at this stage. Those who do persist are likely to seek further investigation of issues already considered at their trials. They do so because they believe that these issues were never previously investigated fully.
For example, in two cases reviewed by the MJRC, a key issue for the applicants was that illegitimate pressure and coaching by the police had caused prosecution witnesses to change their evidence. There was evidence available at the trials to show significant additions had been made in the course of making witness statements separated by a long period. Witnesses had no doubt been cross examined on any inconsistencies between previous statements and their oral testimony, but clients had information giving them reasons to allege impropriety on the part of the police, which had not been considered by their defence teams.
These cases had been previously investigated by the CCRC, and clearly the Commission could have interviewed the witnesses concerned, and obtained police interview notes and other records. But the applicants did not know what to ask the Commission to do, and the applications were dismissed without any investigations being carried out. The MJRC now has the task of finding additional material which we can use to persuade the CCRC to do what we think they should ahve done in the first place.
We understand that the Commission does not wish to waste resources investigating cases that have no hope of success. But we are asked to investigate cases like the two mentioned above, and when we find out precisely what clients are trying to say, we are also able to find that there is enough substance in their claims to warrant interviewing the witnesses. It would clearly be pointless to refer these cases on the issues already considered by the Commission and rejected as apparently exhausted in the trial or appeal processes, without finding significant fresh evidence which supports our clients’ claims.
It is significant that in these and other cases which are under review by innocence projects, applications have been made to and refused by the CCRC. The cases of six individuals in which applications have been previously refused by the CCRC are or have been under review by the Sheffield Miscarriages of Justice Review Centre (MJRC), and in each of these actual or at least strong indications of the existence of fresh, including previously undisclosed, evidence have been found. In that respect, the MJRC may succeed where the CCRC has failed.
Criticisms of the CCRC
In 2012 I agreed to present the views of various campaigning and support organisations at a meeting organised by the Innocence Network UK (INUK) to review critically the work of the CCRC. These organisations made a number of allegations against the Commission arising from the experiences of their members.
South Wales Against Wrongful Convictions stated that:
‘[The CCRC] reject about 90% of applications very quickly because they don’t raise anything new – this creates the situation where much of the investigation has to be done by the applicant or their representatives if they are fortunate to have any. The CCRC do not investigate unless a good chunk of the work is already done for them.’
The universal view of these grass roots organisations was, as I reported to the conference:
‘The CCRC is left with the easy option of doing no more than desk top reviews, processing cases quickly, and as a result giving the appearance of being an efficient organisation. Rarely will a case review manager work proactively on a case, looking for leads and fresh evidence that could substantiate an applicant’s claims (as former commissioner Laurie Elks [who spoke at the same conference] confirmed this morning). On one occasion, asked to interview a police officer, the case review manager refused because he predicted the officer would lie to him!’
The grass roots organisations called for reviews that are proactive and for more and better training of CCRC staff, and for additional state funding that would enable the CCRC to provide a better service.
IPs and support organisations are not the only critics of the CCRC. Bob Woffinden, citing the cases of Andy Malkinson and Jong Rhee, commented ‘If the CCRC is not referring these, then it is simply not fulfilling the role that the public expect of it. It has rejected not only these two, but hundreds of other wrongful convictions.’
Recently Eric Allison wrote in the Guardian, ‘On paper, the CCRC provides a safety net for the wrongly convicted. But it has disappointed those who hoped the CCRC would deal swiftly and surely with miscarriages of justice. The quango is under-resourced and seemingly unable to carry out the in-depth investigations required when prosecutions are questioned.’
The criticisms listed above concern mainly the CCRC’s failure to review, or to review adequately. To them we can add examples of bad practice by the CCRC when it does carry out in depth investigations.
The case of Susan May was referred by the CCRC to the appeal court which handed down its judgement in December 2001. The CCRC continued to work on the case, in which the only significant evidence consists of three marks on the wall adjacent to the victim’s bed, said to be made at the time of the murder, to be fingerprint marks identified as May’s, and to consist of the victim’s blood. Unfortunately the CCRC concerned itself with seeking possible innocent explanations for why the marks might have been deposited at or after the time of the murder. Working with an independent fingerprint expert and following a careful review of defence files, corresponding with the defence expert at trial, and obtaining significant previously undisclosed material, the Sheffield Innocence Project (subsequently MJRC) was able to show that the apparently incriminating marks were in fact old and predated the murder, and that the court which tried May had been misled on this issue.
In another murder case reviewed by the MJRC, a witness had come forward whose evidence was read at the trial, because she had not attended the court. Our client’s solicitor passed her fresh evidence to the CCRC, who instructed the original investigating police force to re-interview the witness. This was an inappropriate way of approaching the witness, who refused to co-operate. The MJRC was left to deal with this problem.
And in yet another murder case, the MJRC’s client’s defence was that it was not he but another man who was responsible, whom he named. This client had also made a previous application to the CCRC, who discovered that the firm of solicitors instructed by him were at the same time acting for the man alleged to be the actual culprit. But the CCRC accepted the solicitors’ assurance that our client’s interest had not suffered despite what appears to be a blatant conflict of interest likely to have affected the preparation of the case for trial.
Since the MJRC can find no fresh evidence relating to this issue, we can only assume that the CCRC will refuse to entertain a further application on it. The MJRC is proactively investigating other issues in this case neglected by the CCRC in its previous largely reactive review of it.
The experiences of innocence projects, lawyers, journalists and prisoner and family support organisations have caused them to choose the difficult task of investigating cases as far as they possibly can before submitting applications to the CCRC, rather than simply assisting applicants to express themselves more clearly.
Richard Foster repeats the criticism of IPs that they process cases too slowly. All IP directors agree that they should speed up their review processes, and are developing systems to improve efficiency. But delays are inherent in any criminal case investigation and review process, for many reasons, as CCRC staff must know from their own experience.
Bob Woffinden added, a further criticism of the CCRC, which is that, ‘even when it reaches correct decisions, it takes an eternity to do so. Eddie Gilfoyle was wrongly convicted in July 1993 and his case has attracted intermittent publicity ever since. Merely the most recent cycle of publicity about his wrongful conviction can be traced back to February 2008, when The Times published a major article. More than seven years later, the CCRC has still not pronounced upon the case (see the Justice Gap here).
Both he and Eric Allison, journalists who have long experience of investigating miscarriage of justice cases, observe that the CCRC itself is responsible for delays in reaching decisions on cases. In one MJRC case (Susan May), the CCRC was already actively renewing the case when we sent the Commission an expert report we had commissioned and which we believed proved our client’s innocence. The CCRC did not pause, but immediately appointed its own expert to check up on ours. The CCRC’s expert agreed with ours. That was more than a year ago. We are still waiting to hear their decision. It might improve the CCRC’s efficiency and reduce expenditure if they could simply accept such expert reports, once they had satisfied themselves that the expert concerned was a genuine expert, and truly independent. After all, experts working pro bono are not doing so in expectation of further paid commissions from unfunded orgnisations.
Innocence projects are not claiming to be in some general way more competent than the CCRC. They admit to many mistakes and face difficulties in providing the service to clients that they wish to provide. They also know that the CCRC can work to a very high standard, that they must collaborate with the CCRC and have a good and mutually supportive relationship. Recent contact with the CCRC has been (Richard Foster’s recent comments excepted) very positive. The efficiency of case reviews has clearly improved greatly under Richard Foster’s stewardship, despite the reductions in funding. IPs would ignore past mistakes by the CCRC if it were prepared to ignore theirs, concentrate on future improvements, and treat them with respect rather than condescension.