May 23 2022

Miscarriage of Justice watchdog chair dismisses concerns over independence

Miscarriage of Justice watchdog chair dismisses concerns over independence

'Thinking'. Koestler Awards 2017 - from Proof 4

The head of the miscarriage of justice watchdog last week dismissed concerns raised by a parliamentary inquiry about its lack of independence for government and the ‘downgrading’ of its commissioners. The chair of the Criminal Cases Review Commission, Helen Pitcher was talking at the launch of a report by an inquiry into the organisation set up by the All Party Parliamentary group on miscarriages of justice.

‘I can assure you that neither the Secretary of State for Justice nor the Ministry of Justice interfere with what we do in relation to the core decisions we take in cases,’ Pitcher told an online audience of more than 180 . ‘They may have a view on how we organise ourselves from time to time but there is no pressure placed upon us.’ The co-chair of the inquiry known as the Westminster Commission, Lord Garnier QC said that their report was ‘not an indictment of the CCRC’. ‘The CCRC and its staff are certainly not in the dock,’ he continued. ‘We hope it will encourage all those interested in justice to see the CCRC as a much needed public body but one that can’t stand still.’

Garner, a former solicitor-general, explained that their investigation examined the current structure of the CCRC ‘in light of its founding legislation and the resources needed for it to be effective’. ‘We consider the diminished role of the commissioners is not in line with either the spirit or intention of the legislation and our report recommends the role of the chair and the commissioners should be to strengthened and the processes for their appointment should be reviewed given constitutional significance of the CCRC.’

CCRC chair Helen Pitcher welcomed the report but insisted there were ‘a couple of things that are out of date or inaccurate’. The chair rejected the point made by the Westminster Commission and fellow panellists that the role of commissioners had been sidelined. ‘The commissioners feel very strongly that their role has not been diminished,’ she said. She pointed out that by the end of this month they will have referred 70 cases in the last 12 months. This would represent a significant increase on recent low levels of referrals which dropped to just 12 in 2017 but is likely to include a very large number of multiple referrals relating to the same events (notably, the Post Office Horizon cases). 

Lord Garnier explained that the CCRC  was ‘significantly underfunded’ and that the funding problem was ‘exacerbated’ by the lack of legal aid available for applications. He proposed revisiting the Criminal Appeal Act 1995 under which the CCRC was established and, in particular, scrapping the ‘real possibility’ test (i.e., the commission can only refer cases back to the Court of Appeal if it is satisfied there is a real possibility that the court will overturn them). He argued that the ‘predictive nature’ of the test led the CCRC to be ‘too deferential to the Court of Appeal’. ‘They may disagree; but that’s our view,’ he said. ‘The court therefore considers that the test acts as a brake on the CCRC’s freedom of decision.’

The watchdog came under sustained fire from panelists. Michael O’Brien, who spent 11 years in prison wrongly convicted as one of the Cardiff (Newsagent) Three, doubted whether his own case would be referred today. ‘I know at least 50 cases where new evidence has come to light and the CCRC won’t refer. I am perplexed by that.’ He added that he didn’t criticise the CCRC lightly. ‘They gave me my life back,’ he added. O’Brien called for reform and a constructive engagement with the group. ‘Without the CCRC, there would’ve been a lot of people who would not have got their freedom,’ he said. 

Dr Hannah Quirk, reader in law at King’s College London, expressed concerns about the lack of independence of the CCRC from government which was the issue that the Westminster Commission report led on (for background see here). ‘We’ve had a number of alarm bells to suggest the Ministry of Justice is trying to bring the CCRC much more closely [into government] and monitor what’s going on and exercise control, not over the case work – it doesn’t need to be as crude as that – but on how the organisation operates.’

A submission by the human rights group JUSTICE to the Westminster Commission described the MoJ’s handling of a review of the CCRC as suggesting ‘an unlawful interference by Government with the independence of the CCRC’. Quirk said that it was ‘completely improper’ that the CCRC was subjected to the tailored review process by the ministry. ‘If we look at the changes to the commissioners who are the decision-makers – these are the people who decide if a case should be sent back to the Court of Appeal or not – their terms have been downgraded significantly.’

She pointed out that commissioners used to be ‘all on salaries, generous salaries’ whereas most were on a daily rate. ‘This matters in terms of how the casework is conducted and also the culture of the organisation,’ Quirk said. ‘You need the commissioners there to learn about the role, to develop into it and fight for the commission. If they’re popping in and out on different days a week they can’t do that. ‘

Quirk argued that the CCRC had become ‘far too bureaucratic’ and ‘very top-heavy’. ‘What is needed is boots on the ground, people getting out to investigate these cases. The KPI (key performance indicator) culture is stifling the organisation.’ She pointed to the emphasis on ‘arbitrary targets’ set out in the KPIs. ‘It is important that waiting lists are reduced but work has to be done properly because the CCRC is the last resort for so many people in a desperate situation.’

Quirk was critical of the CCRC’s response to the Gary Warner case in which the High Court talked of the CCRC’s ‘dysfunctional’ relationship with its sponsor department the Ministry of Justice. She called the the judicial review ‘a lost opportunity for the CCRC to reassert its independence’. ‘I hope it uses the very constructive suggestions within this report to change that to improve its work,’ she added..

The investigative journalist David Rose accused the CCRC of ‘Panglossian wishful thinking’ and ‘a reluctance to give the sort of leadership required to correct what is becoming quite serious situation’. He pointed out that almost 10 years ago critics (notably the academic Dr Michael Naughton and journalist Bob Woffinden) called the CCRC ‘no longer fit for purpose’. ‘I resisted that idea for a very long time and had even written in defence of the CCRC  against that notion. But lately I have begun to find myself listening very carefully to what he and other critics have said because it seems to me there are really serious problems here.’ He echoed Quirks’ concerns about ‘downgrading’ commissioners.

Rose cited the case of Colin Norris referred back to the Court of Appeal last month as an example of ‘how stifling and slow’ the CCRC can be. ‘It’s taken eight years from application to referral whilst a young man wastes the best years of his life if he’s not guilty in prison. I think that comes under the definition of “cruel and unusual punishment” under article 3 of the European Convention on Human Rights.’

Rose was critical of the past chair, Richard Foster who was ‘always very reluctant to criticise anything about government’. ‘Until finally just before he retired at his farewell conference, he came out with this astonishing fact for every £10 the CCRC had ten year age, he only had £4.’ ‘I appreciate that Helen has a job to do to defend the organisation; but maybe the time has come to say loud and clearly to government: “We cannot go on like this. We cannot do the job the parliament has asked us to do with resources that are this thin and with such a thin commitment from commissioners.”’