The Criminal Cases Review Commission lacks independence and simply serves to reinforce ‘the traditional intransigence’ of the Court of Appeal, according to evidence submitted to the House of Commons’ Justice committee which calls on MPs to scrutinise the role of the courts. On Tuesday next week, MPs will return to their investigation of the role of the CCRC which began last January (see here).
The submission is written by Dr Dennis Eady and Professor Julie Price of Cardiff University’s innocence project and is co-signed by academics at 18 universities, campaigners and lawyers (including the JusticeGap).
- You can read the submission in full below
- You can read Matthew Scott’s review of The first miscarriage of justice: the amazing and unreported case of Tony Stock here
Eady and Price argue that the miscarriage watchdog, established in 1997 following scandals such as the Birmingham Six and Guildford Four, has not turned out to be the independent body campaigned for and that was envisaged in the 1993 report of the Royal Commission on Criminal Justice (RCCJ). Instead the CCRC has become ‘a filtering body that largely provides an extra barrier and re-enforcement of the traditional intransigence of the Court of Appeal’.
The Royal Commission was ‘absolutely clear’ that the body ‘should not be constrained by the traditional rules and limitations of the Court of Appeal,’ the Cardiff submission argues; adding that the Criminal Appeal Act 1995, which established the CCRC , ‘fundamentally undermined’ that proposal by ‘tying the CCRC’s referral procedure to those traditional rules’. Price and Eady argue that real possibility test must be changed in line with the Royal Commission’s original recommendation.
‘The real possibility test explicitly makes the CCRC subservient to the Court of Appeal: a fact often (in the past, even if denied now) that has been frequently conceded by the CCRC in defence of their approach.’
Dennis Eady and Julie Price
The Cardiff submission calls upon MPs look at the conduct of the Court of Appeal (and not to restrict its investigation to the CCRC). It cites the Tony Stock case which, they say, ‘symbolises and demonstrates fundamental problems with the criminal justice system’. They flag up an article by Glyn Maddocks who has acted for the Stock family for close to 20 years (‘What does it take to overturn a miscarriage of justice in the UK?’).
‘The Tony Stock case illustrates something that is at the very heart of the problem with miscarriage of justice cases — that is the Court of Appeal’s lack of willingness to engage with (or even recognise) the problem and its often intransigent, often arrogant and dare I say obdurate view that it knows best and is constrained by its own previous decisions, however wrong they may have been,’ argues Maddocks. ‘This is coupled of course with an awareness that it is almost impossible for it to be challenged when it gets a case as wrong as it has done with Tony Stock.’
‘The very fact that the CCRC gets more than 1000 applications per year is a national disgrace and something that politicians, the public, and anyone who is interested in the rule of law and the legitimacy and integrity of our criminal justice system, should be concerned about… . We need an urgent debate about why we continue to get wrongful conviction after wrongful conviction. It is very easy to be convicted of something you didn’t do, but it is almost impossible to prove, when you’ve been convicted, that you were not guilty. Despite all the rhetoric and the assurances that things have changed for the better, the case of Tony Stock shows that the Court of Appeal remains at the heart of the problem of wrongful convictions in this country.’
Joint Submission to the House of Commons’ justice select committee review of the CCRC
This document was presented for discussion to delegates at the universities’ Criminal Appeals Conference at Sheffield Hallam University on 26th November 2014, and circulated to other parties who might be interested in signing the final agreed version for submission to the House of Commons Justice Select Committee. The document illustrates a general concern among universities, and others working in the field of miscarriages of justice, about the current functioning of the CCRC and in particular its relationship to the Court of Appeal.
Signatories to this Document
University-based signatories (18 listed in total) Other signatories (8 listed in total)
Questions posed by House of Commons Justice Select Committee (“the Committee”) in its inquiry into the Criminal Cases Review Commission, announced on 17th October 2014 (here)
- Whether the CCRC has fulfilled the expectations and remit which accompanied it at its establishment following the 1993 report of the Royal Commission on Criminal Justice (RCCJ)
- Whether the CCRC has in general appropriate and sufficient (i) statutory powers and (ii) resources to carry out its functions effectively, both in terms of investigating cases and in the wider role of promoting confidence in the criminal justice system
- Whether the “real possibility” test for reference of a case to the Court of Appeal under section 13(1) of the Criminal Appeal Act 1995 is appropriate and has been applied appropriately by the CCRC
- Whether any changes to the role, work and remit of the CCRC are needed and, if so, what those changes should be.
This document, signed by the signatories listed above, is not intended to respond to all those questions, although some of its signatories will submit formal responses. Instead, its purpose is to urge the Committee to take this opportunity to consider wider fundamental problems with the criminal appeals system that emanate from the statutory relationship between the CCRC and the Court of Appeal. The signatories to the document have the following broad views: Has the CCRC fulfilled expectations? (the remit and the “real possibility” test)
- The RCCJ was established in response to the Birmingham Six and Guildford Four cases. Both groups had been appallingly failed by the Court of Appeal.
- The RCCJ was absolutely clear that the new body that became the CCRC should not be constrained by the traditional rules and limitations of the Court of Appeal.
- The Criminal Appeal Act 1995 fundamentally undermined the RCCJ’s proposal by tying the CCRC’s referral procedure to those traditional rules.
- The consequent “Real Possibility” test thus explicitly makes the CCRC subservient to the Court of Appeal: a fact often (in the past, even if denied now) that has been frequently conceded by the CCRC in defence of their approach.
- The result of this is that the CCRC has evolved not as an independent body that ensures miscarriages of justice are corrected but as a filtering body that largely provides an extra barrier and re-enforcement of the traditional intransigence of the Court of Appeal.
So what needs to be changed?
- The statutory test therefore must be changed in line with the RCCJ’s recommendation as a first step to reform.
Other matters for consideration
The Select Committee says it “may not examine or consider individual cases which are currently before the Commission or the courts”. However, we urge the Committee to consider issues demonstrated by cases such as Susan May and Eddie Gilfoyle (both currently with the CCRC) because the very fact that these cases are still under review is in itself illustrative of a major problem with the CCRC. The Tony Stock case symbolises and demonstrates fundamental problems with the criminal justice system. We refer the Committee to the question posed by Glyn Maddocks on 27th October 2014: ‘What does it take to overturn a miscarriage of justice in the UK?‘ Quoting Glyn Maddocks:
The Tony Stock case illustrates something that is at the “very heart of the problem with miscarriage of justice cases — that is the Court of Appeal’s lack of willingness to engage with (or even recognise) the problem and its often intransigent, often arrogant and dare I say obdurate view that it knows best and is constrained by its own previous decisions, however wrong they may have been. This is coupled of course with an awareness that it is almost impossible for it to be challenged when it gets a case as wrong as it has done with Tony Stock.
The CCRC has by and large not lived up to its promise and has not achieved what it could and should have achieved. There are various reasons for this: money, lack of will, fear of the Court of Appeal. Victims of injustice expect the criminal justice system to deliver the right result and are shocked when they are convicted of something they have not done. Society seems indifferent to their plight. The vast majority of the population never experience the working of the criminal justice system, whereas there is outrage whenever the NHS gets something wrong. The attitude seems to be that the criminal justice system is only for criminals, who don’t deserve the best because they are already outside the community.
There is a blind faith in the criminal justice system and nobody expects innocent people, in this country at least, to be jailed. The very fact that the CCRC gets more than 1000 applications per year is a national disgrace and something that politicians, the public, and anyone who is interested in the rule of law and the legitimacy and integrity of our criminal justice system, should be concerned about… . We need an urgent debate about why we continue to get wrongful conviction after wrongful conviction and what we can, should and must do to prevent these occurring with such regularity. It is very easy to be convicted of something you didn’t do, but it is almost impossible to prove, when you’ve been convicted, that you were not guilty. …despite all the rhetoric and the assurances that things have changed for the better, the case of Tony Stock… shows that the Court of Appeal remains at the centre of the problem of wrongful convictions in this country. The Criminal Cases Review Commission is very much an underdog, it is frightened and nervous of the Court of Appeal, and is unable to respond if it receives a stern ticking off, even when, as with Tony Stock’s case, it is convinced beyond all reasonable doubt that a clear injustice has occurred. This should be urgently addressed by all those who have an interest in the criminal justice system in this country and in ensuring that justice prevails above all else”.
Jon Robins, author of the book about this case, quotes Michael Mansfield: “The importance of this relatively unknown case for the public is that it should be recognised and heeded for what it is: not just a massive blot on the judicial landscape but a blot which has haemorrhaged to become the landscape itself.” A summary of how the Court of Appeal dealt with the Tony Stock case is given in the Appendix.
The signatories to this document have direct experience of cases of alleged miscarriage of justice through casework and/or academic/journalistic exposure to the problems with the criminal justice system, and;
- We concur with Glyn Maddocks’ call for parliamentarians to take this up urgently, and consider options that will “go some way to redress the unequal balance of power between the CCRC and the Court of Appeal”.
- We consider that the current extreme difficulty of getting a case overturned calls into question the legitimacy of the “beyond reasonable doubt” burden of proof that is core to conviction. We say that if there is evidence (new or otherwise) to show that a conviction is unsafe, then there should be a quicker, simpler procedure for a conviction to be overturned.
- We say that there is too much reliance on the need for “fresh” evidence. In many of the cases we have investigated there was evidence available at the time of trial that could have been used to reach a different verdict. We say that it is unfair on an appellant to be bound by these artificial rules and by decisions made by his/her legal team at the time, by generally requiring fresh evidence.
- We share a real concern as to the impact of legal aid cuts upon cases of genuine miscarriage of justice. Even together, we cannot deal with the number of enquiries that we collectively receive from prisoners claiming to be wrongly convicted. It is not appropriate for the government to shift the responsibility of rectifying incorrect decisions on to voluntary and pro bono casework organisations.
Common problems with the CCRC
- Some of us have direct experience of providing clear evidence to the CCRC of inadequate police investigations that suggest that the approach taken by the police has been to construct a case against their chosen defendant rather than pursue an agnostic search for the truth. We share a grave concern about the CCRC’s apparent unwillingness to recognise the possibility of corrupted police investigations and their potential place in miscarriages of justice, despite clear evidence in some cases and despite the climate that currently accompanies the Hillsborough enquiry.
- Some of us have direct experience of presenting the CCRC with very clear lines of enquiry that, if followed, may well lead to unearthing new evidence, but these enquiries have often not been conducted.
- Some of us have knowledge of cases that have been at the CCRC for many years, in one case twelve years, with that CCRC applicant commenting “in no other area of public life can an organisation be given a job to do and twelve years later it hasn’t completed that job.”
- All of us have grave concerns about the CCRC’s delays in making decisions in cases such as Eddie Gilfoyle and Susan May, which are overwhelmingly considered to be major miscarriages of justice.
- We are all concerned that only two cases have ever been referred by the CCRC to the Court of Appeal more than once (Tony Stock, and another – “Mr Z”). The fact that it has not done so in other cases is illustrative of its concerns about the reaction of the Court of Appeal to any multiple referring of cases. The CCRC may argue that it is statutorily bound not to refer because of the “real possibility” test, but any such response would only serve to reinforce and amplify our requests for a fundamental review of the criminal appeals system that should consider the relationship between, and the relative powers of, the CCRC and the Court of Appeal.
- All of us acknowledge that the CCRC is underfunded. However, we consider that there needs to be a cultural change at the CCRC to recognise without embarrassment the issues raised by Glyn Maddocks and others experienced in this field, and to work constructively with appropriate bodies to seek extended powers and funding.
- We call upon the CCRC and the government to acknowledge the need for the CCRC to seek an amended remit in line with that recommended by the RCCJ as stated:
“The role of the Authority should be to consider allegations put to it that a miscarriage of justice may have occurred…..and where there are reasons for supposing that a miscarriage of justice might have occurred, to refer the case to the Court of Appeal”
RCCJ 1993, Para 332, p 217
This is not intended to be a comprehensive academic or practical discussion of the law, or to present, at this stage (with the exception of the change in the test described above as a starting point) practical solutions to a major problem. It is intended to be couched in lay terms, to reflect a breadth of general concern, and to call for an appropriate forum for discussion with the aim of identifying realistic and radical solutions to what has become an intractable and tragic problem. It is not intended as a single joint response to the call for submissions; instead, those of us signing this share a desire to avoid this becoming a vital missed opportunity for the Committee to consider the wider implications arising from its current call.
Written by Jon Robins, JusticeGap editor
This is a brief note on the Court of Appeal’s treatment of the Tony Stock case in three separate appeals (1996, 2004 and 2008). The case has been described as a ‘self evident injustice’. The purpose of this note is to explain how the Court of Appeal has failed to get to grips with that ‘self evident injustice’. The answer is simple: the Court of Appeal has never properly looked at the case. The former CCRC commissioner Laurie Elks sees Tony Stock’s travails in the Court of Appeal as an example of a shift by the Appeal judges from what he calls a broader ‘holistic’ approach to a narrower ‘atomistic’ approach. On any ‘holistic’ analysis the prosecution case against Stock has been almost entirely washed away. However, according to the Court of Appeal’s ‘atomistic’ approach, on each subsequent appeal it regards the prosecution case as watertight and the impact of new evidence is only considered in the narrowest possible terms.
Tony Stock died on 29 November 2012. He spent 43 years fighting to clear his name in a case that has been described as ‘one of the most outrageous miscarriages of justice in modern times‘. Stock always claimed that he had been fitted up by two police officers. Following a three-day trial in July 1970, Tony Stock was sentenced to 10 years for his part in a violent armed robbery in Leeds. Stock did everything he could to challenge the conviction, including roof top protests and a 93-day hunger strike. His case was to go before the Court of Appeal on four separate occasions and once to the European Court of Human Rights. It was until recently the only case referred twice to the Court of Appeal by the Criminal Cases Review Commission. I’m not going to repeat the facts of the case but make the following points as they are relevant to the discussion below. There was concern right from the start about the impropriety of the police investigation, its reliance upon hugely controversial identification evidence and the integrity of the lead officer who left the force in disgrace shortly after Stock’s conviction. It was the view of Tony Stock’s solicitor that his client was ‘fitted up’ and it was on that basis he made a submission to the European Court of Human Rights in 1974.
The original prosecution case
The case against Tony Stock was always a castle built on sand: a single and highly controversial identification based upon a two to three second sighting of one witness on a dark night. The identification was made by the one witness at a staged confrontation as that one witness was driven 72 miles to Stock’s house. All four made the return journey (in a two door Mini Cooper) and Stock was interviewed and alleged to have made a series of nonsensical self-incriminating statements.
1979: A miscarriage of justice is revealed
In 1979 a member of a gang of armed robbers called the Chainsaw Gang admitted to the robbery. The supergrass Samuel Benefield went on to testify in the cases of some ten defendants in connection with 50 offences of robbery. He had 41 other offences taken into consideration, including the Leeds robbery. The testimony of Benefield who was interviewed three times by West Yorkshire Police in 1979 – as well as by the former secretary of JUSTICE Tom Sargant – was full of detail and overwhelmingly convincing. Benefield told Sargant that he was willing to go to court to set the record straight. That 1979 admission seemed to have exposed the Stock case to have been the outrageous miscarriage of justice many thought it was. The home secretary, Willie Whitelaw, decided not to pardon Stock. It would take 17 years for the case to come before the Court of Appeal.
Court of Appeal
1996: Samuel Benefield came to court under police protection to expressly say his gang committed the robbery and Tony Stock didn’t. The court did not accept Benefield’s evidence. They said he was making it up. In particular, Lord Justice Judge thought that the supergrass’s description of his gang’s return journey was ‘outside any possible contemplation’, so utterly illogical as to completely blow his credibility.
If Benefield was not telling the truth then, obviously, he was lying. This alternative narrative that the Court of Appeal appeared to accept raises obvious questions which are never posed by the court. Why would Benefield admit to a crime that he never committed (and for which a man had already done his time)? The only explanation was that there was a deal done between Benefield and Stock. That contention makes no sense. Benefield was sentenced to five years because of this supergrass status. His former colleagues got over 20 years.
Why would a career criminal who has admitted to a long list of armed robberies anyway go out on a limb for Tony Stock? There is no evidence they even knew each other. Putting that aside, how would a deal be struck? Supergrasses are separated from the rest of the prison population until trial. Any such deal would have to have been predicated on Benefield turning supergrass. Criminals do not plan to turn supergrass. The year after that failed appeal in 1996 the CCRC opened for business. The Commission had unprecedented statutory powers which meant it could compel documents to be produced. It obtained a 1979 internal report by West Yorkshire Police into the alleged perjury of Mather (the key police investigator in the Stock case) and his colleague.
This was an internal investigation never meant to see the light of day. West Yorkshire Police accepted the truth of the supergrass. Such was the detail provided by Samuel Benefield that it ‘inevitably casts doubt’ on the safety of the conviction. The police had no problem with the gang’s return journey. This was the report that Willie Whitelaw cited when he refused Stock his pardon. Tony Stock’s lawyers tried to get hold of it ahead of the 1996 appeal. The CPS blocked them and cited public interest immunity. The lawyers challenged through the courts only to be told by the Court of Appeal (before Lord Justice Taylor) that its contents were ‘either not relevant or not worth fighting for’.
2004: The CCRC sent the case back to the Court of Appeal. They believed that they had found new evidence that completely undermined what remained of the original case: the identification. The newly- disclosed 1979 investigation report also revealed that the one witness had been shown five photographs and it was highly probable that those photographs included a picture of the only suspect Tony Stock. Why else would the police show the one witness photographs? There was only ever one suspect.
The significance of the showing of such a photo was that it was: (i) directly contrary to Home Office guidance; (ii) raised serious questions about the integrity of the investigation; and (iii) had this be known, it might well have devalued the one witnesses’s evidence at the original trial. It was a revelation that seemingly undermined the last slender shred of credibility in the original investigation. This line of argument becomes very significant. The CCRC correctly anticipates that they are not going to be allowed to replay old arguments about Benefield – despite the fact that it was the court’s own error that led to his testimony being rejected in the 1996 appeal.
The 2004 Court of Appeal unfairly attacks the CCRC for sending a case back to them with ‘no new material’ (‘We question the value of this exercise 30 years or more after the original trial and appeal, when there was no new material…’). At the same time Lord Justice May accepted that Lord Justice Judge’s court in 1996 failed to grasp Samuel Benefield’s account of the exit route. (There are no apologies, just this: ‘There is little explanation of how the court in 1996 came to think as they did.‘) So the narrow point about the five photographs becomes the focus of two appeals in 2004 and 2008 – in the first appeal that argument is rejected. The court argues that the photographs could have been shown prior to the police coming into possession of Stock’s photograph. This was a misunderstanding of the Commission’s position.
2008: The CCRC sent the case right back. It had proved beyond any doubt that the five photographs were shown when the police had the picture of Stock. They went back and asked the one witness. But still the court, Lord Justice Latham, rejected the appeal. Former head of Essex CID Ralph Barrington describes this 2008 judgment as ‘defying gravity’. It is very difficult to make sense of the reasoning. Three points:
- Latham argued that, if it was the case that there was a photograph of Stock which the witness saw but did not recognise as his attacker (as was suggested), ‘that seems to us to be capable of strengthening the reliability of his ultimate identification’ — insofar as he was not prepared to identify him from a photograph (‘which can often be an unrepresentative likeness’) but was able to identify him in person. Of course, that might be possible. It is also possible that the photograph was a good likeness of Stock and the witness’s failure to identify him was due to the fact that he was given time with the photograph to conclude that the man was similar, but not the robber.
Latham said that there were two difficulties for Stock.
- The difficulty that was ‘perhaps more important’ was that, even if the court accepted Stock’s photograph was amongst the five, it was ‘clear … that it was not available before he helped with the Identikit which was agreed to represent a likeness which was “very close” to the appellant” and the circumstances of the confrontation as described by Wilson were “so dramatic that they must have been critical to the conclusion of the jury”.’ As for the Identikit, this was prepared from a witness’s recollection of an angry man threatening to crack his skull open with an iron bar. It was dark. The witness said he saw his attacker’s face for no more than two or three seconds. On his own evidence it was the ‘angry look’ he recognised. Obviously, the Identikit impression made was not of a man with an angry expression. So, as a matter of fact, it could not have been a good representative likeness of the angry face of the robber.
- The other ‘difficulty’ for Stock was he was making an argument ‘dependent upon an evaluation 28-years after the statements in 1979 and 1980 were made, statements which themselves were made nine and ten years after the events in question’. That was not Tony Stock’s fault. This shocking case should have been exposed as a miscarriage of justice in 1979.
This is how Lord Justice Latham closed the last judgment in the case of Tony Stock.
‘We accordingly dismiss this appeal. We do so recognising the tenacity with which this applicant has fought to overturn his conviction. It may be suggested in some way that this of itself should cause us to doubt the safety of the conviction. He has certainly persuaded the CCRC to expend considerable time and resources in support of this case. Whether or not the truth may be that he has been angered by the evidence of Detective Sergeant Mather, we will probably never know.’
Some might conclude that Tony Stock has received more than his fair share of British justice. After all, the Appeal judges have pored over the details of his case four times now – the last three times were 1996, 2004 and 2008. They would be wrong.