The Ministry of Justice was accused of deliberately undermining the independence of the miscarriage of justice watchdog and ‘clipping the wings’ of its commissioners in the High Court last week. Lawyers acting on behalf of prisoner Gary Warner, sentenced to 16 years in prison for his role in an armed robbery, argued that the Criminal Cases Review Commission (CCRC) was not sufficiently free from government control. Warner is challenging a decision by the watchdog to reject his application.
Lord Justice Fulford and Mrs Justice Whipple heard the arguments remotely in what could be a key challenge to the CCRC which is the subject of an inquiry by the all-party parliamentary group on miscarriages of justice and has been accused of being overly cautious by critics including the House of Commons’ justice committee.
Warner’s lawyers called the relationship between the MoJ and the CCRC ‘dysfunctional’ and accused the ministry of ‘misusing its sponsorship role’ by ‘placing pressure’ on the commission to ‘reconstitute its Board so as to reduce the influence of Commissioners’. They also argued that the CCRC introduced its own internal reforms with the effect of downplaying the power of commissioners out of a ‘fear of displeasing its sponsor’.
At the heart of the challenge are changes unilaterally imposed by the MoJ to the tenure and pay of the 11 CCRC commissioners whose independence was supposedly guaranteed under the Criminal Appeals Act 1995.
The independence of the commissioners and their ability to properly review cases is critical to the watchdog because it takes the agreement of three commissioners to refer a case where there are concerns about the safety of a conviction back to the Court of Appeal. The number of referrals made by the watchdog has collapsed over the last few years during a period in which a generation of CCRC commissioners has been replaced by a new intake on less preferential terms.
From the start of the CCRC in 1997 until 2012, commissioners were employed on a full-time or near full-time basis on generous salaries (£93,796 in 2013) and a pension. Almost all commissioners are now employed on minimum one-day-a-week contracts and paid on a £358 daily rate which is significantly less than a basic judicial rate (for example, £502 a day for a judge in the first tier tribunal).
As has been reported elsewhere on the Justice Gap, these changes were bitterly resisted by commissioners at the time and who have since been mostly replaced. Warner’s lawyers in their skeleton arguments seen by the Justice Gap, quote from CCRC board minutes from April 2016 which recorded that the board was ‘extremely concerned’ about a draft candidate information pack moving to the new packages. ‘In the event the Secretary of State overruled the CCRC and proceeded with a competition, concluded in 2017, based on a fee paid model and a tenure of three years,’ it continued. As a result of that recruitment round, five new commissioners were appointed.
Minutes from February 2017 revealed that the then CCRC chief executive Richard Foster told the board that the MoJ were to change previous policy and no longer approve re-appointments ‘as a matter of course’. This appears to have prompted a stand-off between commissioners and non-executive directors who complained that board time spent on the subject appeared ‘self-serving’.‘Commissioners commented that it was not self-serving to try to preserve the commission’s core decision-making capacity on the lines Parliament intended,’ the minutes recorded (as reported here).
The issue came to a head in February 2018 following an intervention by a senior civil servant, Alison Wedge, the MoJ’s head of governance, who addressed the board to discuss recommendations following an MoJ review. A commissioner asked whether the board was required to comply with the ministry’s recommendations.
Wedge informed the board if the secretary of state, David Gauke approved the report ‘it would then become government policy’. She was reported to have then warned the supposedly independent watchdog that it ‘would be in conflict with Government policy if it did not accept and did not implement the recommendations’. The minutes went on to say: ‘AW said the SofS recommends the appointment of Commissioners to HMQ and that similarly he could recommend removal. However, AW hoped that there would be no need for such a situation to arise…” (emphasis added).’
Warner’s barrister Matthew Stanbury called her comments ‘a thinly veiled threat – if the threat was veiled at all’. ‘Her words are going to have a chilling effect on anyone who might be a commissioner who might be minded not toe the line,’ the barrister told the court. He acknowledged that she had since ‘disavowed the remarks’; although, he pointed out, she had not disavowed the MoJ’s position on reappointment. Stanbury argued that it was ‘artificial’ to look at ‘the comments in isolation’. ’This was not a one off,’ he said. ‘This is a theme – there has been no particular secret about this theme. This wasn’t just about a lack of consultation but an active attempt to clip the commissioners’ wings.’
Stanbury called the relationship between the CCRC and the MoJ ‘dysfunctional’ and argued that the relationship had not changed followed the appointment of Foster’s successor, Helen Pitcher, rather it was ‘the commission’s acceptance of the relationship’ that had changed.
A former commissioner, Ewen Smith, who stepped down in October 2016 after serving 10 years, spoke to the Justice Gap about his concerns (see below). ‘It is my view that appointing fee-paid Commissioners on a daily rate with fewer days available could undermine their ability to discharge their responsibilities under the Criminal Appeal Act 1995 in respect case work and governance,’ he said. ‘I believe there is the potential to weaken the decision making process thereby interfering with the Commissions independence.’ You can read his full comment below.’
The Justice Gap has also seen the CCRC’s skeleton argument supplied to the court as an interested party which states that it ‘does not consider that any of its casework decision-making’ was ‘under any threat of independence or that the independence of its members in the performance of their functions is in any way absent as a consequence of appointment duration’.
Instead the CCRC argues that ‘the introduction of the fee-paid model requiring a minimum of 52 days each year’ has ‘brought benefits to recruitment’ such as ‘improving the diversity of the age, ethnicity and professional background’ of commissioners. ‘The Chair views the transition to the fee-paid model to have been beneficial, both operationally and financially, and that performance has not deteriorated but improved,’ it says. ‘… There is a requirement that Commissioners are able to work more than the minimum number of days (to ‘flex up’) as required. This model allows the Commission to increase working days to meet business needs and to match Commissioner days to the flow of cases.’
The Warner case is ongoing.
Former CCRC commissioner Ewen Smith on the CCRC, commissioner appointments and independence
Having researched the Scottish model (SCCRC) I was satisfied that the appointment of fee-paid Commissioners would be of no value to the CCRC and indeed would eventually lead to the undermining of the case work functions of both Commissioners and Case Review Managers. Many of the cases that Commissioners lead on are highly complex and at times had huge volumes of material that needed to be digested so that a fully informed decision to refer, or not to refer, a case to the CCA could be made.
Independence has two strands, the first in relation to case work and the second in relation to the governance of the Commission which was firmly planted at the door of Commissioners by Parliament in the Criminal Appeal Act 1995. In relation to case work at no time during my appointment was I ever restricted from accessing whatever relevant material I wished to if held by a public body. That may well be the value of holding a Royal Appointment. However, in terms of the governance of the Commission myself and my fellow Commissioners were Board members. It is my view that appointing fee-paid Commissioners on a daily rate with fewer days available could undermine their ability to discharge their responsibilities under the Criminal Appeal Act 1995 in respect case work and governance. I believe there is the potential to weaken the decision making process thereby interfering with the Commissions independence.