‘Partly excellent, partly abysmal’: 20 years of the CCRC
Almost lost amid the avalanche of publicity which accompanied the release of the Birmingham Six on 14 March 1991 was an announcement from Home Secretary Kenneth Baker MP. A Royal Commission was to be established which would examine all aspects of the criminal justice system in England and Wales. Among more than 350 proposals put forward by the Runciman Commission two years later was the creation of a ‘new body’ to examine allegations ‘that a miscarriage of justice may have occurred’ and where appropriate ‘refer the case to the Court of Appeal’. Another two years passed before the Criminal Appeal Act 1995 made provision for a Criminal Cases Review Commission (CCRC).
The Home Office published a lengthy discussion paper on how the new body might operate and finally on March 31 1997, the CCRC took up its duties.
The government couldn’t be accused of having rushed into setting up the Commission. As long ago as 1977, Lord Devlin in an official report to Home Secretary Roy Jenkins MP advocated an ‘independent review tribunal’ to investigate alleged wrongful convictions. In 1982, Home Secretary Leon Brittan MP flatly rejected similar calls from the Home Affairs Select Committee. It took the extraordinary worldwide campaigns on behalf of innocent Irish prisoners during the 1980s and 1990s to move the government towards belated action.
On its 20th birthday, has the CCRC fulfilled the hopes of those who urged its creation? What have been the Commission’s successes (and failures)? Do we still need such a body?
Over the next few weeks, the Justice Gap is going to be running a series of articles written by students from Cardiff Law School’s innocence project. Over the last 12 years, their innocence project has looked closely at 40 cases concerning people maintaining their innocence and involved some 750 students in their work.
It’s sometimes assumed there was unanimity among those who campaigned to overturn miscarriages of justice that an independent investigative body empowered to refer convictions back to the Court of Appeal was the best way forward. That’s not my recollection.
Chris Mullin MP, for example, proposed in his evidence to the Royal Commission a Court of Last Resort comprising ‘a clear majority of non-lawyers’ with ‘the power to quash that conviction without further reference to the Court of Appeal’. For my own part, the only solution I could envision worse than a final court composed of lawyers was one made up of non-lawyers. Others favoured retention of the Home Secretary’s powers to refer convictions assisted by a radically reformed and expanded C3 Division, the Home Office department then responsible for dealing with claims of wrongful conviction. In my more rational moments, I was forced to concede that a system under which elected politicians decided whether to send convictions back to the courts was a constitutional nonsense. It was quite simply wrong that political pressure – such as we’d exerted by the truck load in the Birmingham Six and other cases – should play a role in determining the fate of innocent prisoners.
I don’t recall much starry-eyed optimism among campaigners when the CCRC was created. We merely hoped the new body would improve on C3 Division whose woeful track record was almost beyond satire.
The division was poorly staffed by around 20 civil servants. None was legally qualified. Its processes were opaque and unaccountable. Officials mostly saw their job as rebutting evidence uncovered by prisoners, lawyers, journalists and campaigners. Cases dragged on for years frequently culminating in curt, inexplicable dismissals. C3 displayed absurd prejudices in relation to some cases.
I once found myself in conversation with a senior C3 official at a conference. He warmly praised what he described as the intelligence and sensitivity in which we were conducting the campaign for two Tamil men Sam Kulasingham and Prem Sivalingham (the East Ham Two) wrongly convicted of a 1986 firebombing and exonerated in 1994. I mentioned I also chaired the campaign for the men convicted of the 1978 murder of newspaper boy Carl Bridgewater. His demeanour changed dramatically as he launched into a diatribe against the Bridgewater Four campaign’s alleged reckless irresponsibility.
As our conversation drew to a close, I could only feebly comment I was reasonably certain I was the same person when chairing each campaign.
Has the CCRC out-performed C3? Undoubtedly. By July 2016, the Commission had sent 625 convictions back to the Court of Appeal from more than 20,000 applications. 70% of referrals resulted in quashed convictions. More than 400 people owed their freedom and/or exoneration to the CCRC. In 1993, when the Royal Commission published its report and public disquiet about wrongful convictions was at its zenith, the Home Secretary referred two convictions to the Court of Appeal on C3’s recommendation. Just two.
Has the Commission referred enough cases? Definitely not. I don’t subscribe to the notion asserted by some that most CCRC applicants – currently running around 1500 per year – are truly innocent. For whatever reason, many properly convicted persons try their luck with the Commission. Over the years, I’ve personally been approached by inmates who clearly regarded campaigners as naïve dupes ready to declare them innocent at the drop of a copy of Archbold. I recall one prisoner who was convinced a minor error in listing his previous convictions after the jury found him guilty rendered the whole of his trial a nullity. Another maintained his victim had deliberately thrust his torso onto a knife he just happened to be holding at the time (despite forensic evidence conclusively confirming otherwise). As a private individual who has never sought funding or remuneration, I was free to give such imposters short shrift. The Commission cannot do so with the consequence that unnecessary resources are spent on applications which are entirely without merit.
The Commission can claim many notable successes such as referral of the convictions of the late Frank Johnson, Barry George and the M25 Three. Lesser-known applicants include former nurse Amanda Jenkinson who spent five years in prison wrongly convicted of attempting to harm hospital patients by tampering with medical equipment. An exemplary CCRC investigation showed that expert evidence used to convict her was based on bogus mathematical calculations. Her conviction was quashed in 2005. Ms Jenkinson is today a strong supporter of ex-nurse Colin Norris convicted of murdering elderly patients with insulin. His case has been with the Commission since 2011. Unsurprisingly, she’s contemptuous of those who claim the CCRC isn’t fit for purpose.
At the same time, the Commission has committed quite shocking blunders such as last year’s refusal – after six years’ investigation – to refer the case of Eddie Gilfoyle back to the Court of Appeal. Convicted of murdering his wife in 1992, a mass of fresh admissible evidence supports his innocence. Without permission from Eddie and his lawyers, I’m unable to divulge the grounds on which the Commission dismissed his application except to say that its reasoning included numerous factual errors and absurdities. Likewise, in the case of Victor Nealon exonerated by the Court of Appeal in 2013, the Commission repeatedly declined to subject relevant case material to DNA analysis. This meant he spent a whole decade longer in prison than would have been the case if the CCRC had responded to reasonable requests from Mr Nealon and his lawyers.
The statutory requirement to second guess the Court of Appeal has encouraged the CCRC to adopt an excessively timid attitude towards referral decisions. There’s considerable scope for the Commission to take a much bolder approach. The CCRC isn’t obliged to believe it probable a conviction will be overturned but only that there’s a credible prospect of such an outcome. In such cases, the Commission’s inclination should be towards referral
A few days after the CCRC came into being, I picked up a message on my home answering machine. The caller said she was the Commission’s new chief executive, Glenys Stacey. Would I like a chat about the case of Danny McNamee convicted of the 1982 Hyde Park bombing whose campaign I chaired? His application for referral had lain with C3 for years with little apparent action. I immediately rang our campaign secretary Lin Solomon who’d directed a Channel 4 Trial and Error film about Danny’s case. Accustomed to C3 regarding campaigners as little better than vermin, we agreed the message was probably a hoax. Nevertheless, there was nothing to be lost in calling the Birmingham number provided. I had a couple of amiable conversations with the chief executive and later with the Commissioner appointed to oversee Danny’s case, former Chief Constable of Hertfordshire Police, Baden Skitt. Coincidentally, as an inspector with West Midlands Police, he’d been the first ranking officer to attend the scenes of the dreadful carnage caused by the 1974 Birmingham pub bombs. On 3 July 1997, just three months after the CCRC took up its duties, Danny’s conviction was sent back to the Court of Appeal – the Commission’s very first referral. His conviction was quashed in December 1998.
Even at that early stage, I suspected the new Commission’s spirit of openness and collaboration wouldn’t last. A solipsistic atmosphere soon prevailed under which the Commission engaged as little as possible with applicants, their legal representatives and others during investigations. This approach is inexplicable. A minority of representatives may be antagonistic and disruptive but most are as keen to determine the facts as the CCRC itself. If a more collaborative approach were taken in which investigations were conducted in partnership with lawyers and other representatives, this would help mitigate the severe resource constraints under which the CCRC is obliged to operate.
Commission staff regularly repeat the mantra that the CCRC doesn’t indulge in ‘piecemeal’ disclosure of evidence which may emerge in the course of an investigation. Why not? In many instances, applicants and their representatives will be better placed to understand the significance (or otherwise) of individual pieces of evidence.
The CCRC is often resistant to lines of inquiry proposed by applicants and their representatives. For six years, I chaired the support group for Sam Hallam whose murder conviction was quashed by the Court of Appeal in 2012. I also represented him in his application to the Commission. While we enjoyed an excellent relationship with Sam’s case review manager and the CCRC’s investigations adviser, we didn’t always see eye to eye on the lines of inquiry which should be pursued. From the outset, we stressed the importance we attached to a mobile phone taken from Sam when he was arrested. While the Commission didn’t reject the option of locating the ‘phone out of hand, there appeared to be little enthusiasm for doing so. The CCRC eventually took the rare step of calling on an outside police force – Thames Valley – to investigate Sam’s conviction. I attended a preliminary interview at HMP Bullingdon between Sam and the senior officer leading the investigation. Sam and I again raised the issue of the mobile ‘phone. The officer immediately grasped its significance and pledged his very first action would be to secure the ‘phone. At Sam’s 2012 appeal, photographic evidence from the mobile which showed he’d been in a Hoxton pub more than a mile away shortly before Essayas Kassahun’s murder was crucial in persuading the court to overturn Sam’s conviction (I’ll also freely admit that some other potential lines of inquiry I proposed to the Commission turned out to be of limited value).
A little over a month after the CCRC’s launch, a Labour government was elected with an overwhelming majority. In nearly every one of the 13 following years, the Commission saw its annual budget cut necessitating substantial staffing reductions. At the same time, applications to the Commission more than doubled leading to huge delays in mounting investigations and reaching decisions. The current CCRC Chair Richard Foster graphically points out that for every £10 the original Commission spent per application, he can now only spend £4. The process of steady budgetary decline has only recently been reversed by the present government. I can offer no explanation for the lukewarm – even hostile – attitude which successive Labour secretaries of state displayed towards the Commission but erosion of the CCRC’s capacity properly to investigate cases during those years has caused lasting damage.
Under s19 of the Criminal Appeal Act 1995, the Commission ‘may require the appointment of an investigating officer’ to conduct inquiries on its behalf. In the past, C3 Division was far too ready to initiate police inquiries as a convenient means of kicking contentious cases into the long grass. Many cases require levels of investigation which are manifestly beyond the Commission’s resources but the CCRC has been reluctant to call on outside forces to assist. Out of more than 20,000 cases since 1997, the CCRC has exercised its section 19 powers on less than a hundred occasions. There are, of course, legitimate concerns about police officers investigating their peers but it should also be acknowledged that in many instances there’s no alternative. Failure to conduct thorough investigations has almost certainly led to the pleas of genuinely innocent persons being rejected.
The Runciman Commission commented ‘many people who believe that they are the victims of miscarriage of justice feel that they have a right to be heard’. Some CCRC staff are reluctant to meet with applicants. Arranging face to face meetings – subject to necessary restrictions – would enhance confidence in the CCRC and assist the investigative process.
Missing the point
Repeated criticism of the Commission, however, rather misses the point. That there should be any need for a body like the CCRC represents a major indictment of our criminal justice system. The principal focus should be on ensuring miscarriages of justice don’t happen at all. Only 21 of the Runciman Commission’s 352 recommendations related to the question of how wrongful convictions might be corrected after the event. The rest concerned police, prosecution, trial and appeal procedures as well as forensic science issues aimed at preventing wrongful convictions from occurring in the first place.
In 1993, many of us felt the Runciman Commission’s projected reforms to the criminal justice system didn’t go far enough. Our reservations proved irrelevant as many of the Commission’s limited proposals were never implemented. The Court of Appeal has maintained its traditional antipathy towards persons claiming innocence. A panoply of legislative measures such as the Criminal Justice Act 2003 have placed accused persons at even more of a disadvantage increasing the likelihood that innocent men and women will be wrongly convicted and imprisoned.
Non-disclosure of vital evidence has been a major causal factor in most miscarriages of justice. On 4 June 1992, I sat with Judith Ward and her legal team as the Court of Appeal gave its reasons for quashing her convictions for the 1974 M62 coach explosion and other bombings. In Judy’s case, police, prosecutors and scientists deliberately withheld no less than 43 items of evidence which would have assisted her defence at trial. We were delighted as Glidewell LJ laid down robust guidelines regarding the duty to disclose in future cases. As chair of Judy’s support committee, I was interviewed after the judgment by the Guardian newspaper. I indiscreetly enthused that the Court’s judgment was so good ‘it was almost as if we’d written it ourselves’. I should have heeded the timeworn cliché that if something seems too good to be true, it probably is. Almost immediately, police, prosecutors and others launched a campaign to have the judgment in Ward set aside. Four years later, the Criminal Procedure and Investigations Act 1996 significantly watered down the new disclosure rules. In some respects, the CPIA even made matters worse than had been the case before the Ward judgment.
As the CCRC enters its third decade, I’ll raise a qualified cheer. Hundreds of innocent men and women have achieved justice thanks to the Commission’s efforts. I must, nevertheless, also nominate the CCRC for a Curate’s Egg award. Its record is partly excellent and partly abysmal. Or to borrow words which often appeared in my own school reports ‘just about satisfactory but could do a lot better’.