The head of the miscarriage of justice watchdog last night claimed that ‘fundamental shortcomings’ on the part of police and prosecution was contributing to a ‘real risk amounting to a near certainty’ that innocent people were in prison.
Speaking last night, Richard Foster, who stands down as chair of the Criminal Cases Review Commission (CCRC) next month, talked about the impact of the disclosure scandal and the ‘widespread and worrying lack grip’ of investigators in the basics of criminal investigation.
‘A lack of grip which is resulting in those who should be brought to justice not being properly investigated, in trials collapsing at the courtroom door or during trial itself; and still worse convictions which prove unsafe and which were entirely avoidable,’ Foster said.
Foster called for the police and CPS to launch their own review of existing convictions. An offer by the CCRC to assist was apparently rebuffed which, Foster said, was ‘disappointing’.
In my view there is a risk that serious miscarriages of justice will go undetected and unrectified as a result.
The CCRC’s head called on the government to legislate to allow the watchdog to disclose reasons for refusing to refer case. He claims that there were ‘many cases’ that the CCRC had looked out and rejected where their investigation turned up new evidence which bolstered the prosecution case that been been disclosed to the applicant and their lawyers in a statement of reasons but which the public never understood. Under the commission’s governing statute, it is not allowed to disclose such information. Foster said that the restriction was an ‘obvious reputational issue’ for the group.
Foster said he would myself like the Commission ‘to be able to be more open about what reviews have covered and what they’ve found’. ‘This would require a change to legislation. But I think such a change would be both timely and desirable,’ he said.
Foster was critical of the press’s support for what he called ‘celebrity cases’ saying there was ‘little if any correlation’ between media profile and the likelihood of its being ‘a genuine miscarriage’. ‘I can think of high profile cases where no basis has been found for supporting a referral, where investigation has actually strengthened the case against the accused or even where the convicted person, having maintained their innocence for years, has subsequently admitted guilt,’ he said.
The CCRC chair also repeated his support for a review by the Law Commission of the Court of Appeal’s grounds for allowing appeals which was a recommendation of the the House of Commons’ 2015 review of the commission. That recommendation was rejected by the then Lord Chancellor, Michael Gove – see here.
Earlier this year the former appeal judge Sir Anthony Hooper argued that the watchdog had become more cautious because the court had set the bar higher than it had been in living memory. ‘It’s become much more difficult for an appellant to succeed…and, therefore that will no doubt influence [the CCRC] on what cases that they send through,’ he told BBC’s Panorama earlier thisyear.
‘If we do after long and careful deliberation conclude that there really is no realistic likelihood of the court quashing a conviction, what useful purpose would such a referral serve other than to raise false hope in the convicted person and pointless pain and concern to the victim, their friends or family?’ Foster said.
However, he said whether the Court of Appeal was ‘unduly restrictive’ in its approach to safety was a separate issue, in particular, in relation to ‘lurking doubt’ cases. ‘We are on record as saying we would welcome such a review,’ Foster said.
Last year the CCRC referred just 19 cases back to the Court of Appeal last year out of a total of 1,439 applications and in 2017 it referred only a dozen. In its latest annual report, the watchdog has cited a ‘low success rate’ in the Court of Appeal and a lack of lawyers willing to represent applicants as a result of legal aid cuts as contributing to the recent marked drop-off in referrals. Over its 21 year history the CCRC has referred on average 33 cases a year.
According to Foster, over the 20 year lifetime of the Commission its referral rate has been 2.7% ‘Some people think that a low rate,’ he said; before noting that four out of 10 applications were from those who have not exhausted their normal rights of appeal or were otherwise ineligible. ‘And if we look at our referral rate against these cases it nearly doubles to over 5%. Is that percentage surprisingly low; or worryingly high?’ he asked.