If the public is to have confidence in the under-funded and struggling criminal justice system, it needs to have confidence that the processes are both fair and appear to be fair. It is not just that the prosecution and defence need to fight their cases – checks and balances are needed throughout the system, and that requires institutional and individual independence.
It is disappointing, therefore that the Justice Select Committee has agreed to the appointment of Helen Pitcher OBE as the next chair of the Judicial Appointments Committee without recognising the obvious potential appearance of a conflict of interest with one of her other roles as chairman of the Criminal Cases Review Commission (CCRC), the body that investigates miscarriages of justice.
Both organisations have important roles in building public confidence in the transparency and integrity of the criminal justice system. The current shortage of judges is a significant factor in the trial backlog and there are longstanding concerns about a lack of diversity on the bench. The JAC was set up in 2006 to replace the discredited ‘tap on the shoulder’ process for choosing judges and to maintain and strengthen judicial independence.
The CCRC was set up in 1997 following the miscarriages of justice that came to light in the late 1980s / early 1990s such as Stefan Kiszsko, the Guildford Four and Birmingham Six, which shattered public confidence in the criminal justice system. The CCRC was a prototype – it was the first state-funded body in the world established to help those convicted who claimed to be innocent. A crucial feature was its independence – from politicians and the courts. It was set up as an ‘arm’s length’ non-departmental public body, based in Birmingham rather than London, staffed by investigators with a range of professional expertise to investigate such cases and, where appropriate, get them back into court. Some of those who had campaigned against miscarriages of justice in the ‘bad old days’ were critical of the model chosen for the CCRC and the fact that its first chairman was a Freemason (at the time there were allegations about the police and judicial Freemasons colluding to support fellow members). Due to its efforts, almost 550 wrongful convictions and sentences have been overturned since it was founded including Derek Bentley, Barry George and the recent subpostmasters cases.
We both have a long-standing professional and academic interest in miscarriages of justice and the work of the CCRC which has faced enormous challenges. It is a relatively small organisation that, even twenty-five years after its foundation, is not well known. We have addressed its continuing struggles with asserting its independence from the Ministry of Justice and the Court of Appeal, (its founding statute means that it can only refer a conviction if it considers that there is a ‘real possibility’ that the appellate court would not uphold it. The Law Commission is currently reviewing this). We have criticised the devastating cuts to its budget. The CCRC suffered the greatest funding cut of any part of the criminal justice system – its budget was just £6m last year compared to £9.24m in 2004 – and its workload has more than doubled since 2010. Its referral rate has declined sharply, reaching a nadir of just a dozen cases in 2016 and 13 in 2017. The reasons for this are unclear and are likely to be multi-faceted but it has left the CCRC exposed to criticism.
Ms Pitcher told the Justice Select Committee that she did not perceive any “any overlap at all, or any potential conflict” between this role and her existing position as they were “of a very different nature.” We disagree. The roles are different, and that should be a source of tension. The job description for the JAC role included working towards building ‘a constructive relationship’ with the judiciary; whereas the whole point of the CCRC is to refer cases where the judiciary may have erred, or where it may face criticism from the courts for referring a controversial or borderline decision. For the last 15 years, campaigners, lawyers, academics and Parliamentarians have complained that the CCRC has taken an overly cautious, deferential approach towards referring cases back to the Court of Appeal. Almost every case the CCRC deals with will already have been rejected by the Court of Appeal, but the Lord Chief Justice sat on the panel to choose the JAC Chair, and she in turn will help choose his successor when he retires in September. High Court judges may also hear applications for judicial review of the CCRC’s work.
It is not clear that the CCRC still has the sense of organisational purpose that its champions envisaged. There are legitimate concerns about the CCRC and its independence from government and the courts. Two years ago, the High Court found that the CCRC’s relationship with the Ministry of Justice had been ‘dysfunctional. The poverty of this relationship undoubtedly tested the CCRC’s ability to remain independent of MoJ, and to be seen to be so.’ A parliamentary report published last year called on the CCRC ‘demonstrate its independence from government’. When Helen Pitcher appeared before the House of Commons’ justice committee at the end of last year prior to her appointment as chair of the JAC, she assured MPs that the CCRC, whilst ‘somewhat dysfunctional’ when she came on board in 2018: ‘It is now not and works very well.’ Again, harmony should not be the appropriate test of the CCRC’s performance. The first chairman was of the Geldof-esque view that the Ministry should: “Get to know us. Give us the money. Leave us alone.”
The CCRC’s independence was supposedly guaranteed through the appointment of its 11 decision making commissioners under the Criminal Appeals Act 1995. The MoJ has imposed changes that have reduced commissioners’ terms to one day a week contracts from the salaried, pensionable, predominantly full time appointments that were previously offered. One commissioner did not have his position renewed, apparently because he had the temerity to stand up to the Ministry of Justice officials.
We are concerned about the CCRC’s culture. At the start of last summer, Jacob Rees Mogg opened the new CCRC’s ‘office hub’, a curious choice for a justice watchdog. The CCRC then imposed a ‘remote first’ policy and staff including their investigators are only expected to be physically present for ten to 12 days a year. It is difficult to see how any esprit de corps can be built in this way or expertise can be shared informally.
Those who have been wrongly convicted have been failed by the criminal justice system in the most egregious way. It is understandably difficult for many of them to engage with official organisations or to have confidence in the appellate process. Like Caesar’s wife, those working for the CCRC must be above suspicion.
