When the miscarriage of justice watchdog opened its doors for business in 1997, the Home Office dumped 251 old files on the new group. Some 210 were ‘old cases’ passed on from a discredited and shadowy Home Office department known as C3 which was supposed to be responsible for investigating wrongful convictions. ‘I don’t know if we can cope,’ Sir Frederick Crawford, chair of the newly born Criminal Cases Review Commission (CCRC), told journalists at its launch press conference in 1997.
Laurie Elks was amongst the organisation’s first CCRC commissioners. ‘Before we joined most of us spent a day or two in C3 looking at Home Office files and, of course, we inherited many neglected files from them,’ he recalls. That caseload included familiar names such as James Hanratty and Derek Bentley, intractable cases that had been stuck in the criminal justice system for years, sometimes decades; alongside less familiar but equally troubling cases such as Eddie Gilfolye and Tony Stock that to this day remain unresolved.
‘In the special jurisdiction which the CCRC owns, political accountability is deadly,’ Laurie Elks reflects. ‘What I saw in the C3 files was that the caseworkers were always looking over their shoulders and saying/thinking: “What would the minister think about this?”.’
When the CCRC was established as a result of scandals such as the Birmingham Six and Guildford Four cases, its independence from government was seen as critical, (supposedly) guaranteed by statute and embodied in its eleven distinguished commissioners. The independence of the commission and its commissioners was, to quote the Lord Chief Justice, ‘part and parcel of the weft of an independent judiciary’. It took the agreement of three commissioners to send a case back to the courts.
At the beginning of the summer, the high court recognised what it called ‘political interference’ by the Ministry of Justice in its relationship with the CCRC. Lord Justice Fulford and Mrs Justice Whipple were considering the case of a prisoner called Gary Warner, a convicted armed robber whose application to the chronically underfunded CCRC had been rejected. His lawyers had argued that the group’s relationship with the Ministry of Justice was ‘dysfunctional’; and that it was not sufficiently free from government control to be truly independent. It is an issue we have been following at the Justice Gap – see here and here.
Judges Fulford and Whipple rejected Warner’s case but they agreed with his lawyers’ analysis, at least for a two-year period (2016 to 2018). ‘The relationship between the CCRC and the MoJ was very poor during this period, even dysfunctional,’ they agreed. ‘The poverty of this relationship undoubtedly tested the CCRC’s ability to remain independent of MoJ, and to be seen to be so’.
In the wake of the Warner judgment, a number of former commissioners have spoken to the Justice Gap about their concerns about the undermining of the CCRC’s independence and their unhappiness at the perceived complacency of the watchdog’s response to the ruling. Their concerns come as the all-party parliamentary group on miscarriages of justice conducts an investigation into the commission following the dramatic collapse in the number of referrals it makes back to the Court of Appeal.
The CCRC last month wrote to The Times complaining about its coverage of the Warner judgment in an article written by the journalist Catherine Baksi. The commission was apparently so incensed that it wrote to the newspaper twice, the second letter a ‘toned down’ version of the first. Neither letter was published and the watchdog felt sufficiently aggrieved that it has taken its complaint to the press regulator IPSO.
What has frustrated ex-commissioners is an assertion made in both versions of the CCRC’s letter of complaint that the Court ‘emphatically dismissed the claims that the CCRC’s independence from Government had been compromised and went so far as to say that the CCRC is not only operationally independent, but is also “constitutionally” independent.’
Looking only at Twitter coverage of
a recent JR which claimed @ccrcupdate independence was compromised, it would be easy to miss the crucial fact that the claim was dismissed with the Court saying our independence from Government is constitutional as well as operational. 1/5
— CCRC (@ccrcupdate) July 18, 2020
The court said no such thing. ‘The letters to The Times are even worse misrepresentation of the High Court decision than the Times’ original article,’ one commissioner told the Justice Gap; adding that that it showed ‘a profound misunderstanding’ as to how court judgments are read. All the ex-commissioners we spoke to share a concern that the CCRC has been fundamentally undermined by changes foisted upon the group which were the subject of the Warner case.
‘The CCRC was born out of the ashes of C3,’ says another former commissioner who left the organisation in 2018. ‘I always thought that the MoJ wanted to bring the commission back in-house. The ministry with, to some extent, the connivance of the executive of the CCRC set out to neuter the commission over a long period of time.’
At the heart of the Warner challenge are changes unilaterally imposed by the MoJ to the tenure and pay of the eleven CCRC commissioners. From the start of the CCRC in 1997 until 2012, commissioners were appointed for five year terms on a full-time or near full-time basis on hefty salaries (£93,796 in 2013) plus a pension. Almost all commissioners are now appointed on minimum one-day-a-week contracts for three-year terms. They no longer receive a pension and are paid on a £358 daily rate significantly less than a basic judicial rate (e.g., £502 a day for a judge in the first tier tribunal) on which the initial salaries were based. The CCRC is based in Birmingham and commissioners’ travelling from other parts of the country must meet costs themselves from the daily rate.
Gary Warner’s lawyers argued that the Birmingham-based group was not sufficiently free from government control and the decision not to refer the case was either ‘tainted by bias or the appearance of bias’. In particular, they accused the MoJ of ‘misusing its sponsorship role’ by ‘placing pressure’ on the commission to ‘reconstitute’ its board so as to ‘reduce the influence’ of the CCRC’s 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’.
These changes in terms and conditions had been fiercely resisted by the commissioners who have all since left. We spoke to one of the first commissioners to work on a less than four-day-a-week basis. ‘There was a huge amount of resistance from the then commissioners who saw this as the start of the slippery slope,’ they told us. ‘I think in retrospect they were right. It is a bit like feeding a donkey less and less and then one day it dies.’
The extent of the commissioners’ unhappiness has been made evident through the release of CCRC board minutes obtained via freedom of information requests. All credit to James Burley of the legal charity APPEAL for his digging work. The episode that most alarmed the court last month concerned the treatment of ‘commissioner X’. An MoJ briefing for a justice minister suggesting his re-appointment be refused, noted: ‘We are also aware that [X] has been amongst the cadre of commissioners seeking to resist further changes to governance/working arrangements’.
The judgment could not be clearer in its view of this:
‘It was not appropriate for the Minister to be advised in this way, or for the Minister to have regard to the fact that X had previously resisted changes suggested by MoJ when considering his temporary re-appointment. This was political interference.’
The issue came to a head in 2018 with an intervention by a senior civil servant, Alison Wedge (AW), who addressed the CCRC board following an MoJ review. She was reported to have warned the commission that it ‘would be in conflict with Government policy if it did not accept and did not implement’ its recommendations. ‘AW said the secretary of state recommends the appointment of commissioners and that similarly he could recommend removal,’ the minutes continue. ‘However, AW hoped that there would be no need for such a situation to arise… .’
As reported here, Warner’s barrister Matthew Stanbury called her comments ‘a thinly veiled threat – if the threat was veiled at all’. When the case came to court Wedge disavowed her previous comment, but the barrister pointed out, not the MoJ’s position on reappointment. ‘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.
Laurie Elks agrees. ‘We have a situation where Ms Wedge says “conform or watch out” and then: “Oops, I didn’t really mean that”. I feel that the looming shadow is there.’
The group’s current chair, Helen Pitcher is supportive of the new fee-paid arrangements and three-year terms on the basis that the group has been able to attract ‘more candidates of high calibre and have led to greater diversity’.
Former commissioners (perhaps unsurprisingly) don’t agree. Earlier this year, the former commissioner, Ewen Smith, who stepped down in October 2016 after serving 10 years, spoke to the Justice Gap about his concerns and what he called ‘the potential to weaken the decision making process thereby interfering with the Commissions independence.’
In the past, commissioners have included a former chief constable, an NHS chief executive, a former chief crown prosecutor as well as leading appeals specialists; however the new intake seems light in expertise in two fairly fundamental areas: investigation or criminal appeals. ‘You just don’t have people of the same calibre,’ says a commissioner who left in 2018. ‘More importantly, if you’re there one day a week how are you ever going to get the experience or the skills for the analysis that judges would reckon is an essential part of the role?’
The court accepted the MoJ’s evidence that the approach to Commissioner X’s reappointment was a one-off. Hardly surprising when, such was the level of disillusionment with the role and the battles within the organisation and with the MoJ, that X was the only one of seven commissioners who sought reappointment over the period.
If the Ministry of Justice was ‘really concerned about diversity and expertise’, an ex-commissioner argues that they could have appointed the other main candidate, the former chief crown prosecutor Nazir Afzal as CCRC chair instead of Helen Pitcher who has a background in corporate governance. They continue: ‘It’s hard to avoid the conclusion that she was appointed to force through the very changes the commissioners had resisted for all those years.’
The real focus of commissioners’ ire is Pitcher’s predecessor Richard Foster, a former chief exec of the Crown Prosecution Service. ‘He was very reluctant to challenge the minister or the Court of Appeal,’ says another commissioner who recalled Foster talking about colleagues as ‘a bunch of bolshy so-and-so’s’. The commissioner recalls: ‘Our job was to say to all these distinguished judges, some in the Court of Appeal: “You’ve got it wrong.” You have to be resilient, robust and a thorn in people’s side to do that. Our relationship with the judiciary was surprisingly, because we were being critical of them, a hell of a lot better than with the MoJ.’
In their judgment, Lord Justice Fulford and Mrs Justice Whipple did not declare the CCRC independent as suggested by the commission; however they do assert that ‘the problem is not systematic’ and that this episode ‘must now recede into history’.
One hopes it doesn’t. The reason why the ex commissioners have spoken out is because they don’t agree. The CCRC performs an essential but increasingly difficult role. The Warner case illustrates that point that it has not been helped by previous weak leadership. It needs support.
The All-Party Parliamentary Group on Miscarriages of Justice has been following the case. ‘I find it very hard to believe that a CCRC commissioner can do such an important job on a one day a week basis given that when it was first established most commissioners worked full time,’ Barry Sheerman MP told the Justice Gap. ‘How would one of the current commissioners get to grips with cases such as Tony Stock, Eddie Gilfoyle or Oliver Campbell when their time commitment is so limited? There must be genuine concern that the independence of the CCRC has been fundamentally undermined by the changes made to Commissioners terms and conditions. This issue must be kept in constant review and I am aware that the Westminster Commission established by the APPG on miscarriages of justice is very interested in how this has impacted on the efficacy of the CCRC.’
You can read an interview with the artist Patrick Maguire – the youngest member of the Maguire Seven – in the last issue of Proof Magazine. Buy here.