November 27 2021

It’s time to talk about the Court of Appeal

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It’s time to talk about the Court of Appeal

Kvetch - HMP Grendon: Koestler awards, 2008

[contextly_auto_sidebar id=”NvVbvG9n9lJZe67W6hpgExgokoCo5LdA”]

Koestler awards, Ariane Bankes Outstanding Award for Oil 2008

Koestler awards, Ariane Bankes Outstanding Award for Oil 2008

When the House of Commons’  justice committee finally decided to undertake a longer inquiry into the Criminal Cases Review Commission it might have been assumed this would concentrate almost exclusively on perceived failings of the Birmingham-based watchdog. However as each witness in turn has given evidence it was a pattern of failure on the part of the Court of Appeal that has emerged.

The failings exposed reveal that the Court of Appeal hasn’t significantly moved forward since the notorious cases of the Guildford 4 and Birmingham 6 which led to the CCRC’s creation. It shouldn’t be surprising that all those called to offer evidence have reached this conclusion.

The CCRC suffers as the lesser partner in a paternalistic relationship with the Court of Appeal. Provided the CCRC toes the line and heeds the warnings of the Court it will be respected by the Court and heaped with regular praise. If the Commission crosses the line the court is not slow to make its displeasure known.

Over the relatively short lifespan of the CCRC we have seen a reactive institution. Certainly – as I pointed out to the Justice Committee in my evidence – the norm for the Commission is to be reactive in review.

Much has been made of the increase in demand and the easy access form created by the Commission; however the reality is that when applicants do not have good legal representation then the CCRC will simply react to the limited points raised and, apart from a few routine standard checks, go no further. Professor Carolyn Hoyle in her research confirms that where applicants have the benefit of good legal representation the quality of their applications is improved. Legal aid cuts continue to narrow the availability of such representation.

There is an emerging pattern of repeat applications to the CCRC where, on a second or third application, suddenly new material is uncovered and cases are referred. This is simply unsatisfactory and takes us back to the bad old days where applicants could apply to C3 Division at the Home Office many times before finding justice.

This pattern is mirrored by the approach of the Court of Appeal which takes an equally process-driven approach to reviewing miscarriage cases.

The net result is applicants are left to submit the grounds for the court simply to cross off each and every point from the applicant’s submissions. Whilst on occasion a single judge will find material to support permission being given, this is very much the exception to the norm. The Court of Appeal has particularly over the last few years taken steps to narrow even more the opportunity of appellants to pursue appeals against their convictions.

The sanctity of the jury
It is difficult to discern what the motivation for this is – perhaps a belief in the sanctity of the jury or a belief that the integrity of the system is maintained by keeping people in prison. When, of course, the converse is true –  any system only has integrity when it can address its errors and mistakes.

The problem is the Court of Appeal has found it impossible to do this. It is simply a step too far for the Court. Even seasoned Court of Appeal lawyers are concerned. For example we now have attempts to limit appeals by adopting a restrictive approach to extension of times applications for non-CCRC applications  (judges have been directed that they cannot give permission but these must be referred to the full court). This is particularly regrettable and inconsistent, especially when the CCRC is allowed to take many years to investigate a case.

The Court of Appeal is holding group courts looking at particular issues seeking to restrict further appeal possibilities. Sexual offence cases have been subject to extensive intervention as judges react to what they perceive society expects.

What we are seeing is a fundamental erosion of the rights and liberties of defendants and appellants in the criminal justice system.

And beyond this we should not lose sight of the central issue: the Court of Appeal’s complete failure to review serious miscarriage cases. At a recent stakeholders’ conference at the CCRC, Professor Michael Zander, a member of the original Runciman Committee, asked for evidence that the Court of Appeal had undertaken reviews into serious miscarriage cases – and the court’s representative was unable to offer any evidence of such reviews.

Professor Zander developed this further in his evidence before the Justice Committee and in a supplementary note to the Justice Committee has advocated a way for this to be addressed so that serious miscarriage cases are finally addressed.  Another academic Professor Heaton suggested a re-trial option – but this appears more problematic.

What is clear is that appeals should be reviewed where there is a fundamental view that they represent a miscarriage but do not necessarily present a distinct ground upon which the court could base a quashing of the conviction upon.

What of the CCRC’s own evidence to the Justice Committee? The thrust was that greater funding was the answer to all these problems. If that really is their view, then it is has fundamentally misunderstood the issues facing the appellate system today. The commission is unlikely to receive an injection of funding; rather it is likely to receive a further cut in the next parliament of a significant level (it could be in the region of £1m out of a budget of £6m). The Commission simply does not have the ear of government. The reason for this is exactly the same as the reticence of the Court of Appeal – it requires the machinery of the state to accept system failure.

The CCRC cannot even persuade Government to slip in a fairly minor amendment to the 1995 Act to allow it to access private documents and the evidence of Justice Minister Mike Penny MP suggests it remains a non-priority for the current coalition government as it has with previous administrations.

The reality is that the CCRC was a suitable compromise organisation following Runciman and which wholly failed in its early years. Latterly it has tried to reform but doesn’t have the resources to do so or the support of the state to effect the changes required.

It does not exercise Section 13(2) powers under the Criminal Appeal Act – apart from the case of Michael Shields it has never availed itself of the Royal Prerogative despite an indication from the Minister that the government is open to receiving such applications.

In the end we continue to apply a sticking plaster to the system as each notorious miscarriage occurs and then proceed as if nothing has happened.

It is to be hoped that the justice committee will recognise that there are serious issues with our current appellate system  (what is less clear is what the Committee can actually do about it, particularly at the end of a Parliament). In the meantime every day more people will be wrongfully convicted and confronted with no adequate system to address those miscarriages.

One response to “It’s time to talk about the Court of Appeal”

  1. James Colton says:

    The Court of Appeal has its own laws, secret codes, and practices.

    One of the grounds I submitted to the Court was the failure of my lawyers to make a defence statement, by the time of the PCMH, and the trial judge purporting to act under his case management powers, did NOT demand its immediate service. Nor did he adjourn to another date with the threat of wasted costs order.

    Under sections 1(2) and 5(1), CPIA 1996, an accused in a trial on indictment in the crown court must give a defence statement to the court and prosecutor where:

    1 the provisions of Part 1, CPIA 1996 apply; and
    2 the prosecutor complies or purports to comply with his initial duty of disclosure under section 3(1), CPIA 1996.

    The Court of Appeal (single judge) stated:

    “The time had long expired for service of a defence statement before your trial team was instructed. In any event you suffered no prejudice from the failure to serve a statement because you were not cross-examined on this matter, nor was it the subject of an adverse comment in the judge’s summing-up” This absolute gobbledegook.

    Therefore, the Court of Appeal have clearly stated that a ‘Defence Statement’ is unnecessary in any criminal trial despite:

    The CPIA 1996, ss 5(5) and (6A) require the service of a DS which:

    (a) sets out the nature of the accused’s defence including any particular defences on which he intends to rely;

    (b) indicates the matters on which issue is taken with the prosecution;9

    c) sets out in respect of each matter why issue is taken;

    (ca) sets out particulars of matters of fact on which he intends to rely for the purposes of his defence; and

    (d) indicates any point of law he intends to take together with authorities in support.

    CPIA 1996, s 11(2) prescribes the circumstances in which sanctions for non-disclosure might arise. These are (broadly):

    (1) failure to serve or the late service of a defence statement: s 11(2)(a)–(d);

    (2) a defence statement with inconsistent defences: s 11(2)(e);

    (3) a defence advanced at trial not mentioned in or different from the defence statement: s 11(2)(f)(i);

    (4) reliance on matters of fact not mentioned in the defence statement: s 11(2)(f)(ii);

    (5) late service of a witness notice: s 11(4)(a); and

    (6) calling a witness not included or inadequately identified in a witness notice: s 11(4)(b).

    The sanctions under s11(5) are:
    (1) Comment by the court or other party
    (2) Adverse inference

    These sanctions are exhaustive: R v Rochford

    The European Court of Human Rights in (X and Y v Austria (1979) DR 160)stated:

    Where there is a late change of lawyer, an adjournment may be necessary. Where it is obvious that a lawyer has not had adequate time to prepare the defence properly, the court should consider adjourning the case on its own motion.”

    As I previously stated the Court of Appeal is a law unto itself!

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