Leading lawyers have spoken out about their concerns over the appointment of the chair of the miscarriage of justice watchdog to head up the body in charge of appointing judges. As of last week, Helen Pitcher will spend half of her week overseeing the work of the Criminal Cases Review Commission, the body responsible for referring cases of alleged wrongful convictions back to the Court of Appeal, and the other half of the week as the new chair of the Judicial Appointments Commission(JAC).
The appointment was rubber-stamped by the House of Commons’ justice committee before the Christmas break. During the session it was revealed that one of Pitcher’s first jobs as the new chair of the JAC will be to identify a replacement for the head of the criminal courts, Lord Burnett of Maldon. Lord Burnett was on the panel of judges who identified Pitcher as the judges’ preferred candidate. The JAC was set up by New Labour in 2006 to replace the old and discredited ‘tap not the shoulder’ mode of judicial appointment.
When asked by MP’s about a possible conflict of interest between the two roles, Pitcher replied: ‘I don’t think there’s an actual perceived conflict. It’s work of a very different nature. I don’t actually review cases at all. That’s not part of my role.’ She explained that she was ‘there to champion the organisation and the board and to ensure we discharge our statutory responsibilities appropriately. I don’t perceive any overlap at all or any potential conflict’.
Helen Pitcher will work two days at both organisations; however when asked if that was enough to meet the demands of her new JAC role, she replied: ‘I don’t think it will be’. She anticipated that in the early days the commitment of such a role might ‘double or triple’. She also has a number of non-executive directorships and told MPs that she would ‘relinquish other roles in my portfolio’ to enable her to do the new job.
In an article for the Justice Gap by Dr Hannah Quirk, a reader in criminal law at Kings College London and former case review manager at the CCRC, and JG editor Jon Robins argue that it was ‘disappointing’ that Pitcher was appointed “without recognising the obvious potential appearance of a conflict of interest”.
Leading lawyers spoke out about their concerns over ‘merging of leadership‘ to Catherine Baksi and Jonathan Ames of the Times. Edward Henry KC, a barrister acting for victims in the Post Office Horizon scandal, said that the CCRC should be ‘demonstrably independent from the senior judiciary’ and the appointment sent out ‘the wrong message’. The barrister and blogger Matthew Scott said: ‘There is a perception that CCRC is far too reluctant to refer cases to the Court of Appeal and is too cosy with the establishment. Making [Pitcher] head of judicial appointments rather adds to that perception — she’s wearing two different hats and that doesn’t look very good. The posts should be held by two separate people.’
The Ministry of Justice’s JAC job brief called on the new chair to work towards building ‘a constructive relationship’ with the judiciary; whereas the point of the CCRC is that it needs to stand up to the courts in defence of the wrongly convicted. For many years, campaigners, lawyers and academics have complained that the CCRC has been overly deferential towards the Court of Appeal – this was the finding of last year‘s report by the all-party parliamentary group of miscarriages of justice as well as the Justice Committee’s own 2015 report.
Pitcher was asked by MPs if she was confident that she can do justice to the new role and the CCRC at the same time. She said she was ‘absolutely confident’ she could. ‘I have a very good senior management team in the CCRC it was a matter of public record. When I inherited the CCRC it was somewhat dysfunctional. It is now not and works very well.’
In 2020, Judges Fulford and Whipple in a challenge by a prisoner to a decision by the CCRC to reject a case said that, for at least for a two-year period (2016 to 2018) its relationship with the MoJ was ‘very poor during this period, even dysfunctional. The poverty of this relationship undoubtedly tested the CCRC’s ability to remain independent of MoJ, and to be seen to be so.’
As has been reported on the JG, the CCRC has received the deepest funding cut of any part of the criminal justice system since 2010. The commission has also come under scrutiny as a result of the collapse of CCRC referrals to the Court of Appeal to an all-time low in 2016 of just a dozen – less than 1% of the roughly 1,500 prisoners who apply. The number of referrals have improved slightly – bumped up by the large number of referrals relating to the post office case.
Helen Pitcher also told MPs about the CCRC’s new remote first policy which would mean that ‘I now don’t need to go into Birmingham very often’. Staff are expected in the office just ten or 12 days a year.