WE ARE A MAGAZINE ABOUT LAW AND JUSTICE | AND THE DIFFERENCE BETWEEN THE TWO
May 23 2022
WE ARE A MAGAZINE ABOUT LAW AND JUSTICE | AND THE DIFFERENCE BETWEEN THE TWO

Twenty-five steps towards a less error-prone criminal justice system

Twenty-five steps towards a less error-prone criminal justice system

It’s been 25 years since the miscarriages of justice watchdog, the Criminal Cases Review Commission (the CCRC) was established. It was created to act as a safety net for wrongful convictions in the wake of the high-profile miscarriages of justice, the Birmingham Six and the Guildford Four.

The CCRC’s role is critical in uncovering miscarriages of justice. The previous system, where direct appeals had to be made to the Home Secretary, was woefully inadequate – referring only four to five cases out of 700 to the Court of Appeal Criminal Division (Court of Appeal) per year.

By contrast, in their 25-year lifespan, the CCRC has referred almost 800 cases to the Court of Appeal, and of these 535 appeals have been allowed. Their work has helped free hundreds of people who would otherwise have languished in prison for crimes they did not commit. This is an important achievement. But has the establishment of the CCRC been enough to stop miscarriages of justice going unidentified and uncorrected in this country? Sadly not.

During APPEAL’s eight years of legal casework and campaigning we have encountered first-hand many ways in which the system refuses to be held accountable, from police station interviews to pre-trial disclosure, through to the trial process and to the Court of Appeal. We are convinced that there is still a long way to go to ensure that fewer innocent people spend time behind bars.

Here APPEAL lists 25 vital reform steps – one for every year of the CCRC’s existence – that we believe must be implemented to ensure a fairer and more accountable justice system over the next 25 years.

APPEAL welcomes feedback and debate on these proposed reform steps.

#1 BRING PEOPLE WITH LIVED EXPERIENCE TO THE FOREFRONT OF ALL CRIMINAL JUSTICE DISCUSSIONS AND REFORM EFFORTS

Nobody understands the causes and impact of miscarriages of justice more than those who have been personally affected. APPEAL advocates that all stakeholders including innocence projects, lawyers, the Criminal Cases Review Commission and government must be informed by those that have lived experience of being at the sharp end of wrongful convictions and unfair sentences when considering reforms.

#2 APPOINT JUDGES WHO REFLECT THE DIVERSITY OF THE COMMUNITY

Despite the diverse make-up of the United Kingdom, our senior judiciary is dominated by older white and privately educated men. A senior judiciary that fails to reflect the ethnic, gender and social composition of the nation seriously undermines justice in England and Wales, compromising the quality, fairness and legitimacy of judgments. APPEAL joins the call made by Justice and others for structural and cultural reform to judicial recruitment processes to create more inclusive routes to the senior bench. We also believe the selection process should be more independent of the judiciary and civil service.

#3 SHOW US THE EVIDENCE – INCREASE DEFENCE ACCESS TO THE RESULTS OF POLICE INVESTIGATION

Crucial evidence pointing towards innocence gathered by the police is being withheld from defendants by police and prosecution agencies. This is because the current system expects these bodies to act in an impartial and inquisitorial manner while at the same time acting as adversaries to the defence. APPEAL recommends that the default position is that the defence have access to all “Unused Material” gathered by the police both pre-trial and in post-conviction proceedings, and the establishment of an Independent Disclosure Agency to address requests from the prosecution that material deemed “sensitive” be withheld from the defence, and requests from the defence for access to further material. Read more here.

#4 FUND FULL DEFENCE INVESTIGATION IN ADVANCE OF CRIMINAL TRIALS

In an adversarial system, investigation cannot be left simply in the hands of the police – the defence must be able to investigate their client’s side of the story, interviewing witnesses, visiting crime scenes and instructing experts. In the United States such defence investigation is the norm, with public defender offices employing in-house investigators and routinely instructing experts to check and expand upon the work of those employed by the prosecution. APPEAL argues that in this country, legal aid funding for this crucial work should be provided as a matter of course and law firms and public defenders should bring professional investigators on staff and deploy them in all cases.

#5 STOP PRESENTING ACCUSED PEOPLE TO THE JURY IN A CAGE – DROP THE DOCK

In England and Wales, an adult defendant must remain in a dock (effectively a cage in the courtroom) throughout their trial. There is evidence to suggest that this impacts on a defendant’s right to the presumption of innocence and a fair trial – it makes them appear dangerous and thus guilty, and prevents them from communicating with their legal team. The adverse impact of the dock has been recognised by appellate courts in both the United States and Australia. APPEAL proposes that in England and Wales docks should no longer be used and there should be a presumption that defendants sit with their legal team

#6 MAKE OPENING STATEMENTS EXPLAINING THE DEFENCE CASE TO THE JURY

In criminal trials in England and Wales the defence often do not make an opening statement directly after the prosecution’s, which severely undermines the fairness of the proceedings. Research in the United States has shown that jurors make up their minds regarding guilt at the beginning of the trial when hearing the prosecution’s opening statement. APPEAL recommends that in addition to the defence actively investigating the case, it is given and routinely takes the opportunity to challenge the prosecution case by giving a back-to-back statement fully presenting the case on the defendant’s behalf.

#7 ONLY ALLOW SCIENTIFIC EVIDENCE THAT IS RELIABLE AND RELEVANT TO GO BEFORE A JURY

The testimony of experts is given tremendous weight by jurors, but the criteria for the admissibility of such testimony is currently insufficiently stringent and this leads to miscarriages of justice. In 2009 the Law Commission acknowledged this problem, stating that “the current judicial approach to the admissibility of expert evidence in England and Wales is one of laissez-faire” and recommended a new admissibility test. The proposals were not implemented. In 2019 the Select Committee on Science and Technology inquiry into Forensic Science and the Criminal Justice System made similar recommendations that were also ignored. APPEAL calls for this to be addressed by the Ministry of Justice as a matter of urgency.

#8 REQUIRE ALL 12 JURORS TO BE SURE OF GUILT BEFORE AN ACCUSED PERSON CAN BE CONVICTED, NOT JUST 10 OR 11

Since 1967, people have been routinely sent to prison in England and Wales even where one or two members of the jury consider them to be not guilty. In the United States, it is been proved through a combination of legal action and campaigning – and acknowledged by the Supreme Court – that non-unanimous jury verdicts are more likely to result in innocent people being convicted of crimes. APPEAL advocates that England and Wales must abolish non-unanimous verdicts and instead require all 12 jurors to be sure of guilt before sending a person to prison. After all, this was a cornerstone of English criminal law since the 14th century.

#9 GIVE PRISONERS A REALISTIC TIME IN WHICH TO APPEAL BY EXTENDING THE CURRENT 28 DAY TIME LIMIT FOR AN APPEAL TO 12 MONTHS

The 28-day time frame to lodge a first appeal against conviction or sentence should be extended to reflect the difficulties faced by applicants, 90% of whom are unrepresented and many of whom are vulnerable. 28 days is rarely enough time to uncover and investigate the fresh evidence upon which many appeals rely. APPEAL proposes that the time period in which a first appeal can be lodged without the need to seek leave should be extended to at least 12 months.

#10 STOP THREATENING PRISONERS WHO APPEAL WITH AN INCREASE IN THE TIME THEY WILL SERVE IN PRISON

The risk of lodging an appeal is that if the Court of Appeal considers that the appeal has no merit, the Court can in certain situations direct that any or all of the time spent by the applicant in custody since the date of the application does not count towards the length of the sentence. If an order is made, the effect is to extend the amount of time that someone must remain in prison. This is an alarming deterrent for many prisoners who would otherwise lodge an appeal and unfairly discriminates against those prisoners serving shorter sentences. APPEAL advocates that such “loss of time orders” should be scrapped.

#11 STOP DESTROYING THE EVIDENCE – RETAIN TRIAL RECORDS FOR LONGER THAN THE CURRENT 7 YEAR PERIOD

Audio recordings and court documents from trial proceedings are being destroyed after seven years, hindering the work of the Criminal Cases Review Commission and appeal lawyers. A precise record of trial proceedings may be required several decades after a conviction – as highlighted by Lord Justice Fulford’s comments in the Shrewsbury 24 judgment. Instead, recordings and court documents should be retained until at least seven years after the end of a convicted person’s prison term. For more information, see APPEAL’s briefing here.

#12 GIVE FREE ACCESS TO A FULL TRIAL TRANSCRIPT FOR APPEALS

Transcripts of everything that was said at a trial by witnesses, judges and lawyers are not provided in England and Wales but they provide crucial evidence for appeals. At the very minimum at the outset of case screening by an appeal lawyer, a transcript of the Crown Court judge’s summing up should be made available at no cost to an indigent convicted person. However, APPEAL argues that a summing up by its nature can only offer a subjective and incomplete account of a trial – so production of a full transcript is vital once the screening lawyer makes a decision to take on a case.

#13 INCREASE THE SCOPE OF WORK THAT CAN BE COVERED BY LEGAL AID FOR CRIMINAL APPEAL LAWYERS AS WELL AS THE RATES AT WHICH IT IS PAID

To stand a chance of receiving a hearing in the Court of Appeal, innocent prisoners need access to lawyers who will review what has happened in the case and then conduct investigation to find ‘fresh evidence’. The scope of what Legal Aid will pay for is absurdly circumscribed – for instance the Legal Aid Agency actually states that it will almost never be necessary for an appeal lawyer to read the entire file. Further, unsustainable rates of remuneration for publicly funded criminal appeal work and prohibitive bureaucracy for applying for further funding mean that specialists are increasingly driven to undertake unremunerated work or to abandon practice in this area altogether (see University of Sussex report here). The public cares deeply about the conviction of the innocent and the legal representation needed to free them, as well as about the system learning from its mistakes – APPEAL calls for an expansion of legal aid funding for such work.

#14 IMPROVE PRISONER ACCESS TO INFORMATION ON THEIR RIGHTS TO APPEAL AND TO ACCESS THE EVIDENCE IN THEIR CASE

With a stark lack of access to information about the appeal system in prisons, how should prisoners, 90% of whom are unrepresented, be expected to comply with the rules and effectively appeal their convictions? With more unrepresented appellants in the courts than ever, APPEAL believes it is vital that those behind bars have easy access to information on their rights to access the evidence in their case and the appeal procedure they need to follow.

#15 SIGNIFICANTLY INCREASE FUNDING TO THE CRIMINAL CASES REVIEW COMMISSION, THE BODY WITH THE POWER TO SEND CASES BACK TO THE COURT OF APPEAL

A parliamentary inquiry reported that the miscarriage of justice watchdog, the Criminal Cases Review Commission, received just £5.93m in 2019 in government funds compared with £9.24m in 2004, making it the part of the criminal justice system that has suffered the biggest cuts since austerity measures were introduced. These funding cuts plus a higher workload for each caseworker has created a greater propensity for miscarriages of justice to fall through the cracks as staff morale decreases and the efficiency of the CCRC is severely hindered.

#16 MAKE THE CRIMINAL CASES REVIEW COMMISSION INDEPENDENT OF THE COURT OF APPEAL BY REFORMING THE ‘REAL POSSIBILITY’ TEST

The Criminal Cases Review Commission has the legal power to send a case back to the Court of Appeal only if it concludes that there is a “real possibility” that the Court will overturn the conviction or reduce the sentence. This test hinders independent decision-making about investigation resource allocation at the CCRC, as well as decisions about whether to refer cases, preventing some wrongfully convicted people from accessing the appeal court and allowing miscarriages of justice to go unidentified and unremedied. The “real possibility” test should be urgently reviewed and replaced with a referral test that does not anchor CCRC decision-making to the perceived mood of the CACD. For more, see our consultation response to the Law Commission here.

#17 GIVE TEETH TO THE CRIMINAL CASES REVIEW COMMISSION’S INVESTIGATORY POWERS BY MAKING ITS DEMANDS FOR ACCESS TO THE EVIDENCE MORE ENFORCEABLE

There should be a statutory power requiring public bodies to comply with the Criminal Cases Review Commission’s requests for records under Section 17 Criminal Appeal Act 1995 within a fixed timescale, which is appropriate and reasonable based on the nature of the request. Sanctions for non-compliance should be introduced, along with a quick and inexpensive enforcement mechanism via the courts.

#18 MAKE THE CRIMINAL CASES REVIEW COMMISSION MORE TRANSPARENT

APPEAL proposes that all documentation detailing decisions made by the Criminal Cases Review Commission relating to an applicant’s case be made available to an applicant and their representatives, including Case Plans, schedules for work and arrangements to use experts to examine or test evidence. Alongside this, applicants and their representatives should be given access to all non-sensitive material obtained by the CCRC in the course of its enquiries so that they have the opportunity to make informed submissions in support of their applications.

#19 RECRUIT CRIMINAL CASES REVIEW COMMISSION PERSONNEL WITH A FULL RANGE OF CRIMINAL JUSTICE EXPERIENCE AND ON FULL TIME CONTRACTS

APPEAL believes that those working at the Criminal Cases Review Commission in both investigation roles and in senior positions including those making referral decisions should have substantive experience in criminal justice. Their experience should reflect a balance across defence, prosecution, policing, lived experience as defendant / appellant, forensic science, academia (law and criminology) and journalism. Commissioners should also be on full time contracts.

#20 IMPROVE THE CRIMINAL CASES REVIEW COMMISSION’S ACCOUNTABILITY BY PROVIDING AN ACCESSIBLE TRIBUNAL FOR CHALLENGING ITS DECISIONS

The Criminal Cases Review Commission’s decisions are currently only challengeable through Judicial Review litigation – a process which is notoriously expensive and difficult, and does not allow decisions to be challenged on their merits. To remedy this lack of accountability, APPEAL calls for a cost-free independent tribunal (such as the First-Tier Tribunal (General Regulatory Chamber)) with the power to hear appeals against a Commission decision not to pursue a line of enquiry, or refer a case to the Court of Appeal.

# 21 PROVIDE AN OBJECTIVE STANDARD FOR IDENTIFYING WHICH CONVICTIONS SHOULD BE OVERTURNED RATHER THAN ALLOWING FOR SUCH WIDE JUDICIAL DISCRETION

The test of ‘safety’ applied by the Court of Appeal when considering appeals against conviction allows for vast discretion by any judge or panel of judges and leads to inconsistent decision-making by the Court. APPEAL calls for the test to be reformed so that it includes standalone grounds of appeal – for example where the prosecution has withheld material evidence from the defence, or where the standard of representation received by the defendant is so low that the trial was unfair. It is time for the test to be reviewed and reformed (for more, see our consultation response to the Law Commission here).

#22 DISTINGUISH BETWEEN LEAD PERPETRATORS OF A CRIME AND THOSE WITH LESSER ROLES, PAST AND FUTURE

Grass roots organisation JENGbA has launched a private members bill in Parliament pushing for legislation to fix the injustice of joint enterprise cases (where everyone involved in a crime are held to be equally culpable). The bill was tabled six years after the Supreme Court ruled in Jogee that the law had taken “a wrong turn”. Following this ruling it was anticipated that there would be a significant number of successful appeals but the Court of Appeal has placed insurmountable hurdles in the face of would-be appellants. APPEAL supports JENGbA’s reform efforts to stop people being found guilty simply by association with other people who have committed crimes.

#23 ALLOW INVESTIGATIVE JOURNALISTS ACCESS TO PRISONERS CHALLENGING THEIR CONVICTIONS

Members of the senior judiciary have acknowledged the importance of the media in exposing miscarriages of justice (for example, see Lord Hughes in Nunn). APPEAL calls for journalists to be permitted to visit prisoners claiming they have been subject to a miscarriage of justice within 28 days of the journalist making the request to the prison, provided they have the consent of the prisoner and his or her representatives if they have any. If the access is refused full reasons should be given and the decision should be appealable. Currently such requests are not addressed for months, despite the important role investigative journalists have historically played in exposing miscarriages of justice.

#24 INTRODUCE POLICE & CROWN PROSECUTION SERVICE CONVICTION INTEGRITY LEADS IN EACH REGION TO WORK CO-OPERATIVELY WITH APPEAL LAWYERS ON WRONGFUL CONVICTION CASES

In various states in the United States an increasingly pivotal way in which miscarriages of justice are identified is through police and prosecutors actively trying to confront past harms and injustice by working collaboratively with ‘innocence projects’ to identify and remedy wrongful convictions. This co-operative and non-adversarial approach serves the defence, the prosecution and the wider public since we all want the same thing – to ensure the right person is in jail rather than left free to commit other crimes. APPEAL calls for Conviction Integrity Leads to be established within police forces and Crown Prosecution Service regional offices in England and Wales to encourage dialog and co-operative working on cases of concern.

#25 COLLATE AND PUBLISH ANNUAL STATISTICS ON THE NUMBERS OF PEOPLE ACCESSING THE APPEAL SYSTEM AND OUTCOMES

Increased transparency is crucial for our understanding of where the system may be getting it wrong and how it can become fairer and more equitable. Successive reviews have called for access to better data, including the Lammy Review, yet this has not been actioned. APPEAL proposes that the numbers of appellants accessing any stage of the appeal system, and the outcomes achieved, should be collated and disaggregated by sex and race.


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