December 01 2021

Unrealistic expectations

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Unrealistic expectations

No reasonable commentator would deny that the current system sometimes fails victims of miscarriages of justice. Nor would they deny that it is the duty of all concerned with miscarriages to press for improvements to that system. But the mere fact that improvements can and should be made to the existing arrangements and to the commission’s role within them cannot sensibly lead to the conclusion that some wholly new approach is necessary.

In its 14 years of operations the commission has dealt with almost 13,500 applications. Each has been considered and decided by a commissioner who has explained his or her reasoning to the applicant; none has been rejected without the applicant being given an opportunity to make further representations. More than 480 convictions or sentences have been referred to appeal courts and of the 455 appeals decided, 320 have succeeded.

Though mainly involving serious crimes, the cases referred have ranged from murder to traffic offences, and from those that have attracted widespread support to those that have generated little interest or sympathy. The only constants are that all have been alleged miscarriages of justice, that all have been important to the applicants concerned, and that all have been addressed by the commission with objectivity, thoroughness and care. Furthermore, after six years of cuts in its budget and personnel, the commission’s waiting lists, while still as unacceptable to it as they are to others, are as short now as they have ever been.

The commission makes no claim to perfection. It does, however, suggest that those who express concerns about its role and performance should first acknowledge its considerable achievements.

Any institution that rejects criticisms of its performance or calls for its reform is likely to be accused of excessive defensiveness and/or of Panglossian complacency. Both charges have been levelled at the commission and there may sometimes have been some force in the first of them. Any charge of complacency is, however, unjustified. Throughout its existence the commission has been engaged in an almost constant process of self-analysis, self-improvement and reform. None of its critics is more committed to remedying miscarriages of justice or to optimising the process for doing so.

What then of the criticisms that have been made of the commission and of its role?

The commission doesn’t care about factual innocence
Of course the commission cares about factual innocence. Nothing is more likely to lead to a commission referral than compelling new evidence of factual innocence. The commission looks for such evidence whenever and wherever it is sensible and practical to do so. Evidence of that type is, however, rarely discoverable and in its absence the commission has no greater gift than others for identifying those of its applicants who are factually innocent.

Though campaign groups and journalists understandably focus on the convictions of those they believe to be factually innocent, the commission has a wider remit.  It works to overturn not only the wrongful convictions of those who others believe to be innocent, but also the wrongful convictions of those who only might be innocent (though others doubt it) and even, indeed, of those who, whatever the evidence of their guilt, have been convicted only after substantial systemic error or wrongdoing.

Few victims of miscarriages can hope to prove their factual innocence and many will lack supporters who believe in them. Their ‘victimhood’ is not diminished by that fact and it cannot be assumed that their applications are in consequence less meritorious.

The commission makes no apology for concerning itself not only with the convictions of those who others believe to be innocent, but with all wrongful convictions and with the need to keep the system ‘clean’ and, by doing so, to reduce the risk of future injustices.

The ‘real possibility’ test is too restrictive
The ‘real possibility’ test was not devised by the commission: it is the test established by parliament. Those who disapprove of it must provide a convincing response to the question: ‘What useful purpose would be served by the commission being entitled to refer convictions to appeal courts where there is no real possibility that those convictions will be quashed?’

Only two responses to that question appear to be at all compelling. The first is that miscarriages of justice are such an evil that, where one is suspected, even a mere ‘outside chance’ of a successful appeal should be sufficient for a referral. Whatever the force of that argument, however, it takes little account of political or economic realities or of the fact that, as discussed below, unsuccessful referrals are not a ‘cost-free’ option.

A second and more compelling argument against the ‘real possibility’ test is that it makes life too comfortable for the Court of Appeal. At least on occasion, so it could be contended, the commission should have the power to make a ‘contrarian’ referral which obliges the court publicly to confront and address the concerns that exist in relation to a case and/or to look again at some issue or principle on which it has already expressed a concluded view.

On the face of things, such a power would institutionalise the scope for conflict between the court and the commission and, on any view, it is one that could properly be exercised only in the most unusual of circumstances. It is, moreover, by no means easy to find examples of past cases where the commission might appropriately have exercised such a power. Even so, a sensible case could be made for extending the commission’s powers by allowing it ‘in exceptional circumstances and where it considers it to be in the interests of justice to do so’ to refer a conviction even when it cannot persuade itself that there is a real possibility that the court will quash it.

The commission is overcautious
Given that the commission has power to refer a conviction to the Court of Appeal only if it is satisfied there is a real possibility that that court will quash it, the criticisms that are made of the commission in respect of non-referrals are often criticisms that ought more sensibly to be directed at the court. Equally, however, there have presumably been occasions when the commission has been overcautious when applying the ‘real possibility’ test and when it has, as a result, failed to refer convictions that, if referred, might well have been overturned.

Recognising the seriousness of the consequences that may flow from an overcautious application of the ‘real possibility’ test, commissioners are of course sometimes tempted to refer convictions that seem to have only an outside chance of being quashed. They resist that temptation both because it would be improper for them to do otherwise and because they also recognise – as others sometimes fail to – that the referral of cases that are doomed to failure can cause real damage.

Such referrals may cause unnecessary and serious distress to victims of crime who have long since tried to put behind them the trauma of the relevant events. Pain of that sort must not be belittled or underestimated. They may also cause real distress to applicants and their families by raising hopes that are then disappointed.

One of the more outspoken passages of adverse criticism that the Court of Appeal has directed at the commission was in the case of Gore [2007] EWCA Crim 2789 where, on the application of her parents, the commission referred a conviction for infanticide of a young woman who had later died. The court said: “We are surprised that the commission should have seen fit to refer this case to us. This was not a case where the system failed a distressed defendant. On the contrary, it was a case where a young woman was treated with considerable compassion and sensitivity. She never wanted to resurrect this matter and it is unfortunate that, given there can be no benefit whatsoever to her, her parents’ expectations have been raised only to be dashed. They should have been left to grieve for their daughter, not forced to relive the tragic circumstances of the death of their grandchild.”

In the particular circumstances of that case, this was not in the Commission’s view a fair criticism. The thrust of the underlying reasoning could, however, undoubtedly have been compelling in other circumstances.

Other factors that militate against making referrals that stand no real possibility of success arise out of the fact that, when a referral is made, the court is obliged to treat it “for all purposes” as an appeal in the normal way (see e.g. section 9(2) of the 1995 Act). That aspect of the legislation is as remarkable as it is central to the commission’s ability to assist in the remedying of miscarriages of justice.

Whether or not an appeal court wishes to do so – and no matter what other pressures there may be on its time – it must deal with a commission referral as a substantive appeal. Given that cases that are referred by the commission are often of real weight and complexity, the resulting burden on appeal courts and its consequences for other appellants can be very substantial. In those circumstances it takes little imagination to see why the Court of Appeal might be quick to take exception to speculative or unrealistic commission referrals. Nor is it difficult to imagine how the court might react if it came to the view that there was a real risk that referrals of that nature might undermine its ability properly to discharge its duties to other appellants.

In the infanticide case referred to above, the court also observed that ‘the Commission might have been well advised to heed the wise words of Kay LJ in the appeal of Ruth Ellis [2003] EWCA Crim 3556′. Those words included: ‘If we had not been obliged to consider [this] case we would perhaps in the time available have dealt with eight to 12 other cases, the majority of which would have involved people who were said to be wrongly in custody. The Court of Appeal’s workload is an ever‑increasing one and recent legislation will add substantially to that load. Parliament may wish to consider whether going back many years into history to re‑examine a case of this kind is a use that ought to be made of the limited resources that are available.’

Both Gore and Ellis were to some extent ‘historic’ cases and that factor no doubt contributed to the court’s displeasure. The commission is perhaps less inclined than is the court to the view that wrongs should be left unrighted merely because time has passed. It seems unlikely, however, that the court would be any more enthusiastic if the commission were to refer significant numbers of more recent cases that stood no sensible prospect of success.

In 2006 and 2007 the Court of Appeal expressed concerns about referrals that had been made to it by the commission on so-called ‘change of law’ grounds. By May 2008 – and after ‘members of the senior judiciary brought the matter to the attention of the government’ – legislation had been introduced, which in effect provided that commission referrals on such grounds need no longer be treated ‘for all purposes’ as appeals in the normal way. If more general legislation were introduced to the effect that commission referrals need no longer be dealt with as substantive appeals but merely as applications for permission to appeal, the consequences for the wrongfully convicted could be serious indeed.

To recognise that there can be downsides in the making of over-ambitious referrals is neither to run scared of ambition nor to be excessively in thrall to the Court of Appeal. It is simply to recognise the realities of the situation and, in particular:

  • that under the existing system it is only the Court of Appeal – and not the commission – that can actually remedy miscarriages of justice;
  • that, as every advocate knows, one’s ability to influence a court is largely dependent upon the extent to which that court respects and trusts one’s good faith and judgement;
  • that the commission’s power to require the Court of Appeal to consider a case as a normal appeal must be coupled with a responsibility to exercise that power sensibly, in good faith and with proper concern for the interests of others who have a right to call on the court’s time; and
  • that if that important power is abused, there is good reason to fear that it may be lost altogether.

The commission doesn’t make sufficient use of its investigatory powers
The commission cannot sensibly reinvestigate every aspect of every case which comes before it. It does, however, make extensive use of its investigatory powers and will in virtually every case obtain relevant material from public bodies. Although there have no doubt been occasions when the commission could and should have made further investigations than those it has in fact conducted, the most pressing investigatory problems relate not so much to the commission’s use of the powers it already possesses but rather to the investigatory powers that it still lacks.

For years the commission has been pressing for the power – which is already enjoyed by the Scottish CCRC – to obtain material from private as well as public bodies and for an (appropriately qualified) right to require witnesses to answer its questions. The need for such powers has grown as functions have been transferred from the public to the private and/or charitable sectors, and as legislation about data protection has led to increased concerns about confidentiality. The desirability of transnational investigatory powers has also become ever more apparent as the years have passed.

There must always be a much greater chance that a wrongful conviction will be overturned by even the most conservative and recalcitrant of appeal courts if the commission can present compelling new evidence of ‘unsafety’. The commission would welcome any alteration to the present arrangements that would make it easier for it to find such evidence.

Different roles
Journalists, pressure groups, academics and others have vital roles to play in uncovering miscarriages of justice, in drawing them to public attention and in keeping up to the mark those who are charged with investigating and/or remedying them. The commission has a different role to perform. It is a public body expending public funds that must review each application as a potential miscarriage. It does not have the luxury of choosing the cases with which it engages or of ignoring those that do not evoke its sympathy.

Convictions will be overturned only if the Court of Appeal can be persuaded that, on a proper analysis of the available evidence and the law, they are unsafe. In those circumstances it is both proper and inevitable that the body charged with investigating alleged miscarriages will focus on the evidence and the law, and that it will give little weight to emotional declarations or campaigning fervour. Equally, however, it will not hesitate to make challenging referrals when it can properly do so.

The commission is one of only three bodies of its type in the world. In it we have the most powerful apparatus anywhere for identifying and dealing with miscarriages of justice. Its considerable powers allow it to make a real and important contribution to the remedying of such miscarriages.

Wider powers and more generous resources would undoubtedly enable it to make an even greater contribution. But those who argue that the commission or its model is fundamentally flawed and that there is need for a wholly different approach to miscarriages of justice should be watchful that, in an inevitably imperfect world, they do not undermine the good in their illusive search for the best – and in consequence end up with neither.