The Westminster commission currently looking into the miscarriage of justice watchdog considered concerns over its independence from government. At the end of July, the Justice Gap reported on a legal action by behalf a prisoner who is arguing that the Criminal Cases Review Commission (CCRC) was not sufficiently independent of the Ministry of Justice. Gary Warner, sentenced to 16 years in prison for his role in an armed robbery, is currently challenging the CCRC’s rejection of his case.You can read the story here.

Concerns over the watchdog’s lack of independence was raised by Baroness Stern in an evidence session of the all-party parliamentary group on miscarriages of justice. ‘I understand that MoJ officials went into the CCRC, analysed the whole way of working in detail, and recommended a lot of very profound changes that had to be implemented, that were not recommendations but had to be implemented,’ she said.

The Justice Gap has seen minutes from a meeting between civil servants and the commissioners in February 2018 (quoted by the Warner’s lawyers) in which a leading MoJ civil servant appeared to insist that the watchdog accept changes to terms of employment for staff and to the structure of its board.

Stern asked the Professor Carolyn Hoyle of Oxford University’s Centre for Criminology was it ‘possible for the CCRC to act as if it were an independent body in these circumstances?’ The academic had previously raised her own concerns about changes to the tenure of the CCRC’s commissioners. One of the ‘huge challenges going forward’ for the CCRC was the new commissioners’ remuneration packages which resulted in ‘a massive increase in part-time – and I don’t mean 50%, I mean often less than that – commissioners’, she had said.

The CCRC is required to have 11 commissioners under its founding statute and the agreement of three is needed to refer a case to the Court of Appeal. Ten years ago nearly all the watchdog’s 11 commissioners were on full-time contracts with salaries and pension schemes. Now all but one are employed on a minimum one-day-a-week contracts and paid a day rate.

Professors Carolyn Hoyle and Mai Sato new book Reasons to doubt: Wrongful Convictions and the CCRC featured new research drawing on analysis of 147 of the commission’s cases. Hoyle said that the CCRC’s independence was not in her research’s remit, but added it was ‘very difficult to be critical of government when government are paying for your organisation’. She called the commission ‘massively under-resourced… for many, many years’. ‘The number of part-time commissioners at the moment goes against being an efficient and a thorough organisation – I have no doubt about that. And that is partly an issue of how government has decided to pay Commissioners, and that includes pension, it includes working rates, et cetera.’

Professors Hoyle told the Westminster commission that the CCRC was ‘not a perfect organisation’. ‘It has more variability in its responses to cases than I think any of us would like to see,’ she said. ‘Certainly than applicants and their legal representatives would want to see.’ She called the Birmingham-based group ‘somewhat cautious’ in its referrals and ‘sometimes too slow and too ponderous’.

Dr Dennis Eady of Cardiff University’s innocence project pointed out that the CCRC’s referrals had plummeted over the last three years – from a 20-year average of over 30 to just 13 last year. Eady said that a referral rate of ‘about 1%’ of the total number of applications represented ‘a snowball’s chance in hell’. ‘There’s a greater need now for a Royal Commission than there was in 1991. Things have got so bad, and so serious,’ he said.

Dr Eady was concerned that the APPG might make ‘a few recommendations’ for the CCRC to be ‘a bit bolder’ as the House of Commons’ justice committee did in 2015. ‘There’s a danger that we might mess around on the periphery of things, which might make them better for a little while. But I think essentially, we’ve got to be more radical in the approach we take.’

‘We’ve lowered the standard of proof consistently, we’ve knocked out due process safeguards, we’ve become a much more convictionist kind of society. We’ve had moral panics around sex offences and joint enterprise. And that bar has got lower and lower and lower in terms of convicting people. At the other end, as we’ve heard, the Court of Appeal’s bar has got higher and higher and higher. And the CCRC is stuck between the rock and the hard place.’
Dr Dennis Eady

Dr Eady said it was time to reform the Court of Appeal and allow for the CCRC t have more power and the ability to quash convictions. ‘In some ways, the only way to deal with the Court of Appeal, I’m afraid, is to take some of their power away.’

Erwin James, editor of the prisoners newspaper Inside Time and a member of the all party parliamentary group, spoke of his own experience as a prisoner helping a fellow inmate who he was convinced was innocent. James himself discovered evidence that in his view ‘totally undermined’ the prosecution case but would not have been allowed in by the Court of Appeal because the CCRC judged that it would have taken the view it was not fresh evidence. A situation the journalist called ‘absurd’.

Prof Hoyle rejected criticisms that the CCRC was ‘not fit for purpose’.  She said: ‘There are currently… maybe 480 people who are outside of prison who would otherwise be inside prison whose lives have been turned around, somewhat, because of the Commission’s work… and does a pretty thorough job of doing approximately 1400 applications a year, and making difficult decisions in those cases. So, it does a much better job than its predecessor, C3.’