ANALYSIS: Michael Zander QC on whether the Criminal Cases Review Commission (CCRC) lives up to what the Runciman Royal Commission on Criminal Justice envisaged. This is a paper that Michael presented at the Innocence Network UK’s symposium on the reform of the CCRC. Prof Zander was on the Runciman commission.

• You can download Wrongly accused: who is responsible for investigating miscarriages of justice? HERE. It is the fourth in the JusticeGap series.

I am glad to have the opportunity of saying something on this topic as I think that there has been a serious misreading of what the Royal Commission envisaged.

In its statement issued for this conference, the Innocence Network UK (INUK) said that the main problem with the CCRC was its lack of independence from the courts. Runciman had called for the creation of a new body independent of both the Government and the courts for dealing with allegations that a miscarriage of justice had occurred. Whilst the CCRC was independent from Government, Runciman’s recommendation that it should also be independent from the courts had not materialised. Pursuant to s.13(1)(a) of the Criminal Appeal Act 1995, the CCRC could not refer applications to the appeal court unless there was a real possibility that the conviction would not be upheld.  The ‘real possibility test’, INUK said, subordinated the CCRC entirely to the appeal courts and restricted its review and decision-making processes to the appeal courts criteria for quashing convictions.

INUK’s solution?

• Replacement of the ‘real possibility test’ by a test that allows the CCRC to refer a conviction back to the Court of Appeal if it thinks that the applicant is or might be innocent, which would require the CCRC to consider all the evidence; and
• Where the Court of Appeal dismisses an appeal against conviction following a CCRC referral, the CCRC to have the power to refer the case to the Secretary of State to consider exercising the Royal Prerogative of Mercy.

As to the second of these proposals, I am puzzled as the CCRC already has that power. Section 16(2) of the Criminal Appeal Act 1995 says: ‘Where in any case the Commission are of the opinion that the Secretary of State should consider whether to recommend the exercise of Her Majesty’s prerogative of mercy in relation to the case they shall give him the reasons for their opinion’. That is an open, unqualified, invitation.

So I will focus my remarks on the first proposal  – in the context of Crown Court convictions. I regret to say that I do not share INUK’s analysis and I do not support its proposals.

The Royal Commission explained what it meant when it said that the new body should be independent of the Court of Appeal? Paragraph 15 of chapter 11 of the Report begins, ‘We believe that there are cogent arguments for the Authority to be independent of the Court of Appeal.’ The paragraph then spelled out what that entailed. There were three ingredients – namely, that the new body, rather than the Court of Appeal, should carry out investigations; that it should not come within the court structure; and that it should not take judicial decisions.

The CCRC unquestionably satisfies those three tests.

Shackled by statute
INUK says, however, that the CCRC is not independent of the Court of Appeal because it is shackled by the terms of the ‘real possibility test’ enshrined in s.13.  I do not think that the Royal Commission would have agreed.

There is not a word in the Commission’s Report regarding the grounds for referring a case. Strange as it may seem, I think that the matter was never even discussed by the Royal Commission.  (I have looked at the Secretariat’s note prepared in October 1992 for the Commission’s meeting on ‘Correcting Miscarriages of Justice after Appeal’. It consisted of nine pages of discussion of a variety of topics and concluded with a list of 20 possible recommendations for Commissioners to consider. The basis of referrals was not mentioned.) All that the Royal Commission’s Report said as to when the new body should refer a case was this: ‘When, therefore an investigation is completed whose results the Authority believes should be considered by the Court of Appeal, we recommend that it should refer the case to the court, together with a statement of its reasons for so referring it.’

Since it did not deal with the question, I am speculating, but I believe that the Royal Commission would have agreed with the basic approach of s.13 which stipulates that a referral should be based on some new argument or evidence that makes a significant difference but that exceptionally it need not be something new.

There are two elements. It must be something significant creating a real possibility that the decision would be reconsidered and generally it should be something new.

As to the first, I believe that the Royal Commission would have taken the view that it makes no sense to suggest that the CCRC should refer conviction cases where it did not think there was a real possibility that the conviction would be reconsidered.  It would have agreed with Richard Nobles and David Schiff when they wrote: ‘Sending cases that had no hope of success would raise false hopes for appellants and delay the Court of Appeal Criminal Division’s hearing of cases which were going to succeed, resulting in longer periods of imprisonment for wrongfully convicted prisoners.’

The Scottish CCRC has been given what seems to be a more open-ended remit. The statute says that it can refer a case to the appeal court on the ground that it believes that a miscarriage of justice may have occurred and that it is in the interests of justice. Some think that the difference in the statutory formula explains the higher rate of referrals by the Scottish Commission. That may or may not be so.  But it is wrong to think that the Scottish Commission makes referrals without regard to the appeal court’s likely response.  In this respect the Scottish Commission operates in much the same way as the English Commission.

There is no doubt that the main thrust of the proposal to set up the new body was that it should replace the Home Office’s C3 section – partly for constitutional reasons and partly because C3 did not undertake sufficiently energetic investigations.

Serious doubt
The Royal Commission said that it based its recommendation for the establishment of a new body on the proposition that the role assigned to the Home Secretary and his Department under the then existing legislation was incompatible with the constitutional separation of powers between the courts and the executive. ‘The scrupulous observance of constitutional principles has meant a reluctance on the part of the Home Office to enquire deeply enough into the cases put to it’.

Enquiring deeply into a case relates to investigation, the purpose of which is to see whether there is something important that is new that was not before the trial or the appeal courts. That is reflected in s.13(1).

There is nothing in chapter 11 dealing with ‘Correction of Miscarriages of Justice’ to suggest that Runciman thought that the new body should refer cases to the Court of Appeal by reference to a new principle. If anything the implication is rather to the contrary, since the Report said that once a case had been referred, ‘It would be for the Court of Appeal. . . to treat it as an appeal from the Crown Court’. That sounds as if the Royal Commission assumed that the Court of Appeal would operate according to its customary approach.  The difference would only be that the case would have benefitted from the additional in-depth investigation undertaken by the new body.

However, in the previous chapter dealing with the Court of Appeal, the Royal Commission said that, if the court  ‘has a serious doubt about the verdict’, it should be ready to quash the conviction even though there is nothing new and no irregularity at trial. It fully appreciated the reluctance felt by appeal court judges about quashing a jury’s verdict but, the Commission said, ‘we do not believe that quashing the jury’s verdict where the court believes it to be unsafe undermines the system of jury trial’.

Quashing a conviction when there is nothing new is sometimes referred to as acting on a ‘lurking doubt’, a phrase associated with the 1969 case of Cooper. Kate Malleson’s research for JUSTICE found that in the 21 years between 1968 and 1989 there were only six cases in which the lurking doubt test had been applied. But in her 1990 sample of 102 successful appeals there were six ‘lurking doubt’ cases and in her 1992 sample of 114 cases there were 14 cases in which the conviction was quashed because the court considered that the jury had reached the wrong result although there was no fresh evidence and no criticism of the trial process. In nine of these the court said that the evidence was too weak or flawed to justify a conviction; in the other five cases the court referred to having a ‘lurking doubt’. So far as I am aware there are no recent figures, but it is said that the Court of Appeal is today less ready to act on that basis.

The Royal Commission said that, whether or not the Court referred to the lurking doubt principle, these were cases where the combined experience of the three members of the court led them to conclude that there may have been an injustice in the trial and in the jury’s verdict.

The Royal Commission recommended that in the proposed redraft of section 2, ‘it should be made clear that the Court of Appeal should quash a conviction, notwithstanding that the jury reached their verdict having heard all the relevant evidence and without any error of law or material irregularity having occurred, if, after reviewing the case, the court concludes that the verdict is or may be unsafe’. If not an invitation to allow full-on challenge to jury decisions, this was at the least a suggestion that the lurking doubt test be given express statutory approval.

The recommendation was not implemented. Of course, it is one thing for the Court of Appeal occasionally to quash a conviction, with or without mention of lurking doubt, on the ground that the jury got it wrong.  It is something rather different to give that concept legislative expression. The proposition that a conviction is unsafe if the Court is of the view that, on the evidence, the jury should not have convicted would be a fundamental new principle of our criminal justice system. It is tantamount to saying that criminal convictions in Crown Court cases require the assent not only of at least ten members of a jury but, on a belt and braces principle, also of the Court of Appeal. Were it not for the resource implications, that might be an excellent reform. It would give official recognition to an uncomfortable but obvious fact – that juries sometimes do get it wrong. But the resource implications are extremely serious. Once the news got around the prisons, the number of applications for leave to appeal on the ground that the jury got it wrong would increase exponentially. How could the system cope with that likely deluge not just in terms of the sheer numbers of applications but of the resulting increased workload for judges required to consider all the evidence in all those cases?

A useless safety valve
Should at least the CCRC, however,  have the power to refer cases to the Court of Appeal where there is nothing new, simply on the ground that it thinks the jury got it wrong? Stated baldly like that the proposition would probably attract little political support – if only again because of the fear that the CCRC would quickly itself become deluged with a rising tide of requests for referrals back to the Court of Appeal. But in 1994, when developing its thinking through a Consultation Paper, the Home Office seemed to have in mind something along those lines. Normally the Authority would refer cases on the basis of something new but, the Consultation Paper said:

‘The Government does not propose, however, that the Authority’s power to refer should be limited in statute to cases where something “new” appears to have emerged. Apart from the difficulties of interpretation which this would give rise to, it would exclude the possibility of a reference being made in an exceptional case where the Authority felt real disquiet about the safety of a conviction even in the absence of new matters. The Government therefore considers that the Authority should be empowered to refer a conviction to the courts according to a test expressed in terms wide enough to encompass the variety of circumstances described above, where it appears that there may be grounds for doubting the safety of the conviction and that it would be right for the courts to be given the opportunity to reconsider the case.‘

That sounded like a quite strong endorsement of the concept. However, when one looks at the 1995 Act its only expression is subsection (2) of s.13 which says that in exceptional circumstances the CCRC can refer a case even though there is nothing new. Whatever Ministers intended, this has proved to be a useless safety valve. In the fifteen or so years since the establishment of the CCRC it has hardly ever been used.

I imagine the reason is that the Commission lacks the confidence to use the power, fearing that the Court of Appeal will not welcome referrals when there is nothing new. But if the CCRC believes that the case should be reconsidered it should exercise the power to require that it be reconsidered, even if the reference fails.

The INUK statement for this conference proposes that the CCRC should have the power to refer cases to the Court of Appeal ‘if it thinks that the applicant is or might be innocent’. I have no problem with a referral to the Court of Appeal where the CCRC has come to conclusion that the convicted person is innocent – providing that it is on the basis that in the CCRC’s view the conviction is unsafe. But I would be strongly against the CCRC referring a case on the stated basis that the defendant is or may be innocent.  There are few cases in which it would be possible to do so and to identify a few persons being referred as ‘innocent’ or ‘probably innocent’ would by definition suggest that anyone else referred was not innocent. One would not want second class referrals any more than one wants second class acquittals.

Mutual support
Does that mean that I am a critic of the Innocence Project? Absolutely not.  I am a great supporter of the whole concept and am honoured to be a patron of the organisation.

There are two main reasons.

• One is that it is an important addition to the means of providing a legal education. Students who take part in the programme will learn both about the criminal justice system and about developing lawyering skills. Moreover, by working on something of importance to a human being who is in prison they may also derive satisfaction far beyond what can normally be obtained from legal studies.
• The other main reason is that the work done by an Innocence Project can have a real impact on the case.

The relationship between Innocence Projects and the CCRC should be one of informal partnership and mutual support. After all, if an Innocence Project can establish that a convicted person is factually innocent that may be the basis of a successful referral.

What if the CCRC does not refer such a case or if, having referred it, the Court of Appeal does not quash the conviction? The answer may be to continue to argue the case. The Innocence Project does not have to drop the case. It can attempt to mobilise media or other support.

By the same token, if the Court of Appeal declines to quash the conviction, the Commission, if convinced that the case needs to be reconsidered, can refer it again.

And, if all else fails, the Commission has the power under s.16 (2) to ask the Home Secretary to exercise the Prerogative of Mercy.

My answer to the question posed therefore is that I believe that the CCRC as established by the Criminal Appeal Act 1995 does broadly live up to what the Royal Commission envisaged.

‘If I were to suggest something that has perhaps NOT lived up to what the Royal Commission envisaged, it would be the Court of Appeal’s excessive deference to jury decisions. That is the cause of much of the problem for which INUK blames the CCRC.’

But perhaps what the Royal Commission envisaged in that regard was unrealistic.