The Criminal Cases

The criminal justice system aims to deliver a fair justice process for the public and aspire to convict the guilty and acquit the innocent. This aspiration however strikes in contrast to reality. The human courts are fallible that commit mistakes and innocent people do get convicted (Naughton, 2007:20). The Criminal Cases Review Commission (CCRC), an independent public body, aims to act as an additional safeguard to the appeal system and review possible miscarriages of justices. [1] The CCRC, however, has been ineffective and does not play a vital role.

This essay will discuss on the reasons why the CCRC fails to play a vital role. Reasons include the procedural framework, way of investigation, long waiting time before a decision is reached and its establishment leading to misguided perception of the system. There are several definitions of miscarriage of justice but in this discussion, we will use the laymen’s term – to acquit the innocent and convict the guilty. First, the limitation on the CCRC’s power to refer has resulted it in not playing a vital role.

Section 13(1)(a) of the Criminal Appeal Act 1995 states that CCRC can only refer cases if it is felt that ‘there is a real possibility that the conviction would not be upheld were the reference to be made’. Consequently, CCRC has to ‘look forward’ by second-guessing how the Court of Appeal (CA) might decide based on its criteria for quashing convictions and whether it would find the conviction to be unsafe (Eady, 2006). This limit was self-imposed by the Home Secretary under section 17 of Criminal Appeal Act 1968 and the establishment of CCRC was partly to circumvent this limit (Naughton, 2012:207).

Sir John May pointed out that the self-imposed limit taken by the Home Secretary resulted in a ‘substantially restricted view of cases’ being considered (RCCJ, 1993:182). However, by introducing this limit in statutory form, CCRC has instead further exacerbated the problem previously raised by the Royal Commission on Criminal Justice Report (RCCJ). Moreover, according to section 13(1)(b)(i), the evidence or argument must have not been raised in proceedings before.

[2] Therefore, the CCRC has to also ‘look backward’ by how the appeal courts have arrived in its decision and is likely to exclude arguments that have been rejected (Naughton, 2009:27). This would mean that there must be fresh evidence in order for the CCRC to make a referral[3] but this criterion was already found to be unsatisfactory as noted in RCCJ. The requirement for fresh evidence is however made more stringent as CCRC referrals are not regarded as first appeals like how referrals by the Home Secretary did.

[4] Hence, every repeated referral by CCRC must have evidence that is not mentioned in the previous appeal. Only the freshest will do. Until now, only the case of Tony Stock has been referred to the CA twice by the CCRC (Robins, 2014). The high success rate of referral[5] and low number of cases referred to CA indicate that CCRC are ‘excessively cautious’ and perhaps, the CCRC should consider referring cases with ‘less than a probability’ of success and this way, more alleged victims of wrongful convictions would be assisted (Sanders and Young, 2010:652).

It might be practical for CCRC to ‘take notice of signals’[6] from CA but it would be no different from the C3 Division it replaced. Therefore, it is evident that the requirement to provide fresh evidence remains a difficult hurdle for the factually innocent defendants as the CCRC’s ability to refer miscarriages of justice are considerably constrained. This restriction has resulted the court in prioritising the safety of the convictions, rather than the factual innocence of a defendant, as noted by Lord Justice Roach in R v Hickey.

The CCRC was introduced when innocent victims such as the Birmingham Six[7] were unable to overturn their convictions through existing post-appeal mechanism, resulting in a crisis of public confidence of the criminal justice system. However, section 13 of Criminal Appeal Act 1995 meant that the CCRC is working against its historical background and RCCJ’s vision – whether a factually innocent defendant was convicted and the ‘fairness of the outcome’. Instead, a procedural barrier was formed and CCRC are more concerned about the ‘fairness of the process’ (Naughton, 2009:222).

Many alleged innocent victims of wrongful convictions such Neil Hurley has been rejected for referral by CCRC as there is a real possibility that the conviction will be upheld, although several evidences suggest that he is innocent. Gabe Tan noted that the factually guilty benefits more than the factually innocent from the CCRC. For instance, although it was clear that Ronald Clarke & James McDaid were guilty, they were referred by the CCRC on the grounds that the bill of indictment was not signed. They succeeded in quashing their convictions on grounds of legal technicalities.

Despite all the criticism on section 13, David Jessel points out that the test for the safety of a conviction ‘is a more useful one than any test for factual innocence alone’. Referring a case on the sole ground of innocence would be ‘extraordinarily difficult to establish’ and would not work in practice (CCRC Triennial Review, 2013:10). In addition, the ‘real possibility test’ reduces the ‘mass of hopeless appeals’[8] and the workload of CA. It is argued that ensuring the safety of convictions and procedural regularity comply with the due process model and rule of law.

Although the rule of law is an ideal, granting an exception would break down the system of principle. The tension between CCRC and CA is also prevalent. The CCRC was severely criticised by CA on referring case of Knighton and Ruth Ellis as wasting the court’s time ‘which was entirely without merit’, causing CCRC to be more cautious when referring (Skelly, 2012:460). But it is worth noting that these cases are long-past alleged wrong cases (Campbell, 2010). Nonetheless, it is undeniable that the presence of section 13 prevents CCRC from placing its emphasis on whether the accused actually committed the crime.

The CCRC was established to supplement the CA and not act as deference to it. Eady and Price (2010:2) also noted that the ‘due process should not be an infallible representation of fairness’. By failing to focus on the purpose it was set up for, it clearly seems that the CCRC has failed its duty to ensure that the innocent should not be wrongly convicted and to play a vital role. Secondly, the investigations taken by the CCRC are not as thorough as envisioned by RCCJ and JUSTICE.

The impact of section 13 signified that only ‘desk top reviews’ of information are conducted to check if there are any abuse of process and fresh evidence (Naughton, 2012:223). The application of Neil Hurley shows that the investigations methods are inadequate and not proactive (Maddock, 2014). The presence of new alibi and witnesses going back on their statements did not prompt CCRC to see his conviction as questionable. DNA testing was not used in its investigation, which could ‘potentially exonerate him’ (Naughton and Tan, 2010:336).

Critics have also pointed out that external investigating officers were previously involved in the original prosecution and this might affect the quality of the investigation (James, 2000:145). Contrary to what the commission claims in its working practice, The Criminal Appeals Lawyers Association noticed that CCRC case review managers rarely visit prisoners or their representation and they are rarely updated about progress of their cases (Sanders and Young, 2012:651). Another issue is the power of CCRC to obtain documents from any public body to conduct a review under Section 17 of Criminal Appeal Act.

This power, however, justified Supreme Court’s decision to deny Kevin Nunn’s[9] application for access to material as CCRC has the expertise to obtain such materials (Heaton, 2014). But in practice, applicants need to provide fresh evidence and have a strong case before the CCRC conducts a full review. Paradoxically, this results in a catch-22 problem and the applicant is left helpless. It is only in some fortunate cases such as Hodgson[10] that his solicitor was able to obtain the help of the police to analyse the DNA swabs, which led CCRC to refer his case and overturn his case (Cape, 2015).

The heavy reliance on lawyers mean an applicant’s submissions are at a significant advantage than those not legally represented. Also, the increasing number of public body privatising has hindered CCRC’s work as it is unable to obtain information from them although the government has expressed that it would resolve it soon. The CA has complimented CCRC for their ‘rigorous and prompt’ investigation but it is evident that the CA’s appreciation for CCRC does not reconcile. Thus, the CCRC does not play a vital role as the investigation method is unsatisfactory.

Thirdly, there is a considerable long waiting time before the CCRC reaches a decision. The waiting time from receipt to allocation alone was 35 weeks for custody cases and 45 weeks for liberty cases. On top of this, the time taken from allocation to reaching a provision decision was 37. 8 weeks (CCRC Annual Report, 2014:15). Consequently, this means a defendant on short imprisonment would be unlikely to benefit from CCRC as he would have been released before his case is heard and unlikely to continue his pursuit to overturn his conviction (Sanders and Young, 2010:654).

The waiting time in 2013/14 is longer than in 2012/13 by a few weeks but it was explained in the report that this is due to a surge in the number of applications. Additional funding to increase its staffing has proven results as there are 10[11] more cases are referred than in 2012/13. Nevertheless, the backlog of cases to clear suggests that CCRC should work within its financial constraints and focus on ‘miscarriages from the Crown Court upwards only’ instead of dealing with summary cases or cases regarding sentences (Robins, 2013).

The CCRC has responded that the number will be reduced due to changes in practice and legislation (CCRC Triennial Report, 2013:8). The referral of Dino the German Shepherd dog seems bizarre when it is telling that there are more and larger injustice cases to deal with. Although CCRC is working hard within its given tight budget, the problem of long waiting time is still not resolved and the number of referrals made can be improved. Lastly, the establishment of CCRC itself has limited other routes for the factually innocent to quash their convictions.

Investigative journalists and JUSTICE, a human rights organisation, no longer look into alleged miscarriages of justices. Similarly, television programmes stopped broadcasting cases of possible wrongful conviction in the perception that CCRC would deal with such miscarriages of justice from now on. [12] Unfortunately, CCRC does not and instead, narrowed the platforms that were used to inform the public and wrongly convicted victims to seek help. In addition, the CCRC never took advantage by using the Royal Prerogative of Mercy under Section 16(2) of Criminal Appeal Act 1995 since it was established in 1997 (Taylor, 2012:1920).

The reason in 2013/14 being that CCRC has ‘no cause’ to use it but this is questionable (CCRC Annual Report, 2014:26). There will definitely be cases where there is a strong need to recommend to uphold justice when the factually innocent lacks the necessary legal grounds to bring a case. In conclusion, it is indisputable that the CCRC does not play a vital role. Had it focused on overturning convictions of the factually innocent and not emulate the standards of CA, it would have played a vital role as it would be a real safe gate for the victims.

Internal problems such as time delays and superficial investigations further suggest that the CCRC has failed to do so. As Maddocks (2014:25) said, every case is a personal human tragedy and the impact on the victim and his family are irreparable. The CCRC should continue to do more and change its framework to serve its original purpose it was established for and properly use its available power. On the whole, the CCRC might have helped some factually innocent victims to overturn their cases, but it has definitely not played a vital role.