Will Bordell
by Will Bordell

This piece was originally published by The Justice Gap.

The new chair of the miscarriage of justice watchdog has said that sending cases back to the Court of Appeal was ‘not be the be-all-and-end-all’. Helen Pitcher OBE made her comments after the publication of a review of the Criminal Cases Review Commission (CCRC) recommended that it should focus on the most serious cases, dropping investigations into summary convictions and sentence-only cases.

Whilst acknowledging ‘the continued excellent work’ of the Commission, the tailored review of the CCRC revealed that its referral rates were at an alarming low-point. Out of all applications that the CCRC has received since 1997, 3.3% have been referred to the Court of Appeal. However, only 2.2% of applications were referred in 2014-15 and that proportion fell below 1% in 2016-17. In the period from April until December 2017, the slump continued, with just 0.5% of all applications resulting in a referral.

Over the CCRC’s 22-year lifespan, it has referred an average of 33 cases per year. In 2016-17, just 12 cases were referred back to the Court of Appeal. Last year, that figure rose only marginally to 19 cases. The review quoted a solicitor who expressed concern that ‘its referral rate is quickly moving towards the point of vanishing’.

Commenting on the feedback from the tailored review, the CCRC chair Helen Pitcher said that ‘the number of cases we refer for appeal, while clearly very important, should not be the be-all-and-end-all of the Commission.’

‘I think perhaps too little attention is paid to the other outcomes of the Commission’s work, such as the considerable value we bring to the justice system in the de facto audit of the safety of convictions and correctness of sentences in each case we consider but do not refer, and the feedback we provide and warnings we give to other parts of the justice system when we see worrying trends.’

Helen Pitcher OBE

The CCRC was set up as a direct result of a royal commission launched on the day that the so called Birmingham Six were set free. The Runciman commission called for a new body to ‘consider allegations put to it that a miscarriage of justice may have occurred… and, where there are reasons for supposing that a miscarriage of justice might have occurred, to refer the case to the Court of Appeal’.

Paddy Hill spent 16 years in prison wrongly convicted in relation to the 1974 Birmingham pub bombings. ‘The CCRC was set up in order to overcome the failure of the UK judicial system in its approach to miscarriages of justice. Its purpose was to examine intractable cases that couldn’t rely on the appeals process as it stood,’ Hill told the Justice Gap yesterday.

Paddy Hill, who is also founder and director of MOJO, noted that whilst the process of review was ‘part of their function, it’s not an end in itself’.

‘If the CCRC fails to properly investigate, or refer these cases to the Court of Appeal then it is, by definition, not fit for purpose. After all, we are all aware that the problem of wrongful conviction hasn’t gone away. The problem lies in the CCRC’s failure to properly use the investigation powers they have. In an ideal world, anyone who suffers an injustice should be able to seek redress but the CCRC’s resources and powers should always be used on the cases of those who are serving long term prison sentences as opposed to the cases of those who may have a problem related to their asylum status or even dangerous dog cases.’

Paddy Hill

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This is the second time in recent months that the CCRC has sought to argue that it should not be judged solely on the number of referrals. In last year’s annual report, chief exec Karen Kneller seemed to suggest that most applicants were more concerned with waiting times than having their convictions overturned. ‘Outside of the Commission people tend to focus on the number of referrals that we make or, even more narrowly, on a tiny handful of high profile cases. Inside the Commission we know that for the majority of our applicants who are unrepresented, the most important thing is the time taken to work on their case and the time we take to complete it.’

Barry Sheerman MP, chair of the all party parliamentary group on miscarriages, said it was ‘important to remember that the CCRC was set up after years of campaigning by politicians, journalists, lawyers and the victims of miscarriages of justice and their families’. ‘We fought for a miscarriage of justice watchdog with real bite. A body that would make sure that innocent men and women were not left rotting in prison. We didn’t fight for an “audit” body. The number of referrals has dropped off a cliff. Why?’

Helen Pitcher cited the tailored review together with major new research by Professor Carolyn Hoyle and associate professor Mai Sato (Reasons to doubt) as demonstrating that the commission was ‘a fundamentally sound organisation which performs its core function – the investigation of alleged miscarriages of justice – not only efficiently and effectively, but also thoroughly and with skill, diligence, professionalism and integrity’.

Pitcher said criticism of the Commission often came from people who argued ‘that in this or that particular case the CCRC has been sloppy, unprofessional or careless… . Some have argued that the Commission is not “fit for purpose”.’ She made the point out that the review did not find ‘anything whatsoever to support the more outlandish accusations of corruption and bias’ that were ‘occasionally levelled at the Commission’.

Barry Sheerman said that the concerns about the CCRC raised through the APPG were rarely to do with allegations of corruption and more to do with a ‘beleaguered and overwhelmed’ body struggling to do its job because it was being ‘starved of funds’. ‘What we are concerned about is the lack of cases going back to the Court of Appeal and the quality of investigation,’ he added.

Louise Shorter, the journalist who runs the charity Inside Justice which investigates miscarriages, said that the tailored review flagged up ‘areas which should be of serious concern to the CCRC: improvements to consistency of casework; ensuring updates are sufficiently detailed; monitoring hours spent per case’. ‘A meeting of the all party parliamentary group on miscarriages was convened the day before this report came out and revealed the extent to which anger and frustration was expressed by lawyers, campaigners and academics working in this field. The CCRC needs to address these points in the interests of justice.’

According to the Hoyle and Sato’s new book Reasons to Doubt, the CCRC has experienced the biggest budget cuts in real terms across the entire criminal justice system. Dr Hannah Quirk, a reader in criminal law at King’s College London, observed on Twitter that this was the ‘biggest omission’ from the review.

The Hoyle and Sato study is the result of a major four year empirical study. The authors conclude that the CCRC is ‘not a perfect organisation. It has more variability than most applicants would be happy with, it remains a little more cautious in its referrals than it may need to be, it is sometimes too slow and ponderous.’ However, they argue ‘it is a whole lot better than its predecessor’ – C3, the widely discredited Home Office unit. Although, as the Justice Gap has reported before, in 2017 the CCRC referred fewer cases in percentage terms than C3 in its final years (here).

The book closes with a twin message:

‘It would be nothing short of an own goal for critics to fight to remove the commission from our struggling criminal justice system or for the government to fail fund it adequately for the task at hand.’

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Changing the watchdog’s remit to remove cases dealt with summarily and sentence only cases would require primary legislation. ‘If the legislation was changed to remove the requirement, the CCRC’s caseload would decrease significantly,’ the review noted. Last year one in 10 of all applications were dealt with summarily and represented 5% of referrals; and sentence-only cases made up 15% of applications and 17% of referrals.

The review considers seven key performance indicators which mainly relate to its ability to hit various deadlines. Only one of seven KPIs addresses quality and that is assessed by three measures: judicial reviews; complaints; and quality assurance. ‘The performance measures seem to be limited to meeting processing targets rather than actually looking at the quality of investigations,’ one service user told the review. ‘The measures and any relevant KPI’s focus on delivery of cases, but there should be an equal range of measures aimed at successful delivery of investigations and decisions, said another solicitor. According to the review, the quality KPI was ‘on the whole’ being met.

Under the body’s governing statute, the Criminal Appeals Act specifies that the CCRC must have 11 commissioners at any one time. The review noted that during the period of its investigation the CCRC had begun to move away from ‘substantive part or full-time Commissioners to appointing new Commissioners on a fee-paid basis’. The review team said that this might lead to recruiting more commissioners (only nine are listed on their site). It expressed concern that that this would ‘exacerbate existing issues’ around governance and noted that ‘a disproportionate amount of Commissioner time’ was spent on governance and not casework.

Three commissioners are needed to approve any referral that the CCRC makes. Speaking at the end of last year at the Criminal Appeals Lawyers Association (CALA) conference, Dr Sharon Persaud, whose tenure as a commissioner had just ended, revealed the extent of the shift away from full-time commissioners towards part-timers on a fee-paid basis. ‘The cuts have meant that when I arrived at the Commission [in 2013], there’s a statutory minimum of 11 commissioners and it was 8.6 full-time equivalent commissioners. As I leave, it’s 2.6 full-time commissioners.’

As Dr Persaud went on to explain: ‘When the CCRC was set up, the budget was £7.5 million and the Commission had 800 cases.’ The contrast with today’s situation is stark: ‘now, the Commission has 1,500 cases and the budget is £5.4 million, which means that for every £10 there was at the Commission, there’s £4 now per case.’

Additional reporting by Jon Robins.