Hope for the innocent

The Criminal Cases Review Commission was established 13 years ago in response to a crisis of public faith in the criminal justice system as a result of a series of miscarriages of justice. But is it doing the job it was set up for? Jon Robins reports

February 8, 2010 · 12 min read

‘My family will tell you I don’t do anything – none of the normal things like looking after the grandchildren,’ says Susan May of Royton, Manchester. ‘I eat, sleep and breathe my case.’ It is now almost five years since she left Askham Grange open prison, near York, after serving 12 years for the murder of her elderly aunt.

Susan May has always protested that she was the victim of a miscarriage of justice. She might be ‘free’, but she won’t rest until her conviction is overturned. As she puts it: ‘Until I have cleared my name, I remain locked up.’

May’s fate rests in the hands of the Criminal Cases Review Commission (CCRC). This is the independent legal watchdog set up in January 1997 to investigate miscarriages of justice, in the wake of a series of catastrophic judicial blunders that shook the public’s faith in the criminal justice system.

Just before Christmas, the 65-year-old received unwelcome correspondence from the commission among the usual Christmas cards from well-wishers and supporters who have stood by her in her campaign to overturn the conviction. It was what is known as a ‘provisional refusal’, saying that the CCRC was ‘minded not to refer’ her case back to the appeal court. ‘Once again you just hit rock bottom,’ May says. ‘I am fortunate I have a really good group of friends to support me, but it doesn’t get any easier.’

Last year, some 919 fresh applications were made to the Birmingham-based commission, mainly from prisoners serving time alleging they were victims of wrongful convictions. It is against such pleas that Susan May’s case has to compete for the time and resources of an organisation that only employs 39 case workers – and has been subject to savage budget cuts over the past few years.

Demoralising prospect

In October 2008, the then retiring chairman, Professor Graham Zellick, described staff as ‘angry and dispirited’ and predicted ‘melancholic challenges’ for his successor, ‘as damaging in practice’ as they were ‘demoralising in prospect’. The watchdog’s funding has been slashed by £100,000 a year for the past five years, falling to £6.5 million, and the total staff has dropped from more than 100 to 80.

‘We are talking about relatively small sums of money,’ Professor Zellick told me. ‘If you compare our budget with the amount of money spent on the other side by the police and Crown Prosecution Service, it is not even a crumb off the table.’

The CCRC was established 13 years ago, on 1 January 1997, in response to a crisis of faith in the criminal justice system as a result of a scandalous series of judicial travesties, most notably the Birmingham Six and Guildford Four cases. Campaigners fear that cuts could mean innocent victims of judicial blunders end up stuck in prison for years as their CCRC applications join a lengthening queue. They also fear that the necessary spadework required to exhume a miscarriage of justice won’t be done, because corners are cut in an attempt to hit targets.

At the end of last year, the CCRC came under an attack of a more fundamental nature in a controversial new publication by a group of academics, lawyers and campaigners who specialise in miscarriage work. The Criminal Cases Review Commission: Hope for the innocent, edited by Michael Naughton, a senior law lecturer at the University of Bristol, has as its central thesis the contention that the commission isn’t doing its job.

The academic argues that the CCRC is ‘not doing what it is widely believed to have been set up to do … helping alleged innocent victims of wrongful convictions in the interests of justice.’

Naughton contends that the CCRC struggles under ‘a statutory straightjacket’ imposed on it by the Criminal Appeals Act 1995, which established the watchdog. The legislation stipulates that only cases with a ‘real possibility’ of the conviction being overturned should be referred to the Court of Appeal. He reasons that the commission overlooks cases that it finds or believes to be ‘factually innocent’ – in other words, where there might be evidence of innocence but that evidence would be inadmissible on strict legal grounds.

‘We had a crisis of confidence around the criminal justice system as a result of the Guildford Four, Birmingham Six, Maguire Seven and so on,’ Naughton says. This led to the 1993 Runciman Commission and a subsequent report, Remedying Miscarriages of Justice, by the human rights group Justice, which called for an independent body to investigate wrongful convictions. ‘If you look at the royal commission and the Justice reports, which claim to be the blueprint, the CCRC just doesn’t measure up,’ says Naughton.

Silencing innocence

Naughton takes the provocative line that the creation of the Criminal Cases Review Commission ‘signalled the silencing of innocence as an organising counter-discourse against miscarriages of justice’. In other words, the idea of establishing someone’s innocence as the central motivating feature of an investigation has been sidelined in favour of a drier, more legalistic approach.

Naughton, who specialises in miscarriages, is the founder of Innocence Network UK, which co-ordinates the works of the 25 Innocence Projects that have sprung up at universities around the country since the first was launched in Bristol in 2005. These initiatives are supported by some 500 students and staff and currently are working on 70 cases of prisoners who maintain their innocence. He sees the proliferation of such schemes as being ‘in response to the failings of the CCRC to guarantee that it will refer cases of applicants found to be innocent back to the Court of Appeal’.

‘The CCRC isn’t an innocence-orientated or state-sponsored “innocence project”, however it trades upon that idea,’ Naughton says. ‘It trades upon the idea that it is about “miscarriages of justice” as understood by the public to be the wrongful conviction of the innocent. Let’s try and make clear what this body actually does.’

Naughton also attacks the CCRC for its ‘overly-deferential attitude’ towards the appeal courts and an ‘apparent unwillingness to act proactively’.

There is nothing new about such charges. What is new is that Naughton claims to draw on the evidence of leading experts in the miscarriage world to make the case for the creation of a brand new independent body to help miscarriage victims.

Many miscarriage experts, including a number of contributors to the book, take a different line. ‘Mike is criticising the commission for not being what he thinks it should be rather than accepting it for what it is,’ reflects Campbell Malone, chairman of the Criminal Appeal Lawyers Association. He represents Susan May, while past clients include Stefan Kisko, wrongly convicted of the murder of a nine-year-old and freed after 16 years in prison.

‘It’s hard to criticise the CCRC for having the “real possibility” test imposed upon it,’ he adds. ‘Where they are open to criticism is where they get their assessment as to whether to refer a case wrong.’

Malone, who has written a chapter for the book, is concerned with the ‘inbuilt conservatism’ of an organisation that has a 70 per cent success rate in getting convictions overturned by the appeal judges.

Andrew Green, founder of the victim support group Innocent and another contributor, agrees. He says his ‘main criticism’ is that the commission is ‘overcautious’. ‘They shouldn’t worry even if it is, say, 50 per cent of cases that they lose. My feeling is that if we could just get the CCRC to do their job properly there will be a lot fewer innocent people in prison.’ Malone wants an emboldened CCRC with a 55 per cent success rate, which he reckons would more accurately reflect the ‘real possibility test’.

Glyn Maddocks, a solicitor who specialises in miscarriage work, reckons that applicants’ chances largely depend on the individual case review manager assigned to the case. ‘It’s the luck of the draw,’ he says. ‘The tendency is for case review managers to undertake “reviewing” rather than investigation. Parliament established them to investigate miscarriages and injustice. That’s far from what they do in most cases.’ He agrees with Naughton and says the ‘best way forward’ is for the creation of ‘an independent charitable organisation that presents this information to the CCRC and for them to rubber stamp it’.

Missing the point

Some veteran campaigners are less than happy with the tenor of the debate and the scapegoating of the CCRC for the wider failings of the criminal justice system. ‘It’s reminiscent of the bad old days when people on the left would spend all their time attacking their own brethren when the real problems were elsewhere,’ one lawyer says. ‘It’s missing the point.’ The notion that the CCRC isn’t much bothered about ‘innocence’ has angered some at the commission. David Jessel, the CCRC commissioner who as a journalist was involved in numerous programmes about miscarriages, including Rough Justice and Trial and Error, recently wrote that the charge was met with a mix of ‘exasperation and contempt’ at the commission and branded the suggestion ‘a dangerous lie’.

It was ‘dangerous’ not only because that view might gain traction with the public and politicians, he argued on the Guardian’s website, but because ‘bright and highly motivated law students, such as those in the Innocence Project’ were being encouraged to see the CCRC as ‘the enemy of justice rather than its champion’.

Law reform group Justice stopped undertaking miscarriage casework when the CCRC opened its doors, on the grounds that it had achieved the kind of systemic reforms it had campaigned for since 1957. Its present director Roger Smith urges critics to remember the history. ‘The CCRC was established precisely because of widespread recognition of the failure of the old system,’ he argues. ‘You can criticise its performance, not least because of lack of adequate funding. But, overall, you have to keep a sense of proportion and a memory of history. It is miles better than the Home Office was – or realistically could be.’

While the shocks delivered to the criminal justice system by the Birmingham Six et al might have felt seismic at the time, the memories of politicians can be short. New Labour’s policy on law and order has been one of ‘rebalancing’ the justice system away from the defendant and in favour of the victim of crime. This was articulated most directly by Tony Blair, when he said in 2002: ‘It is perhaps the biggest miscarriage of justice in today’s system when the guilty walk away unpunished.’

The Labour peer and lawyer Baroness Helena Kennedy damned this as representing ‘a complete reversal of the approach to justice that every mature democracy in the world respects’. More recently, the former CCRC commissioner Laurie Elks reckoned that the CCRC had come to be regarded as ‘an unnecessary evil’ by the Home Office. The government regulated the commission ‘from a spirit of underlying hostility’, he added. Ministers tried but failed to attempt to ‘clip the commission’s wings’, as Elks put it, by preventing appeals on ‘technicalities’ in the recent Criminal Justice and Immigration Bill.

The case for the commission

Is the CCRC going to be regarded as one more luxury that a hard-pressed government, Labour or Tory, can no longer afford? Richard Foster, the former CPS chief executive, now the commission’s chair, reckons not. ‘Hitherto, we have received all-party support,’ he says. He adds that at a Bar Council conference last year the shadow home secretary Dominic Grieve nominated the UK’s treatment of alleged miscarriages as ‘one of the things that we can be proudest of in criminal justice’. Plus, as Foster notes: ‘There are very obvious attractions to government for this work to be done at arm’s length.’

Is the commission effectively being killed off by cuts? How ‘melancholic’ (in his predecessors words) have the ‘challenges’ of its slashed budget proved? ‘Making staff reductions is never easy,’ Foster replies. ‘It did affect morale. However the mood is buoyant now.’ He argues that the commission has made genuine progress despite the cuts and staff numbers falling by a fifth. He points to the body’s reduced waiting times, previously a major bugbear for an organisation that inherited a large caseload from the discredited Home Office C3 department it replaced. Applicants in custody can now expect their cases to be looked at in ‘two to three months’, a huge improvement on the two years they faced previously.

As for the contentious issue of the CCRC’s approach to innocence, Foster flatly denies the charge. ‘If we came across any new evidence which we thought suggested somebody was innocent we’d move heaven and earth to look into it. I’ve got people who’d lie down in the street to stop the traffic if they thought it would help.’

‘But you do need the evidence,’ Foster continues. ‘A deeply held passionate belief that somebody is innocent, based on arguments from the original trial that have already been considered by the court and jury, isn’t enough. The court would simply throw it out.’

‘If we were in jail today we would never have made it past the CCRC in-tray,’ Paddy Hill, of the Birmingham Six, said in June 2006. Hill spent 16 years behind bars for the 1974 pub bombings that killed 21 people. The same point is made by Naughton because, as he argues, the evidence of police misconduct that led to the quashing of the conviction was available at the time of the trial and didn’t constitute the kind of fresh evidence required by the CCRC for a referral.

Foster sighs heavily at the resurfacing of an old argument. ‘To be frank, I think it is an outrageous suggestion [that there wouldn’t be a referral today by the CCRC] providing there’s something to go on,’ he replies. He points out that the CCRC is looking at a series of Northern Ireland cases that are ‘not dissimilar … prosecutions that took place at a time when the troubled situation in Northern Ireland was at its highest where there was enormous pressure on police and security services to achieve outcomes.’

Jon Robins is a freelance journalist. You can read his articles at www.jonrobins.info. To find out more about Susan May’s campaign, go to www.susanmay.co.uk

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