MISCARRIAGES OF JUSTICE
130. The most troubling question that we face relates to whether, and if so how, we can identify and reverse those miscarriages of justice, which are said to have arisen through past investigations. We have heard that the chances of a successful appeal against conviction are usually slim in this area. The Court of Appeal will generally be reluctant to quash a conviction if the trial was conducted without legal errors. Furthermore, the evidential difficulties that are endemic in these cases mean that there is generally little hope of obtaining any fresh evidence, which might cast doubt on the safety of the conviction.
131. Chris Saltrese, a criminal defence solicitor specialising in these cases, said that:
"the Court of Appeal is only going to overturn a conviction if they regard it as unsafe. Either you need new evidence or a substantial misdirection by the judge. Judges do not normally get things wrong and there is going to be no new evidence because these defendants are saying these things did not happen. It is not as if the police have got the wrong guy for the crime, they are saying there was no crime so there will be no new evidence".
The Criminal Cases Review Commission
132. Fortunately we now have a statutory body, which is tasked with investigating suspecting miscarriages of justice. The Criminal Cases Review Commission was established in January 1997 with power to refer cases back to the Court of Appeal where "there is a real possibility that the conviction...would not be upheld were the reference to be made", based on "an argument, or evidence not raised in the proceedings".
133. Last year, the Criminal Cases Review Commission established a small internal working group to "analyse and refine its approach to child sex abuse cases". In addition, the Commission is developing a database on such cases, to help identify generic patterns. So far, however, the Commission has received a relatively low number of applications from those convicted of abuse in care homes, possibly because they may have appeals pending. As a result, they do not have a sufficient number of cases from which to identify any particular patterns or draw any general conclusions.
134. Whilst the Commission may adequately identify potential miscarriages of justice, there is some concern that its power of referral is too limited. Bob Woffinden told us that "what the Act should...say is that there is a real possibility that justice has miscarried." In his view, we are at present "in a rather daft situation where all the time the CCRC is having to second-guess what the appeal court thinks". By contrast, the Scottish Criminal Cases Review Commission has a much wider statutory test, which does not require it to predict the views of the appeal court. The Scottish Commission may refer a case if they "believe that a miscarriage of justice may have occurred" and "that it is in the interests of justice that a reference should be made".
135. Although it is not within our remit to examine individual cases, a large number have been drawn to our attention. We share the general view that a significant number of miscarriages of justice have occurred. The fact that the Crown Prosecution Service rejects an astonishing 79 per cent of the care home abuse cases put up to it tends to support this view. Merely tightening investigation procedures or amending the law along the lines we have so far suggested will bring no comfort to those who have already fallen foul of existing procedures. We trust that the Criminal Cases Review Commission will rigorously and speedily review those cases of historic child abuse drawn to its attention and that it will not be deterred from referring them back to the Appeal Court simply because the law on similar fact evidence is weak. If the Commission concludes that a miscarriage of justice has occurred, it should say so loudly and clearly and as often as necessary to engage the attention of the Appeal Court.
136. If the Commission's working group concludes that any changes to police procedures or to the law are necessary to prevent any repetition of the mistakes that have undoubtedly occurred so far, we trust that the Government will act upon them without delay. We would welcome an assurance from the Home Office on this point.
137. For our part we concludeand this is a point that goes wider than simply historical child abuse casesthat the Commission's test for referral to the Court of Appeal is too narrow. We believe that the test should be broadened, to bring it into line with the test applied by the Scottish Criminal Cases Review Commission. We, therefore, recommend that the test is revised to allow the Commission to make a referral where they believe that a miscarriage of justice may have occurred and that it is in the interests of justice that a reference should be made.
222 Estimates of the numbers of suspected miscarriages of justice are set out in para. 15. Back
223 Richard Webster, Q. 110, Chris Saltrese, QQ. 234-239, Neil O'May, Q. 239. See also the Criminal Cases Review Commission, Vol. II, Ev 30-1. Back
224 Q. 235. Back
225 Criminal Appeal Act 1995, s. 13(1). Back
226 Vol. II, Ev 30-1. Back
227 Ibid. Back
228 David Jessell, Q. 27. Back
229 Vol. II, Ev 30-1. Back
230 See for example, Bob Woffinden, Q. 109, Richard Webster, Q. 110, Neil O'May, Q. 246, Chris Saltrese, Q. 248. Back
231 Q. 109. See also Chris Saltrese, Q. 248. Back
232 Criminal Procedure (Scotland) Act 1995, s. 194A, as inserted by Crime and Punishment (Scotland) Act 1997, s. 25(1). Back