Memorandum submitted by the Criminal Appeal
Lawyers Association
I set our below some observations on the CCRC
on behalf of CALA the body of lawyers of which I am chair. A copy
has been sent to the Commission.
The Criminal Appeal Lawyers Association was
set up in 2002 by a group of solicitors with a particular interest
in Criminal appeals. Amongst the membership are solicitors who
represented most of the well known miscarriages of Justice of
the last two decades and who continue to work on a daily basis
in this field . In 2003 we amended our constitution to allow full
membership to the bar.
From the outset CALA has been anxious to develope
a good working relationship with the CCRC to ensure that as many
of the right cases are referrred back to the Court of Appeal as
quickly as possible. We were grateful that two commission members
agreed to speak at our inaugural conference and for the opportunity
to meet the Chief Executive and colleagues earlier this year.on
the latter occasion we took the opportunity to raise some concerns
and to make some suggestions for the future. Although they were
received with apparent interest I regret to say that there is
no sign that there has been any change in the way the CCRC works.
On behalf of the Association I have set out below some of those
issues illustrated with examples. A copy of this will be forwarded
to the Chairman of the Commission.
DELAY
This remains an issue while we do acknowledge
the effort that has gone into reducing the backlog.Once a case
has been screened and found suitable to be fully investigated
the time scale for the allocation of a Care Review Manager is
too long.
Examples
1 00552/2002
Application acknowledged on 13 August 2002.
Confirmation that will be intensively reviewed sent on 21 August
2002. As at 15 December 2003 the case remains unallocated.
2 00641/2001
Application acknowledged on 24 September 2001,
CRM appointed 23 April 2003
NB The investigation process does not start
until a Case Review Manager is appointed. The length of an investigation
depends on the individual case but will depend on the issues .
The amendment to the Criminal Appeal Act added to the recent Criminal
Justice Bill limiting grounds of an appeal on a referred case
to those matters the subject of the reference will lead to legthier
investigations as appllicants will want all issues investigating
. At present some cases are referred on a single issue leaving
an appellant to investigate the matter further once his solicitors
have a legal Aid Order in the Court of Appeal.
There is a scheme for prioritisation and we
feel this should be extended to include young offenders.
COMMUNICATION
This is a major concern made worse by the fact
that some CRMs are very open with the progress of their enquiries.
Regrettably the majority work on the basis that what they do should
be kept secret from the applicant for reasons that are bewildering.
Despite assurances to the contrary;
1 CRMs rarely visit prisoners or meet with
their representatives
2 CRM rarely discuss with the applicants
or their representatives the steps they propose taking. This can
cause real difficulties at a later stage. An applicant may assume
for example that the CCRC are instructing experts to look at a
particular issue and not discover the real position till they
receive the commissions Provisional Statement of Reasons declining
the application . Some three and a half years may have passed
before the Commission get to that stage. Problems have then arisen
with the Commission allowing sufficient time for the applicant
to get his own report without having to go back to the begining
of the queue.
One of the proposals put forward by CALA was
that on the appointment of a CRM a case plan would be drawn up
and agreed between applicant and CCRC identifying the steps to
be taken by the CRM. No steps however have been taken to implement
such an approach.
The Commission`s approach to disclosure is also
odd. Generally it only takes place at the end of an investgation
when the decision is notified again giving the applicant limited
time to repond
Examples
1. 00179/2001
This was a murder case where it was alleged
that the applicant had killed his wife by setting fire to the
guesthouse in which they were staying. Technical evidence was
central and the defence did not instruct a pathologist at trial.The
commision did not carry out any investigation in to the evidence
about causes of fire and were very difficult about allowing the
applicant sufficient time to instruct his own experts
2 00111/2000
An application lodged in February 2002 and allocated
in July 2002 and still pending.It was the utmost difficulty that
we were able to persuade the CRM to have a meeting in his office
with myself and the representative from MOJO who had prepared
the application. I was told that it was CCRC policy to try and
resolve the issues in writing. Frankly the notion that I would
travel to Birmingham and spend some hours with the Commission
if it was not important is absurd. The Committee will know that
the rates of pay under the legal Advice scheme are such that as
a partner I would be losing money for every minute spent on the
meeting. When we eventually had the meeting in March of this year
it was in fact accepted by all that it was beneficial.
One other issue however did arise, The Commission
agreed to provide a transcript it had obtained of legal argument
in the trial made by counsel for a coaccused but refused for no
logical reason to provide the ruling which they also had [a ludicrous
situation as the judgement was readily available from the court
transcribers]
FLAWED DECISIONS
This, I recognise ,is a difficult area. Parliament
has entrusted the responsibility of determining what cases shall
be referred back to the Court of Appeal to the CCRC and solicitors
do become close to their cases but the overwhelming perception
of the membership of CALA is that the Commission have become increasingly
cautious over the cases they refer. I think there are a number
of causes for this.
1. Principally the Court of Appeal have
become increasingly vocal over their workload and become more
outspoken in the criticism of the Commission when they feel they
have got it wrong. There is undoubtedly a resentment amongst some
Appeal judges about the role of the Commission and the pressure
is having an effect.
2. The Commission appear to be pleased they
have a success rate of about 68%. In fact this is too high given
the test of "real possibility". When they have a bad
"run" in the Court of Appeal the statistics suggest
the referral rate drops.
3. The Commission seek to validate their
approach by the fact that they have seldom been successfully judicially
reviewed when they refuse to refer a case. In fact the test to
be applied by the High Court is not whether they think the Commission`s
decision was wrong but whether it was unlawful or irrational [see
Mills and Poole below]. In the case of Farnell they were successfully
reviewed, the High Court finding that the Commissioned had failed
to understand how they would have approached the fresh evidence
in that particular case.
4. The make up of the Commission is a matter
of concern. I feel there is a lack of experience and expertise
from the applicants perspective. I know all the commission members
to be extremely capable and have tremendous admiration for the
contribution made over the years by such as James MacKeith and
David Jessel in connection with Miscarriages of Justice but there
is, as far as I am aware, nobody with significant experience as
a defence lawyer involved at a senior level. This, I believe ,
leads to a lack of understanding about what happens in practise,
both in relation to what can go wrong at trial and sometimes what
the Court of Appeal will listen to.
One particular area of concern is in relation
to expert witnesses. The Commission is fond of quoting a case
called R v Steven Jones where comment was made about the reluctance
of the Court to hear evidence that could have been called at trial.
It is of course true but equally the Court has shown it self prepared
to listen to fresh expert evidence where it has been in the interests
of justice to do so.
Examples
I am reluctant to put forward cases of my own
where I believe the Commission have got it wrong, partly to avoid
special pleading but also because invariably those cases are or
will be going back the Commission.
1 Farnell. This is the case where the CCRC
were successfully reviewed for failing to understand the approach
of the Court of Appeal
2 Mills and Poole. This is a case where
the Commission were not successfully judicially reviewed the Court
accepting the discretion of the Commission . The Court did go
on to say that they had concerns about the safety of the conviction
and invited the CCRC to reconsider. It is to their credit that
they did.. On a subsequent referral the conviction was quashed.
A WAY FORWARD
1 More openness from the commission
2 A willingness to work in partnership with
solicitors for applicants
3 Either a determination to recruit lawyers
with defence experience or a readiness to consult with those in
private practice. For the sake of clarity I am suggesting that
solicitors or counsel other than those acting for the applicant
should be instructed in appropriate cases
4 Agree a case plan with each applicant
capable of being varied as the investigation developes
5 The Commission to advise the applicant
as and when it receives documentation so consideration can be
given by the applicant to an early request. There should be a
presumption of disclosure subject of course to appropriate safeguards.
C J Malone, Stephensons Solicitors
12 January 2004
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