Memorandum submitted by the Miscarriages
of Justice Organisation—England, Wales and Scotland
THE WORK
OF THE
CRIMINAL CASES
REVIEW COMMISSION
Summary points of annexed Report following same
numerical section sequence.
1. The Committee are encouraged to conduct
a multiple evidence enquiry session to hear more fully the views
of the CCRC stakeholders and users.
2. 25% of Applications to the Commission
are ill founded because applicants and many lawyers are ill informed
of the correct criteria. This creates a waste of resources. Some
form of training and/or education to prospective CCRC users is
essential.
3. 96% of applications fail. The rate of
failure is too high.
4. The high failure rate has led to a lack
of public and media confidence resulting in the birth of many
new MOJ support groups over the last 3 years.
5. The Criminal Appeal Lawyers Association
are critical of the high failure rate. Miscarriages of Justice
are now an academic study topic, post-graduate doctorates and
form a dedicated stream by the Socio-Legal Studies Association.
6. The Commissions policy of non-disclosure
and non-discourse are counter productive.
7. The case investigation process lacks
hands-on investigation and is too reliant on technology.
8. The fairness of the Decision Making is
seriously hampered by Section 23 of the 1968 Act and Section 13B
of the 1995 Act. The legislation must be changed.
9. The Statements of Reasons for failed
applicants are poor in quality leaving applicants confused, bewildered
and often depressed and angry.
10. The Complaints System cannot deal with
the major complaint of a bad decision.
11. Murder Convictions—CCRC data suggests
that there should be an independent parliamentary enquiry into
Murder convictions.
12. The Court of Appeal remain inherently
obstinate. An independent Judicial Tribunal should be set up to
deal with cases referred by the CCRC.
1. APPLICATIONS
Many applicants do not understand the role of
the CCRC. They believe that the Commission can reinvestigate the
case and the crime. They do not understand the criteria of the
1995 Appeal Act.
Some uninformed lawyers advise convicted defendants
that they have no grounds for appeal but they can apply to the
CCRC.
Many lawyers assist in the preparation of applications
to the CCRC without sending for and fully reviewing the defendants
trial files, leading to submissions that are bound to fail.
Approximately 25% of applicants to the Commission
have not followed available avenues in the Court of Appeal, have
no exceptional circumstance submissions (because the applicant
is unaware of it) and are rejected at Stage 1 Screen.
2. STAGE ONE
SCREEN
Those rejected at Stage 1 Screen, often make
hasty applications to the Court of Appeal as litigants in person
. Those applications are most often ill founded and bound to fail.
They then apply to the Commission on the same ill founded grounds
which are also bound to fail.
This is just a merry-go-round which has no benefit
at all in the justice system.
The Commission receive too many such ill founded
applications and find themselves therefore, simply fulfilling
a primary appeal process role which cannot be what parliament
intended when the Commission was set up.
The long term effect is that the time line from
conviction to quashment for the majority of wrongly convicted
persons is growing infinitely longer.
3. REFERRALS
& NON REFERRALS
The Commissions referral rate remains at approximately
4%. Noticeably absent from within that 4%, is a proportionate
number of historic sex offence referrals.
It is the height of folly to suggest that 96%
of applicants to the CCRC are not miscarriages of justice. It
is a misleading inference to the public and does nothing to enhance
public confidence in the system—rather the contrary.
4. PUBLIC PERCEPTION
& THE MEDIA
Outside perception of the Commission, due entirely
to its very low referral rate, is that it constantly fails to
recognise or cure the ills that afflict miscarriages of criminal
justice.
The last three years has seen the inauguration
of many new miscarriage of justice support groups spanning the
whole of the country. The media have begun to take an interest
in these groups and the underlying reasons for their birth.
5. PROFESSIONAL
& ACADEMIC PERCEPTION
Members of the Criminal Appeal Lawyers Association
remain concerned that far too often the Commission simply don't
get it right. The view expressed by experienced professionals
who deal with MOJ cases is that you have to fight and battle with
the Commission to get a referral and it is becoming as difficult
to work with as its predecessor.
This year has seen Miscarriages of Justice as
a topic for post-graduate doctorates surface—and the Socio-Legal
Studies Association (SLSA) at its 2004 Annual Conference being
hosted at Glasgow University is for the first time ever providing
a dedicated stream on Miscarriages of Justice.
These matters are surfacing, not because common
perception is that Miscarriages of Justice in this country are
properly provided for—but because they are seen now as an
ever increasing problem that the CCRC is unable to resolve or
solve.
6. COMMISSION
POLICIES
Discourse and Disclosure
Case Review Managers in the main do not enter
into meaningful discourse with Applicants lawyers. Lawyers do
not know what investigations the Commission may be carrying out
or what thought process they are following. New documents, matters
discovered, issues shelved etc. by the Commission are not revealed
to Lawyers until the Statement of Reasons is provided.
This is not Best Practice.
MOJ experienced Lawyers have a lot to give and
the Commission's healthy growth is not enhanced by the policy
of non-discourse and non-disclosure.
7. CASE INVESTIGATION
AND REVIEW
Any system of justice which truly strives to
achieve just results must allow for those reviewing such cases
to become intimately familiar with the issues presented, particularly
in terms of the weight of evidence. . Instead, there seems to
have been a regrettable policy of quantity in justice instead
of quality and the concern of too many to process cases involving
individuals as though they were some kind of cogs in a machine.
Fiscal responsibility is an important component of the system
but should not be the dominant force.
The Commission operates as closely as it can
in a paper-free environment. It has a hi-tech Document Management
System, operable from any of the powerful independent desk-top
computers systems, (approximately 130) linked into a central Server
which houses a powerful optical juke-box. The system also allows
for distance video conferencing for Commission staff based at
home.
All case documents received are scanned and
stored into the optical jukebox and CRM's then work on line viewing
documents as virtual images. Documents are also stored as Optical
Character Recognition documents allowing key words, phrases and
variants to be located quickly.
In short the Commission has a computerised case
review system that is similar to the Police HOLMES system. The
Police system is used merely as a tool to aid the professional
investigator and an essential element of their search for facts
and evidence remains human intelligence, logic and hands on investigation.
The Commission fail to carry out hands on investigations and it
is of grave concern that miscarriages of justice may remain unrecognised
because too much emphasis has been placed on technology.
EG: In an appeal case (that was not a CCRC referral)
the conviction was quoshed because Counsel was able to demonstrate
to the Court that one key exhibit in the trial had actually been
sourced from a previous "incident". It is most unlikely
that the Commission would ever have identified that from their
desk top technology. It took the scrutinous eyes of a 13 years
experienced appeal lawyer to ferret that out, and from that—other
issues flowed. That particular case caused the Court of Appeal
to personally call for an investigation by the Chief Constable
of the Force concerned.
8. DECISION MAKING
Discoveries by the Commission becomes subject
to Section 23 of the 1968 Act and 13B of the 1995 Act. The Court
of Appeal is continually reluctant to admit any evidence unless
it is "overwhelming" and the explanation for any previous
non use is satisfactory. The Commission applying the real possibility
test have therefore adopted Court of Appeal "thinking",
and this is the biggest single reason for case rejections after
investigation and review at either the stage 2 screen or stage
2 process.
The real possibility test has no place in a
non codified system of law. Its perameters cannot be defined—they
can change on a daily basis.
Eg.
The Commission may feel a case is meritable
but reject it on the basis of current Judgement criteria in the
Court of Appeal. Weeks later, a new judgement may be handed down
with a different line of thinking, one that would have afforded
the rejected case, a real probability chance. It is too late for
the case- it has gone. A re-application could be made but only
if the applicant or his representatives have knowledge of the
new Judgement.
The Commission cannot work to a "real possibility
criteria" that changes from week to week.
Parliament must change the legislation to allow
the Commission more flexibility in referring miscarriages of justice
to the Court of Appeal.
It is fact that the standard of trial defence
(and sometimes appeal) work on many cases received by the Commission
has been invariably poor. Within defence files can often be found
evidence that could and should have been used, but was not. Time
and time again the Commission cannot overcome the hurdle of Section
13B and only parliament can do anything about that. "Poor
trial preparation" does not meet the Court of Appeal test
for "negligence/flagrant incompetence/Wednesbury reasonableness"
and yet this is one of the primary key causes of a miscarriage
of criminal justice which encompasses failure on expert issues,
failure to bring all appropriate witnesses, examination of unused
material, investigation into cell confessions and tailored police
investigations.
Following a review Statements of Reasons are
drawn up by the CRM's and presented to Commissioners for final
review and sign off. This part of the process can be lengthy.
EG. In the case of Robert Brown, the CRM waited
months for a Commission Panel to make its decision.
Reviews concluded at earlier stages sometimes
result in Statements of Reasons in letter format, authored and
signed by Case Review Managers. The Statute says that a panel
of at least three Commissioners are required to make a decision
to refer a case. If decision making is delegated to a non Commissioner
or a single Commissioner, the Statement of Reasons should contain
an explanation for that.
9. STATEMENTS
OF REASONS
Statements of Reasons on non referrals are bland,
mechanical and often re-state Court of Appeal reasons. There is
no individuality, nothing to indicate to the applicant or his
representatives that a thorough thought process has been given
to their case. Often the content in the "Reasons" is
contrary to advice the applicant has received from his representatives.
This leads to confusion and bewilderment on key issues and leaves
the Applicant with no sense of finality and often in a state of
depression and anger.
The 28 days then allowed for an applicant to
make further submissions is Bad Practice. The Commission have
often taken one year or more to review the case without indepth
discussions with applicants or their representatives and then
expect great goals to be achieved within 28 days. The policy is
too rigid and non user friendly.
10. COMPLAINTS
The Complaints system is user friendly and efficient
but cannot deal with applicants who feel the wrong decision has
been made on their case. Judicial Review should be the absolute
final course for an applicant.
Over the last three years, there has been a
steady increase in the number of formal complaints made to the
Complaints department and an increasing number of applications
for Judicial Review. The Commission will see a further steady
growth in both areas until their referral rate becomes more realistic.
11. MURDER CONVICTIONS
"The indeterminacy of a life sentence,
and the serious opprobrium attaching to someone who has received
such a sentence, qualify it as deserving some priority within
the CCRC's case management system. The fact that life is the mandatory
sentence for murder, even though the circumstances in which murder
occurs differ enormously, is a further reason for paying particularly
close attention to applicants who carry such a conviction."
IHRC
Of the 216 referrals made to date since 1997,
84 are Murder convictions. The Committee should enquire as the
amount of Murder applicants and those who have been unsuccessful
and indicate how many of the eight re-applications now referred
are for Murder. MOJO believes that many of the unsuccessful Murder
applicants will eventually be referred and that the data held
by the CCRC is capable of demonstrating that the country has a
very serious problem with Murder convictions, sufficient to invoke
an independent parliamentary enquiry.
12. THE CRIMINAL
JUSTICE BILL
Under the new Act, the Commission will need
to adapt its Statement of Reason on referrals to specifically
cite grounds. Applicants may then only expand the grounds with
leave of the Court of Appeal.
The wording of the Act places a new onus on
the Commission—that of being statutorily responsible for
Grounds of Appeal on behalf of the applicant. That creates a relationship
between the Commission and the applicant which is contrary to
its Statement of Purpose.
13. THE COURT
OF APPEAL
The Commission must be seen to operate independently
of the Judiciary if public confidence is to be enhanced and justice
properly served. Parliament should set up by statute an independent
Tribunal to hear cases referred by the CCRC and such cases should
be heard within three months of the Reference.
Trend of contribution of values over time
| Year | COA Cases Heard
| Quashed | Upheld | Sub/Red*
|
| | % |
% | % |
| 1998 | 11 | 81.8
| 9.1 | 9.1 |
| 1999 | 22 | 59.1
| 31.8 | 9.1 |
| 2000 | 25 | 60
| 28 | 12 |
| 2001 | 25 | 60
| 36 | 4 |
| 2002 | 41 | 58.5
| 39 | 2.5 |
| 2003 | 41 | 70.7
| 24.3 | 5 |
| | |
| |
* Refers to Substituted Verdicts or Reduced Sentences.
15 December 2003
| 
