6. Memorandum submitted by South Wales
Against Wrongful Conviction
THE ORGANISATION
South Wales Against Wrongful Conviction is a
newly formed organisation composed of people who wish to promote
the prevention and rectification of wrongful convictions. Some
members of the organisation have considerable experience in supporting
miscarriage of justice cases within other campaigning groups (including
liaising with the CCRC and supporting applications to the CCRC)
and in the legal and academic professions.
SUMMARY OF
SUBMISSION
The first section of this submission outlines
our concerns about the statutory test that forms the basis of
CCRC decisions about whether or not to refer cases to the Court
of Appeal. It is argued that the current rules greatly limit or
eliminate the chances of many miscarriages of justice being rectified.
Consequently the CCRC may fail in many cases to achieve its intended
purpose of ensuring that innocent people do not remain convicted.
The current statutory test simply leaves the CCRC subservient
to and second-guessing the Court of Appeal rather than sending
a strong message that justice is the priority. The second section
deals briefly with a number of other concerns about the operation
of the Commission. The expression of these concerns is not intended
to deny that the Commission has achieved some excellent work and
there are aspects of its work that should be commended.
We apologise that the attached submission is
very slightly over the requested word limit but we have tried
to deal with some complex issues as briefly as possible. We would
be happy to expand further on any points at a later date and in
a longer submission would have included a number of other points
for consideration. We are grateful for the opportunity to make
this submission.
1. THE STATUTORY
TEST FOR
REFERRAL
1.1 The most fundamental problem of the
CCRC is not of its own making. It has been widely noted that the
Criminal Appeal Act 1995 applies a legally based test rather than
an ethical or justice based test.
The Criminal Appeal Act 1995 (Section 13.1.a)
states that a case should be referred to the Court of Appeal if:
"The Commission consider that there is
a real possibility that the conviction, verdict or sentence would
not be upheld were a reference to be made".
This test effectively means that referrals will
be based not on the likelihood that a miscarriage of justice has
occurred but on the CCRC's attempts to second guess the prevailing
attitude of the Court of Appeal.
Consequently we would urge the changing of this
test such that a referral should be made where there is "an
arguable case that there has been a wrongful conviction"
a test suggested by the organisation "JUSTICE" in 1993
("Remedying Miscarriages of Justice").
1.2 The changing of the test along the lines
suggested above would remove the restrictive and unjust effect
of Section 13.1.(a) and (b) which should be repealed.
(Section 13.1.(b) goes on to prevent the
referral of a case on the basis of any argument or evidence raised
at any previous trial, appeal or application for leave to appeal.
Section 13.1.(c) might be used to over-rule this if there are
"exceptional circumstances". However this clause has
never been used or interpreted in this way and remains ill defined).
This change would enable the CCRC to perform
the function for which it was originally created—that being
to identify and correct miscarriages of justice. The requirement
of the Court of Appeal to decide whether a conviction is "safe"
does not prevent the consideration of evidence previously heard
(which may have been misunderstood, given false emphasis or wrongly
ignored), neither therefore should the CCRC be prevented from
considering such matters. The fact that certain issues may have
been considered before (or available but not raised before) should
not prevent their reconsideration if there are serious and reasonable
doubts about the conclusion previously reached.
1.3 The CCRC effectively admit that miscarriages
of justice may not be corrected under the current rules:
"Although the Commission must review cases
dispassionately applicants and their representatives may have
personal perspectives and emotional involvement that cloud their
interpretations of seemingly arid concepts such as "real
possibility" and "argument or evidence not previously
raised" that must determine the Commission's case decisions.
That is never more manifest than when alternative explanations
and interpretations are advanced for events but evidential support
and persuasive argument cannot be established for them, either
by the applicant or the Commission.
The alternatives may indeed be correct, but
if such support or argument are not forthcoming the miscarriage
cannot be exposed" (See section 5.1 of the CCRC Annual
Report 2002-03) (Emphasis added).
The continuation of this restrictive approach
to rectifying miscarriages of justice is unreasonable and unjust.
1.4 Some commentators have suggested that
to change the test of referral would create a gulf between the
mode of operation of the Commission and that of the Court of Appeal.
We do not follow the logic or the ethics of this argument. The
only question that the 1995 Criminal Appeal Act requires of the
Court of Appeal is to decide whether a conviction is "safe".
Surely in using this term it was the will of Parliament that the
term "safe" should mean that there is no danger that
the appellant has been wrongly convicted (ie convicted for something
he or she has not done). It was surely not the will of Parliament
that the term "safe" should merely mean that a set of
very restrictive appeal rules have not been met.
The change in the test, as proposed above, would
send the correct ethical message to both the Commission and the
Court of Appeal that their duty lies not with conformity to restrictive
and bureaucratic rules but to the principle that innocent people
should not remain wrongly convicted.
As long as Sections 13.1.(a) and (b) of the
Criminal Appeal Act 1995 continue to restrict the remit of the
CCRC then some innocent people will remain convicted with no chance
of having the injustice rectified.
We would therefore most strongly urge the
Home Affairs Committee to urge the Government to address this
matter.
2. OTHER CONCERNS
ABOUT THE
WORK OF
THE CCRC
2.1 While there is little doubt that there
are some dishonest applications to the CCRC, our experience of
people claiming injustice is such that we find the possibility
that 96% of applicants are guilty people trying to cheat the system
highly unlikely. Therefore the current referral rate of around
4% is a reflection partly of the restrictive rules described above
but also of the very conservative interpretation the Commission
tends to take in considering new evidence or argument. (Sometimes
the refusal to refer is inexplicable. The case of Nicholas Tucker
for example has still not been referred despite no less than nine
new expert reports supporting Mr Tucker's innocence).
2.2 The quality of work produced by the
CCRC is variable. There has been some excellent work but in many
cases the investigations have been largely paper exercises and
the extensive powers of the Commission have not been used with
adequate rigour.
2.3 CCRC Statements of Reasons that decline
to refer frequently:
(a) Make unqualified and unreasonable value
judgements about the quality or significance of certain issues
that are raised.
(b) Fail to acknowledge the inter-relationship
between issues and the cumulative effect of a range of points
which when considered alone might be passed off as not significant
enough in themselves.
(c) Fail to appreciate the distinction between
subject and detail and consequently claim that an issue was covered
at trial when the substance and detail of how it was covered is
what is in dispute.
2.4 While the relationship of the CCRC with
the police and the Court of Appeal can sometimes seem too close
their relationship with the applicant has become increasingly
limited. Applicants are rarely kept informed of any plans or progress
in their cases and are rarely given the chance of an interview
with the CCRC to put their case directly or to clarify issues.
2.5 While the CCRC acts in a decision-making
capacity it does not constitute a fair tribunal. Applicants have
no facilities or funding to prepare their case, often they have
no legal representation, no right to make oral representations
or direct the CCRC to take any action. In short the applicant,
unless fortunate enough to have the help of a solicitor who will
work effectively with little or no funding, is powerless to influence
the way his or her submissions are handled. Due to the lack of
funding for solicitors the time and resources that they can put
into these cases is in our experience invariably and seriously
inadequate.
2.6 The Commission's approach to decision
making—using Commissioners who have not had involvement
in the investigation, causes us some concern given the complexity
of understanding many miscarriages of justice. This is especially
true when a Case Review Manager's close study of a case leads
him or her to favour referral yet Commissioners still refuse to
do so. The fact that one Commissioner can refuse to refer while
it takes three to refer is perhaps reflective of the loading towards
rejection inherent in the CCRC.
2.7 Section 315 of the Criminal Justice
Act 2003 which restricts the applicant's right to include matters
outside the CCRC Statement of Reasons in their grounds for appeal
is a bureaucratic measure which can only serve to obstruct justice.
As such we believe this clause should be repealed.
2.8 Time delays are certainly a problem
but caution should be observed to ensure that a desire to reach
targets in this respect does not compromise the quality of the
investigations.
2.9 The change in the approach and test
of referral suggested above will inevitably require more resources
but this is the price of a Commission that truly serves the interests
of justice rather than performing a largely managerial or bureaucratic
function.
Dennis Eady
2 September 2006
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