Conclusions and recommendations
The 'real possibility' test
1. There
was a strong difference of views amongst our witnesses on changing
the 'real possibility' test. Any change would have to be undertaken
in light of a change to the Court of Appeal's grounds for allowing
appeals, and would have to take account of the need to avoid a
waste of resources or a detrimental effect on applicants and victims
alike. While an alternative test might allow the CCRC more scope
to display its independence of the Court of Appeal, by definition
the only additional referrals which a change to the test alone
would allow would be those with less than a real possibility of
success. (Paragraph
16)
2. We have seen no
conclusive evidence that the CCRC is failing to apply the 'real
possibility' test correctly in the majority of cases. We accept
that application of the test is a difficult task and is by no
means a precise science, but where potential miscarriages of justice
are concerned we consider that the CCRC should be willing to err
on the side of making a referral. The Commission should definitely
never fear disagreeing with, or being rebuked by, the Court of
Appeal. If a bolder approach leads to 5 more failed appeals but
one additional miscarriage being corrected, then that is of clear
benefit. (Paragraph 20)
3. We recommend
that the CCRC be less cautious in its approach to the 'real possibility'
test, and reduce the targeted success rate in its Key Performance
Indicators accordingly. (Paragraph 20)
4. We are concerned
that there may be some miscarriages of justice which are going
uncorrected because of the difficulty the CCRC faces in getting
some such cases past the threshold of 'real possibility', as a
result of the Court of Appeal's approach. While it is important
that the jury system is not undermined, properly-directed juries
which have seen all of the evidence may occasionally make incorrect
decisions. The Court's jurisprudence in this area, including on
'lurking doubt', is difficult to interpret and it is concerning
that there is no clear or formal mechanism to consider quashing
convictions arising from decisions which have a strong appearance
of being incorrect. Any change in this area would require a change
to the Court of Appeal's approach, which would itself require
a statutory amendment to the Court's grounds for allowing appeals.
We are aware that this would constitute a significant change to
the system of criminal appeals in this country and that it would
qualify to a limited extent the longstanding constitutional doctrine
of the primacy of the jury. Neither of these things should be
allowed to stand in the way of ensuring that innocent people are
not falsely imprisoned. (Paragraph 27)
5. We recommend
that the Law Commission review the Court of Appeal's grounds for
allowing appeals. This review should include consideration of
the benefits and dangers of a statutory change to allow and encourage
the Court of Appeal to quash a conviction where it has a serious
doubt about the verdict, even without fresh evidence or fresh
legal argument. If any such change is made, it should be accompanied
by a review of its effects on the CCRC and of the continuing appropriateness
of the 'real possibility' test. (Paragraph
28)
6. We do not think
that the CCRC should change its approach to the Royal Prerogative.
Greater use of the power under section 16 of the 1995 Act would
bring the executive back into the process in precisely the manner
that the creation of the CCRC was intended to avoid. In our view,
increased use of the Royal Prerogative would be a wholly inadequate
and inappropriate answer to the problems that have been raised,
given that it does not lead to the quashing of the conviction
or the correction of the miscarriage of justice but only commutes
the sentence, and so does not provide complete justice for a falsely
convicted person. (Paragraph 29)
Resources, investigatory powers, and practices
7. If
the CCRC is to function effectively it must be funded properly.
We accept that the Ministry has had to find savings across the
board and that it could not have predicted the sharp rise in the
CCRC's workload. However it is now clear that the CCRC is struggling
to cope with these additional applications at its post-austerity
resource levels and, with the increased workload, is unable to
deliver an improved service for less. The current level of delays
is unacceptable and must be brought down, and this will inevitably
require further funding. As so many of the CCRC's other issues
are also blamed on funding, an increase should also make identifying
areas for further improvement an easier task. (Paragraph 35)
8. We recommend
that the CCRC should, as a matter of urgency, be granted the additional
£1 million of annual funding that it has requested until
it has reduced its backlog. Furthermore, the Ministry should engage
with the CCRC in longer term budgetary planning so that the Commission
can properly plan ahead and recruit efficiently, with a view to
restoring it to a level of funding which enables it to eliminate
lengthy delays in handling cases. (Paragraph
35)
9. We acknowledge
the serious consequences of every miscarriage of justice for the
person convicted, no matter how minor the offence. Despite this,
we also think that the effect of overturning a miscarriage in
more serious cases is much greater and that the CCRC was originally
envisaged as an organisation to deal with such serious cases.
Given the serious funding constraints that we have identified,
we are persuaded that the CCRC should have greater control over
its caseload in order to better focus its resources where they
would have the greatest effect. (Paragraph 39)
10. We recommend
that the Ministry make statutory provision to allow the CCRC a
discretion to refuse to investigate cases dealt with summarily,
if they deem it not to be in the public interest to investigate,
and a discretion to refuse to investigate sentence-only cases.
(Paragraph 39)
11. In order to be
effective and to reduce delays the CCRC's existing section 17
powers to require public bodies to disclose materials need to
be supplemented by enforcement measures or sanctions for failure
to comply in an appropriate amount of time. (Paragraph 41)
12. We recommend
that the Government bring forward legislation to add a time limit
for public bodies to comply with a section 17 request, unless
there are extenuating circumstances, and an appropriate sanction
in case of non-compliance. (Paragraph
41)
13. The extension
of the CCRC's section 17 powers to cover private bodies is urgently
necessary and commands universal support. Successive Governments
have no excuse for failing to do this and any further continuing
failure is not acceptable. (Paragraph 44)
14. It should be
a matter of great urgency and priority for the next Government
to bring forward legislation to implement the extension of the
CCRC's powers so that it can compel material necessary for it
to carry out investigations from private bodies through an application
to the courts. No new Criminal Justice Bill should be introduced
without the inclusion of such a clause. Our successor Committee
should monitor the progress of this to ensure that it happens
promptly, and should continue to put pressure on the Government
if necessary. (Paragraph 45)
15. We are concerned
with the evidence that we have received on the variation between
Case Review Managers, both in approach and in terms of expertise.
While this does not suggest that there are serious systemic shortcomings
in the CCRC's investigative work, there remains room for improvement
even within its resource constraints. (Paragraph 50)
16. We recommend
that the Commission take steps to ensure that Case Review Managers
consistently engage fully with applicants throughout the investigation
in cases which progress past Stage 1 screening. As a matter of
course this should include meeting with the applicant in all cases
being given a type 3 or type 4 review, unless there are compelling
reasons not to. We also recommend that variations in the experience
and expertise of Case Review Managers be dealt with by assigning
them to investigations more intelligently, so as to utilise fully
their differing areas of proficiency and knowledge.
(Paragraph 51)
17. The Criminal Cases
Review Commission, because it is the only body which investigates
and refers to the Court of Appeal miscarriages of justice, is
in a unique position to identify issues across the criminal justice
system which lead to such miscarriages. We welcome the CCRC's
willingness to allow academics to perform research alongside it
and the steps it is currently taking to build upon that. We acknowledge
that the CCRC is in a difficult position with regard to resources,
but we think that there is a great benefit in preventing miscarriages
of justice from occurring in the first place. Greater understanding
within the criminal justice system of the causes of miscarriages
of justice would benefit the falsely accused, victims, public
safety and the interests of justice, and could produce a saving
in time and in money which would otherwise be spent by the courts
and the CCRC in subsequently overturning false convictions. (Paragraph
53)
18. We recommend
that the CCRC should develop a formal system for regularly feeding
back into all areas of the criminal justice system, from the police
and Crown Prosecution Service through to the courts and the Ministry
of Justice, on its understanding of the issues which are continuing
to cause miscarriages of justice. (Paragraph
53)
Conclusion on the CCRC's effectiveness
19. We
conclude that the CCRC is performing its functions reasonably
well, and we have identified areas for improvement, but we were
struck by the disparity between what critics believe it to be
doing and what it claims that it is doing. At times there was
complete disagreement, even on objective and factual matters.
This indicates that at the very least the CCRC has a problem with
public perception, including with the awareness of applicants
as to what it can do for them and of all stakeholders, including
applicants, their representatives, and others, as to how it operates.
The CCRC will never convince its most vociferous detractors, but
it could be doing more to ensure that its work and processes are
well understood. (Paragraph 54)
20. The level of successful
referrals from the CCRC shows that it remains as necessary a body
now as when it was set up. We received very little evidence advocating
its abolition, and even its strongest critics have said that they
simply want it to improve. The existence of the CCRC is not enough
in and of itself; it must be given the resources and powers it
requires to perform its job effectively. The fundamental constitutional
principle on which our criminal justice system rests and which
the Commission exists to uphold is that the guilty are convicted
and the innocent go free. (Paragraph 55)
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