Criminal Justice System Still Failing the Innocent
For the last fifteen years, the Criminal Cases Review Commission (CCRC) has been the last resort for innocent victims of wrongful conviction.
Established by the Criminal Appeal Act 1995, the CCRC took over the power of the C3 Division of the Home Office where the Home Secretary had the discretion of sending cases back to the Court of Appeal ‘if he saw fit’. The creation of the CCRC followed the recommendation of the Royal Commission on Criminal Justice (RCCJ) in 1993. The RCCJ was, in turn, prompted by a public crisis of confidence in the entire criminal justice system that was caused by the high-profile cases of the Guildford Four, Birmingham Six, Maguire Seven, and so on, in which Irish people were wrongly convicted for terrorist crimes committed by the IRA. The RCCJ’s inquiry substantiated long-standing criticisms that successive Home Secretaries were failing to refer cases back to the Court of Appeal despite strong evidence of innocence. This failure was due to political influences and an entrenched reluctance of Home Secretaries to challenge the Courts.
To address this apparent constitutional problem, the CCRC was set up as a non-departmental body on 1 January 1997 and took over responsibility from the Home Office and Northern Ireland Office for reviewing alleged miscarriages of justice on 31 March 1997. The role of the CCRC is to act as an independent public body, funded by government to review alleged miscarriages of justice and decide if they should be referred back to the Court of Appeal. It has jurisdiction over criminal cases at any magistrates’ or Crown Court in England, Wales and Northern Ireland. The CCRC’s remit extends to the reviews of both convictions and sentences. It also possesses wide investigatory powers under ss.17-19 of the Criminal Appeal Act 1995, including the power to gain disclosure of materials from any public body
The CCRC receives an average of 1,000 applications a year. As of 14 November 2011, the CCRC has completed its review of 13,282 applications, out of which 483 convictions and/or sentences have been referred and 320 quashed. This equates to a referral rate of less than four per cent, significantly less than the ten per cent of applications that were referred to the Court of Appeal each year by C3 Division, which was accused of being slow, inefficient, reactive rather than pro-active, and of showing too great a deference to the Court of Appeal.
Why the Criminal Cases Review Commission is failing
The inadequacies of the CCRC have become increasing apparent with a growing pipeline of convictions that have been refused referrals by the CCRC despite doubts about the reliability of evidence that led to their convictions. They highlight deep-seated failings with the CCRC, both in terms of how it makes decisions on whether to refer cases back to the appeal courts and the way in which it reviews applications from alleged victims of miscarriages of justice.
Lack of Independence from the Courts
The main problem with the CCRC is its lack of independence from the Courts. In its recommendations, the RCCJ called for the ‘creation of a new body independent of both the Government and the courts for dealing with allegations that a miscarriage of justice has occurred’. Whilst the CCRC is independent from Government, the RCCJ’s recommendation that it should also be independent from the Courts did not materialise.
Pursuant to s.13(1)(a) of the Criminal Appeal Act 1995, the CCRC cannot refer applications to the appeal courts unless ‘there is a real possibility that the conviction, verdict, finding or sentence would not be upheld were the reference to be made’. The ‘real possibility test’ subordinates the CCRC entirely to the appeal courts and restricts its review and decision-making processes to the appeal courts’ criteria for quashing convictions, despite the fact that, generally speaking, applicants to the CCRC must have already failed in an appeal at the Court of Appeal. As such, it is, perhaps, not surprising that the CCRC refers so few cases.
One of these restrictions placed on CCRC applicants is the requirement for fresh evidence or argument not available at the time of the trial. This requirement follows the Court of Appeal’s provisions on the admissibility of evidence under s.23 of the Criminal Appeal Act 1968. This requirement restricts the CCRC’s ability to assist the innocent if the evidence of their innocence was available at the time of the original trial or previous appeal. If evidence supporting the defence/the appellants claim of innocence was available but was not produced at trial either by reason of omission, or, tactical decision by trial counsel, such evidence will not, generally, constitute the kind of fresh evidence or argument required by the CCRC.
Overall, the current operations of the CCRC presupposes that jury decisions are always correct which prevents the CCRC from rectifying errors that were known at trial or first appeal. Further, it means that the CCRC often cannot rectify errors of judgment or omissions made by defence counsels/solicitors, notwithstanding the reality that defendants often have little knowledge of the criminal trial process and rely entirely on the judgment and expertise of their legal representatives.
The ‘real possibility test’ and the requirement for fresh evidence not only impact on the CCRC’s consideration on whether or not to refer a case back to the appeal courts, but also its case review process. As a review (as opposed to investigatory) body, the CCRC generally does not undertake re-investigation of cases. Its case review methodology can be characterised as a ‘desktop review’, often limited to an appraisal of the arguments or evidence presented to it by applicants – first, to assess whether the evidence is ‘fresh’ and second, to consider if the application meets the ‘real possibility test’. Furthermore, research indicates that Case Review Managers at the CCRC very rarely undertake prison visits to interview applicants. There is no systematic training for Case Review Managers on investigative methods, which often mean that quality of reviews received by applicants can be inconsistent and very much a lottery.
This places a substantial burden on alleged miscarriage of justice victims seeking another chance of an appeal through the CCRC. Often with little or no resources, they have to undertake the substantial task of investigating their own cases and seek fresh evidence or arguments to present to the CCRC. Rather than being assisted by the CCRC in this arduous process, they are faced with the additional hurdle of trying to convince the CCRC of the significance of the evidence and how it could render their convictions unsafe.
The ‘real possibility test’ that governs the CCRC’s case review approach may also jeopardise the chances of success in cases that it does refer to the Court of Appeal. In practice, once the CCRC is satisfied that the ‘real possibility test’ has been met; it will prematurely end its review and stop investigating other lines of inquiry presented to them. The Criminal Justice Act 2003 also placed an additional requirement that appeals heard on referral by the CCRCs may not be on any ground outside the CCRC’s grounds of referral. Consequently, appeals following CCRC referrals are often heard on very narrow grounds (see case examples at the end of this document). On occasions, this may even result in the appeal courts dismissing appeals referred to them by the CCRC without having a full sight of all other evidence that could have supported the applicant’s claim of innocence.
Proposal for reform
In light of the limitations of the CCRC outlined above, we recommend the following legislative and policy reforms which are aimed at firstly, enhancing the CCRC’s independence by unshackling it from the Court of Appeal; and, secondly, improving the thoroughness and quality of its case review process.
1) We call for the immediate repeal of the ‘real possibility test’ under s.13 of the Criminal Appeal Act 1995.
2) The ‘real possibility test’ to be replaced with a test that allows the CCRC to refer a conviction back to the Court of Appeal if it thinks that the applicant is or might be innocent.
3) CCRC reviews cannot, therefore, be restricted to the mere pursuit of fresh evidence that was not available at the time of the original trial or the first appeal but must consider all the evidence.
4) Under s.16 of the Criminal Appeal Act 1995, the CCRC’s role currently extends to considering and reporting to the Secretary of State on any conviction referred to it by the Secretary of State for consideration of the exercise of Her Majesty’s Prerogative of Mercy. To enhance the CCRC’s independence from the Court of Appeal, we recommend an expansion of the use of the Royal Prerogative of Mercy through the introduction of the following:
a) new legislation that allows the CCRC, in instances where the Court of Appeal dismisses an appeal against conviction heard following a CCRC referral, to refer a conviction to the Secretary of State to consider exercising the Royal Prerogative of Mercy; and,
b) new legislation that places a duty on the CCRC to consider referring a conviction to the Secretary of State to consider exercising the Royal Prerogative of Mercy in such circumstances.
5) The CCRC’s case review process is generally limited to desktop reviews. Whilst its powers to obtain material disclosure from public bodies under s. 17 of the Criminal Appeal Act 1995 are useful, particularly for cases where police or prosecution non-disclosure is a feature, they are limited in cases where full re-investigations of witnesses are required. We propose changing the CCRC’s focus to enable it to undertake more fieldwork investigations, including the interviewing of witnesses, crime-scene reconstructions and the interviewing of applicants.
The reforms proposed above, aimed at making the CCRC a more adequate body to assist the innocent, would potentially save millions of pounds from the public purse by shortening the length of time that those wrongly incarcerated might otherwise spend in prison.
The average costs to taxpayers for each year a male prisoner spends wrongly incarcerated are as follows:
Category A (dispersal prison): £64, 597
Category B: £34, 359
Category C: £32,109
Furthermore, prisoners maintaining innocence who have been given indeterminate sentences are faced with what is commonly termed the ‘parole deal’. They frequently serve sentences way past their given tariffs and are unable to progress through the prison system or achieve parole due to their refusal to admit guilt and undertake offending behaviour courses.
The Innocence Network UK (INUK) to date has received applications from over 1,000 prisoners, of which almost 200 were deemed to have a plausible claim of innocence. Due to their refusal to cooperate with the prison and probation services, it is quite common for the prisoners maintaining innocence to spend extended period in high security or segregation units. To give an illustration of costs, the 200 applicants to the Innocence Network UK (INUK) are costing approximately £7 million for every year that they fail to achieve release. More specifically, the Innocence Network UK (INUK) currently has 21 clients in Category A (highest security) prisons, out of which seven have been in Category A for over ten years, including one who has been in Category A (and has spent extended periods in segregation) for the last twenty years. Collectively, these 21 ‘clients’ currently in Category A are costing the state over £1.3 million per year.
Neil Hurley was convicted on the 5 May 1994 of the murder of Sharon Pritchard, who was his ex-partner and the mother of two their children. The victim was found naked and bludgeoned to death on a playing field close to her home in Croeserw, South Wales. Neil Hurley was arrested and convicted primarily on witnesses who testified to his acrimonious relationship and allegations of violence against the victim prior to her death. However, crucial suspects were omitted from the police investigation, including one who returned home on the morning of the murder with his clothing covered in blood and mud. Between 1994-2005, a number of witnesses retracted their testimonies, claiming that they were pressured by the police into giving evidence. Two senior police officers who led the investigation have also since been convicted and imprisoned for corruption and malfeasance of public office. Neil Hurley made three unsuccessful applications to the CCRC. In 2009, the Innocence Network UK (INUK) submitted a fourth application to the CCRC requesting DNA testing on over 100 exhibits collected from the crime scene, the victim and Mr Hurley himself, all of which were never subjected to DNA testing. Neil Hurley is currently 5 years past tariff and continues to maintain his innocence.
Ray Gilbert was convicted in 1981 of the murder of Liverpool bookmaker John Suffield. He was convicted on his own confessions and his guilty plea, which he claimed, was coerced out of him by police officers and criminals who were on remand with him. With borderline intelligence and a speech impediment, Gilbert’s vulnerabilities were clearly not recognised at the time of his interrogation which took place over two days without the presence of a solicitor. In 2001, his co-accused Johnny Kamara overturned his conviction due to over 200 witness statements supporting his defence that were not disclosed by the police. Although the statements also support Gilbert by pointing to other suspects, the CCRC refused to accept that his confessions and guilty plea were made falsely and refer his conviction. Gilbert has to date served 30 years in prison, 15 years past his tariff, and continues to maintain his innocence. The Innocence Network UK (INUK) is currently trying to locate the exhibits from the crime scene for possible DNA testing said by Merseyside Police to have been lost.
Susan May was convicted in 1993 of the murder of her 89-year-old aunt, Hilda Marchback. She was convicted on the flimsiest of evidence, comprising mainly of three alleged fingerprint marks claimed to be hers that were said to contain the victim’s blood. However, there are doubts about the testing method and whether the marks are indeed Susan’s fingerprints and even whether they did contain human blood. Another piece of evidence against Susan was a remark she allegedly made to a police officer relating to scratches found on her aunt’s face, which the prosecution claimed she could not have known about unless she had caused them. Susan has always denied making the remark and the notebook in which the police say the words were logged has gone missing. Susan May’s case was referred to the Court of Appeal by the CCRC in 1999 on the basis of police impropriety, but the appeal was dismissed in 2001. Two subsequent applications to the CCRC detailing new evidence that casts further doubts on her conviction have also failed on the basis that the CCRC does not think that there is a real possibility that the Court of Appeal will quash her conviction.