In the late nineties, under the recommendation of the Runciman Royal Commission, the Criminal Appeal Act 1995, introduced the Criminal Cases Review Commission (CCRC). It was created to independently investigate suspected miscarriages of justice across England, Wales and Northern Ireland.
However, after years of austerity cuts, political interference and plummeting referral rates, many argue that the CCRC is no longer fit for purpose.
Financially malnourished and compromised by the “real possibility test,” and the removal of “commissioner tenure,” this “independent” watchdog is now on a leash.
What will it take for CCRC to step back from the brink, and is it open to reform?
Established just over 20 years ago, the CCRC is intended to function as the last port of call for justice. It investigates convictions from Magistrates’ Court, Crown Court, Court Martial or Service Civilian Court, and has the final say on whether a case is referred to the Court of Appeal. However, since its introduction, it has been faced with an onslaught of criticism.
Some have argued that it’s “badly managed” and “inept”. Others, such as veteran Journalist Bob Woffinden go as far as saying that it has “set back the pursuit of justice” by twenty years. But, why do so many people believe that the CCRC has failed?
Previously unpublished minutes of board meetings at the CCRC over the last three years, obtained under a Freedom of Information (FOI) request by Appeal, show referrals to the Court of Appeals have plummeted. Referrals have gone from a 20-year average of over 30 cases, to 12 in 2017, 19 in 2018 and just 13 in 2019. At present, around 99% of applicant’s cases are rejected, which thwarts any claims by the CCRC that it is a “champion of justice”.
Many argue that this shows that the CCRC is showing too much caution and deference around referrals. One reason for this could be the declining relationship between the CCRC and Court of Appeal. Internal documents from inside the Centre revealed that its reputation with the Court of Appeal, one of its operational risk factors, has been changed from “moderate to severe”.
However, surely in order to ensure that the Court of Appeal doesn’t reject a referral, the CCRC should increase is it’s investigation efforts, rather than decrease referrals and conduct “desk-bound ‘passive’ investigations”. Even back in 2015, the House of Commons Justice Select Committee’s inquiry into the CCRC urged it to be “less cautious” and more thoroughly investigate “obvious” miscarriages of justice.
Reflecting on the CCRC’s ineffectual nature, in 2018, Matt Foot, of Birnberg Peirce, commented: “The CCRC has become an office-bound, moribund organisation”. He added. “The people employed there are not qualified to do what they’re doing, and often don’t understand the law. It’s become a different organisation to what it was set up as. The biggest problem is that it doesn’t actually investigate”.
Another serious issue around the CCRC’s performance relates to its lack of transparency. In January 2020, Mick Geen, the father of a former nurse, convicted of murdering two patients, released information obtained from a FoI request in 2016. The FoI request revealed that the CCRC keeps no record of the time spent investigating a case.
In response to this revelation, the CCRC stated: “We do not consider it necessary to record activity on each case hour-by-hour, day-by-day, or in a way that allows to say specifically when a case is being, as you say, worked on. We simply say that a case is under review from allocation to case closure”. It added: “The Commission takes the view that there is no need for that sort of calculation in order for us to effectively manage our casework”.
Not only does this leave the Commission completely devoid of accountability, but it also prevents applicants from discovering how much work is actually going into their case.
Moreover, its continuation to avoid basic time-keeping goes directly against the recommendations made by the MoJ’s 2019 “Tailored Review of the Criminal Cases Review Commission”. In it, the report advises the CCRC: “Publicly report on the number of cases awaiting allocation every month and at the end of the year, and the number of cases awaiting allocation longer than three months”. It also suggests that the Commission: “Publish the number of cases processed through to the review stage, the number of re-applications and no appeal cases received, and the percentage of these taken through to the review stage, per year, in Annual Reports”.
Despite claiming to be the last bastion of hope for the wrongly convicted, the CCRC’s power is greatly undermined by the MoJ, something which has become more and more apparent in recent years.
Already, under its founding statute, the CCRC must apply the “real possibility test,” when deciding if it will send a case to the Court of Appeal. This means that it must believe a case has a real possibility of being quashed by the Court, before making a referral. In essence, this discourages independent assessment, and forces the Commission to adhere to the Court’s trends.
Speaking about the concerning implications of this, in an evidence session before the APPG, Michael Birnbaum QC, called the predictive test a: “Systemic problem”. Further to this, he stated: “… I don’t think [it] makes sense, and I think it’s become an obstacle. I think that the CCRC is now a good deal less effective than it was a number of years ago”.
There have been numerous calls for the CCRC to drop its current predictive test, and opt for the more independent test adopted by the Scottish CCRC. This Scottish test means cases can be referred if, the Commission believes “a miscarriage of justice may have occurred” and the referral is in the “interests of justice”.
Arguably, the introduction of Richard Foster as Commissioner worsened the situation and for many was a particular cause for concern. Previously the Chief Executive of the Crown Prosecution Service (CPS), he reportedly created a tighter bond with the MoJ, which saw the role of commissioner “greatly diminished”. Prior to this, the situation as quoted by former Commissioner David Jessel, was that the government: “[Gave] us the money and [left] us alone”.
This is no longer the arrangement. In February 2018, Alison Wedge, the MoJ’s Head of Governance, informed commissioners that if the CCRC did not accept and implement the recommendations made by the MoJ in its review, it: “Would be in conflict with Government policy”. After this, it was argued the organisation’s “founding vision” was lost.
Commenting on this political interference, Dean Kingham, of Swain & Co, a specialist public law and prison law solicitors’ firm, said: “The independence of the CCRC goes to the heart of the integrity of the justice system. Politicians need to respect that and the CCRC needs to stand up for itself”.
MoJ funding has seen significant budget cuts over the years. In October 2019, MP Bambos Charalambous, said that by 2020, the MoJ will have seen cuts totalling 40% since 2010. However, the CCRC has been hit the hardest.
In 2003/4 it received £7m from the MoJ. By 2009/10 funding was cut to £6.5m. By 2017/18 its funding fell to £5.6m. Despite this, its workload has increased. In 2003/4, the number of applications received by the commission was 885. Comparatively, in 2018 this number jumped to 1,439.
Discussing the impact of such huge funding cuts, Suzanne Gower, the Managing Director of the Centre for Criminal Appeals, a legal charity, said: “It simply isn’t credible to suggest that the cuts to the CCRC’s budget coupled with the significant increase in workload will not have had a seriously detrimental effect on the quality and scope of CCRC investigations, ultimately leading to innocent people and their families being denied justice”.
In addition to relentless funding cuts, a further blow was dealt to the CCRC, when in 2012, the basis upon which commissioners were employed changed. Prior to the changes almost all commissioners were employed on a full-time basis. Now, all but one are employed on minimum one-day-a-week contracts and paid a £358 daily rate.
Some have argued that this seriously undermines their ability to function independently, and effectively. Speaking to The Justice Gap, Ewen Smith, a former Commissioner, said: “It is my view that appointing fee-paid commissioners on a daily rate with fewer days available could undermine their ability to discharge their responsibilities under the Criminal Appeal Act 1995 in respect case work and governance”. He added: “I believe there is the potential to weaken the decision making process thereby interfering with the Commission’s independence”.
This hiring approach has been maintained despite backlash from commissioners who argued that it was “impossible” to perform the job effectively, by working just one day a week.
Highlighting the severe consequences of this policy change, Nazir Afzal, former Chief Prosecutor told The Justice Gap: “The impact of funding can’t be exaggerated. It’s having a conscious or unconscious impact on decision making. Staff clearly know that there’s a shortage of judges and judicial time added to an unnecessary requirement for a very high threshold for referral which means that fewer cases are referred. To pretend otherwise is a dereliction of duty”.
However, according to the CCRC the introduction of the fee-paid model has: “Brought benefits to recruitment” including “improving the diversity of the age, ethnicity and professional background” of commissioners”.
Reportedly, the Chair also perceives the changes favourably. According to the CCRC she: “Views the transition to the fee-paid model to have been beneficial, both operationally and financially, and that performance has not deteriorated but improved”. Moreover, it states: “There is a requirement that Commissioners are able to work more than the minimum number of days (to ‘flex up’) as required. This model allows the Commission to increase working days to meet business needs and to match Commissioner days to the flow of cases”.
Clearly, there are complex and multifaceted issues facing the CCRC and it is crying out for radical reform. In order for it to increase its referral rate to the Court of Appeal, it must improve the quality of its investigations, and be awarded more power to function independently of the MoJ, without intimidation or bullying by ministers and civil servants. Additionally, the predictive test must be reimagined, so that the Commission does not bow to the will of the Court of Appeal. It is also in need of a serious funding injection, and should stop hiding behind a veil of secrecy. Even so, the likelihood that these much needed reforms will come soon, seems doubtful.