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Justice Committee Review into the CCRC – CACD Under the Spotlight

Mark Newby, QualitySolicitors: Jordans

By Mark Newby, QualitySolicitors: Jordans on 05/02/15

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Justice Committee Review into the CCRC – CACD Under the Spotlight
When the Justice Committee finally decided to undertake a longer enquiry into the Criminal Cases Review Commission (CCRC) it might have been assumed this would concentrate almost exclusively on perceived failings of the commission. However as each witness in turn has given evidence an emerging pattern of failure of the Court of Appeal Criminal Division (CACD) has emerged. The failings show that the Court of Appeal hasn’t significantly moved forward since the notorious cases of the Guildford Four and Birmingham Six which led to the commission’s creation. It should in fact hardly be surprising that all those called to offer evidence have reached these conclusions particularly when the Commission suffers as the lesser player in a paternalistic relationship with the Court of Appeal. 
Provided the Commission toes the line and heeds the warnings of the Court it will be respected by the Court and heaped with regular praise. If the Commission crosses the line the Court is not slow to make its displeasure known. Over the relatively short life span of the commission what we have seen is a reactive institution, one which regularly responds to external influences. As I pointed out to the Justice Committee in my evidence the norm for the commission is to be reactive in review and not proactive. 
Much has been made of the increase in demand and the easy access form created by the Commission. But the reality is that what will follow particularly when applicants do not have good legal representation is that the commission will simply react to the limited points raised and apart from a few routine standard checks will go no further . Professor Carolyn Hoyle in her research confirms that where applicants have the benefit of good legal representation the quality of their applications is improved. Legal Aid cuts continue to narrow the availability of such representation. 
The absence of that intervention will often mean that an application will go no further and therefore it is no surprise that there is an emerging pattern of repeat applications to the Commission where on a 2nd or 3rd application suddenly new material is uncovered and cases are referred. This is simply unsatisfactory and takes us back to the past where applicants could apply to C Division at the Home Office many times before finding justice. Of course this pattern isn’t one only prevalent in the Commission it is mirrored by the approach of the CACD, which takes an equal process-driven approach to reviewing miscarriage cases. The net result is applicants are left to submit the grounds for the Court simply to cross off each and every point from the applicant’s submissions. 
Whilst on occasion a Single Judge will find material to support permission being given this is very much the exception to the norm. The CACD has particularly over the last few years taken steps to narrow even more the opportunity of appellants to pursue appeals against their convictions. It is difficult to discern what the motivation for this is, perhaps based on an overused belief in the sanctity of the jury or that somehow the integrity of the system is maintained by keeping people convicted. When of course the converse is the true position which is that any system only has integrity when you can actually address your errors and mistakes. The problem is the Court of Appeal has found it impossible to do this, it is simply a step too far for the Court. 
At the moment the level of restrictive practice causes even seasoned Court of Appeal practitioners concern. For example we now have attempts to limit the appeals by adopting a restrictive approach to extension of times applications for non-CCRC applications to the point where judges have been directed not to permit extension-of-time cases but rather to refer to the full court. This is particularly regrettable and inconsistent when conversely the CCRC is allowed to take many years to investigate a case. The Court is also holding group courts looking at particular issues which seek to restrict further appeal possibilities. Sexual offence cases have been subject to extensive intervention as Judges seek to react to what they perceive society expects. What we are seeing from the Court is a fundamental erosion of the rights and liberties of defendants and appellants in the criminal justice system. 
Beyond this we should not lose sight of the central issue of the CACD: its complete failure to review serious miscarriage cases. At a recent Stakeholders Conference at the CCRC Professor Michael Zander (a member of the original Runciman Committee) asked for evidence that the Court of Appeal had undertaken any such reviews, the representative of the Court of Appeal was unable to offer any evidence of such reviews. Professor Zander developed this further in his evidence before the Justice Committee and in a supplementary note to the Justice Committee has advocated a way for this to be addressed so that serious miscarriage cases are finally addressed. Another academic Professor Heaton suggested a retrial option but this appears more problematic. What is clear is that there should be appeals reviewed where there is a fundamental view that they represent a miscarriage but do not necessarily present a distinct ground upon which the Court could base such a quashing upon. 
What of the Commission’s own evidence to the Justice Committee? It appeared largely disappointing: the thrust of the evidence seemed to suggest that greater funding was the answer to all these problems and if that really is the commission’s view then it is has fundamentally misunderstood the issues facing the appellate system today. The truth is the commission is unlikely to receive an injection of funding but rather it is likely to receive a further cut in the next parliament of a significant level said to be in the region of £1 million out of a budget of £6 million . The Commission simply does not have the ear of government... The reason for this is exactly the same as the reticence of the CACD – it requires the machinery of the State to accept system failure – this will remain a step too far. The CCRC cannot even get Government to slip in a fairly minor amendment to the 1995 Act to allow it to access Private Documents and the evidence of Justice Minister Mike Penny MP was demonstrative of the fact that the issue remains a non-priority for the current coalition Government as it has with previous administrations. 
The reality is that the Commission was a suitable compromise organisation following Runciman which wholly failed in its early years. Latterly it has tried to reform but doesn’t have the resources to do so or the support of the State to effect the changes required. It does not exercise Section 13 (2) Powers and the evidence is clear that apart from the case of Michael Shields it has never availed itself of the Royal Prerogative despite an indication from the Minister that the Department is open to receiving such applications. In the end we continue to apply a sticking plaster to the system as each notorious miscarriage occurs and then proceed as if nothing has happened. It is to be hoped that the Justice Committee will recognise that there are serious issues with our current appellate system, what is less clear is what the Committee can actually do about it particularly at the end of a Parliament when no one has any incentive other than the ballot box. In the meantime every day more people will be wrongfully convicted and confronted with no adequate system to address those miscarriages.