What if the CCRC had unlimited funding? A submission to the Law Commission’s review of the appeals system

by Michael Naughton, Reader in Sociology and Law, University of Bristol Law School and School of Sociology, Politics and International Studies (SPAIS)

Introduction

A UK Government and Parliament Petition emerged recently calling for the Criminal Cases Review Commission (CCRC) to be given more funding. The case made by the petitioners was as follows:

‘We want the Government to increase funding for the Criminal Cases Review Commission (CCRC), so they have more resources, funding and manpower to review all possible miscarriages of justice in the criminal courts. We believe that the CCRC is under resourced, and that the Government should increase its funding to ensure it is able to identify any miscarriages of justice in the criminal courts. By increasing its funding, the Government can help ensure that people who have been a victim of a miscarriage of justice receive the support, and justice, they deserve.’

The Petition, which echoes regular and longstanding calls for the CCRC to have more funding (see here, here, and here), comes at an important moment in the struggle for justice for alleged innocent victims of wrongful convictions.

In August 2022, The Law Commission for England and Wales launched a wide-ranging review of the laws governing appeals for criminal cases. In response to longstanding and ongoing concerns about the (lack of) ability of the existing arrangements to assist innocent victims to overturn their wrongful convictions (see here, here, here and here), the Government has finally asked the Law Commission ‘to examine the need for reforms to the appeals system, to ensure that the courts have the right powers to enable the effective, efficient and appropriate resolution of appeals.’

In announcing the review, which will include a public consultation component, the Law Commission said that ‘it will consider the need for reform, with particular focus on identifying any inconsistencies, uncertainties and gaps in the law that may be hindering the ability of the appeals system to function as effectively and fairly as possible.’

The areas to be considered by the Law Commission include:

• The powers of the Court of Appeal – the senior court that hears appeals in England and Wales – including its power to order a re-trial of a case or substitute a conviction for another offence.
• Whether there is evidence that the “safety test” – the test used to grant an appeal against a conviction on the grounds that it is “unsafe” (for example, because of a major error in the trial) – may make it difficult to correct any miscarriages of justice.
• The test used by the Criminal Cases Review Commission (CCRC) – the independent body responsible for investigating potential miscarriages of justice – that governs when it can refer a case back to the Court of Appeal for further consideration.
• The Attorney General’s powers to refer a case to the Court of Appeal because the sentence is “unduly lenient”.
• The Crown Court’s sentencing powers for a new trial that is the result of an appeal.
• Laws governing the retention and disclosure of evidence for a case, including after conviction, and retention and access to records of proceedings.

This article is written in the form of an open submission to the Law Commission’s review of the appeals system in relation to the third point, i.e. the test that governs when the CCRC can refer an alleged wrongful conviction back to the Court of Appeal (Criminal Division) (CACD).

It argues that calls for more funding for the CCRC on the grounds that it would deliver more justice for innocent victims of wrongful convictions are misguided.

This is not to suggest, however, that there would be no value or benefit whatsoever in terms of quicker decisions by the CCRC to refer or reject applications (discussed further below) if it had more funding or even unlimited funding, which I would argue it should have in assisting innocent victims to overturn their wrongful convictions.

Rather, my main argument here is that the cost/benefit analysis of justice that lies at the heart of calls for more funding for the CCRC, whether they come from inside or outside of the CCRC, fails to appreciate, appropriately, the full impact of the statutory test on how the CCRC deals with applications from alleged innocent victims of wrongful convictions who will continue to be failed by the CCRC until and unless it is reformed or replaced with a new body unhindered by the existing test.

What is the CCRC, why was it established and what task was it envisaged to do?

To understand the detrimental effect of the statutory referral test on the CCRC’s ability to assist innocent victims to overturn their wrongful conviction we must, firstly, go back to when it was created and consider why it was set up and what it was envisaged to do.

The CCRC is the World’s first publicly funded post-appeal body with the task of investigating alleged miscarriages of justice in cases where there are continuing claims of wrongful conviction which have failed to be overturned within the normal criminal appeals system.

It was established as the main recommendation by the Royal Commission on Criminal Justice (RCCJ) that was prompted by the public crisis of confidence in the entire criminal justice system that was caused by the cases of the Guildford Four and the Birmingham Six and a string of other notable miscarriage of justice cases at the time. It is significant that the RCCJ was announced on the day that the Birmingham Six overturned their convictions in the Court of Appeal (criminal Division (CACD) on the 14th of March 1991.

In particular, it was found by the RCCJ that successive Home Secretaries under the previous system for dealing with alleged miscarriages of justice were failing to refer potential miscarriages of justice back to the CACD for political, as opposed to legal, reasons and that individuals believed to be innocent, were unable to overturn their convictions within the existing criminal appeals system.

Whilst the RCCJ felt that the CACD ought to be able to quash the convictions of the innocent, it recognised that it operates within a realm of legal rules and procedures that mean it is neither “the most suitable or the best qualified body to supervise investigations of this kind” (RCCJ Report, page 183).

This indicates, clearly, that the CCRC was envisaged by the RCCJ as a body that would assist innocent victims of wrongful convictions to overturn their convictions that the normal criminal appeals system could not do.

Further evidence that the CCRC was envisaged as a body to assist innocent victims to overturn their wrongful convictions that the existing criminal appeals system was unable to overturn is the Report by JUSTICE in 1994, Remedying Miscarriages of Justice, which was submitted to the RCCJ and is widely held to be the blueprint for the CCRC.

It proposed that the new body would “undertake comprehensive investigations in criminal cases where miscarriages of justice may have occurred” and to “examine the totality of the case to seek to assess whether there is prima facie evidence of a miscarriage of justice”, with all references to miscarriages of justice to be read as meaning the possible wrongful conviction of an innocent individual (see Remedying Miscarriages of Justice, pages 21-22).

How the ‘real possibility’ test prevents the CCRC from assisting innocent victims of wrongful convictions

It is in the context of what kind of post-appeal body that the CCRC was intended to be and the role that it was envisaged to perform that the restrictive nature of the referral test under s.13 of the Criminal Appeal Act 1995 can fully understood. In full, s.13 states:

13 Conditions for making of references:

• (1) A reference of a conviction, verdict, finding or sentence shall not be made…unless:
• (a) the Commission consider that there is a real possibility that the conviction, verdict, finding or sentence would not be upheld were the reference to be made,
• (b) the Commission so consider —
• (i) in the case of a conviction, verdict or finding, because of an argument, or evidence, not raised in the proceedings which led to it or on any appeal or application for leave to appeal against it, or
• (ii) in the case of a sentence, because of an argument on a point of law, or information, not so raised, and
• (c) an appeal against the conviction, verdict, finding or sentence has been determined or leave to appeal against it has been refused (my emphases).

What is commonly referred to in s13 (1)(a) as the ‘real possibility’ test undermines the CCRC’s claim of independence, something that I and others (see here, here, here, here, and here) have been highlighting for many years, in its requirement that the CCRC can only refer cases back to the appeal courts if it is felt that the conviction has a ‘real possibility’ of not being upheld.

This renders the CCRC in a puisne position vis-à-vis the criminal appeals system. Overall, it lacks the authority necessary to make decisions for itself as to whether a miscarriage of justice may or may not have occurred as it is in the inferior position of having to try to second-guess what the appeal courts might decide on any convictions that it might refer.

To be sure, if the CCRC were genuinely independent, it would be separate from the criminal justice system, not have to work under its terms, and would be able to rectify miscarriages of justice, whether the evidence of the miscarriage of justice was considered ‘fresh’ or not in the narrow criminal appeals system’s legalistic meaning of that term.

This statutory requirement impacts on how the CCRC review applications as it forces Case Review Managers (CRMs) to look at the criteria of the appeal courts to determine whether the case may qualify for referral.

As this relates specifically to the CACD (this article is not concerned with the CCRC’s work as it relates to alleged miscarriages of justice for convictions in magistrates’ courts but see here for further information and critical analysis), CRMs must consider such legislation as s. 23 of the Criminal Appeal Act 1968, which requires that evidence admissible in the CACD must be ‘fresh’, understood generally as evidence or argument that was not or could not have been available at the time of the original trial.

As a result, CCRC reviews are for the most part mere desktop assessments of whether cases might contain ‘fresh’ evidence that was not or could not be available at the time of the original trial that has a decent chance of overturning the conviction.

In so doing, lines of enquiry that could prove that an alleged innocent victim of wrongful conviction is innocent are positively excluded from consideration as the CCRC routinely rejects the applications of alleged innocent victims of miscarriages of justice who may be innocent if it is not felt that they have the necessary ‘fresh’ evidence to satisfy the ‘real possibility’ test.

Evidence of how the CCRC can fail innocent applicants

The CCRC Watch website has a growing number of examples that support this critique of how the CCRC can fail applications from innocent victims of wrongful convictions.

Take the case of Clive Freeman, for instance, who was convicted of the murder of Alexander Hardie. Mr Freeman is currently in his 35th year of incarceration for an alleged crime that he would have spent 14 years in prison for if he had admitted his guilt, shown his remorse and complied with his sentence plan. The CCRC has so far rejected 5 applications from Mr Freeman, who now has 9 of the most eminent experts in the World saying that no crime actually occurred, and that Mr Hardie died of natural causes – pancreatitis caused by alcoholism. This was also the original finding of the police forensic pathologist in his first and second autopsies, but who changed his opinion during his third autopsy and will not accept the growing number of global experts who say that he was mistaken to do so. In each of its rejections of Mr Freeman’s applications, the CCRC apparently fails to see the growing number of experts and weight of scientific opinion against the finding of the forensic pathologist in the case as it considers each submission in isolation from the others. It shows a total deference to the forensic pathologist at trial who refuses to accept that he may have made a mistake when he was a junior forensic pathologist 35 years ago when conducting autopsies that forensic pathologists at the stage of their careers that he was at the time are no longer permitted to conduct for fear of making mistakes. Is it little wonder that the CCRC is now being seen as a body that works to prevent wrongful convictions from coming to public attention for fear of diminishing trust and confidence in the criminal justice system? The CCRC’s feeble claim that there is also circumstantial evidence against Mr Freeman misses the point entirely: if Mr Hardie died of natural causes, which is the overwhelming conclusion of the growing number of experts against the original prosecution pathologist at trial, then there is no circumstantial evidence!

Another case is Robin Garbutt, who has so far been in prison for 12 years for murdering his wife, Diana Garbutt, in what the prosecution case claimed was because he was stealing money from the post office side of post office and village store business, a claim that has since been disproven. The CCRC has so far rejected 3 applications by Mr Garbutt, each time saying that it does not think that he has a real possibility of having his conviction overturned if it was to be referred back to the CACD as the points that he raises could have been argued at his trial. This is despite the timing of the death being undermined and DNA on the murder weapon, an iron bar, and on a pillow in the bedroom where Mrs Garbutt was murdered, belonging to a police officer who was not on duty on the day of the murder and so could not have unwittingly contaminated the crime scene. There is also a clump of blond hair in the crime scene photos that the police say is lost, neither Mr nor Mrs Garbutt had blond hair, and lamps in the crime scene photos that could have been tested for DNA which were mysteriously hidden in a wardrobe and have yet to be tested. There are many other aspects to this case that the CCRC shows no interest in investigating to try to determine if Robin Garbutt’s claim of innocence is valid and, if it is, the real murderer of Mrs Garbutt is still at wrongful liberty with the potential to commit additional serious crimes. This includes, but is not limited to, a BB gun and balaclava that were found a few hours after the murder about 10 miles away behind a Working Men’s Club. This was logged by Cleveland Police and passed North Yorkshire Police who, despite requests from Mr Garbutt’s defence team, has, as far as we know, never tested for DNA.

I could give the details of further cases here such as Jeremy Bamber (see here, here, here and here), Ray Gilbert, Mark Osborne, Walid Habib, Ben Geen, and others, all of which have articles about their cases on the CCRC Watch website. They also attest to the CCRC failing to investigate claims of innocence by alleged victims of wrongful convictions due to the restrictive nature of the so called ‘real possibility’ test under a blanket rejection of the evidence in your application ‘was or could have been dealt with in your trial.’

This work builds on the Innocence Network UK (INUK) dossier of 44 cases, all of which were rejected at least once by the CCRC despite continuing doubts about the evidence that led to their convictions.

It is the growing list of cases that have been rejected by the CCRC despite plausible claims of innocence that illustrates that it is contrary to kind of post-appeal body recommended by the RCCJ that would assist innocent victims of wrongful convictions to overturn their convictions that the normal criminal appeals system could not do, as discussed above. Nor is the CCRC the kind of body that would conduct ‘comprehensive investigations’ of alleged miscarriages of justice in their ‘totality’ that was that was outlined by the JUSTICE report that is widely held as creating the working framework for the CCRC.

Exceptional circumstances

In the interests of completeness and in fairness to the CCRC, s.13(2) of the Criminal Appeal Act 1995 provides an exceptional circumstances clause giving the CCRC a wide discretion to refer cases that it believes to be a miscarriage of justice whether or not there is a ‘real possibility’ of the conviction being overturned under the terms of s13(1):

• (2) Nothing in subsection (1)(b)(i) or (c) shall prevent the making of a reference if it appears to the Commission that there are exceptional circumstances which justify making it.

The problem here is that the CCRC have, to my knowledge, never referred a single case out of the 29,252 applications that it has received between April 1997 to September 2022 under exceptional circumstances and it is unlikely that it ever will.

The effect of a working method of reviewing, as opposed to investigating, alleged wrongful convictions means that cases are rejected by the CCRC because they are not deemed to satisfy the ‘real possibility’ test, rather than because an applicant has been proven to be innocent or otherwise following a full and comprehensive investigation of all relevant issues pertaining to their claim of innocence.

Conclusion

Although it is true that all public bodies would benefit from additional funding, that the CCRC’s budget has decreased over time, and that the CCRC did recently ask the Ministry of Justice for further funds to deal with the extra demand caused by more applications as a result of the Horizon Post Office scandal, it is crucial that the CCRC has never said that it has not referred a case because of a lack of funding.

More funding, then, or even unlimited funding, would, undoubtedly, mean that the CCRC could deal with applications in a speedier fashion with one of two possible outcomes. It would mean that justice might not be delayed in the cases that the CCRC decides to refer and that certain victims of miscarriages of justice may spend less time in prison than they do because the CCRC has taken too long to refer their cases. On the other hand, more funding would also mean that those applications that are currently rejected, which amounts to an average since its inception of over 97% and more than 99% for three years in a row to 2019, would be rejected much more quickly, too, which would have the public believe the untenable idea that almost all applicants to the CCRC who claim that they are innocent are mistaken or telling lies.

The main purposes of this article, however, is to inform the Law Commission’s current consolation ‘on the test used by the Criminal Cases Review Commission (CCRC) – the independent body responsible for investigating potential miscarriages of justice – that governs when it can refer a case back to the Court of Appeal for further consideration’, that the CCRC is not independent in the way that it assumes and fails innocent victims of miscarriages of justice because of this.

This is a problem that cannot be resolved by more money for the CCRC, even if it had unlimited funding at its disposal.

Indeed, for the CCRC to be the post-appeal body that was recommended by the RCCJ and outlined by JUSTICE, s.13(1) of the Criminal Appeal Act 1995 – the ‘real possibility’ test – needs to be urgently repealed.

This would unshackle the CCRC from the CACD so that it is free to conduct truly independent and impartial investigations into claims of factual innocence by alleged victims of wrongful convictions in the interests of truth and justice, which is the only public mandate that gives the CCRC its legitimacy.