by Michael Naughton, Reader in Sociology and Law, University of Bristol Law School and School of Sociology, Politics and International Studies (SPAIS)
Introduction
The Criminal Cases Review Commission (CCRC) is the last hope for alleged innocent victims of wrongful convictions who fail in their attempts to overturn their convictions within the normal criminal appeals system. It was established as the main recommendation of the Royal Commission on Criminal Justice (RCCJ), which was announced on the day that the Birmingham Six overturned their wrongful convictions in the Royal Courts of Justice. It was the case of the Birmingham six and other now notorious miscarriage of justice cases including those of the Guildford Four, the Maguire Seven, Judith Ward, as well as a host of lesser known cases that were overturned around the period, that were able to cause a widespread lack of confidence in the workings of the entire criminal justice system in the late 1980s and early 1990s. The public awareness that the criminal justice system was convicting innocent victims and then failing to provide the necessary mechanisms for them to overturn their wrongful convictions was something that was deemed to be unacceptable and something that needed to be urgently addressed to restore public confidence.
Widely regarded as the miscarriage of justice watchdog, the creation of the CCRC was supposed to be the final solution to the perennial problem of miscarriages of justice that has plagued the criminal justice system. In response to its establishment, and under the false and mistaken belief that victims of miscarriages of justice could now be assisted by a publicly-funded body set up for that very purpose, television programmes dedicated to investigating and exposing miscarriages of justice, such as Rough Justice and Trial and Error, were cancelled. Human rights and civil liberties organisations such as JUSTICE and Liberty, immediately ceased their casework on alleged miscarriages of justice. And, politicians, too, gave up assisting constituents who alleged to be innocent victim of miscarriages of justice when the CCRC was set up and, instead, referred constituents who contacted them for assistance with an alleged miscarriage of justice to the CCRC. It would be an understatement to say that all of this has combined to render alleged miscarriages of justice less visible, you could say relatively invisible, in the public domain and in public discourses about the errors and failings of the criminal justice system amid a belief that miscarriages of justice are a thing of the past.
The nature of the continuing problem
But, the CCRC is not the panacea to the problem of the wrongful conviction of the innocent that was hoped for, and many believe it is, as it can leave innocent victims languishing in prison unable to overturn their wrongful convictions.
The crux of the problem is s.13 of the Criminal Appeal Act 1995. It robs the CCRC of any semblance of independence 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 statutory requirement impacts on how the CCRC review applications, too, as it directs caseworkers (or Case Review Managers (CRMs) as they are officially called) to look at the criteria of the appeal courts to determine whether the case may qualify for referral.
As this relates to the Court of Appeal (Criminal Division), for instance, CRMs must consider such legislation as s. 28 of the Criminal Appeal Act 1968, which requires that evidence admissible in the Court of Appeal 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.
At the same time, the way that the CCRC is structured by s.13 of the 1995 Criminal Appeal Act means that it will reject 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.
It is in this sense that I describe the CCRC as a mere ‘lapdog’ for the criminal appeals system. It is not independent in the way that it claims but, rather, is 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 work within the confines of the criminal appeals system and try to second-guess what the appeal courts might decide on any convictions that it might refer.
Indeed, if the CCRC truly were the kind of watchdog body that was envisaged by the RCCJ when it recommended its creation, it would not be subordinate to the criminal appeals system in the way that it is, which renders it unable to assist alleged innocent victims of wrongful convictions who may be innocent if they are not thought to satisfy the ‘real possibility’ test.
If the CCRC were a genuine watchdog, it would be separate and independent from the criminal justice system, be able to truly monitor it, and 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.
As the RCCJ noted, juries make mistakes and defence lawyers can fail their clients, which is why it recommended a new body with the authority to act independently to right the wrongs of the criminal justice system, particularly those cases that did not at the time and do not currently have the ‘fresh’ evidence required by the criminal appeals system which prevents innocent victims from overturning their miscarriages of justice.
Still waiting for an effective remedy for miscarriages of justice
Despite what the general public, television commissioners, human rights and civil liberties organisations and politicians may have been led to believe, then, the failure to overturn the wrongful convictions of innocent victims that was apparent at the time of the Birmingham six, Guildford Four, RCCJ, and so on, still exists and still requires an effective remedy.
I have been making these kind of arguments for almost 20 years. I will continue to so until there exists a body for all alleged innocent victims to have a fair and impartial investigation of their claims of innocence to determine their validity. Akin to public enquiries, potentially innocent victims would not have their applications rejected by such a body on the basis that they do not meet some arbitrary legal requirement, which actually works against justice and compounds the harms that victims of miscarriages of justice and their families experience.
It was in recognition of the limitations and failings of the CCRC in dealing with applications from alleged innocent victims of wrongful conviction that I set up the first innocence project in the UK and assisted in setting up over 30 additional innocence projects in other universities around the UK under Innocence Network UK (INUK).
I always knew that the way that the CCRC is structured would mean that it was most unlikely that applications from innocence projects would be referred. I said as much when I set up the University of Bristol Innocence Project. It was predictable that innocence projects would find it almost impossible to have cases referred by the CCRC as we were working on either cases that had already been turned down by the Court of Appeal because the evidence that the alleged victims of wrongful convictions were presenting was not deemed to be fresh or cases that had already been rejected by the CCRC for the same reason. Nonetheless, I believed that by highlighting alleged miscarriages of justice that had failed on appeal or by the CCRC where the alleged victim may, actually be innocent, that innocence projects could contribute to applying the pressure necessary for the reforms required to enable such cases to be referred. Our stance was always that evidence that was not put before a jury should be considered as fresh and that the policy to uphold conviction in the Court of Appeal or reject applications by the CCRC was inherently unjust.
In terms of quashed convictions, INUK and the innocence projects might look like they failed, although Cardiff University Innocence Project has had a couple of convictions overturned and the University of Bristol Innocence Project had two cases referred back to appeal by the CCRC and Scottish CCRC. Yet, it was whilst working with INUK that we created a dossier of 44 cases of alleged innocent victims of miscarriages of justice who all failed in their appeal and had been rejected by the CCRC at least once. It comprised, mainly, of prisoners serving life or long-term sentences for serious offences, ranging from gangland murders and armed robbery to rape and other sexual offences.
All of the alleged innocent victims of miscarriages of justice in the dossier claimed that they were not involved in the offences that they were convicted of. All were rejected by the CCRC, not because they were thought to be or shown to be the actual perpetrators of the crimes that they were convicted of but, rather, because they were not deemed to satisfy the requirements for ‘fresh’ evidence and the ‘real possibility’ test.
In the cases featured in the dossier, there were claims that the alleged victims of miscarriages of justice were wrongly convicted due to fabricated confessions, eyewitness misidentification, police misconduct, flawed expert evidence, false allegations and false witness testimonies. These are all perennial and well-established causes of the wrongful conviction of the innocent as evidenced by successful appeal cases.
Perhaps most crucially, the cases in the dossier are all plausible claims of innocence that a functioning criminal justice system watchdog body that is fit for purpose should be able to take seriously and investigate to determine their truthfulness or otherwise. A fit for purpose watchdog on miscarriages of justice would not simply reject applications because the criminal appeals system dictates that the CCRC should work in a way that cares not for whether alleged innocent victims of miscarriages of justice are innocent. This reveals the moral indifference of the CCRC towards potentially innocent victims of wrongful convictions who are currently procedurally barred from overturning their convictions.
CCRC Watch
It was in this context that CCRC Watch was launched in February 2022 as an Empowering the Innocent (ETI) targeted project to further highlight the limitations of the CCRC in dealing with applications from alleged innocent victims of wrongful convictions due to restrictive nature of the ‘real possibility’ test and the need for so called ‘fresh’ evidence.
Ultimately, Empowering the Innocent (ETI) calls for:
- The urgent repeal of the ‘real possibility test’. This would uncouple the CCRC from the Court of Appeal 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.
- In these investigations, any evidence not presented to the jury at trial is to be considered as fresh or new, as it should be as it has not been heard by a jury, and if it undermines the reliability of the evidence that led to the conviction or validates a claim of innocence then the conviction must be quashed by the CCRC.
- This requires the CCRC to also have its own authority to overturn wrongful convictions and not have to send cases that it finds are wrongful convictions backwards to the Court of Appeal which previously refused to overturn the alleged wrongful conviction.
Towards these aims, CCRC Watch will build on the INUK dossier of cases by featuring articles which centre on applications that are rejected by the CCRC, not because applicants are not innocent but, rather, because they are not deemed to have the so called ‘fresh’ evidence required to fulfil the real possibility test and have their case referred back to the Court of Appeal (Criminal Division).
CCRC Watch also features research articles on the wider limitations of the CCRC in dealing with applications from alleged innocent victims of wrongful convictions.
Historically, reforms to the criminal justice system have been achieved by informing and educating the public that the system is not working as they think it is or should. The Court of Appeal (Criminal Division), for instance, was introduced to domesticate the public crisis of confidence that was caused by the case of Adolf Beck, who was wrongly convicted without an available means at the time to overturn his wrongful conviction. And, as already discussed, the CCRC was established because the public became aware that the criminal appeals system at the time was failing to overturn the convictions of innocent victims who did not satisfy the legal requirement for ‘fresh’ evidence.
In the same way, CCRC Watch aims to strengthen Empowering the Innocent’s (ETI) case for the CCRC to be reformed or replaced by highlighting cases of alleged miscarriages of justice in which the claim of innocence could be truthful as a way of fostering public concern as a precursor for meaningful transformation.
As things stand, we still urgently need a body that is truly independent and impartial that functions in the public interest and the interests of justice to get to the truth of claims of innocence by alleged victims of miscarriages of justice. The legitimacy of the criminal justice system relies on its ability to guarantee that all innocent victims can and will overturn their wrongful convictions.
Finally, when thinking about alleged wrongful convictions, it must always be remembered that when innocent victims are wrongly convicted that the guilty perpetrators of those crimes remain at wrongful liberty with the potential and reality to commit further crimes.
This adds an important public protection dimension to the work of Empowering the Innocent (ETI) and CCRC watch, which is another crucial aspect of the miscarriages of justice problematic that the CCRC shows no concern about.
If you are an alleged innocent victim of a wrongful conviction or a family member of, or campaigner for, an alleged innocent victim of wrongful conviction who has been rejected by the CCRC because you/they are not deemed to possess the so called ‘fresh’ evidence to satisfy the ‘real possibility’ test and want to write about your case, or would like assistance with writing about your case, for CCRC Watch, please see the Information for Authors or get in contact by an email to: empowerinnocent@gmail.com.
Such an intelligent and well-informed post – thank you. There are so many wrongfully convicted people out there who would agree whole-heartedly with all you say. The iniquity of the requirement for fresh evidence is particularly bad in historic cases where the means for gathering it have long-since lapsed and where there is often no genuine ‘evidence’ to contradict.
Now we have the mammoth task of persuading those with the power and gumption (if there are any) to affect the required changes to get off their backsides and do so.