This article is based on the Freedom of Information (FoI) request I made to the Criminal Cases Review Commission (CCRC) in 2022. It relates to issues of conflicts of interest and self-reporting regarding case review managers and commissioners who have worked previously as police officers. I am concerned that there may be conflicts of interests when these ex-police officers work on cases of alleged police misconduct. More specifically, the questions that I posed to the CCRC under a Freedom of Information Act request are:
Given that the CCRC does not routinely exclude former police officers from cases involving allegations of police misconduct, on what basis, besides personal connection, will the CCRC decide if the possibility of a conflict of interest will arise in similar investigations?
Further, for the past 10 years, have there been any instances when certain police officers were in fact deliberately excluded from investigations of police misconduct by their line manager, commissioner, or any other member of the management team?
Additionally, besides cases of police officers being excluded, were there any other cases where commissioners are excluded from case reviews due to conflicts of interest by their line manager, commissioner, or any other member of the management team?
Regarding the first question, the CCRC replied first by saying that former police officers could bring “valuable knowledge and experience which supports us in finding and investigating possible miscarriages of justice.” Though it can be acknowledged that police officers carry such “valuable knowledge”, they also inevitably carry some form of bias. It can reasonably be presumed that this bias will not go away by virtue of them becoming caseworkers.
Additionally, as Bill Robertson has pointed out in an article on CCRC Watch, the CCRC is not even aware of how many of their case review workers are ex-police officers. If the CCRC values the expertise of former police so much, why do they seem not to care about whether their own investigators are ex police officers? Furthermore, in order to effectively deploy such expert knowledge from ex-police force investigators, they must have been involved in a significant number of cases. If it is true that a significant number of applications to the CCRC also relate to alleged police misconduct, it must mean that police officers may, also, have been involved in investigating quite a few cases of alleged police misconduct. Yet, from the reply from the CCRC, for the past 10 years, there was only 1 case where ex police officers had recused themselves from a review. Without any valid enforcement mechanism in excluding ex police officers from cases of alleged police misconduct, how can anyone trust the CCRC to do its job effectively?
The CCRC proceeded to draw a parallel between former police officers and former defence lawyers – claiming that the CCRC does not exclude such individuals from being involved with investigations related to their previous jobs. This policy decision can be questioned on two grounds:
Firstly, just because the CCRC does not exclude former defence lawyers from investigating alleged defence lawyer misconduct does not mean it is justified.
Secondly, it is difficult to draw a parallel between police officers and defence lawyers. Defence lawyers act independently from their clients and their professional standards clearly bars any bias that they may carry. In any case, even if a defence lawyer is biased, due to their independent nature, they can be expected to be biased only towards cases that they have handled themselves, but not to cases that they were not personally involved in. On the other hand, the police have a more collegiate culture, and it is far more likely for them to be biased towards cases that the police force has handled, despite themselves not being involved. It is unknown as to why the CCRC had found such a comparison to be plausible.
Additionally, as Bill Robertson also pointed out in his article, another issue with the current system is how the CCRC simply lacks any enforcement mechanism in preventing bias. The only regulation in place is the CCRC Code of Conduct, in particular sections 4 and 5, which provided that CCRC Commissioners and staff are expected to “rescue themselves when circumstances may give rise to a perceived conflict of interest or a perception of bias.” Nothing in the Code of Conduct had provided enforcement mechanisms, such as punishments or deterrents. The implications of this lack of enforcement mechanisms shall be explored here (insert hyperlink). If our justice system is run on the presumption that punishments are deterrents for violations of law, and that laws without punishment will not be enforced by individuals, how does anyone expect the CCRC to follow their Code of Conduct when they do not include anything to enforce it?
The above shows how the CCRC does not have an adequate, or even satisfactory, system in place to avoid conflicts of interest. It is dissatisfactory that self-evaluation serves as the only basis for CCRC staff to exclude themselves from case reviews. For one, if one has a personal interest in a certain case, it is natural that they are less likely to exclude themselves from it.
On top of that, the lack of any record, or information, that can inform other parties to the case review regarding a case reviewer's conflict of interest means that such conflicts of interest can be completely hidden away.
This is not to suggest that ex-police officers who work as CCRC case review managers or commissioners are necessarily evil – but “Justice must not only be done, but must also be seen to be done” (Lord Hewart, Rex v Sussex Justices, [1924] 1 KB 256). As the only commission for victims of miscarriages of justice to make a claim for their cases, the CCRC should be more active in upholding fairness in its operations.
By Cody Lai
Empowering the Innocent (ETI) volunteer
Final year Law Student, University of Bristol
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Freedom of Information Act questions to the CCRC and its responses
Q1: Given that the CCRC does not routinely exclude former police officers from cases involving allegations of police misconduct, on what basis, besides personal connection, will the CCRC decide if the possibility of a conflict of interest will arise in similar investigations?
A1: Amongst the casework staff are a number of former police officers who bring valuable knowledge and experience which supports us in finding and investigating possible miscarriages of justice. You correctly state that we do not routinely exclude former police officers from cases involving allegations of police misconduct, just as we do not routinely exclude former defence lawyers from cases involving allegations of defence misconduct. We do, however, expect any member of staff - or Commissioner - to recuse themselves from any case in which the circumstances may give rise to a perceived conflict of interest or a perception of bias. Each case is considered on its own facts but it is unlikely that the mere fact of being a former police officer would be sufficient, whereas a personal connection to the force, unit or individual(s) against whom allegations are made may give rise to a perceived conflict and the member of staff would not, therefore, be involved in the case. CCRC Commissioners and staff are expected to work according to the Code of Conduct, published on our website at www.ccrc.gov.uk. You may wish to take note in particular of sections 4 (Conflicts of Interest) and 5 (Responsibilities), as well as Annex 5 (Rules as regards the handling of possible conflicts of interest) that are of particular relevance to the questions you ask.
Q2: Further, for the past 10 years, have there been any instances when certain police officers were in fact deliberately excluded from investigations of police misconduct by their line manager, commissioner, or any other member of the management team?
A2: The CCRC’s conflict of interest register records where staff have proactively recused themselves from cases. The register shows that in the last 10 years, there was 1 case in which 2 former police officers who were recused, and therefore had no involvement in the review of that case.
Q3: Additionally, besides cases of police officers being excluded, were there any other cases where commissioners are excluded from case reviews due to conflicts of interest by their line manager, commissioner, or any other member of the management team?
A3: The CCRC’s conflict of interest register records where staff, including Commissioners, have proactively recused themselves from cases. The register shows that in the last 10 years, there were 13 cases in which at least 1 Commissioner was recused, and therefore had no involvement in the review of the case.