Helen Pitcher
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 regular criminal appeals system. It was established as the main recommendation of the Royal Commission on Criminal Justice (RCCJ). It was the case of the Birmingham Six and other infamous 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 caused a widespread lack of confidence in the workings of the entire criminal justice system in the late 1980s and early 1990s. 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.
The legal establishment was so discombobulated over the situation that Former Master of the Rolls Lord Denning said, ludicrously, in dismissing the case about the still-incarcerated Birmingham Six’s civil claim against the police in 1980:
“Just consider the course of events if their action were to proceed to trial… If the six men failed it would mean that much time and money and worry would have been expended by many people to no good purpose. If they won, it would mean that the police were guilty of perjury; that they were guilty of violence and threats; that the confessions were involuntary and improperly admitted in evidence; and that the convictions were erroneous…That was such an appalling vista that every sensible person would say, ‘It cannot be right that these actions should go any further’.”
The convictions were eventually quashed in 1991. The men would later go on to receive approximately £1 million in compensation each.
Again on the subject of the Birmingham Six, Denning is reported to have said: “We shouldn’t have all these campaigns to get them released if they’d been hanged. They’d have been forgotten and the whole community would have been satisfied.”
It was anathema to conventional thinking at the time that the police could even be imagined to have beaten confessions out of the Irish suspects, or that they falsified evidence. Innocent times indeed.
Public pressure finally led to the decision by the Home Secretary to refer the Guildford Four case to the Court of Appeal (CoA). On 20 October 1989, following the success of the Guildford Four appeal, the Government appointed Sir John May to inquire into the convictions of the Four and into the related case of the Maguire Seven. His interim report (May, Sir John 1990, Interim Report on the Maguire Case, Stationary Office) unearthed miscarriages of justice in the handling of scientific evidence that were also relevant to the other cases. As appeal after appeal was referred back to the CoA there was steadily mounting evidence that lies and deceit had been practiced not just by the police who extracted the confessions from the appellants, but also by the expert witnesses who backed up the police with scientific evidence and by some of the lawyers who conducted the cases for the prosecution. Sir John May's inquiry became a Royal Commission on Criminal Justice inquiring into the systemic problems that contributed to these individual miscarriages of justice.
In all the trials that led to the Royal Commission, the evidence presented by the prosecution consisted of alleged (false) admissions made by the accused, supported by (unreliable) scientific evidence that the accused had recently handled explosives.
In summary, the appeals were allowed on the basis of:
Guildford Four: R v Richardson & Ors, The Times, 20.10.89:33:
Evidence that the police witnesses had lied to the court about "contemporaneous" notes that they claimed to have made during the interrogation and "confessions" of the appellants. Fresh evidence by document examiners found that these records were made at times and in ways other than that claimed by the police. The May inquiry was appointed to inquire into concerns about the scientific evidence of testing for nitro-glycerine.
Birmingham Six: R v McIlkenny & Ors (1991) 93 Cr.App.R. 287:
Both the scientific evidence of contamination by nitro-glycerine and the documents said to set out the confessions obtained by the police were found to be unreliable following the admission of fresh evidence.
Maguire Seven: R v Maguire & Ors (1992) 94 Cr.App.R. 133:
The prosecution's common law duty of disclosure to the accused extended to forensic scientists, and their failure to disclose relevant test results in this case was a material irregularity in the course of the trial.
Judith Ward: R v Ward (1993) 96 Cr.App.R. 1:
The suppression and misrepresentation of test results by the forensic scientists, fresh evidence on the unreliability of the scientific tests, the failure of psychiatrists to reveal the appellant's true mental condition, fresh evidence on her personality disorder, and the suppression and misrepresentation of evidence by prosecution lawyers caused a miscarriage of justice.
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 for hundreds of years. 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 devoted 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.
After the first flush of ‘serious’ cases handled by the CCRC, in recent times they have resorted increasingly to sleight of hand as a means of reporting their alleged successes, normally involving less serious, even fairly trivial offences. As the late Bob Woffinden reported in 2010[1]:
“The CCRC began work on 1 April 1997. In gauging its overall success, we need first of all to look at its own statistics, according to which its work has led to the quashing of 304 convictions. Taken at face value, this is impressive; looked at more closely, the figure quickly crumbles.
Firstly, the CCRC refers some cases to the court of appeal on the basis of sentence alone. If the sentence is subsequently varied, then the CCRC triumphantly – but inaccurately – marks this down as a "quashed" case, and a success. It also counts as successes cases where alternative convictions are substituted – the most common example being manslaughter for murder. This may be little more than a technical adjustment to the conviction and may make no practical difference to the liberty of the prisoner.
Secondly, there is multiple counting. The CCRC rates its success not in terms of individual cases but numbers of convictions. Had the commission ever been tasked with analysing the Birmingham Six and Guildford Four cases, they would have examined two cases but chalked them off as 10 successes.
Thirdly, there is the case of Russell Causley, whose case was referred to appeal in 2001. His conviction was quashed at appeal, but the court ordered a retrial and Causley was reconvicted. So he will be sitting in his cell, still convicted of the same crime that he once persuaded the CCRC to reopen, wondering just how the CCRC can count him as one of its "successes".
Fourthly, and crucially, any examination of the details of the CCRC "successes" reveals that, especially in recent years, the commission has been getting relatively lightweight convictions overturned, for example: dishonestly obtaining a telecommunication service; allowing a dog to be dangerously out of control in a public place; failing to comply with an amended section 215 notice under the Town and Country Planning Act; cheating HM Revenue and Customs contrary to common law; and, that old chestnut, keeping a disorderly house.
Those wrongly convicted in these, and other similar cases are doubtless eternally grateful to the CCRC for helping to restore their reputations. But no one should pretend that such low-level injustices precipitated the creation of the CCRC. It was set up because of wrongful convictions in major cases, especially murder cases, that were being rejected at the court of appeal.”
The CCRC is now increasingly reliant on the Post Office Horizon software related cases to maintain its list of ‘successes’. As of November 2022 it had referred 63 cases related to Post Office Horizon convictions back to the courts, resulting in 57 convictions being overturned – making it the most widespread miscarriage of justice in British legal history, if not the most serious. However, the referrals are largely following a now well established template and let us not forget that the CCRC were poised to reject the first applications made by wrongly imprisoned postmasters before they were persuaded to look in more detail at the evidence. The CCRC came close to referring none of the 63 Horizon cases.
In recent months disturbing evidence has emerged about what now takes place at the CCRC in respect of new submissions. CCRC Watch has documented evidence that:
· Administrative unqualified CCRC staff are claimed to be processing submissions all the way through to rejection without the input of a Case Review Manager.
· The Customer Service Officer is claimed to be, in effect, making judgements on submissions and rejecting applications rather than simply processing complaints from applicants.
· The CCRC has no means of monitoring the amount of time spent considering a submission; submissions go into a state of abeyance for many months.[2]
· Case Review Managers can effectively ignore submissions for extensive periods of time without any sanction being applied.[3]
· The CCRC does not know how many ex-police officers it employs and has no way of monitoring their past associations with serving police officers[4]
· The CCRC is alleged to be possibly ‘leaking’ sensitive information to third parties about applicants.[5]
· The CCRC is claiming forensic ‘breakthroughs’ that may not exist.[6]
· The CCRC does not share information that could be of assistance to applicants.
· The CCRC are alleged to be telling applicants that they do not have a power to direct the police to conduct the investigation of a potential offence with a view of prosecution, when the power does exist.[7]
· The CCRC is claimed to have stated to an applicant that the Court of Appeal would conclude that potential evidence of an offence of perjury would not render a conviction unsafe.
· The CCRC is claimed to be refusing to sanction DNA testing requested by applicants.
Chairman of the Criminal Cases Review Commission (CCRC) is an important position; there have only been four in the past twenty-five years. Helen Pitcher is the first female ‘Chairman’ and the first with no prior experience of the criminal justice arena. It is argued here that the appointment of Pitcher, on the evidence seen to date, signifies that the government is engaged in a process of abolishing the CCRC by diluting the impact of the organisation and downplaying the extent of serious miscarriages of justice. It is as if the government, via the CCRC, is saying that there are no more really serious miscarriages of justice comparable to those that led to the creation of the CCRC in 1997. Whereas in reality there are numerous serious miscarriage of justice cases that are being refused access to the Court of Appeal by the CCRC, leading to immense frustration among applicants.[8]
From the Westminster Commission report:[9]
"...the CCRC needs leadership from those with a proven track-record in correcting miscarriages of justice" Pete Weatherby QC
"...the chair should be someone with lifelong experience of the criminal justice system rather than someone who appears to be chosen because they might be thought to be good at running things. I think you need... a real commitment to try to discover miscarriage of justice and put them right" Michael Birnbaum QC
We believe that it is important that the role is filled by a person of some standing, demonstrably independent of the Government and willing and able to speak out when the CCRC's work reveals flaws or failings in the system
To this end, the appointment of Helen Pitcher has led to the CCRC issuing public statements that are, to say the least, highly misleading and factually incorrect. While Pitcher has no day-to-day involvement in the managing of the CCRC, she does have significant influence over management issues and must take responsibility for press releases issued in her name. Furthermore, a more recent development is that Pitcher has also been appointed to a position where she is now Chair of the Judicial Appointments Commission. She will hold the role for 3 years from 1 January 2023, until 31 December 2025. Thus, she will be involved in appointing judges who may well then find themselves being ‘investigated’ by the CCRC over alleged judicial wrongdoing. Having been intimately involved in the process of appointing a Judge, how likely is Pitcher to be impartial and diligent in investigating and then reprimanding the same person? Could this lead to various forms of cover-up? We explore this issue further below.
The required transformation of the CCRC and what has failed to emerge
In 2007, Laurie Elks retired as a Commissioner of the CCRC after serving there for ten years from the inception of the organisation and becoming involved in numerous high profile cases. While it could be argued that he reserved all his criticisms of the CCRC for after he retired and could perhaps have spoken out more while he was employed there, nevertheless the book he wrote following his retirement[10] is very useful and revealing. One thing that does come across is a determination to resolve some of the long-standing miscarriage of justice cases inherited from the Home Office and also that the CCRC as it was structured then was prepared to challenge the Court of Appeal (CoA), often receiving a serious dressing-down in the process. The CCRC of 1997-2007 appears to have been a serious-minded organisation, even if it was not outstandingly successful in overturning controversial convictions.
The CCRC was not welcomed by the legal establishment. In the final chapter of his book, Elks reflected upon how the judiciary had sought to emasculate the CCRC:[11]
· The Commission’s remit to deal with sentences was emasculated at a very early stage in the cases of Graham and Robery.
· The Commission’s remit to deal with change-of-law cases was fiercely attacked in Cottrell and Fletcher.
· The Commission has received negative feedback from the Court in a number of referrals, notably Day, based on arguments of legal incompetence.
· The Court has given the Commission very strong indications against referral of old capital cases in Knighton and Ellis.
· The Court has sought to place limitations on no new evidence/lurking doubt referrals in cases such as Thomas (Ian) and Stock.
Elks said in his summary that the CCRC had seen many of the causes of miscarriage which caused the CCRC to be established to have been “largely eliminated”. By this he presumably alludes to police officers beating confessions out of innocent people and the falsification of confessions. However, he opined that new challenges for the CCRC were emerging, foremost the shortcomings of expert evidence. He listed many examples, such as:
· The expert’s competence has been in question, in cases such as Assali (an explosives expert) Bacchus (a facial recognition expert), Boreman and Byrne (a pathologist). To which we would now add Freeman (pathologist Prof. Richard Shepherd) Bamber (pathologist Prof. Peter Vanezis) Garbutt (Forensic scientist Dr Karel Klaentschi and academic Dr. Jennifer Miller).
· The expert’s objectivity and/or the fairness of his or her evidence has been the subject of criticism, such as in the case of Sally Clark. (Professor Sir Roy Meadow).
· The expert case has been marred by non-disclosure (Sally Clark, C Martin).
· The strength of the inferences that can be drawn from expert evidence has been overstated at trial (such as McNamee – fingerprint evidence, Faulder – shaken baby evidence, Kempster and Dallagher – ear print evidence
· The prosecution case has not been properly tested because the defence expert either lacked appropriate specialist qualifications or failed to give sufficient time to making a proper assessment (such as in the diminished responsibility cases of Ashton and F (M).
To the list of expert witness cases we must add a plethora of witness reliability cases, primarily related to convictions for sexual offences. Additionally, there is the huge problem of Joint Enterprise, a Victorian-era law that has re-emerged in England and Wales enabling the conviction by association of multiple individuals for one offence, often used to target groups of young people, disproportionally from ethnic minority backgrounds. We now have young people sentenced to life imprisonment for listening to certain types of music and sending text messages to each other.
Thus, if the police have (largely) stopped beating false confessions out of suspects, the problem of miscarriages of justice has not gone away, indeed, they have become far more complex. What Elks identified in 2007 was a need for the CCRC to develop internal expertise so as to enable it to meet future challenges, particularly in relation to the examination of scientific evidence. Has the CCRC developed its expertise and capacity to deal with emerging scientific trends? Far from it, the CCRC seems to be engaged in managing a public relations exercise designed to give the impression that things are improving; we argue that far from improving, things are getting worse.
Since Helen Pitcher became Chairman, the CCRC appears to be engaged in a deliberate process of self-abolition whereby the usefulness of the organisation diminishes with each passing year and various managerial strategies are designed and implemented so as to hide from public view the deterioration in effectiveness. The remainder of this article explores the managerial shortcomings at the CCRC and asks what Helen Pitcher, as Chairman, is doing to rectify the situation. Sadly, the conclusion is that she is doing nothing useful to improve matters by her practice of ‘spinning’ alleged good-news stories. We consider whether her continued appointment as Chairman signals a government intention to emasculate the organisation.
In order to illustrate the point we shall explore the reaction of Pitcher to two open letters sent to her last year by Jane Metcalfe who is campaigning on behalf of Robin Garbutt. For information on the Garbutt case see here.
At the helm of the CCRC we now have a dilettante Chairman, Helen Pitcher OBE. With no prior experience of the criminal justice sector, it is reasonable to question what qualities Pitcher brings to the CCRC. According to her personal website:
“Helen is an experienced Chairman, Board member, Board facilitator and Coach. She works across the range of FTSE, Professional Service, Private Equity and Family firms, where she has led some of the biggest Board Evaluations. Helen is also a coach to many leading CEOs, Chairman and NED's. She was awarded an OBE for services to Business in 2015.
In addition to her Advanced Boardroom Excellence role Helen holds the following high profile Board roles: Chairman of the Criminal Cases Review Commission and Chairman of the Public Chairs’ Forum. A Non-Executive Director at UB UK and C & C Group Plc where Helen is the Chairman of their Remuneration Committee and a member of the Nomination and ESG Committees. SID at OneHealth Group Ltd and Chairman of the Remuneration and Nominations Committees. Recently appointed to IAA ExCo VP of Global Clubs. Helen is the President of KidsOut (a National Children's Charity) and sits on the Advisory Board for Leeds University Law Faculty.
Helen was previously Chairman of the Queens Counsel Selection Panel until February 2017, Chairman pladis Advisory Board (United Biscuits, Godiva, Ülker Bisküvi) until April 2019 and a Board member and Remuneration Chairman for the CIPD until June 2019”.
Thus, it appears that Pitcher brings nothing of relevance to the CCRC other than general boardroom experience. Pitcher has recently been appointed controversially to be Chair of the Judicial Appointments Commission. Numerous commentators have pointed out the potential conflicts of interest between Pitcher as Chairman of the CCRC and her new role. For example, the probability that a Judge appointed by the Judicial Appointments Commission becomes the subject of a complaint to the CCRC. Pitcher assured the Justice Select Committee that she did not perceive any problems: “I don’t actually review cases at all. That’s not part of my role.’ She explained that she was ‘there to champion the organisation and the board and to ensure we discharge our statutory responsibilities appropriately. I don’t perceive any overlap at all or any potential conflict’. It would appear that the persons who appointed her must have accepted her somewhat optimistic statement.
Many disagree with her; leading lawyers have spoken out about their concerns. Edward Henry KC, a barrister acting for victims in the Post Office Horizon scandal, said that the CCRC should be ‘demonstrably independent from the senior judiciary’ and the appointment sent out ‘the wrong message’. The barrister and blogger Matthew Scott said: ‘There is a perception that CCRC is far too reluctant to refer cases to the Court of Appeal and is too cosy with the establishment. Making [Pitcher] Head of judicial appointments rather adds to that perception — she’s wearing two different hats and that doesn’t look very good. The posts should be held by two separate people.’ The Ministry of Justice’s JAC job brief required the new chair to work towards building ‘a constructive relationship’ with the judiciary; however, the raisond'être of the CCRC is that it needs to stand up to the courts in defence of the wrongly convicted. Over a very long time, campaigners, lawyers and academics have complained that the CCRC has been overly deferential towards the Court of Appeal – this was the finding of the February 2021 all-party parliamentary group on miscarriages of justice as well as the Justice Committee’s own 2015 report.
In her eagerness to get the role of Chair of the JAC Pitcher said she was ‘absolutely confident’ she could do both roles, CCRC and JAC. ‘I have a very good senior management team in the CCRC it was a matter of public record that when I inherited the CCRC it was somewhat dysfunctional. It is now not and works very well.’ However, this was shameless bluff. As CCRC Watch and many others have pointed out repeatedly, the CCRC does NOT work very well, in fact it is a poorly performing organisation, consistently failing to assist even the most obvious meritorious applicants. (See here for numerous examples). The CCRC is poorly managed and has a shockingly absent degree of managerial oversight. Applicants frequently report that they are subjected to neglect or extreme delays in processing.[12] In sensitive areas, such as police officers investigating other police officers, the CCRC’s managerial oversight of their employees who are former police officers is risible(see). The kind of systems that one would expect a public body to implement appear to be totally absent; the CCRC has no way of recording how much time has been spent on an individual submission.
It seems that the Conservative government seems intent on trying to abolish the CCRC by stealth cuts. The CCRC has suffered the greatest funding cut of any part of the criminal justice system – its budget was £6m last year compared to £9.24m in 2004 – and its workload has more than doubled since 2010. Its referral rate has declined sharply, reaching an all-time low of just a dozen cases in 2016 and 13 in 2017. The CCRC is obliged by statute to have 11 commissioners and prior to 2012 Commissioners were on salaries with holiday, sick pay and a pension; however in 2017 Commissioners were recruited on minimum one-day-a-week contracts with none of the previous benefits. The Westminster Commission heard that the overall level of Commissioner resource fell from 8.8 full time equivalent posts in 2014 to just two and a half by 2019.
What does the CCRC, and Chairman Pitcher do about this? They bluster and claim that they are just as effective, indeed even more effective now, than they ever were, and this is why Helen Pitcher gets chosen for these government roles. She doesn’t seem to care enough about the subject matter to protest; she simply hires public relations expertise and hides behind massaged messages. Helen Pitcher is arguably a token appointment by the Ministry of Justice; someone to oversee the inexorable decline of the ‘service’. Her reward, in due course will likely be a CBE, for services to the denial of justice.
And what of Ms Pitcher’s other dalliances? She appears to have a major role at her own consultancy company which, if her website is accurate, involves more than enough work for one person to cope with. Helen Pitcher is the sole Director, i.e. owner of a company called Advanced Boardroom Excellence, with current assets of around £550,000. Five previous Directors all resigned, three in October 2018. In addition to her Advanced Boardroom Excellence role Pitcher holds the following high profile Board roles: Chairman of the Criminal Cases Review Commission and Chairman of the Public Chairs’ Forum. A Non-Executive Director at UB UK and C & C Group Plc where Pitcher is the Chairman of their Remuneration Committee and a member of the Nomination and ESG Committees. SID at OneHealth Group Ltd and Chairman of the Remuneration and Nominations Committees. Recently appointed to IAA ExCo VP of Global Clubs. Pitcher is the President of KidsOut (a National Children's Charity) and sits on the Advisory Board for Leeds University Law Faculty. She has recently been appointed by Dominic Raab as Chair of the Judicial Appointments Commission, raising serious concerns among legal circles as to her suitability for the role. It appears that Pitcher, in undertaking all these roles, has a great deal of demand upon her time. Too much? It would appear so.
What is the practical effect of a dilettante Chairman?
One of the greatest areas of complaint from applicants to the CCRC is the failure of the CCRC to engage constructively with applicants. On this subject Pitcher has stated that, as an independent body, the CCRC cannot be in situation where it is perceived to be collaborating with an applicant.[13] Why on earth not? Surely the whole point of the CCRC is that it exists to investigate alleged miscarriages of justice, so why not work alongside the victim of the miscarriage? There are numerous examples of applicants pleading with the CCRC to work with them to find new evidence that we could highlight, but for the purpose of this article we shall focus on the case of Robin Garbutt as we can refer to a very rare phenomena, a letter from Helen Pitcher to a campaigner. Robin Garbutt has been found guilty of the murder of his wife Diana, which he denies.
Jane Metcalfe campaigns on behalf of Robin Garbutt. The full text of Jane’s letters to Helen Pitcher can be viewed on the CCRC Watch website.[14] Extracts below summarise Jane’s main points in her letter of 17 May 2022:
This is my desperate plea to you, Helen Pitcher OBE, Chair of the Criminal Cases Review Commission (CCRC), for you to intervene and refer Robin Garbutt’s wrongful conviction back to the Court of Appeal.
Helen, however much I admire the loyalty and support you have of your fellow workers at the CCRC, I implore you to listen to this story about how the CCRC are, right now, today, and without doubt, failing innocent people. The statistics don’t lie, and if the recent Post Office cases are not included, the CCRC has rejected as many as 98-99% of all applications over the last five years. Are we really to believe and accept that a mere one or two percent of the applicants to the CCRC are innocent and the rest are telling lies?
The CCRC tells us they visit prisoners like Robin, but that clearly is not true as throughout all of this past 7 years of wrestling with the CCRC, not one person from the CCRC has ever been anywhere near Robin or would agree to meet the family or legal team!
In all of our research, and of all the people we now know who find themselves in the same pain, we have not come across anyone who ever has had a visit from the CCRC.
Poor Robin is now having to cope with utter contempt by some at the CCRC who are completely undermining all of the evidence that clearly shows he is innocent. The burning issue is why, after uncovering staggering amounts of evidence that is new and fresh, much of which could not have been available at trial and that couldn't fail to pass anyone`s `real possibility test`, shining a massive light over the safety of his conviction, is the CCRC still blocking Robin Garbutt`s route to the appeal court?
Helen Pitcher signed a response letter on 1st June 2022. (Did she write the letter herself?). It said that as Chairman of the CCRC she “cannot affect an ongoing case appeal.” But, why not? If the Chairman makes enquires and feels that something is amiss, does she nevertheless allow things to continue? The public pays for Pitcher to be Chairman of the CCRC, at a cost approaching £100,000 per annum - for someone who “cannot affect a case appeal”. Jane Metcalfe made a telling point in her letter to Pitcher:
No one will understand why someone with as much power as a Chair has `cannot effect an on-going review. ` Imagine a publicly funded aerospace company, that, over many years kept being handed worrying reports of concerns of serious flaws in their system, all backed up by a plethora of damning reports/academic papers/books, even an APPG. The flaws were leading to huge problems, some turning into heart breaking air disasters, but the most disturbing thing was the company just kept turning a blind eye because despite all of the above, it just kept defending its position without, it would seem, any thought for the poor passengers.
When `the general public` become fully aware that these awful things were happening they expect the Chair (and management) to interject, get stuck in, cut through any so-called red tape, rules, protocol, whatever, and just dive in to get to the bottom of what is causing these terrible disasters. Shouldn't the people at the top of the CCRC, those that have huge influence, power, clout and the authority, go down on to the shop floor and investigate something as serious as keeping an INNOCENT person in prison?
If not why not? And if not, WHAT is the purpose of management?
Well put. Exactly what is the point of Pitcher’s ‘management’?
Pitcher also said, “We consider each case on its particular facts and pursue the lines of investigation we consider necessary to find out whether there is new evidence or argument that raises a real possibility the appeal court will overturn the conviction…decisions about what to investigate are a matter for the CCRC. Issues such as whether to interview an applicant and/or their representatives are considered on a case-by-case basis.”
In response to Helen Pitcher’s non-committal and somewhat defensive letter, Jane Metcalfe responded:
The CCRC are coming across as completely biased, their mind is closed to any possibility that any of this mass of evidence could cause doubt over the conviction, we could call it the `impossibility test!
And `thorough` according to the Oxford dictionary means “rigorously/in-depth/exhaustively/from top to bottom.’, which is not what the CCRC are doing with this case.
They have not carried out ANY investigations at all, not one! Nor have they contacted ANY of the many experts/professionals involved who have submitted many reports for the defence. Not carrying out one scrap of investigative work whatsoever, over something of this magnitude is downright immoral and isn't in the same hemisphere as `thorough`. Had they chosen to actually be thorough, there`s an abundant amount to go at.
They could have looked into new evidence about the murder weapon (metal bar). The prosecutor told the jury, Robin, after murdering his wife, had placed the bar on top of a 8ft 3 inch wall (a few feet away from the back door of the Post Office) `in the dead of night`. Despite a fingertip search of the area by Police it was not discovered for 2 days. Since the trial it has been proven impossible for Robin to have climbed up and placed it where it was found and TV footage from Tyne Tees TV filmed the day after the murder came to light showing the bar is not on the wall. Can I please remind you that the ONLY thing linking the murder weapon to Robin is the prosecutor telling us he placed the bar on the wall. Your case workers could have investigated this, but they haven't.
They could also have further investigated the DNA on the murder weapon that belonged to a Police Officer, who`s DNA had somehow ALSO gotten onto the pillowcase (crime scene) where Diana was killed, despite the fact he (allegedly) never even stepped foot inside that building. Said Officer was on leave on the day of the murder and said he couldn`t remember where he was on the day Diana was murdered. The cross contamination of the evidence is the only explanation, but the pillowcase was tested within days, the murder weapon not for months. They could have investigated this, but they haven't. It's a strange thought but had Robin been out of town that night, maybe it would be that Officer in prison because, unlike Robin, there was actual forensic evidence linking him to the crime, in comparison with NO forensic evidence whatsoever linking Robin.
They could have investigated what happened to the hair (that was clearly not Diana`s or Robin`s) that was on crime scene photographs, but the Police lost it. They could have, but they haven't.
They could`ve investigated the BB gun and mask which was found a few miles away shortly after the murder (which to this day has still never been tested for DNA). Robin always maintained the intruder was armed and wore a mask, so was the discovery of the ones found a few short miles away pure coincidence. Or had they actually been dumped by the real intruders?
The crux of Jane’s reply is that deskbound research of existing case papers is never going to uncover fresh evidence. Yet, fresh evidence is the only thing that stands any chance of causing the CCRC to refer a case to the Court of Appeal.
Helen Pitcher, if she is serious about being an effective Chairman of the CCRC needs to convene a meeting with the staff dealing with Robin Garbutt’s submission and ask the following questions:
1. Why have we not checked the alibi of the police officer whose DNA was found on the murder weapon and the pillowcase?
2. Why should that police officer be allowed to simply say that he can’t remember where he was on the day of the murder?
3. Why have we not checked the BB gun and mask discovered just after the robbery for DNA?
4. Why have we not checked how a clump of hair found at the murder scene disappeared?
5. Why have we not taken into account new evidence about the accuracy of time of death calculations by Dr. Jennifer Miller and the impact this had on the jury?
6. Why have we not spoken to anyone connected with the defence side of the case?
7. With all that is now known about the Post Office Horizon software fiasco, why are we not challenging the prosecution case that the motive for the murder was related to financial difficulties within the Garbutt marriage?[15]
8. Why would it not be reasonable for the CCRC to refer the case to the Court of Appeal given how much of the original prosecution case is now proven to be wrong?
Recently, in late January 2023, the CCRC announced that the long running case of Andrew Malkinson was going to be referred to the Court of Appeal.
As outlined in a recent CCRC Watch article (see here) in a Press Release issued on 24th January 2023 the CCRC announced that, “The Criminal Cases Review Commission (“CCRC”) has referred a man’s rape and assault convictions to the Court of Appeal after new DNA testing has revealed a potential alternative suspect.
This is a deeply significant development in the modus operandi of the CCRC; there is no evidence of a new DNA analysis ‘breakthrough’.[16] This signals that nothing they say can be taken at face value. The fact that the CCRC refuses to say what DNA ‘breakthrough’ led to Malkinson’s case being referred to the CoA shows contempt for other applicants with similar DNA issues who could benefit if there really was a new DNA analysis technique to be utilised.
Mindful of what Laurie Elks highlighted in 2007 regarding the future challenges involving the reliability of expert witness testimony, the CCRC should, by now, be the leading authority on forensic science developments in the UK. Alleged victims of miscarriages of justice should be able to access information on the CCRC website that explains how advances in forensic science techniques such as DNA testing can assist applicants with their submissions. The CCRC should have a database of all submissions that have been based on disputed DNA evidence, or requests for new DNA testing. The database should be capable of generating prompts to Case Review Managers to revisit cases such as Malkinson whenever a new DNA analysis technique emerges. The reality is that fifteen years after Elks pointed out the future challenge of responding to flawed expert witness testimony, nothing has been put in place. Cases such as Andrew Malkinson are routinely forgotten by the CCRC.
Sadly, the CCRC is becoming irrelevant in the sphere of correcting miscarriages of justice. CCRC Watch has been told that prisoners have ceased to make applications, knowing that they are wasting their time. The Chairman of the CCRC has the power and authority to correct many of the ills highlighted in this article. Will she do so?
By Bill Robertson
Bill Robertson has researched alleged miscarriages of justice for around 20 years and advised on several cases, including the most recent application to the CCRC by Jeremy Bamber.
Please let us know if you think that there is a mistake in this article, explaining what you think is wrong and why. We will correct any errors as soon as possible.
References
[1] The Criminal Cases Review Commission has failed | Bob Woffinden | The Guardian
[2] https://www.thejusticegap.com/has-anyone-at-the-ccrc-got-the-time-please/
[3] Jeremy Bamber Campaign Official Web Site (jeremy-bamber.co.uk) Latest News re Andrew Timney
[4] Should ex police officers be allowed to work as Case Review Managers at the CCRC? (empowerinnocent.wixsite.com)
[5] Ray Gilbert complains to the CCRC regarding possible breaches of data protection laws (empowerinnocent.wixsite.com)
[6] Is there CCRC deception involved in referring the case of Andrew Malkinson? (empowerinnocent.wixsite.com)
[7] If when performing their duty to investigate a suspected miscarriage of justice, the CCRC become aware of an offence relating to the case that has not been investigated by the police they have the power under section 19.3, and by extension, the duty to impose a requirement upon a Chief Officer of Police to investigate it
[8] https://www.thejusticegap.com/please-forgive-me-but-i-wont-be-holding-my-breath/
[9] 2021_03_02 Westminster Commission Report FINAL (wordpress.com)
[10] Righting Miscarriages of Justice? Ten years of theCriminal Cases Review Commission. Justice 2007
[11] Ibid pages 336-339
[12] For example, Jeremy Bamber’s Campaign Team made a new submission to the CCRC in March 2021. It was reported in June 2022: “During April this year, the CCRC advised Jeremy’s legal team that Andrew Timney, the Case Review Manager who was allocated to review the submissions, is leaving the CCRC. Correspondence from Timney since October 2021 does not indicate that he has undertaken any substantive review of the evidence submitted”[12] Thus, a submission was virtually ignored for over a year without any repercussions for the Case Review Manager, it would appear. This is not uncommon, there are many similar examples.
[13] CCRC releases official response to the Westminster Commission report - Criminal Cases Review Commission June 2021
[14] An Open Letter to Helen Pitcher, Chair, CCRC, about the rejection of Robin’s Garbutt’s application (empowerinnocent.wixsite.com)
[15] The prosecution case at trial relied heavily on the twin assertions that:
The Garbutts were struggling financially, both personally and in terms of their business; and, Mr Garbutt was stealing cash from the post office to keep the shop business and their joint lifestyle afloat.
The prosecution relied on the evidence of post office investigators who stated that the overnight cash declarations by the Melonsby post office were suspicious and indicative of fraud. This was challenged by the defence.
The CCRC was referred to the Post Office press release and accompanying report dated 8th July 2013, and BBC report dated 9th September 2014. It is now in the public domain that the post office accounting software Horizon, which was installed at the Garbutt’s post office, is suspected by many sub-post masters to be faulty. Despite initial post office reluctance to acknowledge this, it was submitted that as a result of public and parliamentary concern that the post office may have wrongly accused sub post masters of theft, the post office appointed a company ‘Second Sight’ to investigate the alleged failings in the Horizon system. While their investigation was ongoing, at the very least there remained concerns as to whether the system operated accurately at all times.
[16] 8 February 2023, fundraising appeal for Andrew Malkinson. "The APPEAL team managed to commission new forensic testing. This confirmed that there was none of Andy's DNA in the samples taken from the victim. But it also revealed the presence of an unknown male’s DNA – including under the victim’s fingernails on the hand she said she used to scratch her attacker’s face when fighting him off. APPEAL presented these DNA results to the CCRC, who have been able to identify an alternative suspect via a search on the National DNA Database.
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