The Criminal Cases Review Commission (CCRC) is the only avenue open to alleged victims of wrongful convictions who wish to challenge their conviction after they have failed in their first appeal. In this article, Bill Robertson considers the role of ex police officers working as CCRC caseworkers or Case Review Managers (CRMs) who review applications. Reflecting on information from a Freedom of Information (FoI) request, he questions whether the CCRC should ever employ ex-police officers to carry out reviews of applications by alleged victims of wrongful convictions.
The CCRC employed 64 CRMs in January 2022, six of whom they estimate are former police officers. I received this information via a Freedom of Information (FoI) request. It represents just under 10% of CCRC CRMs, which might seem a reasonable proportion. However, after reflection and consideration of other factors revealed by the CCRC in my FoI request, I find this deeply problematic and have provisionally concluded that the CCRC should never employ ex-police officers, for the reasons that I outline below.
Context is always of vital importance with recent revelations suggesting that it is no longer viable for the police to maintain that a police officer who commits criminal acts is simply “one bad apple”. In miscarriage of justice circles it is held widely that the entire police orchard may well be rotten to its core, with corruption and abuse of power affecting all police forces around the country.
As this specifically relates to the Metropolitan police, the largest police force in the country, at the time of writing the Mayor of London stated publicly that it needs to show urgently that it has an “effective plan for restoring the trust and confidence of Londoners in the police and to drive out the culture of racism, homophobia, bullying and misogyny which clearly still exists within its ranks.”
By implication, the CCRC might well employ CRMs who may have been exposed on a daily basis to the toxic police culture now being reported in the media. And, as the majority of the cases referred to the CCRC involve allegations of corruption against police officers, do we really expect that a former police officer, with a valuable police pension to protect, will diligently and without favour strive to uncover police corruption?
Is it not also possible, that other caseworkers at the CCRC, perhaps also wrestling with allegations of police wrongdoing, could seek guidance from an ex police officer, which could influence the caseworker to decide not to refer a submission?
This idea is strengthened with the importance of former police officers working as CRMs at the CCRC being trumpeted in terms of the experience and knowledge that they provide to the ‘successes’ of the investigative process. They told me that:
“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”.
On the other hand, the fact that 58 of the current caseworkers are not ex police officers suggests that police investigative experience is not an essential requirement of the job. So, why employ any former police officers in a role that inevitably requires the post holder to confront police corruption?
The CCRC told me that in fact they do not keep any records of how many of their staff are former police officers, indicating that perhaps the CCRC have never considered the issues around the employment of former police officers. The figure of ‘6’, they told me, is an educated guess. In response to further questions, I was referred to an internal code of conduct.
I asked the CCRC:
What procedures are in place at the CCRC to ensure that a member of CCRC investigative staff is not assigned to a case where their previous employer is alleged of wrongdoing? For example, where a CCRC staff member is a former police officer, what measures are in place to prevent them from investigating former colleagues, or their former employer, for example a police force?
What procedures are in place requiring a CCRC employee to declare a vested interest in a case referred to the CCRC?
If a member of CCRC staff is approached by a third party seeking to influence the outcome of an investigation, what procedures must be followed to report such an approach?
The CCRC commented: “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”.
This response causes me great concern in respect of the potential for bias and corruption. While the CCRC say that “a personal connection to the force, unit, or individual(s) against whom allegations are made may give rise to a perceived conflict”, this still leaves the door open to endless possibilities for a CCRC staff member to behave in a prejudicial manner. For example, during their careers, police officers from, for example, Essex Police will invariably forge close working relationships with police officers from bordering counties and police districts. In particular, the Metropolitan Police and City of London Police. The matrix of contacts can be complex, not a straightforward matter for any organisation to identify. It is not enough to say that a connection to the force, unit or individual(s) involved would debar a caseworker from working on a case. Pressure can, and I am certain is, brought to bear from seemingly unconnected links between caseworkers and former police colleagues.
Former police officers could be influenced in a number of ways prejudicial to the alleged innocent victims of wrongful conviction asking for their case to be reviewed. Enough is known about unconscious bias to suspect that due to bias in favour of the prosecution, or unwillingness to consider police corruption, a submission may be rejected. A caseworker could reveal details of the submission to the police force that is the subject of the complaint, permitting evidence to be destroyed or manipulated. The ‘punishment’ for a caseworker who transgresses is simply a financial punishment and it appears that only upon “summary conviction” a fine is levied. There is seemingly no criminal offence or punishment for disclosing materials submitted for review by the CCRC, or even a suggestion that the guilty staff member would lose their job.
Annex Two of the CCRC Code of Conduct
Caseworkers are required to abide by a Code of Conduct. Annex Two of the CCRC Code of Conduct covers disclosure offences. It states:
A person who is or has been a member or employee of the Commission shall not disclose any information obtained by the Commission in the exercise of any of their functions unless the disclosure of the information is excepted from this section by section 24. Section 24 outlines a wide-ranging list of circumstances that would exempt an employee from the offence of disclosing information. For example:
“The disclosure of information, or the authorisation of the disclosure of information, is also excepted from section 23 by this section if the information is disclosed, or is authorised to be disclosed, for the purposes of— (a) the investigation of an offence, or (b) deciding whether to prosecute a person for an offence”. This exemption would appear, at face value, to enable a police officer to say to the CCRC that they require disclosure of information so that they can ascertain whether any offences have been committed in obtaining the information. The offences do not have to be ‘real’, simply suspected.
A person who is or has been an investigating officer shall not disclose any information obtained by him in his inquiries unless the disclosure of the information is excepted from this section by section 24. (Section 24 lists many exemptions).
A person who contravenes this section is guilty of an offence and liable on summary conviction to a fine of an amount not exceeding level 5 on the standard scale.
Annex Five of the CCRC Code of Conduct
Annex Five of the CCRC Code of Conduct covers the rules regards the handling of possible conflicts of interest and/or bias, actual or perceived. It states:
9 Should a conflict arise in relation to any application to the Commission, the board member or employee should raise the concern immediately it is identified. The Director of Casework Operations will record instances of conflict in an internal register kept for the purpose.
10 In casework matters it is not always possible to identify all potential conflicts when an application is first received. Whenever a board member or employee identifies a potential conflict at any stage of a case in which he or she may be involved, he or she should declare the potential conflict to the Director of Casework Operations. The declaration of potential conflict will be recorded in an internal register kept for the purpose.
11 Save as is required by the Commission’s policies as regards other employment or appointments within the Criminal Justice System, board members or employees are not prohibited from undertaking legal work in their private capacity during their time at the Commission. However, they should not accept instructions to advise or represent parties involved in any proceedings against the Commission or in the outcome of which the Commission might reasonably be thought to have a material interest. Should they find themselves in such a position, they should withdraw from the case. This also applies to any board member or employee who is instructed or approached to advise in relation to a case submitted, or likely to be submitted, to the Commission for review.
The information provided to date has prompted me to ask a series of further questions of the CCRC:
How many caseworkers have recused themselves from considering a submission in the past 5 years?
For what reason have those caseworkers recused themselves?
Has any caseworker ever been found guilty of the offence of disclosure as defined in Section 23?
If so, has any caseworker ever been fined or otherwise disciplined?
What is the standard scale of charges? What is a level 5 charge?
When a caseworker is assigned to a case, does the person making the submission have any right to appeal against the caseworker assigned?
Does the caseworker assigned to a case have to reveal their CV and previous work history to the applicant?
What are the arrangements for the security of case papers submitted for consideration by a caseworker? Are there arrangements in place to ensure that only the named caseworker can access the submission documents? Are case papers considered to be confidential at all times?
This subject seems to be one of the most important considerations in order to ensure that justice is not only done but that it is also seen to be done in the processing of submissions to the CCRC. Further research into this topic is ongoing.
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. He serves as Deputy Editor of CCRC Watch.
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