In a previous article ‘Why the CCRC must be urgently reformed: A case study of Robin Garbutt’s alleged wrongful conviction’, Sophie Hawkins concluded that the case of Robin Garbutt is one example of why the CCRC is in need of urgent reform or replacement, as their efforts do not reflect a body that is committed to investigating claims of innocence by alleged victims of wrongful convictions from the perspective of championing truth, innocence and justice. In this article, Sophie Hawkins focuses on the issue of Judicial Review in the case of Robin Garbutt, and demonstrates how the CCRC use scaremongering tactics to elude scrutiny and deter challenge to their decision.
I am writing this article from the standpoint of a University of Bristol graduate volunteer with Empowering the Innocent (ETI). Before researching and writing for CCRC Watch, I underwent training by way of readings and seminars on the criminal appeals system, the establishment of the Criminal Cases Review Commission (CCRC), the problem of prisoners maintaining innocence and the key causes of miscarriages of justice as evidenced by successful appeal against criminal convictions.
In the article that follows, I, firstly, give an overview of the conviction of Robin Garbutt. Then, I briefly recount the initial application to the CCRC, and the CCRC’s refusal. There is an existing article on CCRC Watch that offers a comprehensive analysis of the case and proceedings (see reference list). Context on judicial reviews is provided, before the communications and decisions from the CCRC are analysed, and the outcome and its impact considered. This article concludes that during the proceedings surrounding the judicial review in the case of Robin Garbutt, the CCRC used scaremongering tactics to elude scrutiny and deter challenge to their decision. When their threats fail, the CCRC resort to contrivance, manipulating the courts due process to its own illicit end. Ultimately, the CCRC is again proven to be in need of urgent reform or replacement, as their efforts do not reflect a body that is committed to investigating claims of innocence by alleged victims of wrongful convictions from the perspective of championing truth, innocence and justice.
The Conviction of Robin Garbutt
Amongst the growing list of cases that have been refused a referral by the CCRC, despite serious doubts regarding the evidence that led to conviction, is the case of Robin Garbutt.
Robin Garbutt and his wife Diana Garbutt owned and ran a post office and shop in Melonsby, North Yorkshire. The couple’s living quarters were situated above and behind the shop itself, with a door from the shop leading to the premises. At some point during the night of the 22nd/23rd March 2012, Diana Garbutt was killed as a result of blows to the head.
At Teesside Crown Court in April 2011, Mr Garbutt was charged with the murder of his wife Diana. He was convicted by a majority verdict of 10:2 and sentenced to a statutory life sentence with a minimum tariff of 20 years, which he is currently serving at HMP Whealstun. Mr Garbutt’s account of events is detailed in the article previously cited.
Application to the CCRC
An application to the CCRC was submitted by Mr Garbutt’s then solicitors, Bindmans LLP, on the 11th March 2015. The application relied upon the following:
1) Fresh evidence as to the time of death, which cast doubt on this aspect of the prosecution’s case;
2) Evidence from David Andrews, which undermined an alleged sighting of Mr Garbutt on the night before the murder; and,
3) The submission that the evidence surrounding the Garbutts’ personal and business finances was unsatisfactory. In particular, the CCRC was asked to obtain financial evidence which appeared to have not been made available to the defence before trial.
Decision by CCRC not to refer
The application was refused by the CCRC in a Statement of Reasons (SoR) in March 2016. The CCRC decided that there were no grounds to refer Mr Garbutt’s conviction to the Court of Appeal, as it didn’t think there a real possibility that the conviction would be overturned. Having considered the initial application, and the further comments submitted by Mr Garbutt’s representatives, a final decision not to refer the conviction to the Court of Appeal in a Statement of Reasons dated 16th June 2016.
Judicial Review Context
On behalf of Mr Garbutt, an application for judicial review of the CCRC’s decision was made, and permission was granted. For context, in the UK, a judicial review is a type of court proceeding in which a judge reviews the lawfulness of a decision or action made by a public body; a challenge to the way in which a decision has been made, rather than the rights of the conclusion reached (Judiciary UK, 2023).
In terms of cost, there are three broad areas an individual needs to consider- the court fees, their own legal fees, and the other party’s legal fees. If an individual is successful in their judicial review claim, it is possible that, along with the remedies sought, the public body will be ordered to pay the applicant’s legal costs. However, if an individual is not successful, then it is possible that the public body may seek to recover their legal costs from the applicant (Luqmani Thompson & Partners, 2021).
A judge’s decision on permission is central, thus an estimate of costs is usually given to this point in proceedings. Fees from Ministry of Justice (2022), and advice that Luqmani Thompson & Partners (2021) usually give their clients in preparation for non-urgent judicial review application have been taken into consideration for the following figures:
Their own legal costs : £3,000 to £6,000.
Barrister’s costs: £1,500 - £3,000.
Court fees: £154, an additional £385 on request to reconsider at a hearing a decision on permission.
Decision-maker’s costs (if unsuccessful): £900-£1800.
If permission for judicial review is granted, it is often the case that the public body will agree to settle the case by providing the applicant with the remedy they are seeking. However, if proceedings continue despite this, the costs for a full hearing are very significant:
Preparation for full hearing: 20-30 hours.
Costs for barrister: 30-40 hours.
Court fee for continuation of £770.
It can be deduced that filing for judicial review, and furthermore taking it to court, is a risky and potentially extremely expensive decision.
The response from the CCRC
As previously mentioned, after permission has been granted, the public body often agrees to settle the case by meeting the applicant’s requests. However, in response to the Judicial Review Pre-Action Protocol Letter, the CCRC asserted that its decision not to refer the Claimant’s conviction was an entirely reasonable and rational decision to make, and it was in keeping with the Court of Appeals judgement. The Commission rejected that its SoR contained fundamental errors, irrationality, or that its decision not to refer was unlawful in any way and asserted that if proceedings were commenced the Commission would vigorously defend them.
The proceedings were later settled when the CCRC agreed to concede on limited grounds.
The CCRC were to address areas where it had erred, and re-determine the decision based on the case as a whole. They established that there was no obligation to reconsider issues that had been fully considered and where the Commission stood by its judgement and reasoning. In addition, it was stated that once that case was re-opened, the Commission would be amenable to accepting any new submissions. Whether that would have an impact on previous issues considered to warrant further investigation would be a matter for the new Commissioner to determine, and any new decision would take full account of all submissions made. As a result, a fresh application was submitted that officially counted as the first application, with a new decision required.
In actual fact, the new application was not reviewed in a fresh or independent manner as was agreed. On the 4th July 2017, the Commission, now free of any scrutiny from the Administrative Court and with its own autonomous licence restored, issued its Statement of Reasons refusing referral of the case one again. The SoR echoed the same reasoning that induced filing of the judicial review in the first place. Once again, these further developments are fully explained in the full article on Robin Garbutt’s case.
Manipulation tactics and the possible impact
Robin Garbutt’s legal team considered the initial resolute position of the CCRC to ‘vigorously defend’ their decision should judicial review proceedings commence to be purposely time wasting. It was argued that the Commission was aware from the outset that the perverse reasoning of its SoR and response to ‘Pre Action Notice’ would crumble under the scrutiny of the Administrative Court. Instead of agreeing to concede at the point of judicial review being granted, as is usually the case, the CCRC rejected all accusations, reiterated that their decision was reasonable and rational, and warned that they would vigorously defend their decision. Taking into consider the costs of taking a judicial review past the stage of permission, it can be assumed that the CCRC responded in this manner to deter Robin Garbutt’s legal team from continuing with proceedings.
It was only when Robin Garbutt’s solicitors did in fact proceed, that the CCRC conceded. Anxious to circumvent any embarrassing self-exposé, the Commission agreed to pay the Applicant’s cost for Claim. Had Robin Garbutt not had the funds available to risk, or had his team had less conviction in their case, this outcome would not have been reached. For want of a better phrase, they called the CCRC’s bluff, which raises the pertinent question of how many valid cases have been shut down by these scaremongering tactics?
Furthermore, the extent of manipulation does not end there. The CCRC sought disposal of the judicial review by way of consent order, through false pretence of conducting a fresh and independent review of the Applicant’s case. Through manipulation of the Court’s due process, the Commission was able to elude scrutiny of its Statement of Reasons by the Administrative Court, and also regain its own autonomous control. In response to the next application, it took the opportunity to draft another SoR, equally as perverse and irrational as its earlier decision, and riddled with injustices.
Conclusion
In conclusion, the example of judicial review in the case of Robin Garbutt has been focused on, to exemplify how the CCRC used scaremongering tactics to elude scrutiny. Taking advantage of the financial pressure, the CCRC instils doubt to deter alleged victims of miscarriages of justice from challenging them, only to go back on their word when their threats fail.
In this case, the Commission resorted to contrivance, manipulating the courts due process to its own illicit end. This article demonstrates further why the CCRC is in need of urgent reform or replacement, as their efforts do not reflect a body that is committed to investigating claims of innocence by alleged victims of wrongful convictions from the perspective of championing truth, innocence and justice.
By Sophie Hawkins
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Reference List:
Courts and Tribunals Judiciary. (2023), ‘Judicial Review’, Courts and Tribunals Judiciary. https://www.judiciary.uk/how-the-law-works/judicial-review/ (last visited 17 March 2023).
Hawkins, S. (2022), ‘Why the CCRC must be urgently reformed: A case study of Robin Garbutt’s alleged wrongful conviction’, CCRC Watch. https://empowerinnocent.wixsite.com/ccrcwatch/post/why-the-ccrc-must-be-urgently-reformed-a-cases-study-of-robin-garbutt-s-alleged-wrongful-conviction (last visited 17 March 2023).
Luqmnai Thompson & Partners. (2021), ‘Judicial Review: who, what, where, how, why, when, how much and how long?’, Luqmani Thompson & Partners. https://luqmanithompson.com/judicial-review-who-what-where-how-why-when-and-how-much/ (last visited 17 March 2023).
Ministry of Justice. (2022), ‘EX50A: March 2022’, Ministry of Justice. https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1056796/ex50a-civil-and-family-court-fees_March_2022.pdf (last visited 17 March 2023).