The present-day structure of the Criminal Cases Review Commission (CCRC) is largely unchanged from that proposed and implemented 25 years ago but the nature of alleged miscarriages of justice has changed substantially during that time. The question that we explore before offering proposals to improve the effectiveness of the CCRC is, ‘Why are charities, campaign groups and amateur investigators more effective than CCRC Case Review Managers at uncovering the truth?’
The simple answer is that Criminal Cases Review Commission (CCRC) Case Review Managers (CRM) generally do not ‘investigate’ anything and they appear averse to finding out anything that is not handed to them on a plate, already researched and verified. Their job is primarily to sit at their desks and read documents and relate the contents to the so-called ‘real possibility test’, not to discover new information.
Repeatedly, indeed routinely, before any submission has been viewed by a CRM, we find examples of applicants to the CCRC being told by the Casework Administration Team (CAT’s) to find ‘new’ evidence themselves. We then find the applicants telling the CCRC that they don’t have the resources or the authority to find the new evidence themselves and they are begging the CCRC to investigate. For the applicant it can seem a hopeless and frustrating experience; the evidence that they believe will prove their innocence is tantalizingly close but out of reach and the only body that can access the evidence is refusing to do so.
Into the investigative void left by the CCRC sometimes a determined individual or group may venture. Sometimes a charity will achieve a significant success, such as an innocence project (Dwaine George,[i] Gareth Jones[ii] or Justin Plummer[iii]) or APPEAL (Andrew Malkinson)[iv]. Such achievements often require significant funding and great effort from the persons involved[v]. Why is the CCRC not doing this investigative work itself?
Chairman Helen Pitcher has stated that, as an (allegedly)[vi] independent body, the CCRC cannot be in situation where it is perceived to be collaborating with an applicant.[vii] (Malkinson’s case seems to be an example of the opposite and perhaps indicates double-standards or simply muddled thinking). Pitcher’s statement contradicts what the Runciman Report proposed and, indeed, seems to negate common sense. Runciman recommended:
345. The Authority should be able to discuss cases direct with applicants and be adequately resourced to conduct interviews with prisoners where it believes that this might help.
Perhaps part of the problem is related to another Runciman proposal as to the role of the CCRC:
332. The role of the Authority should be to consider allegations put to it that a miscarriage of justice may have occurred, to ensure that any further investigation called for is launched, to supervise that investigation if conducted by the police, and, where there are reasons for supposing that a miscarriage of justice might have occurred, to refer the case to the Court of Appeal.
The Runciman Commission reported in an era when faith in the criminal justice system was at a very low ebb. The Runciman committee seemed determined that never again would cases such as the Birmingham Six, Guildford Four and Maguire Seven besmirch the reputation of British Justice. In the main the reputation of the justice system has not suffered similar shocks since the early 1990’s for a multitude of reasons, although in part this is because the CCRC has been so ineffective in unearthing troubling miscarriages of justice or so effective at preventing them from coming to public attention.[viii]
The Runciman Commission implicitly never envisaged that the CCRC would get involved in the investigation of ‘trivial’ offences and many of the applications made to the CCRC are undoubtedly trivial, except to those making the application. It is clear to CCRC Watch from contact with frustrated applicants that however ‘trivial’ the offence or punishment may appear, resolving a perceived miscarriage of justice can become life-consuming for someone who feels aggrieved by the justice system. Persons feeling aggrieved over ‘trivial’ legal matters can be astoundingly determined to clear their name and are often involved in many years of tenacious effort. However, considering such cases must expend a great deal of time and money that could be perhaps better utilized in the investigation of more serious cases by the CCRC (recommendations below).
The Runciman Committee primarily pondered how to respond to a particular kind of miscarriage of justice brought about by police brutality and false confessions/false evidence, often beaten out of prisoners by various methods, including mock execution Their solution was to propose that the CCRC should ‘investigate’ by appointing police forces to investigate other police forces. Apart from the perennial issues of impartiality in such situations, it is a highly expensive process and only of practical use where evidence is concealed behind police procedural barriers. An additional factor is that the Runciman Committee did not appear to foresee the vast challenge of keeping pace with developments in scientific evidence such as DNA analysis and had nothing specific to recommend in respect of scientific evidence. Indeed, the Runciman Committee recommended that the CCRC should be supported by a staff of lawyers and administrators with access to specialist advisers.[ix] With the benefit of hindsight it is clear that this was never going to be adequate given the increasing challenges represented by the consideration of forensic evidence and the temptation of expert witnesses to embellish their evidence or give entirely false evidence.
When the CCRC was first established many convicted persons were relatively uninformed about the evidence that led to their conviction. Prisoners often didn’t possess their case papers or, if they did, prisons routinely ‘lost’ them. In 1995 a court case, Taylor v Anderton resulted in an important decision that was to greatly assist prisoners in subsequent years. The ruling was to ensure that one party does not enjoy an unfair advantage or suffer an unfair disadvantage in litigation because of a document not being produced for inspection. As a result undisclosed prosecution documentation became potentially available for inspection by defence counsel and their clients.
What is increasingly common is that a huge amount of case-related evidence is now available to a convicted person and that evidence becomes subject to critical scrutiny, either by the accused person or often by a third-party who has an interest in assisting the accused person. There are numerous long-running ‘amateur’ investigations that are being undertaken on behalf of alleged innocent prisoners, for example, JENGbA (Joint Enterprise Not Guilty by Association), Jeremy Bamber Innocent Campaign, Robin Garbutt[x] and APPEAL[xi] Mark Alexander[xii]. These campaign groups can discover remarkable flaws in the prosecution case but at some point they all seem to hit a brick wall and require help from the CCRC. The CCRC normally refuses to help, presumably based upon the diktat from its Head, Helen Pitcher, that the CCRC can’t/won’t collaborate with applicants. This stance virtually guarantees that at some point in a submission to the CCRC the applicant will not be able to produce the required new evidence.
For example, in the case of Jeremy Bamber it is now known that his sister, Sheila Caffell, wrote a suicide note which was discovered on the morning when police entered White House Farm to discover five dead bodies.[xiii] The suicide note was never admitted to at the trial and the existence of it was kept secret by Essex Police for 30 years. Bamber’s Campaign Team can prove that the suicide note existed but can’t produce the actual suicide note. The only people who can insist that Essex Police produce the note in question are the CCRC but to the best of anyone’s knowledge they have not done so. It is obvious from the comments of DS Jones that the suicide note could reveal information exculpatory to Bamber so why has the CCRC not pursued this avenue of investigation?
Restructuring the CCRC
I believe that the most important ‘innovation’ required to save the CCRC from its current state of near impotency is to broaden the scope of the persons that it will authorise to undertake investigations. The CCRC can already appoint anyone to investigate a matter under the aegis of the Criminal Appeal Act 1995:
19 Power to require appointment of investigating officers.
(1) Where the Commission believe that inquiries should be made for assisting them in the exercise of any of their functions in relation to any case they may require the appointment of an investigating officer to carry out the inquiries.
There is no reason why someone thoroughly acquainted with a case, such as a member of a Campaign Team, could not be appointed as an investigating officer and such an appointment would have several advantages, not least familiarity with the issues to be investigated. It would also almost certainly speed up the glacial pace of CCRC’s contemplation of submissions. It might also result in the applicant having more confidence that their submission was being taken seriously.
Additionally, the CCRC must find the means to conduct face-to-face interviews with applicants. Inevitably, given budget restraints, this requires a refocusing of resources rather than a massive expansion in the number of CCRC staff. The CCRC should therefore cease to consider ‘trivial’ offences. To this end, another proposal is that the CCRC prioritises submissions that involve a custodial sentence. If this does not reduce the case load sufficiently, there needs to be consideration of further measures, such as categories of offence and length of sentence. CCRC staff must be freed from spending time on submissions asking for the correction of ‘minor ‘legal issues – perhaps some other form of body could be formed to adjudicate on the plethora of less serious cases referred to the CCRC.
The CCRC must have a ‘science’ division, staffed by experts who are capable of investigating a range of issues related to forensic science and expert witness testimony. Many submissions to the CCRC now are based on arguments that expert witness testimony was incorrect in some manner. The CCRC’s current approach to such allegations is to simply refer the issue back to the same expert witness who gave the disputed evidence at the trial, resulting in farcical situations such as the undoubtedly innocent Clive Freeman, who was convicted of murder, being denied a chance to clear his name. Nine eminent expert forensic scientists have stated their opinion that no offence of murder took place, meaning that Clive Freeman is innocent, but the CCRC simply asks a few ineffective questions of the original pathologist who refuses to accept that he may have been mistaken even when he also stated on two occasions that the victim died of natural causes.[xiv]
The CCRC Chairman and Board need to ‘wake up’ to the fact that the CCRC is not structured properly to meet the challenges of the 21st Century. Allegations of miscarriages of justice rarely require the appointment of police forces to investigate other police forces, as they used to in the late 20th Century.
The CCRC structure that grew from the Runciman Report is now obsolete. However, it is increasingly the case that applicants to the CCRC are aware of the potential assistance that can be gained from reinvestigating expert witness testimony. The CCRC must as a matter of urgency stop refusing to consider effective means of re-evaluating scientific evidence and work in collaboration with applicants and their supporters.
[i] https://www.bbc.co.uk/news/uk-england-manchester-30395753 [ii] https://www.cardiff.ac.uk/news/view/1401633-cardiff-innocence-project [iii] https://ccrc.gov.uk/news/commission-refers-the-murder-conviction-of-justin-plummer-to-the-court-of-appeal/ [iv] CCRC Chairman Helen Pitcher blusters and embellishes over the case of Andy Malkinson (empowerinnocent.wixsite.com) [v] “The CCRC’s decision comes after hundreds of hours of investigation by APPEAL. This included commissioning new DNA analysis, interviewing witnesses and uncovering documents that were not disclosed to the defence” APPEAL press release 24 January 2023. [vi] https://legalresearch.blogs.bris.ac.uk/2022/04/ccrc-watch-can-we-seek-to-transform-the-current-miscarriages-of-justice-lapdog-into-a-genuine-watchdog-body-that-can-truly-assist-innocent-victims-to-overturn-thei/ [vii] CCRC releases official response to the Westminster Commission report - Criminal Cases Review Commission June 2021. [viii]https://www.thejusticegap.com/please-forgive-me-but-i-wont-be-holding-my-breath/ [ix] Runciman Report 343.The Authority should be supported by a staff of lawyers and administrators and have access to specialist advisers [x] Robin Garbutt Official [xi]Our Work — APPEAL FRESHWATER FIVE ANDREW MALKINSON ROGER KHAN DAVID PINTO LIZZI DONOGHUE [xii] Justice for Mark Alexander – A family's fight for their son's freedom (freemarkalexander.org) [xiii] In 2001 in an interview conducted by the Metropolitan Police with DS21 Stan Jones, Jones claims the scene was immediately treated as "four murders and a suicide" because the team had a "note saying I've killed myself." DS Jones said: "What you've got to remember is, it wasn't five murders it was four murders and a suicide, which throws a completely different picture on it. Because things wouldn’t be treated the same as a murder scene. You don't go hunting for things if you've got four murders and a suicide if you've got someone saying I’ve just killed myself you don't start searching cupboards upstairs, you don't start searching cupboards in the other rooms, because you've got a note saying I've killed myself, so it was treated as four murders and a suicide, completely different." Note: This is an Essex Police Officer telling the Metropolitan Police that Jeremy Bamber is innocent. The Metropolitan Police did nothing positive with this information. [xiv] Innocent - no case to answer: But why won't the CCRC refer the case of Clive Freeman? (empowerinnocent.wixsite.com)
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.
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