Westminster Commission, Miscarriages of Justice: Please forgive me, but I won’t be holding my breath
This article was written by Dr Michael Naughton, Reader in Sociology and Law, University of Bristol, and CCRC Watch Editor-in-Chief. Originally published on The Justice Gap website in September 2019, it is republished here the week that it was announced that the Government was not going to do anything in response to the Westminster Commission on Miscarriages of Justice Inquiry into the workings of the Criminal Cases Review Commission. It offered a whole raft of recommendations aimed at reforming the CCRC so that it was better placed to assist victims of wrongful convictions. This further clarifies that unless and until enough people care about innocent victims of wrongful convictions, the CCRC will not be reformed or replaced and innocent victims and their families will continue to suffer.
Almost two decades of research on miscarriages of justice and wrongful convictions, and over a decade of direct engagements with the Criminal Cases Review Commission (CCRC) with the Innocence Network UK (INUK) and the University of Bristol Innocence Project, have taught me one thing: the CCRC has finally succeeded in ensuring the virtual disappearance of miscarriages of justice as a serious cause for public or governmental concern.
With each successive CCRC chair there has been a further decrease in referrals to the Court of Appeal. This trend has rendered miscarriages of justice effectively non-existent as an official legal category. Referral rates have fallen from a derisory high point of around 4% to a new norm of less than 1% for the third year in a row: are we really to accept that the criminal justice system is near-perfect and that 99% of around 1,500 applicants per year are wrong or barefaced liars in their claims of miscarriage of justice? The way things are going, it seems like the ultimate sign of success would be a referral rate of zero, which would show that the criminal justice system is flawless, that miscarriages of justice don’t occur and that there is no need for the CCRC to exist at all.
Literally set up off the backs of the torture, pain and miseries of the wrongly convicted and incarcerated (notably the cases of the Guildford Four, Birmingham Six and Maguire Seven), the CCRC now stands as a chimera for justice. It offers no realistic hope to the many thousands of applicants who have been turned down over the years that they will ever overturn their convictions, and have their lives and reputations restored.
Like a perverse April Fool’s joke (it started handling casework on 1st April 1997), the CCRC’s very existence seeks to assure members of the public that because there is now a publicly funded body charged with looking into alleged miscarriages of justice, there is no need for their concerns. It muddies the waters in public discourse in its claims to be a ‘champion of justice’or a ‘“state-sponsored innocence project’, when it is in reality a backstop for the appeals system that wards off challenges against convictions.
The devil is always in the detail, of course. It is the definition of what would constitute a miscarriage of justice in the eyes of the CCRC, which also determines how it reviews applications, that reveals the limits of the assistance that it can give to applicants. This is enshrined in section .13 of the 1995 Criminal Appeal Act, which dictates that it can only refer cases to the appeal courts where there is a ‘real possibility’ that the conviction will be overturned.
This means that the CCRC must look to the criteria of the appeal courts when thinking about whether the real possibility test might have been met. As I have long argued, this shackles the CCRC to the appeal courts and means that its assistance to the innocent is merely incidental: that is, in those very rare cases when the ‘real possibility’ test is satisfied by chance or good fortune, but, crucially, not when the innocent are failed by their lawyers or when forensic scientists make mistakes or juries get it wrong.
In consequence, CCRC reviews are for the most part mere desktop considerations of whether fresh evidence may now exist that was not or could not be available at the time of the original trial or previous failed appeal. Such an approach overlooks and positively excludes lines of inquiry that may prove an applicant innocent if it is not felt that such investigations would discover material that would meet the ‘real possibility’ criteria.
The upshot is that an organisation that was established to assist innocent individuals to overturn their wrongful convictions is now anything but. Now, it trumpets successes like assisting asylum seekers, remedying erroneously-given parking tickets, and saving dogs given destruction orders that owners want to challenge, which, in fairness, is permitted by the 1995 Act.
At the same time, however, allegedly innocent miscarriages of justice victims languish in prison. This does not happen because they are not innocent but, rather, because they are not deemed to satisfy the ‘real possibility’ test or because their cases will never be investigated in enough depth to see if their claim of innocence is valid.
On this point, it was instructive that the CCRC commissioner as long ago as 2005, John Weedon, conceded that if the Birmingham Six applied to the CCRC then, it was unlikely that their case would be referred back to the Court of Appeal. The evidence of their innocence, he said, might not have been considered to be fresh. This should have caused a public outcry, but it didn’t.
The result is an understandable apathy from alleged victims of miscarriages of justice. They tell me regularly that they have lost faith in the system. They say that they won’t even bother to make an application to the CCRC as there is no point. They complain that the CCRC is only concerned with whether an application fulfils the ‘real possibility’, which, of course, most don’t. I can only speculate, but perhaps this was the reason why the test was created in the first place.
Despite this, rather than assert and demonstrate its supposed independence and be bolder in terms of its reviews and the cases that it refers, the CCRC defends and justifies its governing statute that handcuffs it to the appeal courts. In so doing, it is complicit in shielding a criminal justice system that routinely convicts the innocent. They are left with nowhere to go other than university innocence projects, whose own work is hampered by the need to apply to the CCRC and meet the ‘real possibility’ test.
And yet the critique of the CCRC’s structures and the impact in terms of its failure to assist the innocent is not new. Leaving aside the efforts of other academics, lawyers, third-sector organisations and victims of wrongful convictions who are dedicated to the fight against wrongful convictions, I personally have been raising awareness of the limits and failings of the CCRC in assisting applicants who may be innocent for at least 15 years. This has included consulting with MPs; meetings with the Home Office, CCRC, Parole Board, and so on; presentations in the House of Commons; and invited submissions on my work and wider activitiesto governmental reviews and inquiries.
On a more practical level, I established the first innocence project in the UK precisely because innocent people can be and are wrongly convicted in this country. The CCRC is not the panacea to the problem. Now in their fifteenth year, other innocence projects that were set up in this jurisdiction have managed to overturn a couple of convictions that the CCRC missed, both by Cardiff Innocence Project. Innocence projects, though, are not merely to be seen as a safety net for the CCRC in an otherwise sound system. It is telling that the Cardiff Innocence Project has had about 20 other applications, which it believes to be credible, turned down by the CCRC.
Indeed, it is the focus on claims of innocence that may be or are valid that distinguishes innocence projects from the CCRC. In the cases that are not referred, the ontological clash between the two becomes most apparent. Those unreferred cases include a dossier of some 44 cases that Innocence Network UK (INUK) made public in 2011 as part of its campaign for the reform of the CCRC.
The dossier was comprised mainly of prisoners serving life or long-term sentences for serious offences, ranging from gangland murders and armed robbery to rape and other sexual offences. All of them maintained that they were not involved in the offences despite having failed in their appeal and having been refused a referral by the CCRC. They asserted that they were wrongly convicted for reasons including fabricated confessions, eyewitness misidentification, police misconduct, flawed expert evidence, false allegations and false witness testimonies.
I said at the time that in every single case there were questions, conflicts and problems in the evidence that led to their conviction. I also said that if they are genuinely innocent, it means that the dangerous criminals who committed these crimes remain at liberty with the potential to commit further serious crimes.
In several of the cases, prisoners were convicted mainly on the testimonies of prosecution witnesses who were either known criminals, or who suffer from serious mental or personality disorders. In other cases, convictions were obtained mainly on the basis of highly conflicting identity parade evidence. Many were also convicted despite evidence suggesting innocence, such as alibi witnesses, outweighing the alleged evidence of guilt.
Some of the prisoners in the dossier have served decades in prison. They claim that they are victims of the so-called ‘“parole deal’”, and may have been released on parole by now had they admitted guilt to the crimes that they claim not to have committed. As it is currently constituted, the CCRC is unable to help such cases despite the plausibility of their claims of innocence. On this basis alone, I believe that there is an urgent public interest in investigating the cases contained in the dossier.
Despite this, all of the foregoing submissions, casework and wider activities to raise awareness of the CCRC’s shortcomings have fallen on deaf ears. None of the necessary reforms for the CCRC to be better placed to assist applicants have been implemented.
How the present government sees the CCRC doesn’t bode well, either. In July, for instance, the parliamentary under-secretary of state for justice, Edward Argar MP, said in response to criticism of the CCRC’s handling of the Oliver Campbell case that he ‘very much supports the work of the CCRC’. He went on to comment that if Mr Campbell’s legal team is unhappy with the CCRC’s decision not to refer his case then they can always opt for a judicial review.
This response to allegations that a man was wrongly convicted of murder and spent 10 years in prison by a sitting MP fails to take seriously the continuing reality of miscarriages of justice. It shows disdain for Mr Campbell’s legal team, Michael Birnbaum QC and Glyn Maddocks, leading legal experts with proven track-records in overturning wrongful convictions. It shows a complete lack of understanding of the CCRC’s discretionary power to refer or not to refer. It also shows a staggering contempt for the harms caused to the innocent victims of wrongful convictions and their families who strive tirelessly for justice in the hope that the nightmare may one day be over.
This article is written with another inquiry into the CCRC in mind. This time it’s the newly established Westminster Commission, established by the all-party parliamentary group on miscarriages of justice. Its brief is to investigate the CCRC as part of its inquiry into the ability of the criminal justice system to identify and rectify miscarriages of justice.
I offer this article to the Westminster Commission for its consideration in good faith. I hope, as I always do, that truth and justice will prevail. However, I have travelled this road for a long time now. I know well from past experience that miscarriages of justice are not something that those in power want to hear about for the damage they can and do cause to public trust and confidence in the criminal justice system.
I know, too, that those in power care little for victims of miscarriages of justice who are often wrongly convicted precisely because the criminal justice process fails to protect the vulnerable and the powerless from abuses of state power.
So, please forgive me, but I won’t be holding my breath.