Introduction
It is understandable that when we are wronged or we or a loved one experiences a grave injustice that we want someone to take responsibility for it and something to be done in response to try to put it right. Such responsibility would entail an apology that shows genuine remorse or regret that the wrong occurred, insight that the cause of the wrong is appropriately understood, assurances that such a wrong will not happen again and, if possible, redress for the harm that has been caused.
But, who should take responsibility and apologise when a wrongful conviction has been exposed? And, just what should be done in response when wrongful convictions are revealed? These are questions that I have discussed with many victims of wrongful convictions and their loved ones over the years when they have had their convictions overturned.
The immediate response from victims and their loved ones has often been a visceral desire for revenge, for the individual or individuals who they see as the cause of the wrongful conviction to be punished. They want them to feel some of the pain, and experience some of the damage, that they have had to feel and endure.
They focus on police officers who they say constructed one-sided cases against them, prosecutors who they blame for not providing favourable evidence to their defence team, witnesses who they say gave false evidence against them, jury members who they feel were biased against them or their defence lawyers who they say failed them.
They look at their wrongful convictions in such a way and take things personally because they are persons; because their person was wronged and harmed and they want another person to be harmed in a similar way. This approach, however, fails to see or appreciate that even though the harms of wrongful convictions are experienced by individual persons their causation is mainly systemic and rarely a product of individual causation in the way that is often thought or felt.
It is in this sense that victims of wrongful convictions and their loved ones can be said to be blinded by their emotions when they look for individuals to blame and punish. Whilst understandable on an individual level, such a focus can be conceptualised as acting against more systemic or structural analyses of how the workings of the criminal justice system in its entirety relate to the causation of wrongful convictions and/or the prevention of them being overturned.
Yes, innocent victims are wrongly convicted on the uncorroborated lies of witnesses and on the erroneous opinions of so called experts, but should the focus be on an individual in an individual successful appeal case or on a criminal justice system that allows such problematic forms of knowledge to be admissible as 'evidence' in criminal trials? Yes, innocent victims are wrongly convicted on biased cases constructed by the police and prosecution to incriminate innocent victims and obtain convictions, but is the appropriate approach not to look at individual police officers or prosecutors but, rather at why the criminal justice system structured in such a way? Yes, innocent victims of wrongful convictions are rejected in their appeals to the Court of Appeal (Criminal Division) (CACD) and in their applications to the Criminal Cases Review Commission (CCRC), but rather than individualise our analyses is it not best to consider why the criminal appeals system and the CCRC are structured in ways that serve to block innocent victims from overturning their wrongful convictions?
The focus on individuals thought to be responsible for causing individual wrongful convictions means that such crucial questions go unasked. In so doing, sight is also lost of how the individuals at the centre of wrongful convictions function as part of an inherently problematic and unjust machine; a machine that routinely convicts innocence victims with a criminal appeals and post-appeal system that is structured to prevent wrongful convictions from coming to light for the decrease in public trust and confidence in the workings of the criminal justice system that wrongful convictions cause.
The call for Helen Pitcher to be sacked
It is against this background that calls for the Chair of the CCRC, Helen Pitcher to be sacked should be evaluated. It is unsurprising, then, that Andy Malkinson called for Ms Pitcher to be sacked when his conviction was overturned in July 2023. Of all of the individuals involved in causing his wrongful conviction and in preventing it from being overturned he chose to pin the blame on a particular individual working within a particular part of the criminal justice system who just happened to be Ms Pitcher.
Moreover, although he was also highly critical of Greater Manchester Police (GMP) for the failures of its investigation into the alleged rape that he was wrongly convicted for, and rightly so, it was the person of Ms Pitcher that became the main focus of Mr Malkinson's quest for responsibility. She became the personification of his injustice who he wanted to be punished for his 17 years of wrongful imprisonment for a crime that he did not commit.
An albeit rather lame and unconvincing apology nine months later by Ms Pitcher was dismissed by Mr Malkinson as insincere and too little too late. He wanted nothing less that for her to lose her job. Earlier this week, Mr Malkinson's wish came true when Ms Pitcher finally resigned as head of the CCRC. It was reported widely that Mr Malkinson felt 'vindicated' by Ms Pitcher's resignation. This is despite the fact that he is yet to receive any compensation for his wrongful conviction and imprisonment, surviving for the last few years on state benefits.
It is as though Ms Pitcher was personally responsible for all of the ills of the criminal justice system that convicted Mr Malkinson, for the CACD that rejected his first appeal and with the CCRC for rejecting two previous applications by Mr Malkinson. Now that Ms Pitcher is gone, are all of the problems with the criminal justice system and the CCRC that failed Mr Malkinson to be somehow seen as also behind us; in the rear view mirror, too?
But, Mr Malkinson was not wrongly convicted by Helen Pitcher, she was not part of the police or prosecution case against him, she did not withhold evidence from his defence team, she was not a witness against him, she did not sit on the jury that convicted him, she did not reject his first appeal to the Court of Appeal (Criminal Division), nor did she even work at the CCRC when his first application was rejected.
It is true, though, that Helen Pitcher presided over the CCRC when Mr Malkinson's second application was rejected, which is something that Chris Henley KC entirely agreed with in his review of the CCRC's handing of the Andy Malkinson, even though he knew when he was saying it that Mr Malkinson was an innocent victim of wrongful conviction and imprisonment. Why does Mr Malkinson not call for Mr Henley KC to be sacked for what could easily be argued is a greater sin that Ms Pitcher's?
This is not to somehow defend Helen Pitcher nor to absolve her from any responsibility at all for the rejection of applications to the CCRC by innocent applicants during her watch. She was the head of the CCRC and the book must stop somewhere. Justice must be seen to be done, as the saying goes, even when it is an illusion and will have little to no effect in assisting other victims of wrongful convictions who have also had multiple applications to the CCRC rejected. .
I met with Ms Pitcher when Empowering the Innocent (ETI) was first set up. She failed to impress, showing no critical understanding of how the real possibility test operates to justify the rejection of innocent applicants. She struck me as a systems or company person. A jobsworth with little to no charisma. Someone who appeared to be more concerned with the administration and management of the organisation than with the plight of innocent victims of wrongful convictions who plead with the CCRC to refer their cases to the CACD. I interpreted her 'I trust my people' line as a justification for having little or no awareness of what really goes on at the CCRC, how a case should be reviewed or investigated or what is at stake for victims of wrongful convictions, which is likely why she adopted her 'leaving the troops to get on with things' style of management. (There is lots of evidence on Ms Pitcher's approach to, and attitude towards, alleged victims of wrongful convictions and their loved ones on CCRC Watch in the form of replies to Open Letter sent to her from alleged victims and their supporters).
But such an assessment is not restricted to Ms Pitcher. I have not ever encountered any of the three CCRC Chairs in my 20+ years working on alleged wrongful convictions who I deem to have the integrity necessary to put the interests of victims of wrongful convictions ahead of their narrow duty to the confines of their role at the CCRC and the dictates of the real possibility test. In addition to Ms Pitcher, her predecessor Richard Foster, who was CEO of the Crown Prosecution Service before he was Chair of the CCRC, also showed a similar lack of understanding of the inherent shortcomings of the CCRC and how the real possibility test damages victims of wrongful convictions and their loved ones when it is cited as the justification for not referring cases back to the CACD. Both left me feeling cold as they acted like automatons playing out their roles. The common parlance these days for such bureaucrats is NPCs. I also have some experience with Graham Zellick, Chair before Mr Foster, who exuded charisma and confidence, but misleadingly presented the CCRC as a state sponsored innocent project when the evidence proves the contrary - the CCRC is a system for rejecting applications by alleged victims of miscarriages of justice, to the tune of 99% and 98% in some years, and with an overall rejection rate in excess of 97%.
Moreover, I, personally, do not think that Ms Pitcher was ever fit for the job heading a publicly funded body with the aim of assisting innocent victims to overturn their wrongful convictions. But, then, I have not met a CCRC Chair yet who I would trust with such an important task.
As such, my aim is, emphatically, not to defend Ms Pitcher here but, rather to consider her leadership of the CCRC, critically, within the context of all previous chairs, all of whom headed an organisation that failed innocent applicants during their time in charge, whether or not they have since been revealed in successful appeal cases or will remain hidden forever by a criminal appeals and CCRC system that is structured to procedurally bar the vast majority of wrongful convictions from ever being overturned.
This includes, for instance, the rejection of Mr Malkinson's first application and two applications by Victor Nealon when Richard Foster was Chair. It also includes the rejection of applications by Clive Freeman and Jeremy Bamber, to name but two longstanding high profile alleged wrongful conviction with compelling evidence of innocence, when Mr Zellick, Mr Foster and Ms Pitcher were Chair of the CCRC. Should Mr Foster and Mr Zellick not also be shamed in the same way that Ms Pitcher has been?
In addition to such examples, we must also not forget the scores of alleged innocent victims of wrongful convictions that have been rejected by the CCRC whether during Helen Pitcher's tenure or that of one of her predecessors, which include Robin Garbutt, Ray Gilbert, Brendan McConville, Ben Geen, Sean Bw Parker, Walid Habib, Terry Smith, Babatunde Olagunju, Paul Glover, Mark Osborne, John Bartlett, John Lee Osborne, as well as other cases that are available on the CCRC Watch website. All of these cases and others not mentioned here are long overdue a meaningful investigation into their claims of innocence and must be reviewed as a matter of urgency under the regime of the new CCRC Chair.
The need for a systemic analysis of the function of the real possibility test
What I have tried to show so far is that a systemic analysis of the centrality of the CCRC's real possibility test in being responsible for the rejection of innocent applicants is vital. It shifts our gaze from a narrow and restricted focus on individual cases to a wider analysis that encompasses a greater number of cases that is able to provide a more appropriate understanding of the nature and scale of the problem to be addressed. Put another way, it is crucial that the problematic nature of the CCRC's real possibility test is appropriately understood so that any solution devised to correct the problems have a chance of being effective.
All of the cases cited in the previous section were rejected by the CCRC not because it found after its review that they were not innocent of the alleged crimes that they were convicted of, but, rather, because they were deemed not to satisfy the real possibility test.
Widely seen as the final solution to the wrongful conviction of innocent victims when it was established, the CCRC is not the remedy to the problem of the wrongful conviction of the innocent that was hoped for, and many believe it is, as it can, and does, leave innocent victims languishing in prison unable to overturn their wrongful convictions.
The root of the problem is s.13 of the Criminal Appeal Act 1995. It deprives the CCRC of its claimed independence in its requirement that the CCRC can only refer cases back to the appeal courts if it is felt that the conviction has a ‘real possibility’ of not being upheld. This statutory requirement impacts on how the CCRC review applications, too, as it directs caseworkers (or Case Review Managers (CRMs) as they are officially called) to look at the criteria of the appeal courts to determine whether the case may qualify for referral.
As this relates to the Court of Appeal (Criminal Division), CRMs must consider such legislation as s.28 of the Criminal Appeal Act 1968, which requires that evidence admissible in the Court of Appeal must be ‘fresh’, understood generally as evidence or argument that was not or could not have been available at the time of the original trial. As a result, CCRC reviews are for the most part mere desktop assessments of whether cases might contain ‘fresh’ evidence that was not or could not be available at the time of the original trial that has a decent chance of overturning the conviction.
Under the terms of s.13 of the 1995 Criminal Appeal Act, if applicants are unable to produce such 'fresh' evidence they are rejected by the CCRC on the basis that they do not satisfy the real possibility test, whether they are genuine in their claims of innocence is not something that will be further pursued in such cases.
It is in this sense that I have described the CCRC elsewhere as a mere ‘lapdog’ for the criminal appeals system. It is not independent in the way that it claims but, rather, is in a subordinate position in relation to the criminal appeals system. Overall, it lacks the authority necessary to make decisions for itself as to whether a wrongful conviction may or may not have occurred as it has to work within the confines of the criminal appeals system and try to second-guess what the appeal courts might decide on any convictions that it might refer.
In this light, the CCRC is best seen, not as a champion of the wrongly convicted innocent, as it wants to be seen, but, rather, as a governmental tactic that was devised and implemented to protect the criminal justice system from threats to authority by preventing wrongful convictions from coming to public attention.
This is supported rather, than challenged, by the focus on individual cases of successful appeal, such as Mr Malkinson's case, in isolation from other alleged innocent victims of wrongful convictions who have also been rejected by the CCRC. It also serves to diminish the negative impacts to public confidence and trust in the criminal justice system when wrongful convictions are revealed. It gives the impression that wrongful convictions are rare and exceptional occurrences when the reality is that they are routine features of the criminal justice system.
A broken record or powerful ears not listening?
When writing the previous section, a thought occurred to me that I might be suffering from 'broken record syndrome' on the basis that I have been sounding the alarm and trying to raise awareness of the problematic nature of the CCRC's real possibility test and how it is causes the CCRC to reject innocent applicants for more than 20 years - and counting!
But, after a little further reflection, I realised that the record isn't broken but, rather those in positions of power who could do something to abolish or reform the real possibility test so that the CCRC might better assist innocent victims to overturn their wrongful convictions have their fingers in the ears because they do not want to listen.
This led me to another general reflection that those of us who work in whatever capacity we do to try to help alleged innocent victims of wrongful convictions tend to not be politically savvy. Rather, we tend to come from the straightforward stance that you cannot have justice without truth and so it can be a major shock when we come to learn that the criminal appeals system and the CCRC care not for the truth but, rather, with legal concepts relating to whether alleged victims of wrongful conviction had a 'fair trial' and whether their conviction might be 'unsafe.' It takes a while for many of us to truly understand the implications of this as we interpret a fair trial in terms of truth and an unsafe conviction as the wrongful conviction of an innocent victim, and so on, failing to see that the legal meanings do not relate to our lay understandings.
This highlights the political dimension of wrongful convictions as they relate to the CACD and the CCRC, which are the products of political statutes that determine their orientation and how notions like 'fair trial' and 'unsafe' conviction are to be interpreted and applied by the various parts of the criminal justice system. That is to say, the CACD and CCRC could assist innocent victims of wrongful convictions achieve justice if they were structured in a different way, but they don't because the governmental forms of power that created them are happy with the way that they currently function: The criminal appeals system and the CCRC are not broken but, rather, function the way that they do by political design.
This perspective might be helpful in explaining why critique of the CCRC's real possibility test is missing both in the coverage of Ms Pitcher's resignation and in the review by Chris Henley KC of the CCRC's handling of Mr Malkinson's case, which was the catalyst for the Justice Secretary, Shabana Mahmood to trigger the formal process of sending a recommendation to the King that Ms Pitcher should be replaced. Rather than a review of how the entire criminal justice system, pre-trial, post-trial and post-appeal, failed Mr Malkinson and how it also fails other innocent victims of wrongful convictions, too, was it politically convenient for the Justice Secretary to jump on the bandwagon, individualise the problem and also put the blame for it all on Ms Pitcher?
Indeed, the Justice Secretary should be aware that concerns regarding the problematic nature of the CCRC's real possibility test and how it relates to the possible rejection of innocent applicants are not only longstanding, it is something that is currently being considered by the Law Commission for England and Wales. The Justice Secretary should also know that the Law Commission's review into the criminal appeals system and the CCRC from the standpoint of possible miscarriages of justice follows the recommendation by the APPG on Miscarriages of Justice under the auspices of The Westminster Commission on Miscarriages of justice that the real possibility should be redrafted in the interests of justice. She should know that the Westminster Commission report followed three additional governmental reviews over the last decade or so into the problematic nature of the real possibility test in terms of preventing a barrier to wrongful convictions to be overturned: the Ministry of Justice: Tailored Review of the Criminal Cases Review Commission in 2018; the Parliamentary Justice Committee review of the work of the Criminal Cases Review Commission in 2015; and, the Ministry of Justice’s Triennial Review of the Criminal Cases Review Commission in 2012.
Why is none of this context mentioned anywhere in the debate on Mr Malkinson's wrongful conviction? Is the Justice Secretary hoping that the symbolic dethroning of Ms Pitcher acts against a deeper and wider examination of the failings of the criminal justice system and the real possibility test, which was twice relied upon to reject Mr Makinson's applications to the CCRC? And, if as Malkinson's own campaign notes, he is 'not the only one', who are others being referred to and will there be attempts to identify them and overturn their convictions, too, whether the evidence of their innocence is deemed 'fresh' or was available at the time of their trials?
Such questions ultimately relate to the political will, or otherwise, to make long overdue meaningful reforms to the CCRC's real possibility test so that it can truly act in the interests of justice. The problem with the various governmental reviews of the CCRC mentioned above, then, is that whilst they all correctly note that the real possibility test can fail innocent applicants they have no teeth to make the changes that are required. They can only make recommendations that the government of the day can either follow or ignore, which raises further critical questions about the role and value of such reviews when their recommendations are not implemented.
It is from this standpoint that I say that Ms Pitcher's resignation is best seen as a red herring; a distraction from the fundamental structural and systemic problem with the CCRC that has existed since it was created. As things stand, we still urgently need a body that is truly independent and impartial that functions in the public interest and the interests of justice to get to the truth of claims of innocence by alleged victims of miscarriages of justice.
Finally, when thinking about alleged wrongful convictions, it must always be remembered that when innocent victims are wrongly convicted that the guilty perpetrators of those crimes remain at wrongful liberty with the potential and reality to commit further crimes. This adds an important public protection dimension to the work of the CCRC, which it currently shows no concern about either.
Conclusion
By way of conclusion, the fundamental problem with the CCRC is not who Chairs it, acts as a Commissioner or works as a Case Review Manager (CRM). It is the legislation that determines how applications are worked on and the threshold for when cases can be referred back to the CACD. It is in this sense that Ms Pitcher's resignation presents an opportunity to usher in a new head that is not encumbered by the limits of the real possibility test.
This is a question of power and morality, rather than with the personnel employed in the organisation. And, unless and until the real possibility test is abolished or reformed in such a way it can be guaranteed that the CCRC is free to fully investigate all claims of innocent to get to the truth and refer all cases thought to be wrongful convictions it doesn't matter who is in charge. Whomever they are, they, too, will preside over a CCRC that fails innocent applicants. This is as true if Clive Stafford Smith, co-founder of Reprieve, or Emily Bolton, founder of Appeal, the organisation that assisted Mr Malkinson to overturn his wrongful conviction, became the new chair of the CCRC as it for any and all of the previous heads of the CCRC.
That the prevailing forms of governmental powers do not want to accept how the real possibility test sets the CCRC up to fail innocent applicants seems to be my cross to bear in terms of having to keep repeating the same message. That they do not have the integrity to abolish or reform the real possibility test is a cross that innocent victims of wrongful convictions and their loved ones have to bear, and will continue to do so until the CCRC can genuinely help all innocent victims to overturn their wrongful convictions.
By Michael Naughton
Dr Michael Naughton is the Founder and Director of Empowering the Innocent (ETI) and a Reader in Sociology and Law at the University of Bristol. Click here for more about Michael.
Comments