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“Your application to the Commission begins with a presumption of guilt, not innocence”



In this article, Bill Robertson reports on a further FoI request to the Criminal Cases Review Commission (CCRC), the last resort for alleged innocent victims of wrongful convictions. The context of his analysis is a reply to an alleged innocent applicant by its Customer Services Manager who informed the applicant that the CCRC work from a presumption of guilt. The conclusion is scathing: the CCRC's management culture displays an "amateurish complacency". Contrary to what it proclaims, the CCRC is argued to not be a focused service organisation, and it does not provide a high-quality service to its users. Rather, it demoralises, angers and steals hope from desperate alleged innocent applicants applicants who are entitled to expect a fair review of their applications in their struggle for justice.


The above quotation is from a letter from Catherine Dilks, Customer Service Manager Criminal Cases Review Commission (CCRC ) to applicant Mark Alexander on the 26 March 2015. Am I alone in being shocked by this statement?


This single declaration sums up succinctly the entire approach of the CCRC to its clientele. By implication, the CCRC presumes that applicants to its deskbound case auditing ‘service’ are likely wasting the CCRC’s time by dishonestly trying to fool the Court of Appeal into overturning a valid conviction. It is staggering to think that the organisation that is the last and only hope for the innocent assumes that everyone who approaches it is guilty.


One might have thought that the CCRC would recognise that, with circa 1400 submissions per year, pretty much all of those submissions are made by persons who are quite likely innocent, given that it is recognised that the Crown Courts in the UK wrongly convict on average nearly 800 people per annum[1]. That is, about four people each day wrongly convicted. Additionally, having assisted over 480 people who have achieved successful appeals since 1995, surely the CCRC realises that at least some prisoners are innocent[2]?


It is a very important issue regarding the culture of the CCRC because if the presumption is that applicants are guilty it will permeate the consciousness of the eight members of the Casework Administration Team (CATs) who on average reject 50% of submissions to the CCRC before any consideration of the merit of a submission is investigated.


Barrister Felicity Gerry QC, who was lead counsel in the Jogee case, is critical of the watchdog’s approach to the cases. “About a thousand people remain in prison wrongly convicted,’ she told The Justice Gap. ‘Rather than challenge the approach of the Court of Appeal, the CCRC has taken the disappointing approach of accepting the injustices perpetuated by the court.”[3]


There is a striking disparity in the statement made above in the title to an unsuccessful applicant and the words spoken by CCRC Chief Executive Karen Kneller to the Justice Select Committee on 25/05/2021:


Karen Kneller: We welcome a review of the (real possibility) test. I think we said that to this Committee several years ago. We are very open to that. I do not think we are too cautious at all. If we are unsure, the applicant will get the benefit of the doubt. (Emphasis added).


Or indeed, the words of Miles Trent, CCRC Case Manager to the same Committee: “As someone reviewing these cases and taking them to committees, my firm view is that, wherever any case is in any way borderline, already we would err on the side of referring. It is perhaps not said enough in public. We want to refer cases… My view as a case reviewer is that we absolutely always err on the side of the applicant”. (Emphasis added).


Whatever the fine words of the senior executives at the CCRC, it appears that the organisational culture at the ‘coal-face’ is hostile to applicants. There is no ambiguity about the statement from Catherine Dilks, Customer Service Manager “Your application to the Commission begins with a presumption of guilt, not innocence, in your case”.

The CCRC says on its website: “Known as the CCRC, we are the official independent body that investigates potential miscarriages of justice. Our service is free, and we are unique.”[4] Note the word “service”.


The CCRC is above all else, a service organisation, providing an invaluable and unique service to a distinctive clientele, the wrongly convicted. Often at the end of their tether, the clientele is frequently feeling very angry and/or frustrated, quite possibly illiterate[5] and lacking resources such as legal advice. In 2020/21, 90% of applicants to the CCRC had no legal representation.[6] Therefore, the CCRC needs to be acutely sensitive to the needs of its service users and able to operate in a highly efficient and effective manner to meet their needs. Evidence provided by the CCRC suggest that it is neglecting to do so, as outlined below.


The CCRC should be organised and managed as a service organisation. Is it though? Does it have the delivery of high-quality service to its users as its main priority? Or does it assume that guilty people are undeserving of a high quality service?

In essence, the CCRC appears to be managerially complacent and has established a system of operation that is not only ineffective but, also, leaves a burning sense of anger, disappointment, demoralisation and hopelessness in its service users.


Conduct of Case Review Managers


In a previous article[7] we identified that the CCRC employs former police officers, although it doesn’t know exactly how many. They guessed at six out of the current 64 Case Review Managers (CRM). The failure to have an accurate record as to how many former police officers are employed is, of course, indicative that the CCRC perceives no issue with the employment of former police officers and that it, in fact, values their contribution.[8] We also identified that according to the CCRC it is the responsibility of CRMs to recuse themselves if they felt that there was a conflict of interest involved in their handling of a submission to the CCRC. Conflicts of interest impact very directly upon the clientele. CCRC Watch receives a surprising volume of comment from people who have asked the CCRC for help and those clients are often vehement in condemning their “appalling treatment at the hands of the CCRC”. Ensuring that CRMs act in a truly impartial manner must be one of the foremost requirements of the CCRC.


However, the CCRC have now confirmed that in the past five years no CRM has ever recused themselves from investigating a case. This means that in the processing of approximately 3400 cases over the past five years[9] none of the CRM staff have seen any reason why their impartiality was compromised. Of those 3400 cases, on average around 340 (10%) would have been dealt with by CRMs who are former police officers. Those former police officers would presumably be comfortable with the concept that everyone who approaches the CCRC is in fact guilty and trying to pull a fast one.


Is it feasible that of 340 cases handled by former police officers, not once was there a complaint or allegation of wrongdoing against a police force? No, of course not; the majority of cases referred to the CCRC allege police wrongdoing. So, there must have been hundreds of instances where former police officers have investigated submissions where allegations were made against former police colleagues. It defies belief that this would not be the case. Yet, nobody recused themselves. Perhaps the CCRC culture of regarding all applicants as guilty contributes strongly to the perception that there is no conflict of interest in a former police officer working on cases involving police corruption and malpractice?

The CCRC’s response to our Freedom of Information request says:


“The CCRC’s conflict of interest register records where staff have proactively recused themselves from cases……. This register has no records of Case Review Managers recusing themselves from cases over the past five years.


However, applications which proceed to case allocation go through several stages as part of the CCRC’s internal process. This includes experienced line managers considering the professional background, experience, and potential conflicts of interest of their team of Case Review Managers before allocating cases. This reduces the risk of potential conflicts of interest and any need for Case Review Managers to recuse themselves. Cases may also be transferred between Case Review Managers for other operational reasons including workloads or portfolios of staff who are leaving. Reallocations are recorded internally on the secure case management system.”


So, line managers consider the professional background, experience, and potential conflicts of interest of their team. Unfortunately, this statement smacks of complacency and even a moment of reflection on the issue raises serious doubts. For a start, it doesn’t consider the reported shortage of resources at the CCRC; they are seemingly not overendowed with CRMs, and therefore the availability of a CRM to start reviewing a case is likely to override any management considerations about their professional background, experience, and potential conflicts of interest of their team.


More pertinently, a line manager may know that one of their CRMs is a former police officer but not know which, or how many, police forces s/he was employed by. Police officers transfer between forces during their career as we saw with the notorious murderer Wayne Couzens recently. Thus, someone who retired from the Metropolitan Police may have spent a proportion of their career working for a number of other police forces. The line manager almost certainly won’t know this.


Additionally, police forces now operate on ‘merged’ principles with regard to some operational activities, for example Essex and Kent Serious Crime Directorate are an amalgamated operation between the two forces. A CRM may have numerous police contacts that are not obvious to their line manager, and this is important in considering the fairness of a submission appraisal process.


Of course, the great unknown factor in determining a conflict of interest is the seeming proliferation of WhatsApp groups run by police officers in which they have been known to share a variety of toxic views; homophobic, racist, and misogynistic, to give but a few recent examples that have come to light.[10] A former police officer from the Metropolitan Police, for example, could have undeclared contacts all over the UK and abroad that could potentially influence the appraisal of a submission to the CCRC.


Another likely factor will be the pressure to start the appraisal process for a submission as soon as possible. The average wait before a case is allocated is reported as four months. A line manager will presumably not feel inclined to rule out a former police officer from processing a submission if it means extending the waiting period.


But the bottom line is that whatever factors you may consider, there is never a justification for a former police officer to be handling submissions made to the CCRC. Police experience is not essential for carrying out the role of CRM. The CCRC should cease the practice of recruiting former police officers immediately.


We submit that while the CCRC employs former police officers every applicant should be informed of this when they make a submission and given the opportunity to object to their case being handled by a former police officer. Given the very low confidence that the public have now in the police,[11]that is the least that CCRC can do before they agree as policy not to employ former police officers.


Unauthorized disclosure


The CCRC confirmed that no member of CRM staff in the past five years has ever been found guilty of the offence of disclosure as defined in Section 23 of the CCRC Code of Conduct and, therefore, none has ever been fined or otherwise disciplined. This means, of course, that no cases have been detected, rather than it hasn’t occurred. Given the degree of management complacency evident within the CCRC it is to be expected that no offences of disclosure have emerged. Illegal disclosure of a submission would have to be egregious for it come to the attention of the CCRC. Short of witnessing the handover of a brown envelope stuffed with £20 notes, it is hard to envisage CCRC management detecting an instance of a surreptitious phone call or email from a CRM to an external party with an interest in a submission.


The CCRC Code of Conduct says that:


“A person who contravenes this section (Section 23 offence of disclosure) is guilty of an offence and liable on summary conviction to a fine of an amount not exceeding level 5 on the standard scale.”[12]


Level 5 equates to a fine of £5,000.[13] Note that the fine is “not exceeding” £5,000, i.e., could be considerably less. Is it sufficient to deter a CRM from passing on information about a submission? We would suggest that it is not, given the unlikelihood that any CRM would ever be detected by CCRC management. Would we say that a CRM who was guilty of such an offence should have their contract terminated with immediate effect on the basis that they cannot be trusted? Yes, we say that it should be a sackable offence.


Allocation of CRMs to a case


We asked the CCRC, “when a caseworker is assigned to a case, does the person making the submission have any right to appeal against the caseworker assigned?” The response was:


Where an applicant has a specific concern about a Case Review Manager already assigned to their case, this can be raised by providing the reasons for concern. This will be assessed by the Director of Casework Operations or the relevant line manager and, if appropriate, may result in the case being re-assigned to a different Case Review Manager. The CCRC also has a complaints process for dealing with any concerns about the handling of a particular case.”


This issue is fundamental to the satisfaction of the person making the submission. Bear in mind that the applicant has already, in their opinion, experienced a miscarriage of justice, otherwise they wouldn’t be making the submission. The applicant may also be aware that the CCRC, since it began in 1997, has referred only around 3% of applications to the appeal courts.[14]


Thus, the CCRC service user is likely to know that their chances of a referral are very slim. A basic need of the service user is to feel that the CRM assigned will do their utmost to assist them, but they know nothing about that person and the CCRC refuses to tell them anything about the background of a CRM (see below).


As a bare minimum the applicant should be able to consult data that informs them of the recommendation history of the CRM, i.e., what percentage of submissions handled has resulted in a recommendation to the Commissioners for referral to the Court of Appeal?


We know that CRMs do not make referrals to the Court of Appeal, but their track record in making recommendations to Commissioners ought to be made available to applicants. Additionally, their performance should also be ranked in terms of time taken to process submissions and the history of complaints made against them. Why should an applicant be expected to accept the allocation of a CRM when they have been told nothing of their previous career history, how long they take to process cases, what their record on referrals is and the nature of any complaints made about their work? If the CCRC was truly a service organisation, as it claims, the disclosure of such information about CRMs ought to be part of the organisational culture. Instead, the CCRC said:


“The CCRC considers that disclosing a Case Review Manager’s CV and previous work history to applicants is not necessary and would be in breach of data protection principles which state that ‘the processing of personal data must be lawful, fair and transparent. Where an applicant has concerns about a Case Review Manager these can be raised separately with the CCRC.”


The above defensive statement by the CCRC misses the point entirely. We are not suggesting that the CRM provides full details of their work history, but why should a CRM not provide the same level of detail about themselves as a commissioner? For example, in relation to Robert Ward the CCRC discloses:[15]


Rob Ward is a barrister who has had an extensive career as a government lawyer specializing in national security law, including counterterrorism. Most recently he led the legal branch at the Ministry of Defence during a period of substantial change and expansion. In recognition of his government legal work Mr Ward was made an Honorary QC in 2015.Before entering Government service, Mr Ward was in independent practice at the Bar and taught Criminal, Constitutional and Public Law at the University of Cambridge. He maintains an active interest in criminal law and procedure and is co-author of the leading textbook on sexual offences law and practice.


Anyone applying to the CCRC will have several questions uppermost in their mind. Will I be treated fairly? Will I get someone who will fight my case? Will I be allocated someone competent? Will my case be dealt with in a timely manner? Will I be treated with respect? Will I be listened to?


There are measures that can be taken by the CCRC to answer these questions, but they don’t gather or publish data to illustrate the success of their staff in dealing with submissions. In fact, it appears that the CCRC prefers to issue a blanket denial that there is even an issue to be addressed.


“The most important adage and the only adage is, the customer comes first, whatever the business, the customer comes first.” – Kerry Stokes, Chairman of the Seven Network


We can find no evidence that within the CCRC the service user comes first. What we see is processes and procedures that obfuscate over the role of some of the key staff, the Case Review Managers. We see barriers erected around the investigative and decision-making processes; we see secrecy where there should be openness. We see behaviours that lead to intense frustration from clientele of the CCRC and an outcome of bitter disappointment far too often. We see everywhere evidence that the ethos of the CCRC is that applicants are ‘guilty’ and undeserving of belief in their innocence.


Successful service organisations understand that to stand still is to decline. The CCRC took 15 years from its inception to install a staff appraisal process.[16] What kind of professional organisation takes fifteen years before they could objectively consider which of their staff were performing adequately! It is this degree of amateurish complacency that appears to remain embedded within the CCRC management culture, demonstrating that, contrary to what it proclaims, the CCRC is not a focused service organisation and does not provide a high-quality service to its clients. Instead, the perception that comes across is that their attitude is that applicants, all of whom are guilty anyway, should be jolly grateful for what they are given and stop whining. Little wonder then that 97% of the applicants to the CCRC are left severely disappointed.


References

[1] The Lord Chancellor's Department's statistics on successful appeals against criminal conviction show that in the decade 1989-1999 the Court of Appeal (Criminal Division) abated over 8,470 criminal convictions - a yearly average of 770. In addition, there are around 3,500 quashed criminal convictions a year at the Crown Court for convictions obtained at the magistrates' courts. Article by Dr Michael Naughton Observer newspaper Sun 28 Jul 2002. [2] While it is nearly always the case that an appeal succeeds because the conviction is deemed ‘unsafe’ the majority released will claim innocence. [3] The Justice Gap 5 January 2021 Miscarriage of justice watchdog calls for a review of juries [4] Criminal Cases Review Commission (ccrc.gov.uk) The Prisoner Learning Alliance has reported that, on entering custody, 47% of prisoners have no formal qualifications. The Ministry of Justice (MoJ) also reports that Prisoners have much lower levels of literacy than the general population. The most recent data published by the MoJ shows that 57% of adult prisoners taking initial assessments had literacy levels below that expected of an 11-year-old. [6] CCRC Annual Report 2020/21 Page 33 [7] Should ex police officers be allowed to work as Case Review Managers at the CCRC? (empowerinnocent.wixsite.com) [8] “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”. [9] CCRC Annual Reports 2016-2021 [10] “Investigations following the Sarah Everard case revealed a system where corruption is deeply rooted, and where institutional misogyny and a toxic work culture affect victims and officers alike” Public Confidence in the Police: A New Low for the Service | Royal United Services Institute (rusi.org) [11] According to the 2020 Crime Survey of England and Wales, public confidence in the police has been on a downward trend over the last two years – from 62% in 2017 to 55% in 2020. Public Confidence in the Police: A New Low for the Service | Royal United Services Institute (rusi.org) [12] Microsoft Word - CCRC-#1873036-v2-Code_of_Conduct_April_2016_.DOC [13]This is a reference to the standard scale of fines for summary offences as set out in s.122 Sentencing Act 2020 www.legislation.gov.uk [14] Annual-review-plain-english-V9-FINAL-pdf.pdf page 4 [15] Our team – Criminal Cases Review Commission (ccrc.gov.uk) [16] The staff appraisal system was launched in 2010 and full appraisals for all staff took place at the end of April that year. P24 CCRC_ANNUAL_REPORT_AND_ACCOUNTS_2010_11_Web-1.pdf


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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