The miscarriage of justice watchdog is failing at its only job – here’s how to fix it
The body responsible for investigating miscarriages of justice in England, Wales and Northern Ireland has been plunged into crisis. The chair of the Criminal Cases Review Commission (CCRC), Helen Pitcher, resigned this month following relentless criticism about the way the commission had handled recent cases.
Most notably, the commission was criticised over the case of Andrew Malkinson, who was wrongly convicted for rape and spent 17 years in prison. The CCRC twice rejected Malkinson’s submissions that he was innocent, and he was only cleared thanks to work by his own lawyers to track down DNA evidence that proved his innocence.
Malkinson said the CCRC “didn’t investigate and they didn’t believe me”.
Pitcher said that she had been made a scapegoat for the failings on the Malkinson case: “A head had to roll and I was chosen for that role,” she said. Pitcher was not in her post as chair when the CCRC rejected Malkinson’s first appeal. She rejected the findings of an independent panel that concluded her decisions, including not apologising promptly to Malkinson, had eroded confidence in the CCRC.
“I don’t know who or why anyone would want to take on the role, because you will be held accountable for previous miscarriages of justice,” Pitcher told the Times. “You will be expected to have known what was going on then. It’s just not possible.”
Malkinson described the commission as “infected with a culture of denial”. And along with other critics, such as legal professionals, academics and campaigners, he believes the CCRC is no longer fit for purpose and should be dissolved.
What is the CCRC?
Once a prisoner, who claims to be innocent, has exhausted all legal avenues they have no choice but to look beyond the court system for redress.
For most of the 20th century, the last chance saloon was located in the heart of government, in the Home Office. The home secretary had the power to send a case to the Court of Appeal “if he saw fit”.
This arrangement was doomed from the start. It made referrals political affairs – particularly in the context of the Irish terrorism cases of the 1980s and 90s. It also put the home secretary in the firing line as investigative journalists uncovered miscarriages of justice.
The relentless pressure for reform eventually came to a head in 1991, with the release of the Birmingham Six – six Irishmen who had been wrongly convicted of planting bombs in two Birmingham pubs in 1974 that killed 21 people and injured 182. Amid chaotic scenes outside the Old Bailey, Paddy Hill (who died last month), grabbed a microphone and unleashed a savage attack on the institutions that had taken his freedom:
For 16 and a half years we have been used as political scapegoats. The police told us from the start they knew we hadn’t done it. They told us they didn’t care who had done it. They told us that we were selected and they were going to frame us. Justice? I don’t think the people in there [the judiciary] have got the intelligence nor the honestly to spell the word, never mind dispense it. They’re rotten.
The growing crisis threatened the legitimacy of the entire criminal justice system and the government had no option but to act. A royal commission was set up, and from it sprung a new body – the CCRC.
When it began work in 1997, the CCRC was the world’s first statutory, publicly-funded body responsible for investigating miscarriages of justice. The powers at its disposal were impressive.
If a prisoner applied to the CCRC, claiming they were innocent, the commission could use these powers as part of a fresh investigation into the conviction. It could get information from the police and prosecutors, re-interview witnesses or find new ones, and order new DNA testing. If it found new evidence it could then refer a case back to the Court of Appeal.
It has had some successes. The commission was widely praised for the investigation into the Sam Hallam case, where it uncovered fresh evidence that proved the young Londoner could not have committed the murder he was jailed for.
Paddy Hill and the rest of the Birmingham Six address crowds outside of the Old Bailey after their convictions were overturned in 1991.
Sean Dempsey/PA images
But while demand for its services is soaring, these successes have become rarer.
Last year the CCRC received a record-breaking 1,629 applications from people claiming they were innocent, and referred 25 to the Court of Appeal. Critics, describe it as chronically underfunded, reluctant to exercise its powers and subservient to the Court of Appeal.
Prisoners and their lawyers say they are exasperated at the length of time the CCRC takes to look into their cases. But the real frustration is with the quality of the investigations themselves.
Critics point to cases such as Victor Nealon, who spent an additional 10 years in prison because the CCRC refused to carry out DNA tests that would have proved his innocence. He applied to the CCRC twice but was rejected both times.
The then chair of the CCRC, Richard Foster, told Nealon: “We are doing what we can to prevent anything similar happening in the future”. But as the Malkinson case shows, the CCRC hasn’t really learned its lesson.
A crisis of legitimacy
The body that was created to solve a crisis in public confidence is now facing its own crisis of legitimacy. The CCRC needs new leadership – and not another career bureaucrat. The new chair, who is appointed by the king, must be someone who will oversee a culture of change in the organisation – dispelling the insipid timidity and transforming the CCRC into an organisation that pursues justice without fear or favour.
It must also be funded properly. The commission is now entirely incapable of properly investigating the huge number of cases it receives. The money involved is relatively small, but the impact on the wrongfully convicted and their families is immeasurable. A parliamentary inquiry found that the CCRC had suffered bigger cuts that any other part of the criminal justice system since 2010.
And finally, a key structural flaw must be fixed. The “real possibility test” means that the CCRC will only refer a case if there is a real possibility that the Court of Appeal will quash the conviction.
But because the Court of Appeal will only overturn convictions it believes to be “unsafe”, the CCRC only concerns itself with safety or unsafety rather than guilt or innocence. From the perspective of the Court of Appeal, a conviction is safe if all the legal procedures (the arrest adhered to the guidelines, there were the correct number of jurors at the trial) have been followed. It has nothing to do with the factual guilt of the defendant.
This test must be scrapped. We cannot have a miscarriage of justice watchdog that cares more about procedure than innocence. Läs mer…