The Gazette article about the Criminal Cases Review Commission (CCRC) was both biased and inaccurate. It was based largely on a symposium organised by Michael Naughton of the Innocence Network UK (INUK) to discuss reform of the CCRC. The CCRC was not invited to this event.
The article ignored anything other than negative criticism of the CCRC heard at INUK’s symposium. This is particularly surprising when you consider that one of the event’s main speakers was no less a figure than Professor Michael Zander. He had been specifically asked to address the question of whether the CCRC lives up to what the Runciman Royal Commission on Criminal Justice envisaged.
Professor Zander is particularly well placed to comment since he was a member of the Runciman Commission. The question is an important one for INUK founder Michael Naughton because much of its regular criticism of the commission has increasingly been based on the premise that the CCRC is not what was envisaged. However, Professor Zander’s answer to the symposium was simply: ‘I believe the CCRC as established by the Criminal Appeal Act 1995 does broadly live up to what the Royal Commission envisaged.’
Professor Zander’s paper for the symposium had plenty more to say on the subject. As he explained, INUK’s analysis of the commission’s fundamental ‘real possibility’ test, as set out in statute, is essentially that it makes the CCRC subordinate to the Court of Appeal and fails the innocent. It proposes that the test be replaced with one whereby the CCRC refers convictions ‘if it thinks that the applicant is or might be innocent’. Professor Zander told the symposium: ‘I do not share INUK’s analysis and I do not support its proposals.’ In relation to the claim that the real possibility test means that the CCRC is not independent of the Court of Appeal, Professor Zander’s paper said: ‘I do not think the Royal Commission would have agreed.’
I think Professor Zander is right. In my own view, moving from the safety of the conviction to an ‘innocence test’ would be a reactionary step: it would lessen current protections not increase them. The article also repeated unchallenged some claims that impugned the work of the commission, the quality of our investigations and the professionalism of our staff.
Each case is different
Charges of inconsistency are misguided. As every lawyer knows, each criminal case is different in terms of the issues, the evidence and the legal argument presented. Necessarily then, each CCRC review is different and tailored to deal with the issues in the case. No doctor provides the same treatment to all patients - where some need sticking plasters, others need scans or major surgery. To complain that each patient is treated differently is absurd.
As for the claim that we are not interested in expert evidence, the figures speak for themselves. In a random sample of 92 of our total of 498 referrals, 24% were referred wholly or partly on the basis of new expert evidence.
What we do
The idea that the commission does not investigate is a piece of nonsense propagated by people who do not understand, or choose simply to ignore, what the commission actually does in its case reviews. In most cases, a painstaking forensic deconstruction of the original investigation and prosecution is required to discover what went wrong in a wrongful conviction; often until you understand that, you cannot begin to look for the evidence that may undermine a conviction. Sometimes that evidence will be buried in the paperwork generated by the investigation and prosecution, as is typical in cases where non-disclosure is a major issue.
The fact is that we will carry out any investigations we think are necessary - we have the power to do so ourselves and, where necessary, we will appoint an investigating officer from a police force to investigate on our behalf. We will consider requests for particular enquiries to be made (such as forensic work or other expert evidence) but we will always base our decision on an objective evaluation of its potential evidential value.
The article itself cited the tragic case of Sally Clark as an example that apparently ‘highlights the absence of any investigatory function’. I can do no better than quote from the letter sent by Sally Clark’s father soon after we referred her case in 2002.
Dear SirI am the father of Sally Clark for whom hopefully her seven-year ordeal is drawing to a close... It was an ordeal too for the whole family. It is the nature of the role of the commission that they are in the background and the work recognised only by those, like ourselves, who benefit. I just want to place on record the family’s appreciation of the painstaking investigation leading to the lucid report produced in the case of my daughter Sally. After a lifetime in the police service to senior rank I doubt that I have ever seen a more forthright report of total clarity. Whoever prepared the ground must have examined a mountain of material yet somehow extracted the essentials to produce a report that was irrefutable... There are many cases but if ever the commission needed to cite a case to justify its role, I doubt you have a better example than Sally Clark. I am not sure we would have come out of this but for you.Yours faithfullyC Frank Lockyer
There was also a specific factual error in the Gazettepiece. It reported that the case of Eddie Gilfoyle had been referred twice by the CCRC. We did refer the case in 2000 but there has been no second referral; the case is again under review, but no decision has been reached.
No organisation is perfect. The CCRC owes its existence to an acknowledgement that what was then widely regarded as the best legal system in the world could still get it badly wrong. Of course we too can learn and improve, and we welcome constructive criticism.
Richard Foster is chair of the CCRC