As the criminal cases review commission promotes its role in tackling miscarriages of justice, Grania Langdon-Down weighs up concerns over its effectiveness and the time taken on cases
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When Dino the Dog was saved from being destroyed, after his case was referred to Northampton Crown Court by the Criminal Cases Review Commission (CCRC), the story made every national newspaper, with the media coverage reaching as far afield as Australia.
During his three-year battle to save Dino, his owner Bryan Lamont had unsuccessfully run the gamut of the court system from the magistrates’ court to the House of Lords and even the European Court of Human Rights before his solicitor, Kent sole practitioner Trevor Cooper, suggested going to the CCRC on the grounds that it was a criminal case that fell within the commission’s criteria.
Professor Graham Zellick, who has just completed his first year as the commission’s chairman, says dryly: ‘I think the inordinate media interest told us more about the British media than it did about the CCRC. However, contrary to my expectations, the publicity was positive. Even where there was some criticism of why we had become involved in this case, it required an explanation of our role, and on the whole they were complimentary.
‘So, our judgement was that we didn’t do too badly out of it. But do we want lots more Dino the dog cases? No. If Parliament wants to take dog destruction orders out of our remit, I won’t make a big fuss.’
He is keen to see the CCRC’s profile raised – the commission has been carrying out a recent push in Northern Ireland because it took the view that too many people believed it was only there for serious cases or those arising out of the Troubles. He adds that the commission is also ready to be more vocal in passing on its experience to help inform future decision-making.
The CCRC has received 7,125 applications in the seven years since it took over the investigation of alleged miscarriages of justice from the Home Office in the wake of the Guildford Four and Birmingham Six cases. It has completed 6,441 cases, with 254 being referred to the appeal court. Of the referrals, 200 have been heard and, in 138, convictions have been quashed or sentences varied. The backlog of cases peaked in May 1999 at about 1,200 cases but this figure is now fewer than 300.
Prof Zellick says the commission receives around 900 applications a year. The vast majority of cases are suitable for a screen review – an expedited process where an application can be reviewed in five working days or fewer. However, those requiring a full review have to join a queue, with applications from people in prison taking a year to be allocated and those at liberty two years.
He explains: ‘We have had to abandon our March 2006 target for clearing the backlog because of budgetary pressures which mean we cannot reach the magic number of 50 case review managers, currently standing at 42.
‘We haven't been underfunded in the past – quite the contrary – but we are experiencing financial difficulties at present and we remain in discussions with the home office over our budget for next year and beyond. If adequate funds are not provided, the backlog will simply grow longer and longer.’
Roger Smith, director of the human rights and law reform group Justice, says it would be concerned if the money begins to be turned off. ‘The CCRC is a bit slow and has had some glitches but overall I don’t think they have done a bad job. The test for us is – were we right to stop doing miscarriage of justice cases once the CCRC was established and, so far, I think we were.’
Given the length of some reviews, the commission is introducing a pilot scheme to see whether it is getting the balance right between ‘thoroughness and timeliness’. A committee of three commissioners will automatically review progress after 18 months, though this may ultimately come down to between six and nine months.
The time it takes for cases to be reviewed is of great concern to practitioners. Campbell Malone, a consultant with Bolton law firm Stephensons, has about 60 cases working their way through the CCRC process, with three referrals waiting to be heard by the Court of Appeal. He is chairman of the Criminal Appeal Lawyers Association (CALA), set up in 2002 to increase the number of lawyers working in this field, and to provide a collective voice to press for reforms.
The CALA and the commission meet regularly and the two describe their relationship as basically good and constructive. However, there are, inevitably, tensions.
Mr Malone says: ‘The commission is certainly better than the Home Office but there is still lots of room for improvement. In the main, the people involved are very genuine, committed and well- intentioned. But the commission is also a source of endless annoyance and irritation in terms of individual cases.
‘Many practitioners feel it is still too conservative in applying the “real possibility” test that a conviction might be unsafe. I think the commission is sometimes guilty of misunderstanding what happens in practice in the Court of Appeal in relation to issues like the credibility of witnesses and the receipt of expert evidence which could have been given at trial. If judges in the Court of Appeal are troubled by a case, they will use their discretion to listen to the evidence – the CCRC is sometimes more cautious than they are.’
Prof Zellick disagrees: ‘I don’t think we are too cautious. I don’t have any problem with the statutory test that requires us to second-guess or predict the Court of Appeal. Doing it any other way would be fraught with even more problems. I think the proportion of cases that we send and the proportion – about 70% – that result in convictions being quashed is about right.
‘The only danger is that as we get more experienced and, dare I say it, better at doing the job, it becomes so much easier – and I don’t mean this impolitely – to predict the Court of Appeal’s decisions. We are all a bit worried that this will lead to the area of “real possibility” being squeezed. I don’t know how we counteract that. We have to keep our eye on whether the proportion of cases being quashed remains steady. If it doesn’t, it may show we aren’t getting it quite right.’
He is not sure that defence lawyers ‘fully accept our role’, which leads to some crossed wires. ‘We are an independent body – and that means as independent from solicitors and their clients as we are from the government and the courts. We are not simply an instrument of the defence or an agent for them. We are the final judge of what has to be done and how it should be done.’
He says the CCRC is always looking at ways of improving communication while retaining primacy over the way an application is reviewed.
‘I don’t think we are bad at keeping applicants informed,’ he says. ‘Of course, one understands that lawyers are used to the adversarial process and are not accustomed to dealing with a body like us. It’s new territory for them and perhaps it is inevitable that there is tension because they are trying to do their best for the clients and we are the last port of call. Sometimes their style and manner, honed as it over the years in the adversarial system, mean they treat us as if we were the other side in ordinary litigation and that isn’t always conducive to harmonious and productive working relationships.’
Ewen Smith, a partner at Glaisyers in Birmingham, regards himself as a ‘critical friend’ of the CCRC. ‘Of course they are not agents for the defence. However, that doesn’t mean we should just roll over. I must be able to use my experience to try to direct them towards information which I may not be able to get. They don’t like being told what to do but I am not going to sit back and just accept what they say.’
Overall, he says, the CCRC is a valuable organisation and ‘much better than the Home Office, which was far too politically involved in cases. I acted for Jeremy Bamber [convicted in 1986 of murdering five members of his family] when his case was investigated by the commission and referred back to the Court of Appeal – which subsequently rejected it – but I have no criticism of the way they handled that case at all’.
For Mr Malone, communication and disclosure remain two key problems. ‘We have suggested to the commission that they should prepare a case plan so that, once a case is allocated, there is some agreement with the applicant and his lawyers as to the steps they will be taking, the expert reports they will be seeking.
‘At the moment, you put an application in and then you hear very little until you receive a letter after a year or two saying they are minded to refuse and you only have a very short period to address any gaps. There is often an irrationality and unwillingness to disclose things during the course of an investigation, when they may well shape or influence how the work is done. ‘
For practitioners, the squeeze on legal aid is one of the biggest hurdles for applicants, because many solicitors can no longer afford to take on these cases. Mr Malone says: ‘The work is very poorly paid, with no provision for interim payments or for payments on account. As serious cases can take two or three years, that causes cash flow problems, with added pressure from expert witnesses who are used to being paid within 30 days at a rate often three times that which the solicitor is getting.’
While Prof Zellick says it is not for him to comment on whether solicitors are adequately recompensed, he says: ‘The health of the criminal justice system does very much depend on the quality of the lawyers working in this field.
‘Our experience is the same as any other court or tribunal – where there is good legal representation, it is a great help; where there is poor legal representation, it is a positive hindrance; and where there is no legal representation, we do whatever we can to make good that absence.’
One development that is concerning both practitioners and the CCRC is an amendment to the Criminal Justice Act 2003, scheduled to come into force next April, which will limit the grounds of an appeal in a referred case to those matters that are the subject of the reference. Any further matters will only be allowed with the leave of the court.
Mr Malone says: ‘At present, some cases are referred on a single issue, leaving the applicant to investigate the matter further once his solicitors have a legal aid order in the Court of Appeal. But what should the CCRC response be now? Should they investigate all matters, which could mean an increased burden on them, with cases taking longer? It is another example of ill-thought-out legislation.’
Mr Smith agrees: ‘I think it is wrong. The CCRC should refer a case when they uncover evidence which they believe may be referrable. It is not their duty to investigate every nook and cranny. That is my job.’
Prof Zellick says the CCRC has a small group of commissioners considering this issue and will probably seek outside views. ‘The change in the law makes sense but it does give us added difficulty and we need to formulate a policy.’
Another of CALA’s concerns has been what it perceives as a lack of defence experience among senior CCRC staff – a criticism rejected by the commission. Mr Malone says the June appointment of defence barrister Penelope Barrett as one of its 16 commissioners was welcome.
However, Ms Barrett, previously of 25 Bedford Row chambers, stresses: ‘It is important to take account of the breadth of experience there is here. I don’t mean this ungenerously but, having been a defence practitioner for 22 years, it’s only too easy to recognise the shortcomings of only having a defence perspective. Having prosecution and other experience open up entire areas into which you can look as part of the process of finding out whether a conviction is safe.’
For the public, the closest most will have come to the CCRC is through the ITV drama ‘Rose and Maloney’, starring Sarah Lancashire as a caseworker with the ‘Criminal Justice Review Agency’ – though no CCRC caseworker has yet stumbled over a corpse or been kidnapped during an investigation.
Prof Zellick says: ‘I thought it started off promisingly, except the very first episode included some crude interference by the Home Office, which absolutely doesn’t happen. The trouble is the public probably think that it does. But if they got it wrong, we have only ourselves to blame. Before I came, it wasn’t policy to offer that kind of access or assistance. Now, we would ask them along to get a real feel for how we work.’
Grania Langdon-Down is a freelance journalist
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