Will Vera Baird get the CCRC back on its feet?

In advising the King to appoint Dame Vera Baird KC (pictured below) as interim chair of the Criminal Cases Review Commission, ministers have implicitly acknowledged that none of the existing commissioners was both willing and able to lead the CCRC – even on a temporary basis.   

Baird’s appointment brings the number of commissioners up to 10, still fewer than the statutory minimum. Little wonder that Lord Garnier KC, the former Conservative law officer, told the House of Lords a month ago that the body which reviews suspected miscarriages of justice was ‘in a state of complete collapse’. Even Lord Ponsonby of Shulbrede, the Lords justice minister, accepted that there were ‘concerns’ about how the CCRC was operating.

After taking silk in 2000, Baird served as a Labour MP, a justice minister, solicitor general, a police and crime commissioner and victims’ commissioner. And she is certainly no pushover. Explaining why she had resigned as victims’ commissioner in 2022, Baird said the justice secretary Dominic Raab had ‘wanted a puppet on a string to fill the gap whilst he knowingly damaged victims’ rights’. 

Baird’s predecessor at the CCRC was no pushover either. However, Helen Pitcher OBE, an experienced boardroom leader, had been appointed as a part-time non-executive chair of a body that desperately needed a full-time, hands-on lawyer to handle the most demanding areas of casework.

That was also the fault of a Conservative justice secretary. But Shabana Mahmood was responsible for leaving the CCRC leaderless until this week. Last August, she told an independent panel she thought Pitcher was unfit to discharge her duties as CCRC chair. Mahmood cannot have been surprised when Pitcher resigned on 14 January, shortly after the panel had advised the King, by a majority of two to one, that she should be removed.

Ponsonby’s expression of concern in the Lords last month was prompted by a question from Baroness Butler-Sloss, the former senior judge. ‘Is it not time,’ she asked, ‘that the entire commission is set aside and new people appointed, with everything done as a matter of some urgency?’

Her call was given added weight two weeks later when the Commons justice committee concluded that it was no longer tenable for Karen Kneller to remain chief executive of the CCRC. This followed Kneller’s ‘unpersuasive’ oral evidence to MPs and the ‘utterly incompetent’ handling by the CCRC’s leadership of a report by Chris Henley KC last year into the Andrew Malkinson miscarriage of justice.

At a conference last week organised by the Centre for Criminal Justice at Queen Mary, University of London, Jon Robins said the CCRC’s case review managers could no longer be dismissed as ‘moribund, office-bound and file-based’. As the campaigner-turned-academic observed, that was because Kneller had revealed that everyone now worked remotely. 

Despite living near the CCRC’s base in Birmingham, the chief executive and her deputy came into the office ‘maybe one or two days every couple of months or so’. MPs on the justice committee struggled to understand how investigative casework, ‘with its complexities and potential for distress’, was suitable to be undertaken fully from home.

But this is just a symptom of a wider malaise. Originally, independently minded people of real standing in the field of criminal justice were appointed as commissioners on a full-time or near full-time basis. Since 2017, commissioners have been appointed to work for, on average, one day a week. Last year, with 10 commissioners in post, this worked out as a full-time equivalent of 2.3 commissioners. A decade earlier, the full-time equivalent was 8.8.

Having recently served as a non-executive member of the Law Commission board, and knowing that its commissioners – all full-time – meet regularly to discuss each proposed reform in a process called peer review, I was mystified to find that CCRC commissioners hardly ever hold face-to-face meetings. How else can a board hold its chief executive to account?

Baird has been asked by Mahmood to review the CCRC’s effectiveness, performance, governance, culture, capability and funding. That won’t take long: they are all too low. Putting things right will be much more difficult, given that there is unlikely to be any more money.

But the most important reform requires a change of mindset. By statute, the CCRC can refer a case to the Court of Appeal only if it considers there is a ‘real possibility’ that the conviction or sentence would not be upheld. There must normally be a new argument or evidence in support of an appeal against conviction.

In a consultation paper on criminal appeals earlier this year, the Law Commission provisionally proposed reforming this ‘predictive’ test. That would require legislation. But there is nothing to stop the CCRC from adopting a bolder approach to case review than we saw in cases such as Malkinson’s. Baird may be just the person to get the CCRC back on its feet.

joshua@rozenberg.net