Guardian, Thursday 2 December 2010
Set up to investigate miscarriages of justice, the CCRC's poor track record in recent years shows it is little more than a fig leaf
Set up to investigate miscarriages of justice, the CCRC's poor track record in recent years shows it is little more than a fig leaf
The CCRC began work on 1 April 1997. In gauging its overall success, we need first of all to look at its own statistics, according to which its work has led to the quashing of 304 convictions. Taken at face value, this is impressive; looked at more closely, the figure quickly crumbles.
Firstly, the CCRC refers some cases to the court of appeal on the basis of sentence alone. If the sentence is subsequently varied, then the CCRC triumphantly – but inaccurately – marks this down as a "quashed" case, and a success. It also counts as successes cases where alternative convictions are substituted – the most common example being manslaughter for murder. This may be little more than a technical adjustment to the conviction and may make no practical difference to the liberty of the prisoner.
Secondly, there is multiple counting. The CCRC rates its success not in terms of individual cases but numbers of convictions. Had the commission ever been tasked with analysing the Birmingham Six and Guildford Four cases, they would have examined two cases but chalked them off as 10 successes.
Thirdly, there is the case of Russell Causley, whose case was referred to appeal in 2001. His conviction was quashed at appeal, but the court ordered a retrial and Causley was reconvicted. So he will be sitting in his cell today, still convicted of the same crime that he once persuaded the CCRC to reopen, wondering just how the CCRC can count him as one of its "successes".
Fourthly, and crucially, any examination of the details of the CCRC "successes" reveals that, especially in recent years, the commission has been getting relatively lightweight convictions overturned: dishonestly obtaining a telecommunication service; allowing a dog to be dangerously out of control in a public place; failing to comply with an amended section 215 notice under the Town and Country Planning Act; cheating HM Revenue and Customs contrary to common law; and, that old chestnut, keeping a disorderly house.
Those wrongly convicted in these and other similar cases are doubtless eternally grateful to the CCRC for helping to restore their reputations. But no one should pretend that such low-level injustices precipitated the creation of the CCRC. It was set up because of wrongful convictions in major cases, especially murder cases, that were being rejected at the court of appeal.
In its early years, the CCRC was valuable and productive: the hiatus while it was being established meant there was a build-up of compelling cases, some of which had been part-worked on at the Home Office; and the CCRC began with an altruistic impulse and some highly motivated commissioners, such as the late Dr James MacKeith, the forensic psychiatrist, and the commercial lawyer Laurie Elks.
However, if we look at the CCRC's performance in major cases in England and Wales since the start of 2005, we get a very different statistic. In that period, the CCRC has successfully referred seven major cases to appeal. That's all. Seven.
In fact, even this meagre tally overstates the CCRC's performance level. One of these cases was that of Sean Hodgson, whose legal team had the brilliant idea of bypassing the CCRC altogether. They took it straight to the police and prosecution, who discovered that the DNA on the victim's body was not Hodgson's and said the appeal would not be contested.
So the CCRC was presented with a fait accompli – which did not, of course, prevent it from listing the case as one of its "successes". Yet had the lawyers simply submitted the case to the CCRC, Hodgson would still be in prison. Then there was the case of Barry George (wrongly convicted of murdering the television presenter Jill Dando), which half the country recognised as a miscarriage of justice.
Another was that of Patrick Nolan. This was a confession-made-under-duress case, of the kind that the appeal court had been quashing convictions in for at least 10 years. Any competent body could probably have dealt with it in a couple of months, rather than the more than five years it took the CCRC.
One case I can't tell you about, because the legal process is ongoing. The three remaining cases are those of Andrew Adams, which took the CCRC seven years to refer; the Victor Boreham and Michael and Malcolm Byrne case; and the Ian Lawless case, all of which were piloted to appeal by first-class lawyers (respectively, Ben Rose, Maslen Merchant and Mark Newby).
By my reckoning, six cases are yet to be heard, including the Simon Hall case, which goes to appeal in a couple of weeks. During this time, there have been referrals of 10 other cases that have failed at appeal. They include the cases of Michael Attwooll and John Roden; Robert Kennedy; and David Shale. These are all meritorious cases and so the injustice remains unaddressed.
Although we have no idea of the true number of miscarriages of justice that should be being rectified, I can put it in perspective by pointing out that there are at least 100 contentious murder convictions being analysed by justice groups throughout the country. A host of cases – the convictions of Jeremy Bamber (originally flagged as a miscarriage of justice by the Guardian in November 1993), Susan May, Mark Stonerseed, Warren Slaney, Karl Watson and Eddie Gilfoyle et al – predate the CCRC and, all these years later, are still awaiting resolution.
The complaints are that the CCRC has become characterised by pusillanimity and procrastination. It is taking far too long to evaluate cases; it is not referring the cases it should; and even where it does refer convictions, its poor case analysis leads to poor appeals.
The government did look at the CCRC in the comprehensive spending review, but it survived. After all, it has become a highly expedient mechanism. It allows ministers to deflect all questions about, and accordingly blame for, miscarriages of justice and the malfunctioning of the judicial system. Probably that's its main residual function: as a fig leaf.
