Criminal Cases Review Commission
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CCRC releases official response to the Westminster Commission report

The Criminal Cases Review Commission (CCRC) has published its response to the Westminster Commission’s report: “In the Interests of Justice – An inquiry into the Criminal Cases Review Commission”.

Published in March, the report made more than 30 recommendations covering a wide range of issues from resources and funding, through to governance and statutory legislation – the legal framework that the CCRC is legally obliged to work from.

Chairman of the CCRC, Helen Pitcher OBE, welcomes the fact that the report helps raise awareness of the important topic of miscarriages of justice, giving it the public attention that it deserves: “We are a vital public function, so it is important for us to recognise proper public scrutiny in relation to how we operate,” said Helen. “In the current climate this has never been more crucial given the impact of reduced funding across the criminal justice system.”

Agreeing that more funding is needed, regular and more meaningful updates should take place with its applicants, and Home Office reminders be flagged with the Police about their legal obligations on the retention of material, the CCRC also supports the report’s proposals on statutory powers. Section 17 of the Criminal Appeal Act 1995 stipulates that all public bodies must comply with requests for case material. The CCRC embraced the suggestion that a fixed timescale be introduced to avoid lengthy delays, and that there could be sanctions in the rare event that bodies fail to comply.

On communicating with applicants, Helen Pitcher emphasised that, as an independent body, the CCRC cannot be in situation where it is perceived to be collaborating with an applicant: “However we do agree that the general direction of a case review and associated enquiries, unless sensitive, should be outlined in our regular updates to applicants and their legal representatives.”

Other recommendations referred to themes under current law the CCRC must follow, including the Real Possibility (RP) test, disclosure, and the Statement of Reasons (SORs) which explain the CCRCs case decisions. “The SoRs contain personal data and are private communications with applicants and their representatives. Publishing these also has implications for third parties, including victims and witnesses, who, even if anonymised, can easily be identified by virtue of the case type.

However, as we made clear in our evidence to the Commission, we believe it would be useful if legislation allowed more discretion to publish the reasons behind our decisions. We welcome transparency, and the more transparent we can be with our reasons the more people will be confident about the work that we do. Ultimately, being able to publish SoRs would be good for confidence in the Criminal Justice System overall. We do encourage applicants and their legal representatives to publish their SoRs, which they have always been free to do – although very few have done this.”

When it comes to the RP test, the CCRC has always applied this benchmark. Since 2005, the Court of Appeal has looked at around 390 cases (which is just over half of the CCRCs referred cases). The RP test is the test, which it is legally obliged to follow: “Rest assured that we do apply this with great care and diligence, but we also support the recommendation for an independent review of this test,” said Helen.

On the issue of disclosure, the argument that the CCRC should do more is one that often comes up. As with the SORs, there can be a lot of sensitive information in an applicant’s case, including personal data and material protected by section 23 of the Criminal Appeal Act 1995.

The recommendation about disclosure would require changes in the law to help this to happen. “At the moment, our disclosure obligations are based on other legislation, case law and legal privilege,” said Helen. “Third parties, including the courts, the police, CPS and social services, must feel able to supply information to us in confidence. Applicants are supplied with all the necessary information to help state their best case. But we cannot provide material that is neutral or irrelevant to our decisions.”

The CCRC maintains that, as an independent body, it is appropriate that it determines what is disclosable – and it remains adamant that applications must not be used as a vehicle for people to obtain documents and information they have no legal right to.

Amongst other recommendations the report suggested introducing an advisory panel of experts to focus on forensics and a further panel made up of lawyers. The CCRC says such a move would be a retrograde step. “Having access to the best person for the job that has the latest and most appropriate knowledge is crucial for us,” said Helen. “Restricting ourselves to a single advisory panel would not make sense. If it is needed, then we already seek external legal advice but appointing a fixed team of lawyers does not sit well with our position as a maker of independent decisions.”

The Chairman expressed her thanks that the Westminster Commission has recognised the excellent work carried out by the CCRC. “Equally, we are open to scrutiny about how we operate. We have always been a forward thinking organisation that is completely committed to continuous improvement.” added Helen.

Notes to editors

If you would like to speak to Helen Pitcher concerning our response to the recommendations, please contact External Affairs at press@ccrc.gov.uk or on 0121 232 0900.

The Westminster Commission Report: 2021_03_02 Westminster Commission Report FINAL (wordpress.com)

Below are the report’s recommendations and the CCRC’s responses in full:

Part I: Leadership, independence, and resources

Recommendation 1: The Chair of the CCRC should be appointed for a five-year term for a minimum of three days per week, and the focus of the role should be to provide strategic leadership, to ensure that the organisation’s independence and mission is at the centre of its work, to liaise with government, the courts and Parliament, and to seek to ensure that the CCRC’s findings influence law reform and criminal justice practice.

The CCRC agrees with this recommendation.

Current statute allows for a five-year term renewable once only. There is some debate as to whether the first term should be three years or five and such a decision could, in fact, be situation specific. If, for example, the CCRC is in a stable position, a first term of three years may be appropriate.  However, the current level of change and transformation at the CCRC would currently render a first term of three years unrealistic.

The Chairman is contracted for 10 days per month but rarely works fewer than 20. It is suggested that three days per week is appropriate as an average across the month, as some weeks require the Chairman to work more than three days, and some weeks less.

The CCRC continues to keep independence at the centre of its work and the CCRC’s Chairman plays a crucial role in protecting our independence, both from Government and from the Courts. The suggested areas for focus noted in the recommendation are already key aspects of the Chair’s role and we believe that they must remain so in the future. The Chairman had a first term of 3 years which expires in November this year.  This has just been extended for 5 years from November 2021.

Recommendation 2: The Public Appointments Commissioner should be invited to look at whether the appointments arrangements for those non-departmental public bodies (NDPBs) that need to be constitutionally independent from government are sufficient, and sufficiently transparent, to guarantee this. There should, as anticipated in the legislation, be a mix of full- and part-time Commissioners, on a salaried basis, for five-year terms and with a minimum of three days per week.

The CCRC supports a review of appointments to NDPBs.  In respect of Commissioners, the CCRC cannot unilaterally review and amend the terms on which they are appointed.  However, we would support such a review, although it should be borne in mind that one has taken place within the last four years. Overall, we have found that having part-time, fee-paid Commissioners has worked well and resulted in significant improvements at the CCRC. Arguably, having Commissioners who are not financially dependent on the CCRC reinforces our independence.  We are satisfied that there has been no reduction in decision-making standards with this model.  Further in the last business year (April 2020 to March 2021) with solely fee-paid Commissioners, the CCRC referred more cases to the appeal Courts than ever before (70 cases).  Our Commissioners were central to that achievement.

Commissioners already routinely work more than one day a week for the CCRC and this ability to ‘flex’ up or down is important. This approach allows us to work flexibly and respond to changes in demand for Commissioner resource across the year.

On the issue of Commissioner terms, we would argue that a first term of three years with the option of re-appointment for a second, five-year term, is the best approach. This allows us, and the Commissioners, to determine if they wish to commit to the work of the CCRC at an earlier stage than an initial five-year term would allow.

Recommendation 3: We consider that a separate Management Board would be beneficial, to provide governance and additional assurance, and involving the CCRC’s senior management team and some external non-executive directors, as well as some Commissioners, on the lines of the current Board. However, this should be secured in legislation.

It is the view of the CCRC that appropriate governance arrangements are already in place. We have a well-balanced board comprised of three senior executives, three (Commissioner) Non-Executive Directors, three Independent Non-Executive Directors and the Chairman. The current structure works well and was, in part, a result of our last Tailored Review.

All Commissioners sit on the Body Corporate which maintains effective oversight of the Board and proactively contributes to both strategy and stakeholder management. Notwithstanding the role of the Commissioner Non-Executive Directors on the Board, the real and essential value of Commissioners is in decision making, not governance. However, we would not be averse to a statutory Board although, of course, this could only be created through primary legislation.

Recommendation 4: The Ministry of Justice should provide increased funding to the CCRC so that it can recruit additional case review managers and put in place the above changes and those recommended in Chapter 5 (Investigation).

The CCRC agrees with this recommendation.

Indeed, both the Chairman and Chief Executive raised the issue of funding when they attended the Westminster Commission. We have submitted a request to the Ministry of Justice for an increase in funding and are waiting to hear the outcome.

Part II: Statutory framework and relationship with the Court of Appeal

Recommendation 5: The ‘real possibility’ test should be redrafted to expressly enable the CCRC to refer a case where it determines that the conviction may be unsafe, the sentence may be manifestly excessive or wrong in law or where it concludes that it is in the interests of justice to make a referral. By definition this would include all cases where it finds that a miscarriage of justice may have occurred including ‘lurking doubt’ cases.

While ‘real possibility’ remains the test to be applied by the CCRC, it should be bolder in interpreting it: determining in each case whether there is more than a fanciful chance of the verdict being quashed, even if quashing is less likely than not. It should also remove any targets for success rates before the Court of Appeal.

The CCRC supports an independent review of the statutory test although, of course, the test could only be amended through primary legislation.

The CCRC obviously agrees that the test must be applied correctly.  It agrees that decisions must be taken fearlessly and after a comprehensive assessment of all relevant issues. The CCRC has a culture of continuous improvement and learning: it engages with stakeholders and takes account of legal and scientific developments as well as the vulnerability of defendants and modern standards of fairness. Reviews are careful and meticulous. Importantly, in any case where the decision on merits appears to be borderline, the CCRC has always erred on the side of referring the case for appeal and will give the benefit of any doubt to an applicant. These have been consistent features of our work and will continue to be so.

The CCRC does not consider that it is possible to take a ‘bolder’ approach to determining ‘real possibility’.  This is because the test is focussed on merit. As the Westminster Commission noted at pages 35-6, the test was defined by Lord Bingham. Lord Bingham described the real possibility test in the following terms:

.… the threshold which the Commission must judge to be crossed before a conviction may be referred to the Court of Appeal is imprecise but plainly denotes a contingency which, in the Commission’s judgment, is more than an outside chance or a bare possibility but which may be less than a probability or a likelihood or a racing certainty. The Commission must judge that there is at least a reasonable prospect of a conviction, if referred, not being upheld.[1]

Where the real possibility (or reasonable prospect) threshold is not crossed, this is because of a lack of merit. The ‘boldness’ of decision-makers cannot compensate for this.  Poor decisions, however bold, will only waste public funds, take up unnecessary court time while causing distress and anxiety. They will not serve the interests of justice.  Again, as Lord Bingham noted:

The threshold test is carefully chosen: if the Commission were almost automatically to refer all but the most obviously threadbare cases, its function would be mechanical rather than judgmental and the Court of Appeal would be burdened with a mass of hopeless appeals; if, on the other hand, the Commission were not to refer any case unless it judged the applicant’s prospect of success on appeal to be assured, the cases of some deserving applicants would not be referred to the Court and the beneficial object which the Commission was established to achieve would be to that extent defeated. The Commission is entrusted with the power and the duty to judge which cases cross the threshold and which do not.[2]

With regards to the concerns that the CCRC sets the bar for real possibility too high, is risk averse and is fearful of criticism by the Court of Appeal Criminal Division – the fact that the CACD upholds a significant number of references suggests otherwise.[3] The Court’s decisions are sometimes complimentary about our work and sometimes they are critical. We always consider comments of either sort.

Inevitably, as with any decision-making process, there have been some cases in our 24-year history, where we have made mistakes and recognise, we should have done better. We acknowledge the importance of these cases to the individuals involved and have ensured that we put matters right and learned from them, but these should not be seen as systemic issues. CCRC Commissioners and staff have always been committed to identifying miscarriages of justice – a desire to do so permeates our work, underpins our thinking and is at the core of our purpose.

Recommendation 6: The CCRC should adopt a broader interpretation of the “exceptional circumstances” requirement. This should include cases where applicants can show that there were reasons why they were unable to exercise an appeal right in time, including the inability to access legal advice and representation, as well as where there is new evidence or new techniques which were not available at the time. Applicants should not be required to supply documentary evidence that they have taken all reasonable steps to obtain access to material which the CCRC can acquire using its section 17 or 18A powers.

The CCRC agrees that it will further consider the issue of Exceptional Circumstances (ECs) and how we approach ‘no appeal’ applications.

The CCRC is very much alive to the fact that our approach to ECs is something which we should keep under active review to ensure that we are acting in the best interests of each of our applicants.  It is an area of our work to which we have already given significant thought including a revision to our policy in October 2014 and further changes to our internal processes as part of the whole system review in 2015.

The rationale behind the changes was to ensure a consistent approach to the assessment of ECs across the organisation and to avoid spending a disproportionate amount of our limited resources on applicants who have not exhausted their appeal rights where it is not appropriate for us to do so.  The approach taken to no appeal cases also seeks to minimise any delay to the applicant appealing directly to the Court of Appeal where there are no potential ECs.

In addition to our own internal reviews, the CCRC welcomes the independent review of our work and has a dedicated Research Committee to facilitate this.  We have taken on board recommendations arising from external research projects to continue to shape our approach to no appeal cases.  For example, working with the Court of Appeal to develop an ‘easy read’ Form NG to assist unrepresented applicants. This form is now widely used, and we send this form to each applicant whose ‘no appeal’ application is not accepted for a full review. It is not yet clear whether the easy read Form NG has affected – and if so to what extent – the number of direct appeals by unrepresented appellants. The CCRC considers this to be important information to have if changes to our process for ‘No Appeal’ cases are contemplated.

Following on from the Commission’s recommendation, the CCRC intends to give consideration as to whether things have moved on since the Whole System Review in 2015 so as to require further change and, in particular, whether further research into this area of our work would now be beneficial.

The assessment of potential ECs is carried out by a Case Review Manager (CRM) who carefully considers not only the issues raised by an applicant but also other potential points which may amount to ECs.  This is not simply an administrative process and requires the CRM to be satisfied that they have sufficient information about the applicant and the background to the case to make the assessment.  It is important to note that a substantial number of ‘no appeal’ applications are accepted for a full review (just over 25%)[4] and, indeed, a proportion of these have resulted in referrals to the appeal courts (55% of our referrals were NA cases)[5].

Whilst the CCRC is open to reviewing our interpretation of ECs, we are mindful that it is vital that the CCRC does not usurp the conventional appeal process, a point which we believe will be relevant to any such review. It is also essential that we remain as accessible as possible – and continue to conduct high quality case reviews – for those applicants who come to us having exhausted the appeal process. Although we acknowledge that cuts to Legal Aid have made it increasingly difficult for individuals to secure legal assistance with appeals, the CCRC does not consider that the lack of Legal Aid alone can amount to an exceptional circumstance. Unfortunately, approximately 90% of our applicants are now unrepresented, so it would require a very broad interpretation indeed for us to be able to assist all unrepresented applicants who have not sought to appeal. However, the current situation with Legal Aid and levels of legal representation remain matters of deep concern to the CCRC and we wholeheartedly support a review of Legal Aid funding and an uplift in its availability.

We are responding to the current Independent Review of Criminal Legal Aid that is being chaired by Sir Christopher Bellamy QC separately. We also commissioned independent academic research by Sussex University on the subject of legal aid and legal representatives, which was published on 14 May 2021.[6]

Recommendation 7: The 28-day time limit for lodging an appeal should be extended to reflect the difficulties faced by applicants, some of whom are unrepresented and vulnerable.

The CCRC agrees with this recommendation.

A time limit of 28 days is too short, particularly for applicants who are not represented and/or not eligible for Legal Aid funds. It is also potentially unrealistic for individuals who are in prison, have poor literacy or limited support to appeal within this time.

Recommendation 8: Section 13 of the Criminal Appeal Act 1995 should be amended to provide that any cases which the CCRC deems meet the referral criteria should be sent to the appeal courts.

It is our view that it is right for the CCRC to retain the discretion not to refer cases. There are circumstances where there is no tangible benefit of a referral, irrespective of the outcome. For example, cases that are very old and in which no living individual is affected by the original conviction or would benefit from it being quashed.[7] Similarly, the referral of a single, minor conviction for an individual who has numerous convictions, or other very serious convictions, is unlikely to be in the public interest. We have also seen cases where, for technical legal reasons, one count on a multi-count indictment might arguably be unsafe but would result in no change to the nature of the conviction or the sentence which was imposed. It would not be in the interests of justice to refer wholly technical points of that kind to the Court of Appeal.

That being said, the CCRC very rarely exercises discretion not to refer a case where we deem that there is a ‘real possibility’. We have, for example, recently referred the murder conviction of an applicant who died during the latter stages of our review. We proceeded with the referral despite the applicant’s death, and even though the highest outcome would be the substitution of the murder conviction for one of manslaughter. Although judgment in this case has not yet been handed down, this is illustrative of the approach taken by the CCRC on issues of discretion.

On the rare occasions that the CCRC has exercised its discretion not to refer, we believe that the discretion has been used responsibly; however, such decisions can also be scrutinised by way of Judicial Review.

Recommendation 9: The Law Commission should review the Criminal Appeal Act 1968 with a view to recommending any changes it deems appropriate in the interests of justice.

The CCRC supports the recommendation that the Law Commission reviews the Court of Appeal’s test and issues around post-conviction disclosure.

Part III: Investigation

Recommendation 10: The CCRC’s budget should be increased so that:

  • it can carry out more face-to-face inquiries with both applicants and other relevant individuals;
  • it can conduct thorough inquiries into all potentially relevant material;
  • it can obtain and review complete trial transcripts where relevant to the points at issue in the case.

As already stated above, the CCRC would welcome any increase in our operational budget.

We continually review our working practices to ensure high quality casework and effective relationships with applicants and representatives.  It should be noted though that, irrespective of budget, the CCRC carefully considers the relevance and benefit of any potential enquiries before undertaking them. This ensures that we use our time and resources appropriately. If, in the course of a review, the CCRC deems that face-to-face enquiries, a thorough review of material, obtaining expert evidence, scientific testing or obtaining trial transcripts are necessary, then we will not hesitate to make the relevant enquiries. We would not neglect any legitimate enquiry for budgetary reasons.

Recommendation 11: The CCRC should review its key performance indicators, so that they are less generic and do not focus solely or mainly on timeliness. Each case should have a regularly updated individual case plan, with target activities and dates.

The CCRC is satisfied that our existing KPIs are fit for purpose, but we wish to assure the Commission that we regularly review them and will continue to do so.

Our indicators serve the purpose we need them to and have, in our view, the right level of specificity. Timeliness is a key indicator, but we do not pursue this at the expense of quality. It is our current policy that every case should have a Case Plan (which includes target activities and milestone dates) by six weeks post-allocation to a Case Review Manager. This is an area of our work we are continually improving although timely case planning can be hindered by factors (i.e., large portfolios and insufficient numbers of Case Review Managers).

Recommendation 12: The CCRC should set up an advisory panel of external forensic experts to consult on scientific and technical issues and on developing forensic strategies.

The CCRC disagrees with this recommendation and considers it to be a retrograde step because we need access to the best person for the job, with the most appropriate and current knowledge. It would not make sense to restrict ourselves to a single advisory

Channel website: https://ccrc.gov.uk/

Original article link: https://ccrc.gov.uk/ccrc-releases-official-response-to-the-westminster-commission-report/

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