CCRC Chair Richard Foster’s Farewell Speech

We attach, at the foot of this article, a downloadable copy of the recent farewell speech by the departing Chair of the Criminal Cases Review Commission (CCRC).   Although the CCRC does not operate in Scotland, where we have our own Commission, the processes employed by the two commissions are broadly similar as, indeed, are the perceived weaknesses in those processes.   The speech is an interesting one.  It offers comment on issues which are of ongoing concern to us at MOJO, and of similar concern to other groups and organisations elsewhere in the UK who are active in campaigning against miscarriage of justice.

Selective extracts follow, but we would encourage you to read the speech in full:

Mahmood Hussein Mattan was hanged on 8 September 1952 for the murder of Lily Volpert.  His conviction was amongst this Commission’s very first referrals.  Vital evidence was simply not disclosed by the police.

In quashing the conviction, The Court of Appeal stopped short of saying that an innocent man had been hanged, though that is obviously what happened.  But it did say:

“….injustices of this kind can only be avoided if all concerned in the investigation of crime, and the preparation of criminal prosecutions, observe the very highest standards of integrity, conscientiousness and professional skill”.

We no longer hang people.  But I have to tell you that the experience of this Commission, having reviewed over 23,000 cases since being set up, is that even today we all too often still see instances where the investigation and preparation of criminal prosecutions fall well short of the highest standards of integrity, conscientious and professional skill called for by the Court over 20 years ago.

I drew attention 5 years ago in my 2012/13 annual report to disclosure failures as the continuing biggest single cause of miscarriages of justice.  I repeated those concerns in subsequent Annual Reports. This led to a joint police/cps inspection into disclosure in 2017.  Sadly, that report showed that our concerns were all too well founded.  The report makes chilling reading. It spoke of a routine failure to comply with disclosure requirements.  Disclosure issues were often only dealt with at the last minute, if at all.  The situation was so bad that the Report’s authors spoke of a culture of defeated acceptance by police and prosecutors.

We see the evidence of this failure all around us.  In the recent high profile collapse of rape and serious sexual offence prosecutions, such as that of Liam Allan, Oliver Mears, Isaac Hay and Samson Mikele.  So bad had matters become the CPS commissioned a special review of ongoing prosecutions earlier this year.  A review which led to 47 cases being dropped by them on non-disclosure grounds.   The CPS say they believe these 47 cases would all have been stopped before trial in any event.  Even if true, this, “Well we would almost certainly have got round to dropping the cases in the end” defence is scant comfort to those who will have had to suffer months if not years of unnecessary uncertainty and opprobrium.  This Commission routinely refers convictions on non-disclosure grounds.  Recent examples include the cases of Embleton, Dunn and Z, all within the last year or two.

So I do not myself think that the CPS contention that the existing checks and balances in the system guarantee cases which should be stopped will always be stopped before trial is supported by current evidence.

A particularly worrying aspect of the CPS review’s findings were the number of instances where material that was already in the prosecution’s possession when charges were brought – and which undermined the prosecution fundamentally – had still not been looked at at point of charge.  Equally worrying, the CPS report points to instances where lines of enquiry which might have stopped the case in its tracks had simply not been identified by investigators at all, or if identified not followed up. This is supported by our own experience.  A frequent ground of Commission referrals is a line of enquiry followed up by ourselves, which could and should have been identified by the original investigation, and which was completely missed by investigators.

What underlies this, in my view, is a widespread and worrying lack of grip by too many investigators in the basics of criminal investigation.  A lack of grip which is resulting in those who should be brought to justice not being properly investigated, in trials collapsing at the courtroom door or during trial itself; and still worse convictions which prove unsafe and which were entirely avoidable.

But do not just take my word for it.  Consider what Her Majesty’s Inspectorate of Constabulary said in a report published just last year. The inspectors did not find a single police force which was outstanding at crime investigation.  They found 10 – that’s almost a quarter of all police forces – required improvement in the basic policing task of investigating crime.  And they found a dire shortage of trained investigators with one in five investigator positions either vacant or filled with untrained officers.

What do serving front line officers themselves say?  Almost half the police officers surveyed told inspectors they felt their force was not very effective, or not at all effective, at investigation.  The Inspectorate describe the shortage of qualified detectives and other investigators as, “a continuing national crisis”.

Police officers must have a sound knowledge and understanding of the fundamentals and essentials of criminal law, including the rules of evidence and procedure.  Cases can then be investigated, and if the evidence is there, the accused brought to trial.  False accusations can be flushed out and the wrongly accused protected.

Identifying and pursuing appropriate lines of enquiry which might support the defence case or undermine the prosecution case is not inimical to, or a distraction from, good police work and good prosecuting.  It is good police work and good prosecuting.

And for those of us concerned with miscarriages, ensuring that these basic police and prosecution shortcomings are acknowledged and put right has to be a top priority. Any analysis of miscarriages needs to be seen in the context of these fundamental shortcomings.

The entire speech can be downloaded here:

CCRC-2150080-v1-Farewell_speech_-_10_October_2018