Failures at the (S)CCRC
Recently published by the London Review of Books is a searing critique of the Criminal Cases Review Commission (“CCRC”), the body tasked with investigating potential miscarriages of justice in England, Wales and Northern Ireland. Written by Matt Foot, the respected human rights lawyer at the English miscarriage of justice charity Appeal, it reminds us of the CCRC’s repeated failings in the Andy Malkinson case. More than that, however, it shines light on the structural weaknesses behind the CCRC’s failure, over many years, to do the job for which it was created. Matt Foot’s article can be found HERE, and is re-published below.
Matt’s criticism of the CCRC can be summarised thus: Failure to investigate alleged miscarriages of justice, and failure to refer cases that should be referred.
The CCRC has no role in Scotland, where we have our own version, the Scottish Criminal Cases Review Commission (“SCCRC”). Created shortly after the CCRC, and with broadly similar rules of engagement, the SCCRC has certainly avoided the scrutiny, and the serious criticism, that has been the lot of its English counterpart. Is this justified? Judge for yourself from two of our most recent cases:
Case 1 –
Our client was convicted of a number of serious offences, including rape and assault. He maintains his innocence of each. In our application to the SCCRC, on his behalf, we offered evidence in support of the allegation that police officers, in the course of their investigation, suppressed and falsified evidence. An investigation into this was undertaken by the Police Investigations and Review Commissioner (“PIRC”), on the instructions of the Crown Office. That investigation, as the SCCRC well knows, is ongoing. Our client’s application to the SCCRC has nevertheless been declined. The SCCRC explains its position thus:
“The Commission recognises that the allegations which it understands to be under investigation by PIRC, under the direction of the Crown, are serious in nature. The Commission understands the investigation into these matters is ongoing. The concealment of evidence by police officers is, of course, improper, and may be found to be criminal. However, taking the applicant’s submissions at their highest, the Commission does not consider that the conduct of the police undermined the Crown’s ability to prosecute the case against the applicant in the public interest”.
Keep in mind, please, that when issuing this explanation, the SCCRC did not know what the “conduct of the police” actually was. PIRC has yet to report. But whatever that conduct may prove to have been, it apparently doesn’t matter to the SCCRC.
Case 2 –
Our client was convicted, in 1978, of one charge of rape, and two of assault with intent to rape. He served a sentence of six years’ imprisonment. He has maintained his innocence throughout the intervening 47 years. The offences of which he was convicted were alleged to be significantly similar in methodology, and committed within a narrow geographical area within the city in question. Whilst in prison awaiting trial, the applicant heard prison gossip that, whilst he was incarcerated, three further assaults of a similar nature had been carried out with the same methodology, in the same area. This was in fact true; the police and the Crown were aware of this in advance of our client’s trial – indeed the other suspect had been charged prior to the commencement of our client’s trial. This information was not, however, disclosed to our client’s defence lawyers. The other suspect was, in the event, convicted of one rape and one assault, with the third charge found not proven. The SCCRC response to the non-disclosure issue was relatively straightforward. It was satisfied that the fact and circumstances of the other suspect were not disclosed by the Crown to the defence. Further, it was satisfied that these should have been disclosed. The remaining hurdle to be cleared was whether there was, in the Commission’s view, a “real possibility that the jury would have arrived at a different verdict if the undisclosed information had been before it”. A possibility, not a certainty, nor even a probability.
The Commission decided that, despite its not having, in its own words, “detailed information about the evidence (that was) before the jury at the trial”, there was no such possibility. I beg to differ.
In each of these cases, the convoluted intellectual process of formulating and presenting a reason to sustain a default position of “no” would be impressive, were it not so completely depressing. The counting of angels dancing on the heads of pins appears to be the only object of the exercise. Certainly the rate of referral of cases by the SCCRC to the court is so lamentable that it cannot be a significant factor in the Commission’s true purpose – whatever that may be. I struggle to believe that when the SCCRC was created it was intended that the relationship between it and the individual requesting its support was to be adversarial in nature – such as that between prosecution and defence in a trial. And yet that is what we have come to – a contest between the applicant seeking to challenge a conviction, and the SCCRC seeking to preserve it. What was to be a gateway to the Appeal Court has become, in reality, a gatekeeper for the Appeal Court. What’s particularly sad about this is that while the whole absurd process plays out, real people’s lives are blighted and destroyed by a system that has hijacked their suffering as the object, simply, of its own posturing. They aren’t even recognised as casualties. Collateral damage, perhaps.
Ask Andy Malkinson how that feels.
The Matt Foot article:
Thirty years ago, the passing of the Criminal Appeal Act led to the foundation of the Criminal Cases Review Commission (CCRC), a publicly funded body intended to investigate miscarriages of justice and with the power to refer cases back to the Court of Appeal. It was set up after a series of spectacular miscarriages were very belatedly righted. On 19 October 1989 the Guildford Four had walked out of the Old Bailey to a jubilant crowd. ‘I have been in prison for fifteen years for something I didn’t do,’ Gerry Conlon shouted at the cameras. ‘For something I didn’t know anything about. I am a totally innocent man. I watched my father die in a British prison for something he didn’t do. He is innocent, the Maguires are innocent. Let’s hope the Birmingham Six are freed.’ On 14 March 1991 the Birmingham Six were freed. This time someone had placed a large microphone in the middle of the street outside the Old Bailey, which was again sitting as the Court of Appeal. ‘For sixteen and a half years we have been used as political scapegoats,’ Paddy Hill said (Hill died last month, aged 81). ‘The police told us from the start they knew we hadn’t done it … Justice? I don’t think those people in there have got the intelligence nor the honesty to spell the word never mind dispense it. They’re rotten.’
Hill’s rancour was directed particularly at the Master of the Rolls, Lord Denning, who in 1980 had ruled against the Birmingham Six’s civil action for assault against West Midlands Police, which essentially implicated the officers in perjury. Denning considered this ‘such an appalling vista that every sensible person in the land would say: it cannot be right these actions should go any further’. Royal Commissions, ad hoc inquiries into a defined issue, were not in fashion at the time. The last one had been held fourteen years earlier. But the Conservative home secretary, Kenneth Baker, announced on the day of the Birmingham Six’s release that a Royal Commission would look into the criminal justice system.
Led by W.G. Runciman, a sociologist and hereditary peer, the Royal Commission on Criminal Justice published its findings in July 1993 and proposed important reforms, including a new authority to deal with miscarriages of justice. It noted the criticism of the Home Office made by Sir John May, who led an inquiry into the cases of the Guildford Four and also the Maguire Seven, whose convictions were quashed in June 1991. May wrote that the Home Office’s ‘approach … was throughout reactive, it was never thought proper for the department to become proactive’.
Appeal lawyers had battled for years with C3, a small department in the Home Office, which had the power to refer cases back to the Court of Appeal. The Irish cases highlighted the constant refusals and delays by the Home Office, which feared that a successful appeal might lead to criticism of the police, prosecution and judiciary, and of the Home Office itself. The new CCRC was independent of the government, free to investigate without political interference. It would have sixty staff, the then home secretary, Michael Howard, announced in 1995, ‘about three times the number currently engaged in such work’, who would ‘reflect the broad mix of legal, investigative and administrative skills and experience needed’. It would have twelve commissioners, three of whom had to sign off on the decision to refer a case to the Court of Appeal. Among the first commissioners were David Jessel, who presented the TV series Trial and Error, whose investigations had helped overturn numerous cases, and the forensic psychiatrist James MacKeith, who provided expert evidence for the defence for the Guildford Four and Birmingham Six. Miscarriages would no doubt still occur, but now at least there was a proper mechanism to identify and reverse them.
In July 2023 another man made a speech outside the Court of Appeal. Andrew Malkinson had spent seventeen years in prison for rape, and his conviction had just been overturned. Like Gerry Conlon and Paddy Hill, he berated those responsible: ‘Since I was arrested in 2003, the police, the prison system and probation service have been calling me a liar, because I denied that I committed the crime. I am not a liar. I am not in denial, but I will tell you who is. Greater Manchester Police are liars, and they are in denial.’ The CCRC was responsible for the refusals to investigate Malkinson’s case. He said outside the court that ‘I applied to the Criminal Cases Review Commission, which is supposed to investigate miscarriages of justice, and told them I was innocent. They didn’t investigate and they didn’t believe me.’ Greater Manchester Police and the Crown Prosecution Service apologised immediately after the judgment. The CCRC refused to do so. Worse still, it claimed credit for the quashing of Malkinson’s conviction.
Three separate inquiries were ordered into the case. The first to report was a review by an external barrister, Chris Henley, a former chair of the Criminal Bar Association, commissioned by the CCRC. On its publication, a year after Malkinson’s release, the organisation finally apologised. Henley found that the CCRC could have spared Malkinson a decade of imprisonment if it had not ‘missed’ the opportunity to send his case back to the Court of Appeal in 2009, when DNA evidence showed ‘he might be innocent.’ ‘In my view,’ Henley wrote, ‘if the jury had heard that there was unaccounted-for male DNA in that specific location on the [victim’s] vest top, that it was not Mr Malkinson’s DNA and that all attempts at elimination had proved unsuccessful, this might have made a difference to the jury’s verdict. This is not a difficult conclusion to reach.’ Henley claimed that the CCRC repeatedly failed to apply the correct test in considering fresh evidence: what would the jury make of it? There was none of Malkinson’s DNA on the victim, but there was DNA from another man: this evidence clearly could have changed the jury’s verdict, yet the CCRC dismissed it.
Henley also criticised the CCRC’s attempt to take credit for work that had been carried out by the investigator James Burley, the solicitor Emily Bolton and Malkinson’s team at the small legal charity Appeal (where I work). Appeal had to bring judicial review proceedings against Greater Manchester Police twice in order to obtain police documents that proved crucial, evidence that the CCRC could simply have requested. Appeal also carried out the DNA work the CCRC had refused to do.
The failure of the CCRC in Malkinson’s case was not a one-off. Ten years earlier, Victor Nealon was exonerated after spending seventeen years in prison for attempted rape, after DNA belonging to someone else was found on the victim. Nealon had applied to the CCRC twice, in 2001 and 2003, but was rejected both times. In both applications, he had asked for DNA testing to be commissioned, but the CCRC refused, dismissing it as ‘speculative’. After Nealon’s conviction was quashed, the then chair, Richard Foster, apologised and promised the CCRC would do everything it could to prevent anything similar from happening in the future.
In 2010, Bob Woffinden wrote in the Guardian 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 Justice Committee recommended in 2015 that the CCRC should be ‘less cautious’ in referring cases to the Court of Appeal. This seems to have had the opposite effect. In 2016-17 its referral rate fell below 1 per cent, remaining at that level in 2018-19 (the long-term average was about 3.3 per cent). The current chair, Helen Pitcher, decided to make a virtue of this, claiming that sending cases back to the Court of Appeal was ‘not the be-all and end-all’. In 2019 the All Party Parliamentary Group on Miscarriages of Justice established a commission to investigate the organisation’s capacity to recognise miscarriages. Its report, published in March 2021, urged ‘the CCRC to be bolder in applying the current test and to adopt a broader interpretation of its power to refer cases in exceptional circumstances where there has not been an appeal’.
On 18 July last year the newly appointed Labour justice secretary, Shabana Mahmood, announced that the Henley report showed that Pitcher was ‘unfit to fulfil her duties’. Pitcher didn’t agree: ‘I have been credited by the MoJ for substantially turning the CCRC round … I honestly believe I am the best person to take this forward for as long as I have the opportunity to do so.’ We are now in a perverse position. The CCRC is an independent body so, unless Pitcher resigns, only the king can remove her from her post, if a panel recommends it. We still await the convening of this panel, which will have three members, one from the CCRC, one from the Ministry of Justice and one ‘independent’ – though how they are selected is anyone’s guess.
One of the key participants in the parliamentary debates in 1995 was the then Labour MP for Sunderland South, Chris Mullin. As a journalist at Tribune, he had campaigned since 1975 for the release of the Birmingham Six and his recently reissued book Error of Judgment, published five years before their release, did more than anything else to help their campaign. ‘Those who serve on the commission will need to be from a slightly different school from some of the people who serve on other quangos,’ Mullin said. ‘I am putting that point as generously as possible. In particular, there will need to be among the eleven [commissioners] – and, indeed, among the staff whom they employ – people with a track record of scepticism towards the official version of events.’ One of his suggestions was Jessel.
More recently, Mullin’s selection prerequisites have been ignored. Foster, chair of the CCRC until 2018, was a career civil servant whose previous job was as chief executive of the CPS. Pitcher is a non-executive director of United Biscuits, runs a property business in Montenegro (that’s where she was when Malkinson was released) and seems to see her chief skill as knowing how to run board meetings: she’s the chair of a company called Advanced Boardroom Excellence and tends to put that first when listing her many jobs. The CCRC, in other words, is now led by people who have no record of ‘scepticism towards the official version of events’. A video on its website asserts it is ‘independent of the police, courts and prosecution’, but another of Pitcher’s many roles is as chair of the Judicial Appointments Commission. Mullin said in 1995 that ‘there is a danger’ that if the CCRC ‘becomes trapped in the narrow approach that C3 and the Court of Appeal have adopted in the past it will become discredited, and we shall all be back where we started’. It’s hard not to feel that has happened.
