The Andy Malkinson case is showing remarkable resilience in terms of its ability to hold the interest of the media. This type of story would normally last one news cycle or, perhaps, two – a matter of hours. It is deeply gratifying to see the continued and widespread press examination of this case, a month after Mr Malkinson was exonerated by the Court of Appeal. It is similarly gratifying to note the apparent official contrition over the catalogue of systemic failures in this case and, now, the announcement of an independent inquiry as to what went wrong, and why. Can we dare to hope that there is a genuine wish, on the part of government, to address these long-standing failings? To address, in particular, the complete failure of the system, as a whole, to provide the promised protections against the conviction and imprisonment of a wholly innocent man?
Much of the media scrutiny has focused on the actions, or more accurately the inaction, of the Criminal Cases Review Commission (CCRC). It is suggested that the CCRC had, but missed, two opportunities to serve its appointed purpose in this case. The view, widely expressed, is that the miscarriage of justice watchdog is simply unfit for purpose. It doesn’t do the job we rely on it to do.
Here at MOJO we have many clients who recognise, and share, that view.
Today, the Guardian offers an interesting insight into the workings of the CCRC. The article is reproduced below:
Ever since Andrew Malkinson was exonerated last month, the clamour for answers from the miscarriages of justice watchdog who twice failed to refer his case for appeal has grown.
Yet Helen Pitcher, the chair of the Criminal Cases Review Commission (CCRC), has been notably silent in answering questions about the chances it missed to end the 17 years Malkinson spent in prison for a rape he did not commit.
The Guardian can reveal that Pitcher has been in Montenegro, where she is promoting her property business.
Pitcher’s LinkedIn page provided a clue to her whereabouts. On the day the Guardian revealed serious concerns about the CCRC’s handling of the case – and Malkinson renewed calls for her to apologise – there was no word from Pitcher. But she did appear in a photograph barefoot by a boat outside a mussels bar in Montenegro to promote her holiday home business.
Under the caption “having an amazing time at Milos Mussels bar”, the image was uploaded by the company she co-directs, Perast Paradise Properties, to LinkedIn and Instagram on 15 August. A further comment beneath the picture from Pitcher’s own LinkedIn account read: “Fabulous place and Milo’s a great host.”
A spokesperson for the CCRC said Pitcher was on a lunch break while working remotely from Montenegro that day and that she did not manage her own social media. They would not comment on whether she was still in Montenegro.
Pitcher said: “The CCRC is a remote-working organisation, and I sometimes work from a property I own abroad.”
The Montenegro property directorship is just one of the eight jobs Pitcher holds in addition to chairing the CCRC. She also chairs the judicial appointments commission and has roles at a charity, a business consultancy and a membership network for chairs of public bodies. She is also a non-executive director of United Biscuits.
The photograph has intensified questions about her leadership at a time of crisis for an organisation that is the only gateway back to the court of appeal for those wrongly convicted.
When a full inquiry into the justice system’s handling of Malkinson’s case was announced on Thursday, Pitcher called it “an appalling miscarriage of justice” in a statement supporting the announcement. But she has still given no interviews about the case or the concerns it raises about her organisation. A petition calling for her to apologise now has more than 150,000 signatures.
Dr Hannah Quirk, a former CCRC case review manager who is now an academic specialising in miscarriages of justice, said the publicly shared photograph was “highly insensitive and illustrates why this role requires someone who is able to give their full attention to steering the commission out of this crisis”.
After the Guardian showed Malkinson the photograph, he said: “If the chair of the CCRC was enjoying mussels and a boat trip in Montenegro while refusing to be interviewed about the CCRC’s mishandling of my case, well that says it all. Do her staff find that acceptable?”
Malkinson added: “The CCRC’s current leadership is simply not serious about wrongful convictions. I hope an inquiry will look at the CCRC chair’s decision not to offer me an apology, despite her organisation’s failings costing me an extra decade in prison for a crime I did not commit.”
The CCRC said Pitcher is unable to give interviews until after a barrister-led review into its handling of Malkinson’s case because she does not want to pre-judge it. However, the review was announced more than three weeks after Malkinson was exonerated and the interview requests first started piling in.
Since Malkinson’s appeal hearing, Pitcher’s LinkedIn account has featured 13 posts relating to her Montenegro property business. This includes one the day after Malkinson’s hearing, when he was asking for an apology. The post shared by her account features a picture of turquoise sea and the words: “What do you get by staying at our properties? PEACE”. Pitcher’s account also featured three posts from a charity she chairs in that time, but nothing in relation to the CCRC or justice matters.
Pitcher’s time commitment of “up to 10 days a month” has been questioned by some, given that she is the public face of the CCRC and provides overall leadership for an important body. The first chair, Frederick Crawford, was appointed on a three-day week basis and “frequently worked a further day” according to a former commissioner. The CCRC said that Pitcher worked 40% more than her contracted hours in the last year.
Since January 2022 all CCRC staff work remotely, something that has been questioned by former commissioners, who say that you need to foster a collective spirit to investigate miscarriages of justice.
Legal experts are concerned that the CCRC is now too timid and does not refer enough cases for appeal. It referred just 1.7% of cases back to the court of appeal in the year to March. This marks a significant fall from its early days – from its inception in 1999 to 2016 – when the overall proportion of cases referred was 3.4%.
When the CCRC was founded after notorious miscarriages of justice such as the Birmingham Six, many hoped its independence and statutory powers to investigate would herald a new era.
Yet experts say a drive to identify and overturn miscarriages of justice is increasingly lacking.
A Westminster commission on miscarriages of justice in 2021 flagged concerns of a “risk that a target-driven culture prioritises speed over thoroughness” which “can compromise effective investigation”, and called for increased resources. It found that the CCRC was underfunded, which, combined with an increased caseload, had “compromised the CCRC’s ability to carry out its role effectively in all cases”.
The Westminster commission also recommended that “the role of the chair and commissioners should be strengthened, and the processes for their appointment should be reviewed, given the constitutional significance of the CCRC”.
The former lord chief justice, Roger Thomas, said that warnings such as these in parliament had not been heeded. “It just seems to me that it was almost foreseeable that something like this would happen … They said things needed to be done which weren’t done and I think it’s very sad that we’ve reached this sort of state.”
Another concern is the potential conflict of interest of Pitcher also sitting as chair of the judicial appointments commission, given the CCRC’s crucial role in scrutinising judges’ decisions.
Lord Thomas said: “The commission has to be independent of the judiciary. Otherwise, the commission is always open to the perception; ‘Well, of course, you’re not investigating anything thoroughly because you believe the judicial system is alright.’”
A CCRC spokesperson said that Pitcher did not make decisions on case referrals to the appeal court and that the independent justice select committee had scrutinised and endorsed her appointment.
Decisions on referring a case back to the court of appeal are made by about 10 senior staff called commissioners. The role used to carry a salary, holiday pay and pension but since 2017 has been on a fee basis, typically working as little as one day a week remotely. Former insiders said commissioners used to play a much closer role in scrutinising potential miscarriages of justice.
Ewen Smith, who was a commissioner the decade before the changes came in, said there had been a constant struggle to squeeze funds and that he was very concerned that some commissioners are now “rarely in the office and work just a few days a month”.
In its annual report, the CCRC said the level of pay and fees it can offer meant that it struggles to fill vacancies and was operating 20% below its requirements of case review managers and commissioners, putting a strain “on an already stretched team”.
Thomas was one of several people – including Pitcher herself – concerned about a lack of funding for the organisation. While Pitcher said its “small budget” was increased by 15% to £8.4m for this year, she added that it had seen an almost 30% increase in applicants in recent months.
Thomas said: “I believe the root cause of this problem is resource. Having spoken to the commissioners on and off over the years, I don’t believe there is one of them who isn’t actually keen on investigating miscarriages of justice, but they were constrained by the available resources.
“Getting stuff out of the police, reading the files, getting extra scientific evidence – I mean, this doesn’t come cheap.””
The CCRC trumpeted an increase in the number of cases it completed last year as indicative of its increasing efficiency. But for Emily Bolton, Malkinson’s lawyer at the charity Appeal, the promotion of this figure is itself concerning. “Missing a miscarriage of justice – as they did twice in Andy’s case – should be the CCRC’s top concern.
She added: “Last year the CCRC rejected over 98% of the cases it ‘completed’. Andy was twice in that rejected cohort in previous years, so how can the public be confident that the CCRC has not refused justice to other innocent people?”
Quirk is one of many experts concerned that the organisation has lost its way but believes it is “immeasurably better than the alternative of this work being done by the Ministry of Justice or dependent on charities”.
Pitcher said: “Our board includes non-executive officials who do not carry out casework but provide rigorous scrutiny and oversight of the organisation. The CCRC has a highly committed team of full-time case review managers based all over the UK. Referral decisions are made by our independent commissioners.”