A group of prominent lawyers claim the official body responsible for investigating alleged miscarriages of justice is not fit for purpose.
The lawyers have accused the Criminal Cases Review Commission, which decides whether alleged miscarriages of justice should be referred to the court of appeal, of systemic failures.
Amid concerns that the referral rate has dropped significantly since the CCRC was established, the Guardian has been given exclusive access to a survey of the lawyers’ experience of the body’s investigations into 33 alleged miscarriages of justice.
The results suggest lawyers see a common pattern of failings such as not interviewing witnesses, not understanding the significance of non-disclosure, not visiting the scene, and a misunderstanding of key points of law.
“The CCRC has become an office-bound, moribund organisation,” said Matt Foot, of Birnberg Peirce. “The people employed there are not qualified to do what they’re doing, and often don’t understand the law. It’s become a different organisation to what it was set up as. The biggest problem is that it doesn’t actually investigate.”
The CCRC, which began its work in 1997, has about 600 cases under review at any one time. It has the power to refer cases in England, Wales and Northern Ireland back to the court of appeal. It can only do so, however, if it concludes there is a real possibility that the court would quash the conviction.
The survey, which follows the launch of an all-party parliamentary group last November to highlight miscarriages of justice, has been submitted as part of a response document to the Ministry of Justice triennial review of the CCRC. Signatories to the response include Birnberg Peirce, the Cardiff University Innocence Project and the Centre for Criminal Appeals, a charity working with alleged miscarriage cases.
The body will face further pressure on Wednesday when a BBC documentary will disclose internal board meeting minutes that its says show the organisation is struggling with its workload.
The minutes, obtained by the Centre for Criminal Appeals, show that case review managers have to cope with “large, sometimes unworkable portfolios”, typically managing 24 cases at any one time.
The CCRC, which has an annual budget of about £5m, told the BBC’s Panorama programme: “The board [minutes] show … we share our concerns within the organisation and take them seriously. Our workload has increased in recent years and budgets have not.”
Sir Anthony Hooper, who retired in 2012 after eight years on the court of appeal, told Panorama that the CCRC has been compelled to become more cautious because the court itself was increasingly resistant to legal challenges.
“It’s become much more difficult for an appellant to succeed … and therefore that will no doubt influence [the CCRC] on what cases that they send through,” Hooper said. Asked if he was believed the bar currently set by the court of appeal was wrong, he said: “I’m saying that.”
The lawyers’ survey states that a record low of 0.77% of cases seen by the CCRC were referred back to the court of appeal in 2016-17. “Almost all the cases being prepared by professionals working in this field are being refused,” said Foot.
The CCRC was established after a royal commission on criminal justice report in 1993 examined a series of high-profile wrongful convictions, including those of the Guildford Four and Birmingham Six. The RCCJ report concluded that the Home Office was not sufficiently independent to investigate miscarriages of justice, so the new statutory body was set up. But the current rate of referrals is far lower than when the Home Office was responsible for miscarriages of justice.
Dennis Eady, a case consultant for the Cardiff University Innocence Project, said so few cases were referred back to the appeal court because the CCRC’s remit was too narrow. The CCRC will only refer cases on a legal technicality or when when there is significant new evidence.
“That remit has been treated increasingly conservatively,” Eady said. “Sometimes there are clear miscarriages of justice but it’s very hard to get new evidence. Under the current system there is almost nothing you can do in those cases.” The RCCJ report initially proposed that cases could be referred back to the court of appeal if there was any doubt over the safety of a conviction.
The lawyers’ document calls for the threshold of new evidence to be changed. “The statutory test therefore must be changed in line with that suggested by [the Ministry of] Justice and the RCCJ in 1993 as a first step to reform, ie a test that requires the CCRC and the court of appeal to consider holistically whether a miscarriage of justice may have occurred for whatever reason.”
The document argues that the current referral rate of 0.77%, down from an average of 3.3%, is partly due to a shortage of funds and suitably qualified staff. “The CCRC is currently not fit for purpose, due to resourcing and skills limitations that lead to outright investigation failures, internal cultural problems and an inapposite legal test that it must apply,” it states.
The survey results suggest that in 81% of cases seen by the lawyers who responded, the CCRC failed to obtain the documentation it would need from the police or others to assess whether evidence had been hidden. In 69% of cases it failed to interview potentially significant witnesses, and in 48% of cases it failed to understand relevant law, the lawyers said.
The CCRC declined to comment on the survey’s findings.