Campaigners and the Commission
The CCRC is not the body we campaigned for. It never was. Most of us who, in the eighties, were concerned with miscarriages of justice had a vision of an independent Court of Last Resort, which could cut through the intransigence shown by the Court of Appeal in cases such as the Birmingham Six and the murder of Carl Bridgewater.
That didn’t happen. Parliament, instead, came up with a formula whereby the CCRC had the power to send a conviction back to the Court of Appeal, while the Court alone had the power to quash it. The linkage lay in the 1995 statute’s provision that the CCRC could refer only when there was a ‘real possibility’ that the Court would quash the conviction.
‘Real possibility’ was the wicked fairy at the christening of the CCRC, and the more sensible critics of the Commission usually end up identifying this baptismal curse as its principal problem, rather than any institutional cowardice, sloth or mutton-headedness. It was a political compromise with a judiciary jealous of their own rights and suspicious of a bunch of amateurs in Birmingham set up to mark their homework.
It would be quixotic – and no service to the CCRC’s applicants - to send up cases where there was no real possibility of a successful outcome. It would be idle, too, to base appeals on a mere belief in innocence, based on the same ‘evidence of innocence’ which a trial jury found implausible – the route apparently favoured by some Innocence projects. But the CCRC’s obligation to second guess the Court of Appeal inevitably puts its judgments at an extra remove from justice and truth, and holds its applicants hostage to the vagaries of a court whose very failings were largely responsible for the crisis that brought forth the CCRC.
The issue of Shaken Baby Syndrome is a case in point. A recent shoulder-shrugging Appeal Court judgment ducked the issue, making it harder for the CCRC to refer such cases in the future. But campaigners know that only constant pressure and sustained challenge forces the court to adapt. The present formula conspires against the need to keep hammering on the door of the Court of Appeal in cases such as Anthony Stock or Eddie Gilfoyle, where the whole landscape of the original prosecution has changed beyond recognition.
The CCRC as a creature of statute presents another problem for campaigners. Concern with miscarriages of justice is an obsessive pursuit. Ludovic Kennedy, Paul Foot, Peter Hill, Tom Sargent, Bob Woffinden and both the Duncan Campbells – these are people whose passion, commitment and anger I recognise. I hope I used to have some of it myself. The creation of the CCRC, however, was seen as the nationalisation of zeal, the taking of fervour into public ownership. There are passionate and committed people at the Commission; but right from the start, the CCRC made it clear that it was not a campaigning organisation. It was a system, a mechanism – and it’s hard to detect the heartbeat in a machine.
That’s perhaps why the CCRC is widely – and unfairly - seen as the institutional villain of the piece, just as in our day we identified the police and the judges as the Forces of Evil. Campaigners need a bit of hate. The CCRC didn’t help itself by maintaining on its website that it was not concerned with guilt or innocence but with the safety of convictions, mistakenly assuming that it would be obvious to anyone with an IQ greater than that of a coral sponge that the conviction of an innocent person is by definition unsafe.
The CCRC’s role as the central clearing house of miscarriages further alienates it from more familiar champions of justice. Most campaigns are based on individual cases – Susan May’s, for instance, or Jeremy Bamber’s. As campaigners we didn’t always agree on the merits of each other’s cases – but everyone can cheerfully unite to excoriate the CCRC when it knocks both cases back.
The CCRC rejects 96% of its cases. Just as Dickens’ optimistic Mr Micawber would ‘just wait for something to turn up’, the CCRC was always doomed to be caricatured as a grim institution just waiting for someone to turn down. Internally, too, there’s the danger of miscarriage fatigue when the umpteenth no-hoper of the month thuds onto your desk. Sometimes it can feel as if you began with a concern for asylum seekers, and ended up as an immigration officer. It always struck me as strange, coming from the trebles-all-round world of the telly, that successful referrals were not celebrated in any corporate sense at the CCRC; the management view is that to do so would undervalue the efforts of those whose work tirelessly in producing non-referrals.
Against a background of year-on-year cuts (and heaven knows what fresh hell the Spending Review will bring with it) the pressure for more efficient case closure will intensify. Already, an early exercise in forensic triage rejects roughly half of the intake at an early stage. There’s a perfectly respectable utilitarian justification for heroically scything through what appear to be unpromising applications – it clears the decks for the more deserving cases. But Solomon and Stakhanov do not make easy bedfellows. In all honesty, these early rejects can’t be described as having had the benefit of a thorough review, or any meaningful review at all. Often the applicant’s letter alone forms the basis for rejection, on the grounds that he hasn’t appealed, or that he has furnished no plausible grounds to justify a review. But the innocent applicant often doesn’t know what grounds he can plead – he won’t know that his accuser is a serial liar, for instance – or has obediently followed his barrister’s advice that there’s no prospect of a successful appeal. We know that this can be an inconsistent process, because the occasional reject has re-applied, and has had his case successfully referred.
Managing the mountain of applications has led to a preoccupation with process, targets and performance indicators. But following the trail of a possible miscarriage of justice is an innately inefficient exercise, wandering down unpromising forensic avenues and refusing to take no for an answer. When case closure is one of the criteria in assessing staff performance, where’s the incentive to go the extra mile? Do the very processes necessity has forced on the Commission dampen, dissipate and diminish the passion to identify the wrongly convicted?
A candid reappraisal of what the Commission can and cannot do is overdue – before the CCRC’s enemies seize their opportunity furnished by economics and ideology.
For example, can the CCRC continue to be the universal safety net of criminal justice? Should access to the Commission be restricted to those cases which meet strict public interest criteria, set by Parliament, rather than the Commission? These might include the exclusion of people who are no longer alive, cases which involve minor or even non-custodial sentences, or applicants appealing on the grounds that their five previous offences have no bearing on their sixth. I could argue against all or any of these exclusions, but I’d rather the CCRC concentrated its resources on a nurse wrongly accused of attempted murder, or an elderly music teacher maliciously charged with sexually abusing a pupil, than in seeking to identify irregularities in the latest conviction of a serial drug dealer, or taking up the cause of a prisoner who has never shown any inclination to take it up himself.
The CCRC could abandon its ambition drastically to shorten its waiting lists. We all know about justice delayed being justice denied, but the backlog is the result of matters outside the Commission’s control – its applicants and its funded resources. If the price of thoroughness is delay, the Commission should not have to choose between doing its job right or doing it quickly.
The cab rank principle should also be reassessed; high-profile cases (Sally Clark, Barry George) don’t achieve that status by accident. Cases where positive and credible new work has been achieved by students, journalists, campaigners or other interested parties should be prioritised – a huge and quick win to re-involve the CCRC with the constituency of campaigning concern.
Priority should also be given to cases where the application is based on quickly verifiable grounds, such as the revelation of previous dishonesty by the police, witnesses or complainants, or developments in forensic science.
Applications based on points of law should be hived off to a separate specialist secretariat; the CCRC was not put on earth to pick over deficient judicial directions over inferences from the accused’s silence at interview. Resources should be channelled more to knocking on doors, less to anatomising precedents.
These modest proposals would go some way to rescue the Commission from the burdens which stifle its true mission, impart an honest transparency to its workings, and help it to reconnect with, and maybe refresh public concerns with miscarriages of justice. It would mean that the CCRC spent more of its time on investigating troubling cases, and less in processing the cases of those who have been safely convicted. And why not scrap the ‘real possibility’ formula and take a lesson from the Scottish Commission, who refer on the basis of a belief that a miscarriage of justice has occurred, and that it is in the public interest to send it back to the court? In the name of independence and accountability, a body set up to identify miscarriages of justice should do what it says on the tin - refer cases where it thinks justice has miscarried.
The CCRC could, of course, go on as it is. But it runs the risk of becoming a shadow of what it was set up to be. The CCRC is an inherently good thing, and better than anything else on offer. But it will need help – and the candid advice of campaigners – to survive, and to justify its survival.
© DAVID JESSEL 2011
© David Jessel 2011