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 judgement and productivity, 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. 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 can lead 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.
...and the details of that candid reappraisal. if you don’t mind, I’ll keep back until the publication of this article in Jon Robins’ collection of essays on the future of the CCRC.
© David Jessel 2011