SPEECH TO INUK SEMINAR ON THE CCRC MARCH 30 2012
I rather reluctantly accepted Michael Naughton’s invitation to address an INUK conference on reform of the CCRC in London on March 30. Reluctantly, because INUK’s agenda seems to be less concerned with finding evidence to free the wrongly convicted than with bashing the CCRC - a dreadful diversion of zeal, which can only delight the enemies of justice. Anyway, this is what I had to say….
What I hope to do in the next twenty minutes or so is examine what I believe is the key problem with the CCRC and the CACD – and that’s the statutory terms of the relationship between them. I think that unlocking that nexus is possible, practical and desirable – even though it means agreeing with Michael Naughton. At the same time, I want to look at the critical importance of investigation, and why I believe that reaffirming the CCRC’s investigatory role - along with that change in the statutory test - could satisfy some of the current criticisms. The hoped-for outcome is to reunite the constituency of concern about miscarriages of justice, CCRC, individual campaigns, national innocence networks - which at present is divided, suspicious, resentful and racked with internecine feuding, much to the delight of those who are indifferent to injustice .
I think it’s sensible to start by defining what’s capable of reform and what’s not. The CACD is the sole and exclusive body for determining criminal appeals. And it always will be. It’s not what I had in mind – I thought in terms of some supra-judicial body on the lines of Edgar Wallace’s the Four Just Men, though I hope I was reconstructed enough to allow that half of them would be women. It didn’t happen. Runciman ruled that out. I was at a dinner with the former LCJ Lord Bingham some years ago who hailed the 1995 Act which set up the CCRC as a masterstroke of genius, the ultimate judicial compromesso storico, in that it preserved the independence and sovereignty of the CACD.
You cannot overestimate just how hard it was for the higher judiciary to swallow the idea of a bunch of hicks up at the other end of the MI marking their homework. They were unchastened by the revelations of their institutional shortcomings. They thought – they still think - people had been terribly unfair to Lord Lane. They murmured, disgracefully, at High Tables that the so-called miscarriages of justice in Irish cases were no such thing. They murmur it still. That darling of the law, Lord Denning, blurted out what many of his brethren were actually thinking when he said that if the Birmingham Six had been hanged, there would have been a salutory finality to the whole business.
They really did believe that it is healthier to have finality in the law. Denning, again, in refusing the Birmingham Six appeal – “just consider the course of events if their action were to proceed to trial ... If the six men failed it would mean that much time and money and worry would have been expended by many people to no good purpose. If they won, it would mean that the police were guilty of perjury; that they were guilty of violence and threats; that the confessions were involuntary and improperly admitted in evidence; and that the convictions were erroneous. ... That was such an appalling vista that every sensible person would say, “It cannot be right that these actions should go any further.”
They didn’t think there was any problem, except perhaps an ill-founded public hysteria. So, when they had to swallow the setting up of the CCRC, reserving their exclusive monopoly on decision making made the whole unnecessary business just about tolerable.
As we’ve heard often enough, the fact that they had the last word was cemented in by the real possibility condition.
In 1999 the judgment in Pearson, handed down by Lord Justice Rose, saw the judiciary – not, it should be noted, Parliament - defining the terms - “the ‘real possibility’ test….is imprecise” he said, and then helpfully added more precision “but (it) plainly denotes a contingency which, in the Commission’s judgment, is more than an outside chance or a bare possibility but which may be less than a probability or a likelihood or a racing certainty. The Commission must judge that there is at least a reasonable prospect of a conviction, if referred, not being upheld. …. The Commission is entrusted with the power and the duty to judge which cases cross the threshold and which do not.”
The logic of this, of course, is that if the CACD took it into its head never to quash the convictions of red-headed people, the CCRC could never refer a red-head. Pearson was proof of what I had always suspected – that the CACD would accept the CCRC, flatter it even – but they’d play the long game, and slowly reel it in.
They did it on sentence referrals pretty swiftly. Parliament had specifically included the power to send back a sentence for variation when it set up the miscarriages of justice body, the logic being, presumably, that an unjust sentence is a miscarriage of justice. But in the case of Graham the court – not Parliament, but the very Court whose failures and complacency had led to the 1995 Act - stated “a defendant sentenced lawfully, in accordance with the prevailing tariff, and when all factors relevant to sentence were known to the sentencing judge, can, in our view, hardly be described as a miscarriage of justice.” Note that apparently self-deprecating ‘in our view’: if that’s their view, it pulls the plug on unfair sentences.
And the CCRC had to accept it. No matter that an unjust sentence is clearly a miscarriage of justice – it was none of the CCRC’s business. The CCRC does still send up some sentence cases, but they are almost always based on some arithmetical irregularity and miscomputation of days spent on remand.
And as with sentences, the bar came down on whole categories of case. Historic cases –cases of huge significance to those of us are inspired by the history of judicial failure, cases like that of Derek Bentley, hanged by that terrible man Goddard, Hanratty, Timothy Evans, Ruth Ellis – the CCRC didn’t win them all, but it sent them up, until it got the clearest steer that such cases were not welcome. Maybe they’ve run out of old cases, and that’s why they don’t send them up any more. Referrals based on a subsequent change in the law are not welcome.
My red-head analogy is not so far-fetched when you take another category of cases – shaken baby cases. The impartial scientific truth about these cases is that in many cases we don’t know why some babies die. We do know that many babies die in totally unsuspicious circumstances and display, on post mortem, the same symptoms that some expert witnesses swear are diagnostic of abuse. Cases referred by the CCRC were helping to nudge the CACD towards engaging with the problem that the finest scientific witnesses say ‘we simply don’t yet know how many of these babies die’ – which is useless in an adversarial system. But the CACD soon wearied of this, and in a recent shoulder-shrugging judgment said – I paraphrase – this is all too difficult, and upheld a conviction – thus demonstrating that there is no real possibility, and therefore no real point, in the CCRC sending any such cases back. In 20 years’ time science will make us see some of these convictions in the same way we regard the burning of witches. I do not hesitate to liken this attitude to the same sanctimonious detachment as characterised the pre-Runciman CACD. They are keeping innocent people – people who have already suffered the tragedy of a child’s death – in prison because they believe the integrity of the jury must always prevail, even if its verdict is based on flawed and dogmatic science.
So there we see how the Court has used the real possibility test to transform what we thought was the role of the CCRC, which was to send up cases which we – the public, the press, the non-judiciary, the CCRC – thought were miscarriages of justice; instead, the balance has shifted to the CACD none-too-subtly instructing the CCRC only to send up cases where the court will consider a conviction to be unsafe.
And that means that a referral knocked back, is a referral dead. I once asked Lord Rose, the then Vice President of the Court, what he would do if we sent the same case back a second time; he said that that would be ‘most unwise’. This means that the CCRC is effectively denied the power that even the Home Office had – to keep sending a case back until the Court got it right…you’ll remember how it used to infuriate Lord Lane, who would become increasingly exasperated about re-referrals from the Home Office – ‘the more times this cases has come before the court, the more certain we have become that no miscarriage of justice has occurred.’ Campaigners know that it’s only by sending cases back, back again, and back again that you can shame the Court out of its occasional bouts of stubbornness – or, as one prominent barrister described it to me the other day, its intellectual dishonesty. The CCRC sent back the case of Stock after the CACD refused the referral; if it refuses again, as in the Birmingham Six or the Carl Bridgewater cases, you’ve got to have the power – and the will – to send it back again.
I’m sometimes seen as a little naïve in my belief that cases come right in the end. Maybe that’s because of my own experience in sending Cooper and McMahon up a fifth time – the Home Office were responsible for the second, third and fourth. I am sure Eddie Gilfoyle’s case will come good in the end, as will Simon Hall’s
But you can’t take no for an answer; and abiding by the real possibility rule means that there is overwhelming pressure on the CCRC to take the Court’s no for your answer.
Now, my friend and former colleague Alastair MacGregor says there’s no point in sending up cases where there’s no real possibility of the conviction being quashed, but I think that’s a false dichotomy, an advocate’s point, and a counsel of despair. It’s not a question of sending up cases with a real possibility, versus sending up cases with no real possibility; it’s a question of the CCRC saying – listen, we’ve got strong and compelling new arguments that this was a miscarriage of justice; you’ve got the last word on it – make your decision and justify it.
Could this lead to conflict with the Court of Appeal? Very probably. But I’m personally happier with a CCRC which acts a challenge to the CACD, rather than a collaborator with it.
My former colleagues at the CCRC are lawyers all, even though the 1995 Act said only that a third of them need be; some of them are as passionate for justice as any campaigner I’ve met. But the CCRC needs to stand at arms-length to the legal world. It should not be hand in hand with the system of criminal justice – or, as one distinguished and well-meaning lawyer once said, the handmaiden of the Court of Appeal. I didn’t do it enough in my time at the Commission, but you need to challenge the pervasive legalism of an organisation which was set up to challenge the assumptions of the criminal justice system and those who work in it.
I’ve heard colleagues at the CCRC say that the CCRC and the CACD have to operate on symmetrical terms, using the same test, whatever it is. I’m not sure that’s necessarily true. If, for instance, the CCRC could refer, like the Scots, on the grounds that there’s reason to fear a miscarriage of justice may have occurred, the Court could quash or uphold on any terms it liked – but, critically, it would have to answer the question of whether or not justice had miscarried.
As we know, the court takes a narrow view, paying exaggerated courtesy to the supremacy of the jury, and routinely chucks out arguments and evidence on the basis that they have already been deployed at trial or at the first appeal. So it becomes an increasingly uphill task as appeal succeeds appeal – you’ve fired your best shots, and the rules of the game say you’re not allowed to fire them again. Now, I’m often staggered at how the evidential landscape has changed since the original trial. Often you can say that had the CPS known now what we know no, the trial wouldn’t have taken place. So the CACD’s pious devotion to the supremacy of the jury verdict stands revealed as even more vacuous - there wouldn’t have been a jury verdict, because there wouldn’t have been a jury, because there wouldn’t have been a trial. I’d therefore suggest we expand any new formulation to include this very provision – if the basis of the prosecution case is now fundamentally changed from what it was at trial, a miscarriage of justice has occurred. I believe that that is the best formulation for intractable cases like Susan May’s, bogged down in the quagmire of bloodstain evidence when all around it the whole cases has changed.
We are where we are. The CACD will always demand the final say. You are not doing justice to Lord Rowntree’s money, nor to Mr Norton Rose’s hospitality, if you maintain that we are going to get a new Criminal Justice Act which overthrows or transforms that power of the CACD or makes them change their adherence the principle of convictions being safe or unsafe. And, unpopular as I will be for saying so, I am not impressed by ‘plausible claim to innocence’ as being a criterion for a successful referral. If it was, we’d release every confidence trickster.
Meanwhile, what of the CCRC. The CCRC has followed the trajectory of almost every public institution in British history. CCRC – brave new invention, probably won’t work. CCRC – actually doing rather well. CCRC - could do better. CCRC – a national scandal.
The CCRC had it good at the start. It had relatively few cases, and, as with the early Rough Justice programmes, it had some low-hanging fruit it could easily pluck. Some quick wins. Cases that had been hanging about in Home Office cupboards for years. It also had a team of Commissioners who had the zeal and curiosity of pioneers.
With success came a flood of applications which swamped the CCRC and to some extent doused its fire. You cannot do justice to 1000 new cases a year. I know what it takes for television to unpick a case – about four months of four people’s time, on average. And those were cases which we cherry-picked as being good cases where you could expect results; and we tended to steer clear of sex cases, especially those involving children – which are by far the largest category of CCRC applications, which, to my mind, represent the largest cohort of potential miscarriages of justice, and which don’t often feature in the catalogue of innocence campaigners. The CCRC can’t scrape those cases off, and indeed has had some significant successes through its access to medical records, school records, police files and so on. Few of those claiming to have been falsely accused have had success with the CCRC. But some have, some who would otherwise still be wrongfully convicted. I am sure the CCRC has missed some. I cannot yet imagine what extra powers or extra commitment would guarantee a 100% success rate. I’d be grateful for any ideas.
My prescription for the CCRC and it simply can’t go on as it is – is to get it to do less, freeing it to do what it does better.
The CCRC has huge powers to inspect material that journalists can only dream of accessing - medical records, police disciplinary records, surveillance logs, the Holmes record of every step of a police investigation into a major crime, CPS records and so on. Sometimes it finds gold in those files, which leads to a successful referral.
But I fear that those very powers – taken with the huge caseload – can, paradoxically, limit the genuine investigative process, and create the mindset that the answer lies in the files, and if the answer isn’t there you’ve done all that is possible. As I said, sometimes you do find something – like the jealous wife of a man later convicted of assaulting their daughter after the wife complained; the social services records showed her saying she’d get even with the husband one way or another, whatever it took. But 99 times out of a hundred there is nothing, and the case is closed. But who knows what a real investigation would reveal – not the interrogation of documents, but talking to friends, neighbours, victims – visiting the scene of the crime, listening to all those forensically inadmissible whispers which help paint the real picture, instead of the artificially cropped and trimmed composite which forms the evidence at trial.
In one the best successes of the CCRC, the rape case of Warren Blackwell, it was a visit to the scene which first made the case review manager say – it doesn’t make sense to commit a rape at midnight on new Year’s Eve on a public footpath on the village green. Not valid as an argument, of course, because it had been before the jury – but it was the springboard, the motive, to dig and dig deeper, until the CCRC discovered the fact that the so-called victim was a serial false accuser.
I don’t think you could have done that from a desktop review. In the same way, in the case of a man called Mark Cleary who was convicted of drowning a young child in a local reservoir, Trial and Error followed up a piece of evidence from a man who could pinpoint a child’s cry of distress at a precise time – he had a digital alarm clock – which would have put Cleary out of the picture. His evidence was dismissed because he said he heard the cry from ‘the banking’, and the judge rightly pointed out that the reservoir was too far away for the witness to have heard anything. But when we went to the witness to explain that, he opened his bedroom window and said – no, that’s the banking – the disused railway embankment that ran along the bottom of his garden and along which (as everyone agreed) the toddler had been taken to his death – at a time which proved Mark Cleary an innocent man.
Again – you wouldn’t have got that from a desktop investigation; and remember, the majority of cases at the CCRC aren’t investigated at all. They are reviewed, yes, but a review may often take the form of reading an application form and deciding – there and then - that there’s nothing in the case. Now, in most cases that’s an accurate assessment – and this ruthless triage, or filter, may be inevitable when you have 1000 cases a year. It’s also a racing certainty that by not investigating so many cases, genuine miscarriages of justice slip through. A random spot check on the screen process isn’t good enough; if two out of ten cases cause raised eyebrows among fellow commissioners, then extrapolating from that we are talking about hundreds of cases over which some might feel uncomfortable.
Even when cases do survive to receive a fuller investigation, the CCRC’s resources mean that a committee must determine which investigative avenues may be followed up, and which should be closed down. Often that’s sensible enough - ‘please check Google Earth images in case a satellite can show I wasn’t there on the day’. But any of us who have been involved in successfully investigating miscarriages of justice know that it’s by following your nose, along the unlikeliest little byways, that you stumble across the evidential treasure – like that man and the banking.
Yet, again – in all fairness to the CCRC sometimes those committees do suggest work such as commissioning new expert reports. Dr Naughton has written “in cases involving expert evidence, if an applicant is able to find additional experts post-appeal that support the defence case at trial, the CCRC will tend not to see the case as having a real possibility in the appeal courts as the arguments are not new.” That is not the case. I can think of scores of cases where new defence experts commissioned by the CCRC have produced reports which lead to successful referrals. But there is no point in getting new Expert X to repeat what defence Expert Y has said at trial. The trick is to discover Expert Z who will cast the evidence in an entirely new light – something the CCRC did in the case of Simon Hall, although sadly the CACD could not, or would not, follow the argument.
There’s always a balance in looking at a case between the analytical approach and the investigative approach. I’d claim that the shortage of funds and the mindset of the Commission has skewed that balance towards the analytical at the expense of the investigative. And it’s a lot easier to analyse a case onto the reject pile that to investigate a case onto the referral pile.
Here again, I’m perilously close to Dr Naughton – except that I’m aware that to conduct any extra investigation, or proper preliminary analysis, is going to mean a CCRC roughly triple its size. And we are where we are on that, too; there’s not a hope in hell of this government increasing the budget and staffing of the CCRC to do the job in the terms which, I suspect, would satisfy my ambitions and disarm its critics. Something has got to give. And I now believe in a pretty radical – and fairly unattractive – cutback of the CCRC’s case intake. As I’ve said before, it cannot, in all honesty, do justice to its caseload. And in this business, honesty and justice are not unimportant considerations.
You could, for instance, take out the non-custodial cases. You could take out cases based on points of law. You could take out cases where for years the applicant hasn’t expressed any claim to innocence. This would all be unfair and unjust, just as it is unfair for the NHS to ration its resources to exclude life-extending liver treatments to 66-year-old drinkers like myself. But the upside is that refining the CCRC’s intake should lead to a sharpening of its focus – and that focus must be on more rigorous investigation. And here’s where we can draw upon the full resources of organisations like INUK and other campaigners, a new infantry of investigation, knocking on those doors, taking those statements, leafing through the unused material, pestering for more research on Shaken Baby and so on; getting those stories into the papers, and onto television. That’s the way to keep the CCRC on its toes – present them with evidence achieved by digging, to spur them on to do some digging of their own, with the vast statutory powers of investigation they have.
The reform I really hope for is a return to the constituency of concern over miscarriages of justice, built not on academic handwringing about structures and protocols, but on the solid and dogged pursuit of new evidence. Sniping at the CCRC merely demoralizes an organization already pretty well demoralized by the hatred on the part of the Labour government and the indifference of the Coalition government, and by the sullen hostility of the civil service of them both. It is not fanciful to see the CCRC being quietly folded away; and believe me, you are not going to get something bigger and better in its place. Be careful about what you wish for.