CCR0039 - Evidence on Criminal Cases Review Commission

Written evidence from AF (CCR 39)

The effectiveness of the Criminal Cases Review Commission

from the point of view of an applicant whose case the Commission declined to refer back to the Court of Appeal

Introduction

By means of this submission I hope to give the Committee an insight into why an applicant, hoping his case will be properly considered by the Criminal Cases Review Commission (“CCRC”) where it was not by the Court of Appeal (“CACD”), can end up disaffected by a process that purports to identify unsafe convictions but in reality seems to have done all it could to consolidate them. I will cite my own case for two reasons: first, I have studied the full trial transcription along with the relevant legislation for 9 years, and hence have an intimate knowledge of every aspect of it; and second, it highlights many of the pitfalls that give rise to complaints that the CCRC is not fit for purpose. My submission will be made under the following headings:

1. Probabilities: referral and success in the CACD;

2. The “real possibility” test;

3. ‘Reassurance’ from a Commissioner prior to application;

4. The essence of my case and what went wrong;

5. The CCRC’s responses to my points; and their preposterous interpretations of the law and legal principles;

6. Was there an agenda?

1. Probabilities: referral and success in the CACD

1. An applicant to the CCRC may be so confident of the strength of his case that he has not considered the poor deal in statistical terms offered by the system. Each year the CCRC refers a more or less constant 3.5 percent of the cases presented to it, and approximately 70 percent of those are successful in the CACD. Thus the system overall overturns 2.5 percent of all decisions presented to the CCRC as miscarriages of justice. That amounts to a 1 in 40 chance of success. This is problematic, for the system is in effect claiming to have ‘got it right’ in 97.5 percent of cases despite the CACD judges never getting to see 96.5 percent of the cases and their arguments seen by the CCRC.

2. Moreover, the fact that the 3.5 percent CCRC rejection rate is more or less constant suggests that this figure is being ‘maintained’ (see under my heading 6 below concerning outside pressure).

3. A significant number of meritorious cases are bound to be rejected under this régime.

2. The “real possibility” test

1. This test is, by its very nature, subjective. The CCRC can use it as an excuse for rejection by simply claiming that they do not think the CACD can be persuaded to change its mind. There is no way of checking or challenging that claim. Moreover, the claim has a ‘built in’ credibility by virtue of the fact that judges are human and might indeed be slow to admit that they got it wrong.

2. In any event, a real possibility test that turns on whether the CCRC thinks recalcitrant judges will change their minds is wrong in principle, for it accepts as its premise that their decision (i.e. the decision complained about) is a hurdle that must be cleared before a case can be referred.

3. In my view the issue for the CCRC should always be whether the proceedings from arrest to conviction were fair. The only ‘hurdle’ should be whether something went wrong without which the verdict might have been different: did the prosecution mislead the jury so as to prejudice the jury’s decision; did defence counsel do anything to correct the prosecution’s misleading assertions; did the judge, when directing the jury, fail to explain the law or explain it properly; was he clear – or even correct – about what had to be proved for a guilty verdict; did he give directions that prejudiced the jury’s decision; did he fail to give crucial directions; were the directions unlawful; were fundamental principles ridden over roughshod? These are the sorts of questions the CCRC should be asking in order to determine whether the proceedings were fair.

4. And it needs to look at cases with a fresh pair of eyes and from a position of neutrality, without reference to the decision complained about or what the CACD or any other body might think. Only then can it assess cases with true independence.

5. I believe that state of affairs might be achieved by replacing the real possibility test with a miscarriage of justice test. Of course it could result in more referrals (commensurate with the likely true number of miscarriages), but I think it could be self-limiting in that judges and counsel will be more concerned to avoid appeals in the first place by taking care to act professionally and with honour.

3. ‘Reassurance’ from a Commissioner prior to application

1. Prior to applying to the CCRC I spoke to a Commissioner, as I was concerned as a lay person without legal training about putting legal arguments to the CCRC. The Commissioner reassured me that even if I had “half an argument”, the CCRC would do its utmost to see if it might form the basis of a ground of appeal. I felt this was the ethos of the CCRC – not a guarantee of referral of course, but a genuine effort on their part to investigate whether there had in fact been a miscarriage of justice.

2. In the event, my experience was different: the CCRC employed every possible technique to evaporate my case – subjective opinion, logical fallacy, misquoting of parts of my application; and when I had cogent answers to those, the fallback of simply ignoring the point. I give examples of these rebuttals under my heading 5 (below). The CCRC dispatched my case in a matter of weeks.

4. The essence of my case and what went wrong

1. In 2006 I was convicted under section 15 of the Sexual Offences Act 2003 of meeting a child following sexual grooming etc. It is an offence of specific intent.

2. There was no evidence or allegation of sexualised activity or sexualised communication between myself and the child. The child never made any allegations of wrongdoing of any kind. In short, “sex” never entered the frame. The friendship was part of a wider friendship with the boy’s family, and it was clear from his grandmother’s evidence that she approved of the friendship and indeed encouraged it.

3. There was clear evidence of the number and chronology of the ten “meetings”.

4. There was clear evidence that one meeting, cited by the prosecution as a meeting with the child on his own, was the result of the child visiting me unexpectedly at my home. Of the remaining meetings all those cited by the prosecution were the result of many visits I made to the grandmother’s as part of my friendship with her, regardless of whether the child was visiting her at the time. The grandmother was my neighbour, our houses being about 70 metres apart. On several occasions I would join the family (sometimes including the child) on outings to eat, to the cinema, or to places of interest.

5. The child took to me, and this came out in the trial. He stated in evidence that he was upset when told he could no longer see me. There had been affection between us which he said made him feel happy and safe. The affection was mutual, open and encouraged by the family. The child was clear in his evidence that the level of affection was lower than that he enjoyed with his male relatives.

6. It was this affection which formed the basis of the prosecution case. The prosecution alleged that I “was grooming” the child and that it was my “intention throughout” to commit a sexual offence against him. The prosecution explained to the jury that the offence was grooming and that it was all about what was in my head. That explanation was incorrect.

7. The judge agreed with the prosecution’s incorrect explanation of section 15. Moreover, he failed to explain the critical issue of the specific intent required for this offence, and in fact, by the use of poor wording, suggested that no prior intent was needed. This was a serious fundamental error on the part of the judge. It is not enough merely to identify “intent” as the critical element. He should have made it clear to the jury that for section 15 A must already have the specific intent to commit a sexual offence when he embarks on a meeting. If A meets the child without that intent, section 15 is not made out. Leveson LJ in Gaviria [2010] EWCA Crim 1693 at [17] explained it thus:

“It is not enough that, during the course of a meeting, started without any such intention, A then decides to take advantage of the situation and commit an offence: the crime then will be the commission of or the attempt to commit that offence. The offence contained within s.15 is not engaged.”

8. The prosecution relied on evidence of my previous convictions for indecent assault and gross indecency towards boys slightly older than the child in the instant case, committed 1975-1988. These were offences of basic intent, being the types of offences that are unplanned and often result from an unexpected opportunity. Thus on those previous occasions I was not convicted for intent, but for the assault itself. In that respect section 15 is entirely different from the previous offences. Given that the court acknowledged that “intent” was the critical element of the offence alleged (albeit without stating what type of intent it had to be), it seems clear to me that the previous convictions should not have been admitted.

9. In Bullen [2008] EWCA Crim 4 the appellant admitted manslaughter but denied murder, the only issue being whether he had the mens rea for murder. The judge admitted his previous convictions for violence, all of which were offences of basic intent. The CACD quashed the conviction, as the issue was not whether the appellant had committed a violent act, but whether he had the specific intent for murder. The previous convictions were not relevant to that issue. The CACD noted the judge’s failure to direct on how Bullen’s previous convictions for violence could throw light on the specific intent to commit murder. As it seems to me, on the critical issue of intent, Bullen is directly analogous to my case.

10. Once my previous convictions were admitted it was incumbent on the judge to direct the jury as to how those convictions could throw light on the critical issue of intent in the instant case. But of course he was unable to give such a direction, as the previous convictions throw no light whatsoever on that issue.

11. The jury were thus left without guidance as to how to take the convictions into account; in these circumstances, and absent the necessary specific intent direction according to Leveson LJ in Gaviria (see paragraph 4.7 above), it was inevitable that they would mistakenly treat section 15 as an offence of basic intent, i.e. one in which there was no prior intent – such as the taking of an unexpected opportunity. It is therefore likely that they convicted on the basis that I was naively placing myself in situations where I was certain I would not take advantage (and therefore did not have the necessary prior intent) but because of the antecedents the jurors were less certain. The specific intent direction would have warned them that such a scenario would not be sufficient for section 15 and indeed would not amount to any offence; even if an assault were to ensue, section 15 would not be engaged: the crime then would be the assault itself.

12. The foregoing argument is supported by the express exclusion of section 15 from the categories in the Categories of Offences Order No. 3346 pursuant to section 103(4)(b) of the Criminal Justice Act 2003 (see paragraph 5.2.4 below).

13. The argument in paragraphs 4.7-4.12 (above), all by itself, renders my conviction unsafe. But there were other serious malpractices that would have directly propelled the jury’s verdict towards one of guilty. I list below the main malpractices:

1. the Crown misquoting the evidence of its own witness, enabling the prosecutor to claim falsely in her closing speech that on a particular occasion I acted guiltily;

2. the Crown shifting the chronology around to give the false impression of an escalation of affection between myself and the child, and adversely affecting other evidence;

3. the Crown and the judge giving the jury incorrect explanations of the law, misleading them into believing that all they had to decide was whether I might have ever been or might in future be tempted to commit a sexual assault – regardless of the absence of evidence of the specific intent necessary for section 15 (mentioned above);

4. the unlawful admission of the previous convictions (mentioned above);

5. the judge failing to note the express exclusion of section 15 from the Categories of Offences Order No. 3346 (see paragraph 4.12 above).

6. the admission of graphic details of the actual sexual activity of the ancient offences. Those details had no relevance or probative value that would help jurors decide whether I had the specific intent necessary for section 15, but caused maximum prejudice;

7. the unlawful credibility direction (now defunct) asserting that having previous convictions meant I was more likely to be lying – despite the absence of evidence that I had ever been untruthful.

8. Defence counsel doing nothing to correct 1, 2, 3, 5, & 6 above, and very little to prevent 4 (above).

14. Not one of these malpractices can be said to be of little consequence. Each on its own misled or influenced the jurors in a way that significantly increased the prospect of a guilty verdict. Malpractices 1-3 ensured that the verdict was based on false evidence and false law; while malpractices 4-7 ensured the maximum possible prejudice. Malpractice 8 speaks for itself.

15. These malpractices are all clearly evidenced in the trial transcription which I can provide on request. I provided a copy for the CCRC.

5. The CCRC’s responses to my points; and their preposterous interpretations of the law and legal principles

1. Not addressing crucial issues raised. The CCRC have consistently avoided discussion of the following:

1. the absence of sexualised conduct or sexualised communication (paragraph 4.2 above);

2. the crucial issue of specific intent versus basic intent (discussed at some length above);

3. the admission of graphic sexual details of the previous convictions (paragraph 4.13.6 above);

4. The judgement in Meyer [2006] EWCA Crim 1126 (JSB credibility direction): this is directly analogous to my case. In Ground 8 of my application to the CCRC I discuss the distinction between the cases of Meyer and myself on the one hand, and the rejected cases of Campbell, R and Walker on the other. In all cases the CACD accepts that the direction should not have been given. The direction is now defunct (paragraph 4.13.7 above);

5. Evidence of opportunities to commit a sexual offence not taken advantage of: I submit that where A meets B several times over an extended period (9 months in my case) and commits no offence, it is not a simple matter of “more meetings equals more evidence of intent”: more meetings also equals more opportunities to commit an offence. A reasonable person may ask:

“If he intended to abuse the child, how is it that in all those meetings over all that time and with several opportunities he neither did nor said anything of a sexual nature?”

There was clear evidence of ample opportunities to talk to the boy privately, but the CCRC still insist, without evidence, that I was waiting for an opportunity to commit an offence.

2. Not properly addressing crucial issues raised.

1. The serious distortions of the factual matrix resulting from the Crown’s alteration of the chronology. The CCRC say the alteration makes no difference. I say the difference it makes is crucial, and the Crown must have thought so also (paragraph 4.13.2 above);

2. The other malpractices in paragraph 4.1 above;

3. Unanimity and improper aggregation – see paragraph 5.3.1.4 below;

4. Section 15’s exclusion from the category list: the CCRC cite Hanson and Weir as “settling the matter”. In Hanson at [8] it was said that the category list is “not exhaustive” of the types of offence that can be used to show propensity; and in Weir at [7] that propensity can be proved “in ways other than” by evidence that the defendant has been convicted of an offence of the same description or category. Both dicta are ambiguous and, I submit, flawed in interpretation. But in any event neither judgement tells us why the Secretary of State specifically excluded the new section 15 offence from a category list which the statute says must contain offences of the same type: he could easily have included it if he thought other offences could be admitted to prove a propensity to commit it without violating Article 6 of the European Convention on Human Rights. The government’s Explanatory Memorandum to the Categories of Offences Order No. 3346 states that the category consists of offences which involve sexual touching, penetration or activity, committed in relation to persons under 16 – in other words, contact offences. Section 15 is a non-contact offence of specific intent having no prescribed actus reus. Clearly it has no place in the category, and to admit any other offence on the pretext of proving a propensity to commit it must be unfair. The law recognises this.

5. The judge’s hopelessly inadequate and incorrect directions: The CACD repeat without explanation the single judge’s comment that the summing-up was “fair and appropriate”. The CCRC, however, concede that the directions “could certainly have been expressed more clearly”; yet say nothing further. Anyone reading the summing-up can see that it was anything but “fair and appropriate” and certainly was not clear. Further details can be found in Ground 10 of my application to the CCRC.

3. Preposterous interpretations.

1. Recasting of section 15 as an “offence” having little to do with real life situations.

1. I contended that there had to be at least one meeting upon which all the jurors were agreed as containing all three ingredients of the offence (viz. at least 2 prior meetings or communications; an intentional meeting; intent to commit a relevant offence). The jury would not have found such a meeting.

2. The CCRC say any intentional meeting following an instance of sexual intent, itself becomes an instance of sexual intent regardless of its circumstances: thus the intent ‘endures’ for as long as there are meetings. Relying on logical fallacy, this unrealistic recasting of section 15 was used by the CCRC to suggest without evidence that I was only at the meetings because I was waiting for an opportunity to commit a sexual offence; and to short-circuit my arguments for scrutiny of events and their chronology (which the prosecution saw fit to alter), and for jury unanimity. The doctrine of ‘enduring intent’ on which this recast section 15 is founded is wrong in principle, for it means that the offence could remain suspended for years before being triggered by an innocent meeting such as accepting an invitation from the child’s family to a social gathering.

3. Furthermore, the CCRC’s assumption that “intent” was present despite their own admission that the jurors were not clearly directed (see paragraph 5.2.5) and hence were not even looking for the presence of the necessary specific intent, is shaky to say the least.

4. The CCRC say intent once “formed” endures until the final meeting (see paragraph 5.3.2 above); so as long as each juror votes for any of meetings 1-9 as the point at which intent was “formed”, they are all “unanimous” that intent was present by the time of meeting 10 – despite having based their votes on different sets of facts. This would have been exacerbated by the temptation (and clear encouragement from the judge) to engage in the improper aggregation of benign events. In my Response to the CCRC's Argument in their Final Statement of Reasons (15 June 2013) I show that the CCRC’s reasoning is flawed as it relies on the jury being clear about the chronology of meetings and events, which they were not; and on the judge directing them that the necessary intent must be in place when a meeting is started, which he did not. That would have left the jurors under the impression that the offence was made out if they thought intent arose after meeting 10 (the final meeting) was started, which of course would not engage section 15. (Leveson LJ in Gaviria). My diagrammatic illustration of the point is clear and incontrovertible. In their final reply of 1 July 2013 the CCRC conceded the point but still refused to refer the case to the CACD.

5. The suggestion that I was only at the meetings because I was waiting for an opportunity to commit an offence – regardless of the circumstances – rides roughshod over Childnet International’s advice (accepted by Parliament) that section 15 is not a thought-crime as “the contacts and communication are linked incontrovertibly to arrangements for a meeting with the purpose of committing a sexual crime”. Thus if a meeting was not arranged with the purpose of committing a sexual crime, and there was no sexual intent at the time the meeting was embarked upon, section 15 is not made out. And that is what finally kills off the CCRC’s argument, for it is the presence or not of intent at the time which is relevant and over which the jury must be unanimous, not when they think it was “formed”.

6. In any event the CCRC’s argument is irrelevant, as the case was not put to the jury in the way they claim.

6. Was there an agenda?

1. I have given a lot of detail in this submission to try to show what was happening between myself and the CCRC, although it far from represents the entire case or all that went wrong. But as should be clear by now, I was engaged in a real battle with them – a far cry from what they had led me to believe would be the case. I might as well have been dealing with the Crown Prosecution Service. And they fast-tracked my 76-page application (consisting of twelve grounds) within weeks.

2. It leads one to ask:

1. Is pressure being brought to bear on the CCRC to keep referrals below 3.5 percent?

2. Given the present climate vis-à-vis sex offences, and the fact that sex convictions are vote winners, have the CCRC been instructed to ensure that as few sex convictions as possible are referred?

3. In my own case, where it was accepted that there was no wrongdoing, was the prosecution brought because of my antecedents of 1975-88 with the purpose of re-punishing me according to modern attitudes and subjecting me to ancillary orders which were not available at the time of those offences? and

4. Would the confidence the CCRC displays in suggesting those whose cases have been rejected take them to judicial review be connected in some way with the above three paragraphs?

December 2014

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