Supplementary written evidence from Glyn Maddocks following the evidence session on 13 January 2015 (CCR 54)

Last month I was invited to give evidence to your Committee, which is undertaking an inquiry into the work of the Criminal Cases Review Commission (CCRC).  The CCRC was established in 1997 and has been in operation for some 18 years.  It will soon be moving from the status of a child to an adult.  It is common ground that it was established following a number of high profile miscarriage of justice cases, which had led to a loss of public confidence in the criminal justice system. Following a recommendation by the Royal Commission on Criminal Justice (the Runciman Commission), the CCRC was set up in Birmingham away from the centre of government to independently and impartially investigate cases where an alleged wrongful conviction had occurred. In such cases it was given the exclusive power, to refer the matter back to the Court of Appeal (CA) so the conviction could be quashed and the innocent victim obtain “justice”

During its life, the CCRC has examined over 17,000 cases and has referred 577 of those to the CA, and 375 of those convictions have been quashed  In the last year that figures are available (2013/2014) its referral rate was 2.7%.  In other words, the CCRC has rejected just under 98 cases out of every 100   examined. From any perspective, the odds are clearly stacked very heavily against each and every CCRC applicant. 

The question that the Justice Committee must consider, having taken evidence and received written submissions, is whether the CCRC has fulfilled the purpose for which it was established and whether  the the public money spent on it (nearly £100million over 20 years) provides value for money.

Those of us who were invited to give evidence, to the Select Committee, felt that this provided us with a once-in-a-generation opportunity to put the case to both the public and Parliamentarians that in our experience the CCRC is simply not working as it was intended and is not, in a significant number of cases, delivering “justice” to those who have been falsely convicted.

As I gave evidence before the Committee, I had in mind the words of Chris Mullins, the former MP who was instrumental in ensuring that the convictions of the Birmingham 6 and Guildhall 4 were quashed.  He said during the passage of the Criminal Appeal Act through the House of Commons that:

“It is in everyone’s interest that the Commission works.  There is a danger that if it becomes trapped in the narrow approach that C3 Division (of the Home Office) and the Court of Appeal has adopted in the past, it will become discredited, and we shall all be back where we started.  It is important to try to avoid that”.

Sadly and regrettably, this appears to be exactly where we are now with the CCRC.

Someone rather prosaically commented about  the CCRC that if it was a Hospital Trust, given its poor referral rate, it’s publically acknowledged failures (cf, the case of Victor Nealon, as just one glaring instance) and its inability and/or reluctance to undertake proper and detailed investigations in very many cases, it would be placed in “special measures”.

Arguably, this is unfair, but if the same standards were applied to the criminal justice system as are applied in other areas of public life, there may be some truth in this.

The main thrust of the submissions made to the Select Committee were:-

• The CCRC, (thankfully with some exceptions), fails in too many cases to properly, thoroughly and objectively undertake a detailed investigation/re investigation, where there exists “doubt” as to the accuracy of the conviction.  Parliament established the CCRC as an investigatory body, but in too many cases, it seems that it only carries out a rudimentary desktop review.  In very many cases, it does not interview or re-interview witnesses, including the applicant and it does not search for fresh evidence including fresh witness/scientific evidence or evidence which may point to a different scenario from that advanced at trial.  Simply put, in far too many serious and significant cases where there clearly exists an abundance of “doubt”, it merely does a run through of the papers and arguments and spends too much time and effort attempting to demolish the arguments/submissions of the applicant and/or his advisors.  Whether this is due to a lack of resources or for other reasons, is a matter which remains unclear.  What is clear, however, is that far too often (and the examples are many and various) the CCRC short changes applicants and in consequence, many victims who have suffered a wrongful conviction are unable to clear their names.

• The second submission, is inextricably linked to the first, namely that the “test” used by the CCRC for deciding  whether to refer a case back to the CA (the real possibility test) as it’s presently formulated and applied, is too restrictive and too limiting.  There is little doubt that this is due in a significant part to the continued unwillingness of the CA to quash anything other than the very strongest wrongful conviction cases that are referred to it by the CCRC. Professor Zellick the former CCRC chair has said that the CA is “less” willing to quash cases after the CCRC came into being.  Why this should be the case remains unclear and is something that only the CA can explain.  The reality however is that after 18 years of its existence, the CCRC remains unable or is not prepared to refer cases to the CA because the CA is unwilling to overturn the original trial jury decision.

Given that this is undoubtedly the case we should remind ourselves that the Royal Commission made specific reference to the CA’s excessive deference to the trial jury’s verdict as one of the principal problems of the CA and that 18 years on nothing seems to have changed.

Taking a broader view, those of us who submitted evidence were pleased with the informed reception that we received from the Committee, but we were not particularly optimistic that the Committee would take heed of our views, given the weight of evidence received from, for instance, the CCRC, that it is by and large doing a “good job”, could do with a bit more money and the power to get records from private bodies  but nothing really needs to change and that everything is going very well with the CCRC etc. 

However, and more importantly, and I believe of major significance, are the recent comments/submissions/suggestions made by Professor Michael Zander in the article which appeared in the Criminal Law & Justice Weekly (31st January 2015).Professor Zander was a member of the Royal Commission and his authority carries considerable weight. 

In his latest submission Professor Zander says that the CCRC’s ability to achieve what was intended is being thwarted by the CA for the reasons given above i.e. its historic aversion to interfering with the trial jury’s verdict and in consequence urgent consideration should be given to a new test being introduced for the CCRC to decide whether or not it should refer a case to the CA. He formulates this by saying that the Commission should refer a case if it has “serious concerns”. In my view Professor Zander’s strong and powerfully argued proposition is a potential game changing moment for the CCRC and I would strongly urge the Committee to make this a central recommendation of its Report. If this relatively simple yet vitally important proposal was introduced by whatever government is next in power, it would address most of the serious and significant concerns that many of us have and continue to have about the performance of the CCRC, and the deferentially unequal relationship that exists between the CCRC and the CA.

The CCRC has referred some 577 cases over 18 years. In my view, it is difficult not to argue that during this time the CCRC should have referred many more cases to the CA. There are very many cases which it has not referred where a wrongful conviction, in my mind, has occurred.  If the referral rate does not change then I have no doubt that the credibility of the CCRC will decline further.

This is something that we must not allow to happen.  We must not allow the experiment of establishing the world’s first body dedicated to rectifying miscarriage of justice cases to fail. The CCRC must be given additional resources and do far more to investigate alleged wrongful convictions and it must be empowered to refer cases to the CA where it has serious concerns  that a miscarriage of justice has occurred.

To conclude, perhaps we should remind ourselves that it has been estimated that 1,823 years has been spent by innocent people in prison for crimes they did not commit – this is a shocking indictment of our criminal justice system and we must do everything we can to ensure that that figure does not get any higher.

“The test of a country’s justice is not the blunders which are sometimes made but the zeal with which they are put right”

(Cyril Connolly)

February 2015