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Michael Zander QC considers the Justice Committee’s Report on the Criminal Cases Review Commission
The House of Commons Justice Select Committee’s report on the Criminal Cases Review Commission (CCRC) makes several strong recommendations but on the central topic it passes the buck to the Law Commission.
With a 30 per cent budget cut together with a 70 per cent increase in applications, the report says that the CCRC has become seriously under-resourced, leading to increasing and unacceptable delays. It needs an extra £1m of annual funding.
The CCRC’s power to require public bodies to disclose documents, the report says, should apply equally to private bodies, such as insurance companies or privatised forensic science services. There was no excuse for the failure by successive governments to implement this obviously needed reform which had universal support. The report says an appropriate clause should be included in the first Criminal Justice Bill introduced by the next government.
Both those recommendations will be uncontroversial. There will, by contrast, be some who disagree with the Committee’s suggestion that because of the severe funding problem, the CCRC should have the power only to investigate cases coming from the magistrates’ court if it considers that such investigation is in the public interest and, similarly, a discretion to reduce its caseload by not investigating cases only raising questions about the sentence. The report says that although every miscarriage of justice has serious consequences for the convicted person however minor the offence, the effect of overturning a miscarriage in serious cases was much greater and that the CCRC was originally envisaged as a body to deal with serious cases.
Referrals to the Court of Appeal
The central issue considered by the Select Committee, however, was referral of cases to the Court of Appeal. The Criminal Appeal Act 1995 s 13(1) requires that a referral be made if there is a “real possibility” that the conviction would not be upheld. The report distinguishes three aspects to the debate about the referral system: the “real possibility” test itself, the CCRC’s treatment of the test and the Court of Appeal’s approach to criminal appeals.
Some witnesses suggested that the CCRC’s investigations were more about whether there was a real possibility of the conviction not being upheld than whether there had actually been a miscarriage of justice – a suggestion strongly denied by the CCRC’s Chairman. Various alternative tests had been suggested. The Committee concludes that while changing the test might allow the CCRC more scope to display its independence of the Court of Appeal, “by definition the only additional referrals which a change to the test alone would allow would be those with less than a real possibility of success”.
On the question whether the test was applied properly, the Committee recommends that the CCRC be bolder in making referrals. “If a bolder approach leads to five more failed appeals but one additional miscarriage of justice being corrected, then that is of clear benefit.” The Commission’s Key Performance Indicators include a targeted success rate for referrals of between 60% and 80% – and in fact around 70% are successful. The Justice Committee suggests that the targeted success rate be somewhat reduced.
The complaint about the Court of Appeal was that it was overly reluctant to interfere with a jury’s verdict unless there was new evidence or some material irregularity. The Committee said that it was important that the jury system not be undermined, but properly directed juries “may occasionally make wrong decisions”. It was concerning that there was “no clear or formal mechanism to consider quashing convictions arising from decisions which have a strong appearance of being incorrect”. Any change in this area would require a statutory amendment to the Court’s grounds for allowing appeals, which would qualify to some extent “the longstanding constitutional doctrine of the primacy of the jury”. But that, the report says, should not stand in the way of ensuring that innocent people are not falsely imprisoned.
Over to the Law Commission
This is the central core of the Committee’s report but it makes no recommendation. Instead it proposes that the Law Commission consider the benefits and dangers of a statutory amendment “to allow and encourage the Court of Appeal to quash a conviction where it has a serious doubt about the verdict, even without fresh evidence or fresh legal argument”.
The Law Commission has the means and methods for undertaking a deeper study of this issue than the Justice Select Committee. But the Law Commission will come up against exactly the same difficulty that has thwarted all previous attempts to deal with the problem of the Court of Appeal’s undue reluctance to overturn jury decisions. No one has yet thought of a way to achieve that.
This article first appeared in Criminal Law & Justice Weekly.
KEY RECOMMENDATIONS from the JUSTICE COMMITTEE INQUIRY INTO THE CCRC
The “real possibility” test and grounds for allowing appeals
Funding and resources
Investigatory powers and the criminal justice system
Investigations and processes
Contributor Michael Zander QC
Emeritus Professor, LSE
Michael, KC hon causa, is Emeritus Professor LSE. He taught at the London School of Economics (1963-98), was The Guardian’s Legal Correspondent from 1963-88 and in 2015 was awarded the Halsbury Legal Award for Lifetime Contribution.
With a 30 per cent budget cut together with a 70 per cent increase in applications, the report says that the CCRC has become seriously under-resourced, leading to increasing and unacceptable delays. It needs an extra £1m of annual funding.
The CCRC’s power to require public bodies to disclose documents, the report says, should apply equally to private bodies, such as insurance companies or privatised forensic science services. There was no excuse for the failure by successive governments to implement this obviously needed reform which had universal support. The report says an appropriate clause should be included in the first Criminal Justice Bill introduced by the next government.
Both those recommendations will be uncontroversial. There will, by contrast, be some who disagree with the Committee’s suggestion that because of the severe funding problem, the CCRC should have the power only to investigate cases coming from the magistrates’ court if it considers that such investigation is in the public interest and, similarly, a discretion to reduce its caseload by not investigating cases only raising questions about the sentence. The report says that although every miscarriage of justice has serious consequences for the convicted person however minor the offence, the effect of overturning a miscarriage in serious cases was much greater and that the CCRC was originally envisaged as a body to deal with serious cases.
Referrals to the Court of Appeal
The central issue considered by the Select Committee, however, was referral of cases to the Court of Appeal. The Criminal Appeal Act 1995 s 13(1) requires that a referral be made if there is a “real possibility” that the conviction would not be upheld. The report distinguishes three aspects to the debate about the referral system: the “real possibility” test itself, the CCRC’s treatment of the test and the Court of Appeal’s approach to criminal appeals.
Some witnesses suggested that the CCRC’s investigations were more about whether there was a real possibility of the conviction not being upheld than whether there had actually been a miscarriage of justice – a suggestion strongly denied by the CCRC’s Chairman. Various alternative tests had been suggested. The Committee concludes that while changing the test might allow the CCRC more scope to display its independence of the Court of Appeal, “by definition the only additional referrals which a change to the test alone would allow would be those with less than a real possibility of success”.
On the question whether the test was applied properly, the Committee recommends that the CCRC be bolder in making referrals. “If a bolder approach leads to five more failed appeals but one additional miscarriage of justice being corrected, then that is of clear benefit.” The Commission’s Key Performance Indicators include a targeted success rate for referrals of between 60% and 80% – and in fact around 70% are successful. The Justice Committee suggests that the targeted success rate be somewhat reduced.
The complaint about the Court of Appeal was that it was overly reluctant to interfere with a jury’s verdict unless there was new evidence or some material irregularity. The Committee said that it was important that the jury system not be undermined, but properly directed juries “may occasionally make wrong decisions”. It was concerning that there was “no clear or formal mechanism to consider quashing convictions arising from decisions which have a strong appearance of being incorrect”. Any change in this area would require a statutory amendment to the Court’s grounds for allowing appeals, which would qualify to some extent “the longstanding constitutional doctrine of the primacy of the jury”. But that, the report says, should not stand in the way of ensuring that innocent people are not falsely imprisoned.
Over to the Law Commission
This is the central core of the Committee’s report but it makes no recommendation. Instead it proposes that the Law Commission consider the benefits and dangers of a statutory amendment “to allow and encourage the Court of Appeal to quash a conviction where it has a serious doubt about the verdict, even without fresh evidence or fresh legal argument”.
The Law Commission has the means and methods for undertaking a deeper study of this issue than the Justice Select Committee. But the Law Commission will come up against exactly the same difficulty that has thwarted all previous attempts to deal with the problem of the Court of Appeal’s undue reluctance to overturn jury decisions. No one has yet thought of a way to achieve that.
This article first appeared in Criminal Law & Justice Weekly.
KEY RECOMMENDATIONS from the JUSTICE COMMITTEE INQUIRY INTO THE CCRC
The “real possibility” test and grounds for allowing appeals
Funding and resources
Investigatory powers and the criminal justice system
Investigations and processes
Contributor Michael Zander QC
Emeritus Professor, LSE
Michael Zander QC considers the Justice Committee’s Report on the Criminal Cases Review Commission
The House of Commons Justice Select Committee’s report on the Criminal Cases Review Commission (CCRC) makes several strong recommendations but on the central topic it passes the buck to the Law Commission.
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