The Criminal Cases Review Commission - A Quarter of a Century On

Abstract

This article examines the ability of the Criminal Cases Review Commission (CCRC) to identify, investigate and rectify cases of alleged miscarriage of justice. Following a summary of the work of the CCRC over its first quarter century in operation, it analyses the extent to which its establishment addressed the purposes for which it was put into place and comments on how initial concerns have been addressed. The article focusses on the operation and interpretation of the ‘real possibility’ test under s.13 of the Criminal Appeal Act 1995, submitting that significant impediments exist when seeking a truth-based rectification of miscarriage of justice cases in cases of alleged factual innocence, with arguably undue deference given to the approach of the Court of Appeal. It also considers whether its independence is compromised. It concludes with its findings that whilst the CCRC has undoubtedly been a welcome addition to the criminal justice system, significant issues remain within the post-appeal mechanism.

Introduction

The introduction of the Criminal Cases Review Commission (CCRC) in 1997 as the ‘… official independent body …’ ¹ to investigate cases of alleged miscarriages of justice was largely welcomed by commentators on criminal justice and the post-appeals process, albeit with a certain amount of scepticism. ² Established following recommendations of the Royal Commission on Criminal Justice 1993 (RCCJ) ³ and the ensuing Criminal Appeal Act 1995 to replace the function previously performed by the Home Secretary and his Criminal Cases Unit, it was argued that, while problems remained, the process for referring convictions back to the Court of Appeal once all normal appeal rights were exhausted was an improvement procedurally, economically and politically. ⁴ This article will evaluate the performance of the CCRC at its quarter century anniversary and address whether its introduction has solved the issues it was addressed to deal with and what concerns still remain. It will focus in particular on the ‘real possibility’ test under s.13 Criminal Appeal Act 1995 and argue that, whilst previous deficits in the post-appeal mechanism have, to a certain extent, been addressed, the CCRC's operation of its powers under s.13 is at times unduly constrained. The article will then go on to consider whether the CCRC can ever truly be described as an ‘independent body’ as initially postulated.

Background to the Post-Appeal Mechanism and the Criminal Cases Review Commission

In a criminal justice system which is, by its very nature, fallible due to the potential for human error, a procedure whereby alleged miscarriages of justice can be investigated is vital so that a fast and fair resolution can be afforded to those cases where justice failed the first time round. This is only compounded by the nature of the appellate process itself and its emphasis on finality, ⁵ in that there is no automatic right to apply for another appeal hearing once an appeal has been heard or leave to appeal has not been granted. ⁶ It is therefore essential that an effective safety net exists, by way of a post-appeal mechanism, to allow meritorious cases to be referred back to the Court of Appeal, thus avoiding a repeat of the public outcry and lack of confidence in the criminal justice system that abounded post-quashing of a string of notorious convictions in the decade that followed the Royal Commission on Criminal Procedure. ⁷ The inadequacies of the post-appeal mechanism, which relied on the exercise of the Home Secretary's discretion to refer a case back to the Court of Appeal ⁸ are well-rehearsed. ⁹ Its replacement with an independent review body was advocated by the RCCJ, ¹⁰ which was commissioned in the immediate aftermath of the release of the Birmingham Six in 1991. ¹¹ The Criminal Cases Review Commission was established ¹² and given powers of investigation ¹³ and referral ¹⁴ under the Criminal Appeal Act 1995, which also simplified the grounds of appeal formerly contained within the 1968 Act, relying purely on the finding that a conviction was “unsafe”. ¹⁵

CCRC - Work to Date

The Commission started work on 1st April 1997 with a caseload carried over from the Criminal Cases Unit. By May 2024, it had received 31,879 applications and had completed 30,771 of these, referring 844 cases (3%) to the Court of Appeal. Of the 825 cases heard by the Court of Appeal, 71% of appeals had been allowed. ¹⁶ Looking at volume alone, a yearly average of 32 referrals is an improvement on the average 5 cases per year ¹⁷ referred under the previous system. However, closer analysis reveals that relying on average figures alone can be misleading - the more recent referral statistics suggest a reduction in the volume of referrals as time has passed with a yearly average of 19 referrals whilst in 2021 the figure of 70 referrals was made up mainly of group referrals. ¹⁸ Procedurally the application process is user-friendly, the extended powers of investigation remove the former over-reliance on investigation by the original police force and the referral decisions are free from the political considerations that constrained the Home Secretary. The existence of the CCRC as a specific body with a specific remit could be said to be an acknowledgement at least that the criminal justice system needs a post-appeal mechanism; however, as seen below, with the Court of Appeal remaining the ultimate arbiter as to the safety of a conviction, the CCRC arguably exists as merely a gateway. Underfunding has remained a concern throughout the CCRC's lifetime as have issues of case backlog, the use of s.13 and the undermining of the CCRC's independence which has led Robins to argue that it is in “crisis”. ¹⁹

Many of the initial concerns expressed when the CCRC started work have now been at least partially addressed. Much of the early critique centred on the backlog of cases that accumulated as the CCRC started to receive and investigate applications, ²⁰ raising concerns as to its ability to accord fast and fair resolutions to those failed by the justice system. ²¹ 25 years on, the situation is somewhat less bleak and the optimism of the inaugural CCRC Chairman, Sir Frederick Crawford, in stating that the waiting list would be almost non-existent in a few years’ time ²² not entirely misplaced. The CCRC itself states that it now aims to complete a minimum of 85% of cases within 12 months of receipt of an application with the latest case statistics suggest that 97% of cases have been completed with only 189 in the queue awaiting consideration. ²³ This is certainly a more positive position for an incarcerated applicant who would have most likely served his sentence before an application was considered in the early days of the CCRC's working life.

Other concerns centred around the use of the ‘real possibility’ test under s.13 Criminal Appeal Act 1995, the CCRC's relationship with the Court of Appeal and issues relating to the CCRC's status as an ‘independent’ body. These concerns remain live and will be explored in more depth below.

The next section of this article will look at the exercise of the ‘real possibility’ test under s13 before going on to consider ancillary issues of independence.

The ‘Real Possibility’ Test Under s.13 Criminal Appeal Act 1995

The CCRC cannot make a reference to the Court of Appeal unless it considers that there is a ‘real possibility’ that, were the conviction (or sentence) to be referred, the original verdict would not be upheld, due to ‘an argument, or evidence not raised in the proceedings which led to it or on any appeal or application for leave to appeal against it’. ²⁴ This replaced the Home Secretary's powers to refer under s.17 of the 1968 Act which allowed him to refer as he ‘[thought] fit’. The test for the admission of fresh evidence was widened from evidence “likely to be credible” to that which is ‘capable of belief’. ²⁵ The High Court of Justice Queen's Bench Division, stated that:

[t]he threshold test is carefully chosen: if the Commission were almost automatically to refer all but the most obviously threadbare cases, its function would be mechanical rather than judgmental and the Court of Appeal would be burdened with a mass of hopeless appeals … . ²⁶

The CCRC is the first statutory, publicly-funded organisation in the world tasked with investigating claims of miscarriages of justice. ²⁷ It has been argued that the CCRC is not the answer to the wrongful conviction of the factually innocent, as it was commonly believed to be. This has become increasingly apparent as time has gone on, especially to those of a more critical inclination and/or to those who give casework support to supposed innocent victims of wrongful conviction. ²⁸ It could be argued that the power to refer under s.13 only applies where there is a ‘real likelihood that the conviction, judgement, finding, or sentence would not be affirmed were the reference to be made’ fundamentally undermines the CCRC's capacity to support innocent people who have been wrongfully convicted.

It is argued that the wording of s.13 limits the CCRC to the standards used by the Court of Appeal to consider the safety of a conviction. It implies that instead of attempting to ascertain if a miscarriage of justice occurred, the CCRC instead looks to see if convictions may be deemed ‘unsafe’ by the Court of Appeal under s.2 of the Criminal Appeal Act 1995. This prevents the CCRC from concerning itself with determining the factual guilt or innocence of those who petition it for review as purported victims of injustice. This is argued by Naughton to be perhaps the most problematic at the CCRC's operational extremes whereby the factually guilty can challenge convictions based on violations of procedure but where a factually innocent applicant is unable to pass the real possibility test to the CCRC's satisfaction. This leads him to state that proactive investigation is needed to unearth evidence of potential innocence which is not just ‘… happened across in a (mainly desktop) review of whether the conviction might be legally unsafe’. ²⁹ With a restrictive interpretation as to the meaning behind s.13, this renders the CCRC more of a gatekeeper for the Court of Appeal rather than a truly independent body. This in itself is not the issue; with the Court of Appeal as the ultimate arbiter as to any issues of a conviction's safety, any post-appeal mechanism would by its very nature be no more than a gatekeeper. The issue is, it is argued, whether that gate is opened sufficiently for an allegedly factually innocent individual to pass the real possibility test.

This subordination to the standards of the Court of Appeal is arguably worryingly reminiscent of the attitude of successive Home Secretaries under the previous reference procedure albeit due to different constraints. In its advocation for an independent review tribunal, the RCCJ referred to the Sir John May's comment on the practice of excessive deference to, and second guessing of, the Court of Appeal and the self-imposed limits put on the s.17 referral powers. ³⁰ For the RCCJ, it was essential that the CCRC be autonomous and, whilst it believed that the Court of Appeal should have the authority to overturn the convictions of those who were in fact innocent, it acknowledged that the Court of Appeal was not ‘the most suitable or the best-qualified body to supervise investigations of this kind’ ³¹ due to the legal framework in which it operates.

The view that the CCRC and the Court of Appeal should adhere to the same standard of review, that being safety or lack thereof of a conviction, serves to conceal the limitations of the Court of Appeal with regards to appeals based on factual innocence. ³² The CCRC's dependence on the reaction of the Court of Appeal of its referral of those cases where factual innocence is alleged is argued to severely restrict its capacity to refer such cases. ³³

However, in giving the CCRC free reign to refer as it sees fit, perhaps in line with the previous s.17 powers, runs the risk of the CCRC's referrals being too frequently turned down by the Court of Appeal and, in time, leading its referrals to be viewed with the same degree of impatience and distaste shown towards the previous post-appeal mechanism and perhaps the same degree of ‘odium that the Court of Appeal plainly attach[ed]’ to a reference made by the Home Secretary. ³⁴

Rather than change the wording of s.13 to explicitly lower the threshold, which of course would be for no one but Parliament so to do, the CCRC could instead be encouraged to be more flexible in its interpretation of the term ‘real possibility’. A possibility is a ‘chance that something may happen or be true’. ³⁵ To preface it with the word ‘real’ does not render a real possibility a certainty or even a probability. The CCRC's current 70% success rate in the Court of Appeal could be said to suggest an overly cautious approach to referrals. Indeed, Hodgson compares this to the ‘realistic prospect of conviction’ test exercised by the Crown Prosecution, generally accepted to be more likely than not, and asserts that a ‘real possibility’ is potentially less than a ‘realistic prospect’. ³⁶ In considering both the wording of s.13 and the application of the test, the Home Affairs Select Committee rehearsed arguments for and against changing the wording of the test, concluding that while there was no conclusive evidence of the misapplication of the test, it did consider that the ‘CCRC should be willing to err on the side of making a referral’ and should be less cautious in its approach, whilst not allowing the fear of the disagreement or disapproval of the Court of Appeal to influence its decision making. ³⁷

The Westminster Commission report did consider that the wording of s.13 encouraged the CCRC to be overly deferential to the Court of Appeal and that, therefore, the test acted as a ‘brake on the CCRC's freedom of decision’. ³⁸ It advocated a redrafting of s.13 to expressly allow referral of a case where a conviction may be unsafe, wrong in law or where the CCRC feels it is in the interests of justice to make a referral, ³⁹ thus including ‘lurking doubt’ cases where a ‘general feeling of the case’ ⁴⁰ gives rise to doubt as to the safety of a conviction. Whilst the current wording of s.13 remains in place, the report recommended both a bolder approach in its interpretation and the removal of CCRC KPIs as to success rates. ⁴¹

In conclusion to this section, it can be seen that the cautious approach and the internal decision-making procedures could be said to be a significant barrier to referrals, indicating that the CCRC, in its own way, is as bound to second-guessing the Court of Appeal as its predecessors. Indeed, it has been argued that the internal process whereby it takes one Case Review Manager to refuse a referral and three to refer changed the working definition of ‘real possibility’ into a ‘real possibility of a real possibility test’. ⁴² For an applicant, this is a mighty hurdle to overcome to even get to the Court of Appeal and, whilst more than one application can be made, they must present new evidence or supporting data each time. Each subsequent application will therefore be evaluated through a narrower lens with a decreasing likelihood of being referred. ⁴³ It is not a coincidence that the majority of applications to the CCRC are unsuccessful. ⁴⁴ As commented by Weeden, the criteria for a successful application presents a challenge, especially in relation to cases with a long and complicated history. ⁴⁵ Whilst s.13 of the Criminal Appeal Act 1995 gives the CCRC discretionary jurisdiction, the extent to which it chooses to exercise that discretion lies solely with the CCRC. There is little to suggest that a more flexible approach to referrals has been taken post-recommendations to do so, with the success rates in the Court of Appeal remaining firmly within the bounds of the CCRC set KPIs. Whilst its relationship with the Court of Appeal remains as it is, it is difficult to see how the situation can or will change without the redrafting of the section to specifically allow for a higher likelihood of failure in the Court of Appeal.

The Independence of the CCRC

Issues of independence have been alluded to in the previous section when looking at the relationship between the CCRC and the Court of Appeal. The remaining sections of this article will consider the CCRC's independence more widely, arguing that whilst the CCRC is structurally independent from the Government, interference has to a certain extent remained.

The issue of independence was at the core of the RCCJ's recommendation that the responsibility for the post-appeal mechanism should be moved from the Home Secretary and the Criminal Cases Unit (C3) to an independent review body. Notwithstanding recent government interference with the role of the judiciary in the automatic quashing of convictions ⁴⁶ relating to the Horizon Scandal, ⁴⁷ the notion of an independent judiciary and separation of powers and functions across the arms of state has long been a principle underpinning the unwritten constitution. The role assigned to the Home Secretary under s.17 of the Criminal Appeal Act 1968 was incompatible with the constitutional separation of powers ⁴⁸ with a conflict of his clearly political role with the quasi-judicial role afforded to him under s.17. ⁴⁹ Given the lack of likelihood of change to the constitutional background, the RCCJ recommended that a new body, independent of the Government and the courts, should be established to investigate allegations of miscarriage of justice. ⁵⁰

The CCRC claims to have a ‘strong culture of independence’, asserting that there has never been any government ‘meddling’ in its casework. ⁵¹ It has however been argued that the CCRC's independence has been undermined by ‘unlawful interference’ on the part of the government. ⁵² Described by former Solicitor General as ‘… something of a Cinderella public body [metaphorically] stuck right at the end of some dark corridor within the Ministry of Justice …’, the CCRC was argued by Garner to be operating in a ‘completely different way’ to what was envisaged on its establishment. ⁵³

Whilst notionally independent from the executive, this is arguably not exhibited in practice. Although established as a non-executive independent body, much like all non-departmental public bodies it maintains, by necessity, important connections with the government and its agencies. ⁵⁴ Many of those giving evidence to the Westminster Review were of the view that the thin line between seeking assurance and surrendering independence had been crossed. ⁵⁵ The degree to which the CCRC's ‘weak, if not dysfunctional relationship’ with the Ministry of Justice compromised its independence was examined by the Divisional Court in 2020. ⁵⁶ Whilst the applicant was unsuccessful in his bid to challenge the CCRC's decision not to refer by way of judicial review, the Divisional Court did criticise several facets of the CCRC's interaction with the Government, opining that the CCRC had to be constitutionally as well as operationally independent from the government if the public was to be expected to have faith in the body. It referred to the poor nature of the relationship between the CCRC and the Ministry of Justice, which had clearly put to test the ability of the CCRC to not only remain independent but to be seen to remain independent. It is however difficult to see how complete independence from the Ministry of Justice could be achieved given that it financially sponsors the CCRC and subjects it, as with all sponsored public bodies, to regular Cabinet Office mandated reviews of its effectiveness, the outcomes of which have, in themselves, attracted significant criticism. ⁵⁷

The independence of the CCRC is arguably not aided by its composition. There were arguments prior to its establishment that appointments to the CCRC should be made by an independent parliamentary committee. ⁵⁸ However, its Chair and Commissioners are appointed by the Monarch on the advice of the Prime Minister. ⁵⁹ It was argued in the Westminster report that the reduction of the role of the Commissioners through internal management decisions undermines the spirit and purpose of Parliament's intention in the Criminal Appeal Act, thereby significantly shifting the balance of power towards the executive. ⁶⁰

This difficult relationship, coupled with the issues already raised earlier in this article in relation to s.13, has implications for the CCRC's so-called independence. Rather than the watchdog envisaged by the RCCJ when recommending the establishment of a review authority, critics allege instead that the CCRC is the appellate system's ‘lapdog’. ⁶¹ Whilst this criticism could be said to be harsh, it would certainly appear to be the case that, for the alleged factually innocent, the lack of independence of the CCRC from both the government and, more notably, the Court of Appeal has far reaching implications. For those alleging that an excessive sentence amounts to a miscarriage of justice, the provision of the Criminal Appeal Act explicitly permitting a CCRC referral on this basis was unequivocally shot down by the Court of Appeal in 1999 ⁶² when it stated that a defendant sentenced according to law and to factors known to the sentencing judge could ‘hardly be described as a miscarriage of justice’.

Whilst it is true that the CCRC's mandate, internal composition and method of operation needs to be changed should it aspire to ever be a truly independent body, it is also true to say that whilst it remains a non-departmental public body, it will never achieve true executive independence. As a gatekeeper to the Court of Appeal, be it as a lapdog or a watchdog, it will never have control over the ultimate outcome of an appeal. Neither should it as the determination of guilt, innocence or a convictions safety (or lack thereof) is the role of a judicial body, not an independent review body. However, it is argued that this relationship with the Court of Appeal should not be an overly deferential one. The CCRC should not hold back from referring a case due to the fear of attracting the disapproval of the Court of Appeal.

It is important, when discussing the application of statutory criteria, bureaucratic and administrative efficiency and complex constitutional relationships, not to forget the perspective of a victim of a miscarriage of justice. The CCRC was established in the wake of the high profile quashing of convictions for a series of notorious cases as it had become blatantly obvious that the post-appeal mechanism at the time fell ‘well short of what should be expected and need[ed] a new structure’. ⁶³ The CCRC, as a body with the specific remit of investigating cases of alleged miscarriages of justice, has better resources than its predecessors, a more user friendly application process and its powers of investigation obviate the need to rely on the police service to investigate cases of alleged police misconduct. However, it is still true to say that only a minority of cases get referred back to the Court of Appeal (3% of applications as of May 2024) which, as suggested above, does indicate that the CCRC is overly restrictive, and overly deferential to the Court of Appeal, in the exercise of its s.13 referral powers.

Conclusion

This article has examined the performance of the CCRC since its inception in 1997 and has aimed to assess whether the CCRC has effectively addressed the issue that it was created to resolve – the need for an effective, independent post-appeal mechanism unbound by the constraints of its predecessor. The article has focussed on two key areas. Firstly, it is argued that the CCRC's interpretation of the ‘real possibility’ test under s.13 Criminal Appeal Act 1995 is overly restrictive. This, it is argued, hinders the rectification of cases where a miscarriage of justice has occurred, particularly in those cases involving alleged factual innocence. It is suggested that the approach taken by the CCRC often gives undue deference to the Court of Appeal's stance. Tangentially to this, it is questioned whether the CCRC can truly be considered to be an independent body, given its positioning and role within the criminal justice system. In conclusion it is argued that, while the CCRC has been a valuable addition to the criminal justice system, and a vast improvement on the previous Home Secretary's reference procedure, significant issues persist within the post-appeal mechanism. Further review of the CCRC's operations and its impact on achieving justice for those wrongfully convicted is therefore needed.