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CCRC – an introduction

What is the CCRC?

 

Funded by the ministry of justice

Budget £6.5m per year (CPS £694m)

 

http://www.theguardian.com/law/2013/jul/03/miscarriages-of-justice-ccrc-funding

 

Independent of government, the courts, the CPS and the defence

Does not act for the defence

CCRC formed by statute: Criminal Appeal Act 1995

 

How and why was it established?

 

High profile miscarriages of justice: 1970s bombing cases

Public confidence in CJS shaken: Birmingham Six, Guildford Four

 

 

Gerry Conlon

 

http://www.youtube.com/watch?v=z0WLCJ26Emc&feature=results_main&playnext=1&list=PL568C111405D85474

 

Paddy Hill

 

http://www.youtube.com/watch?v=yf8hEj2qltE&feature=related

 

 

 

 

 

 

 

Before the CCRC in 1997, anyone who had exhausted the appeal process could apply to the Home Secretary under Section 17 of the Criminal Appeal Act 1968.

 

The Home Secretary could then refer the whole case or aspects of the case to the Court of Appeal, “as he thought fit”.

 

The Home Office C3 Division looked into cases of potential miscarriages of justice – but was seen as too political and very ineffective. Laurie Elks – investigations by C3 was “lamentable, a scandal, a disgrace”.

 

Legal/ statutory steps:

Royal Commission on Criminal Justice 1991 – following on from wake of NI cases

Runciman report 1993

http://thejusticegap.com/News/pragmatism-over-idealism-an-interiew-with-lord-runciman/

http://thejusticegap.com/News/michael-zander-on-human-wickedness-failings-of-the-system-and-miscariages-of-justice/

 

Criminal Appeal Act 1995

CCRC: April 1997

 

Research by Laurie Elks, one of the founding members of the CCRC, reveals that C3 typically referred 10 cases a year, CCRC has referred on average about 35 cases a year. (Elks, 2008: 334)

 

But as David Jessel, among others, points out the CCRC rejects 96% of cases (Jessel, 2012: 18).

 

CCRC within criminal justice system

 

CCRC is a body of last resort – at the end of the criminal justice process

To be eligible to apply to the CCRC:

Convicted in England, Wales or NI, or by court-martial anywhere

Scotland has its own CCRC

Failed appeal– exhausted appeal process

Can only refer on basis of “something new” – fresh evidence/new argument (this is seen as highly contentious)

 

What does the CCRC do?

 

Remit: to investigate suspected miscarriages of justice – England, Wales and Northern Ireland and courts-martial

Refer:  to court of appeal, court martial appeal court or crown court

Review convictions and/or sentences

 

Why do miscarriages occur?

 

Yet to be discovered science: DNA (Sean Hodgson)

False confessions (Sean Hodgson)

Frail evidence (i.e. ID) (Turnbull directions)

Flawed expert evidence (Sally Clark & Angela Cannings)

False allegations (George & Margaret Hewitt)

Non-disclosure of information (Sam Hallam)

Deliberate misconduct (Cardiff Three) http://www.youtube.com/watch?v=R9pMGvqlOMo&list=PL319EE436126DA9FA

Poor performance by lawyers (Andrew Adams)

 

How does someone apply to CCRC?

 

http://www.justice.gov.uk/downloads/forms/ccrc/ccrc-easyread-applic-form.PDF

 

Richard Foster:

Says that applications this year have “exploded” – there has been double the number of applications this year as normal (normal numbers are about 1,000).

 

If you are in custody you currently wait about six or seven months for the CCRC to look at your case.

 

Reaction to this is either rationing (ie older cases, summary convictions, previously reviewed cases) or longer queues.

————————————-

95% of applications to the CCRC didn’t have a chance because most applicants:

Offer nothing new [Fresh Evidence]

Nothing to lose syndrome

Intractable – especially brawls and consent cases

Implausible – overwhelming evidence

 

Most applicants just wanted a re-run of the trial:

Result unfair

Legal representative was incompetent

Police/prosecutor/ judge were corrupt/incompetent

 

3.5% are referred so meet possibility test

[Research by Steve Heaton, University of East Anglia]

—————————————————————-

 

 

 

Best approach – Innocent or unsafe?

 

R v Hickey [1997]

 

“This court [Court of Appeal] is not concerned with guilt or innocence of the appellants, but only with the safety of their convictions.  This may, at first sight, appear an unsatisfactory state of affairs, until it is remembered that the integrity of the criminal process is the most important consideration for the courts which have to hear appeals against conviction.  Both the innocent and the guilty are entitled to fair trials.  If the trial process is not fair, if it is distracted by deceit or by material breaches of the rules of evidence or procedure, then the liberties of all are threatened.”(emphasis added)

Roach LJ

 

Steve Heaton, University of East Anglia, said: “Innocence is not the right issue, too difficult to define.”

 

[Academically – how can we know anything for certain?

Epistemology – how do we know what we know?

Descartes attempt to return to first principles – Hume’s attack on assumptions and induction – Logical Positivists attempt to demarcate useful knowledge from nonsense – Popper’s view that everything is potentially false, the falsification principle.]

CCRC – statutory powers

Contained within Criminal Appeal Act 1995

Access to documents and material from any public body (Section 17)

Appointment of Investigating Officer (Section 19)

Powers to take any steps appropriate in the exercise of any of its functions

Powers are wide ranging

 

Section 17 Criminal Appeal Act 1995

Provides the commission with power to obtain material (documents, information, exhibits) from any public body

Must be material “which may assist the commission in the exercise of its functions”

Does not extend to private bodies (breaking up of FSS)

 

Section 19 Criminal Appeal Act 1995

Power to appoint an Investigating Officer from the police to undertake investigations for CCRC: produce a report

IPCC involvement if required

Where police powers considered essential – arrest, caution etc [possibility of someone incriminating themselves]

Suspected criminal conduct by police/other official

Suspected criminal conduct by other person(s)

 

Other powers

Holmes readers

Terminal to PNC – previous convictions etc

Police National Database enquiry – for witnesses (countrywide police information)

Social Services Records

 

 

The decision

All decisions, to refer or not, made by Commissioners

Committee of three Commissioners for any potential referral, majority decision suffices

Single Commissioner can turn down a case

Always produce a Statement of Reasons

If a turn down then make provisional decision and give time 28 days or more for Further Representations, then final decision made

 

The Real Possibility test

CCRC will not refer to the Court of Appeal:

Unless there is a real possibility that the conviction or sentence would not be upheld were the reference to be made… [Lord Bingham said it was somewhere between a racing certainty and an outside chance]

and so considers..

This means there must be a real possibility that the Court of Appeal will quash the conviction (Criminal Appeal Act, 1995: s. 13(1)a) .

And because the Court of Appeal will only overturn convictions it believes to be “unsafe”, the CCRC concerns itself with safety or unsafety rather than guilty or innocence (Criminal Appeal Act 1968, section 2)

 

It is this has attracted the greatest heat in the debate over reform – David Jessel has described the “real possibility test” as “the wicked fairy at the christening of the CCRC” (Jessel, 2012: 17).

The most fervent critic, Michael Naughton, founder of the Innocence Network UK, says the “real possibility test” means that the CCRC concerns itself with “‘technical’ miscarriages of justice” – meaning that “the official test of a miscarriage of justice relates to prevailing procedures of due process, not whether appellants are innocent.” (Naughton, 2007: 2)

 

 

[My thanks to the Criminal Cases Review Commission which provided data which was used in this lecture]