Thursday 2 November marked the CCRC’s celebration of twenty years of investigations and referrals back to the Court of Appeal Criminal Division at their 20th Anniversary Conference in London. The audience represented the range of stakeholders concerned with tackling miscarriages of justice: appeal lawyers, CCRC commissioners, members of parliament, forensic scientists, charity workers, investigative journalists, academics, and a handful of victims of wrongful conviction, including two who participated in panel discussions - Michael O’Brien and John Kamara.
The Commission was represented on each of the three panels throughout the day by one of the current Commissioners. They faced some tough questions and constructive criticism, though the overall mood of the day reflected acknowledgement that the Commission is reasonably successful at what it does. The Commission now receives more than 1300 applications per year; since inception, 634 cases have been referred to the Court of Appeal, with 419 of those convictions overturned. Whilst the CCRC has done some high quality investigations and has a high success rate – with the Court quashing almost 70% of referred convictions until the recent downturn - there is still concern that they are not referring enough cases, with the number of referrals to the Court having decreased over recent years from almost 4% to under 1%.
What is causing this declining rate was of interest to most in the audience, but Commissioners seemed unable to account for it. On the one hand, the Chair suggested that austerity could be a cause: a representative from the Ministry of Justice spoke about underfunding of criminal justice and cuts that might be affecting the quality of applications to the CCRC, with fewer applicants being legally represented due to restrictions on Legal Aid (this is currently being researched by the University of Sussex). In light of Hodgson and Horne’s research, which found that CCRC applications with legal representation were more likely to be successfully referred than those who weren’t, this is cause for concern.
Some members of the audience suggested that the declining referral rate may be as a result of the close relationship between the CCRC and the Court of Appeal, and that the CCRC was unduly deferential to the increasingly restrictive approach of the Court of Appeal (for example in ‘joint enterprise’ cases, with the Johnson case, following Jogee raising the bar for referring convictions). Some suggested that where applicants raise the issue of police misconduct, the Court is now more stringent, emphasising the need to prove how the misconduct links directly to the safety of the conviction at hand. Concern was also raised over the Court’s approach to cases where there is no new evidence but it is assumed that the jury ‘got it wrong’, otherwise known as a ‘lurking doubt’ cases, in which the Court is reluctant to overturn a jury’s decision.
Commissioners too were keen to express their frustrations, agreeing that police misconduct and failure to disclose exculpatory evidence are two of the most common points raised by their applicants. Forensic experts concurred with the CCRC and others that such cases are likely to increase in number and severity as agencies struggle to manage the vast data sources made possible by mobile and satellite communications and other devices that takes considerable resources to search, making accidental and incompetent non-disclosure more likely.
So where to from here? Many raised the need for more thorough research into contemporary threats to fair and equal justice, including a thematic review of miscarriages of justice cases. David Rose proposed a very sensible suggestion of making full trial and appeal transcriptions freely available to appellants and legal representatives in order to increase the chances of discovering flaws in the prosecution case and producing more robust applications to the CCRC. In turn, the CCRC proposed a new initiative to increase transparency in the form of a user group forum of interested stakeholders to share information as well as frustrations.
In light of my own doctoral research, I was moved to hear from Michael O’Brien and John Kamara that the experience of a miscarriage of justice does not cease with the quashing of a conviction. There is a whole other conversation to be had about the ‘aftermath’ experiences of wrongful convictions, when the Commission and the Court of Appeal has done its job.
However, whilst the conference heard legitimate concerns and good recommendations for improvement, in this time of austerity we must be careful not to cloud the achievements of the Commission. We should be grateful that we have an independent review body with government funding (though perhaps not enough) and extensive review powers, putting us a step above other jurisdictions who have expressed an interest in such a body, including Australia and New Zealand. Without it, the likes of Michael O’Brien and John Kamara would likely not have been there to tell their powerful stories.
Author Biography: Laura Tilt is a DPhil Candidate in the Centre for Criminology. Her research focuses on the post-exoneration experience of the wrongfully convicted.
She can be reached at: firstname.lastname@example.org