A recording of this talk is available here
The CCRC’s History: Restoring Public Confidence in the Criminal Justice System?
Professor Hoyle began her presentation by giving an overview of the history of the CCRC: A series of media-effective ‘catalytic’ wrongful convictions in the 1970s (particularly for terrorist Irish Republican Army bombings that, for example, the Guildford Four, the Maguire Seven, the Birmingham Six, and Judith Ward had been convicted for) had led to a crisis of public confidence into the criminal justice system. As a consequence, a Royal Commission on Criminal Justice was set up to examine the effectiveness of the justice system. In its final report in 1993, the Commission recommended that the Home Secretary’s power to refer cases to the Court of Appeal (‘the Court’) should be removed and a new body should be set up to consider alleged miscarriages of justice. The CCRC was subsequently established by section 8 of the Criminal Appeal Act 1995 and began its work in 1997 in Birmingham. The Commission has been given a range of powers and resources with a staff of thirty to forty case workers, twelve commissioners, legal and investigations advisors, and administrative and executive support. However, its authority is limited in that it cannot quash convictions on its own but has the power to refer the convictions back to appeal. The establishment of the CCRC as an independent, state funded body with powers to investigate miscarriages of justice was pioneering and has inspired other jurisdictions to follow suit—Scotland, Norway, and the American state of North Carolina have set up similar commissions, while other jurisdictions are contemplating it.
The ‘Real Possibility Test’ and its Implications
Professor Hoyle then moved on to describe the benchmark against which the CCRC must orient its work, the ‘real possibility test’: According to Criminal Appeal Act 1995, section 13, ‘a reference [to the Court of Appeal] […] shall not be made […] unless the Commission consider that there is a real possibility that the conviction, verdict, finding or sentence would not be upheld were the reference to be made’. A ‘real possibility’, then, has been defined by Lord Bingham CJ in R v Criminal Cases Review Commission ex parte Pearson as a ‘contingency which […] is more than an outside chance or a bare possibility but which may be less than a probability’. As the subject of this test is the Court’s decision after a referral, the CCRC case managers also need to consider the test subsequently applied by the Court: ‘is the conviction unsafe?’. According to Criminal Appeal Act 1968, section 23, this is the case if the evidence is capable of belief, capable of forming a ground for allowing the appeal, and fresh. In addition, there must be a reasonable explanation for the failure to adduce the evidence in those proceedings. The research conducted by Hoyle and Sato focuses on how the Commissioners decide whether the given evidence fulfils those requirements.
Successful Referrals and the Screening Process: Is the Commission Fit for Purpose?
In practice, Professor Hoyle explained, of the approximately 1400 applications the CCRC receives every year only some 3-4 per cent survive the ‘real possibility test’ and are referred to the Court. This rate dropped to just 0.8 per cent in 2016/17. The high attrition rate led to criticism that the CCRC is ‘not fit for purpose’. It has further been criticised for being ‘too slow but not thorough enough’, and for its ‘huge variability in responses’. These criticisms have a weak empirical basis, however, considering that Hoyle and Sato’s research is the first major empirical assessment of decision-making within the CCRC. Given that 437 of the 658 cases the CCRC referred were successful on appeal, having thus positively influenced hundreds of lives since its establishment in 1997, Professor Hoyle made clear that in her view the Commission is fit for purpose. While some problems remain—there is some variability in the Commission’s response to cases and it is sometimes too slow and too cautious in referring cases—its positive impact is particularly hard to deny against the backdrop of its predecessor, the small and under-resourced C3 unit in the Home Office, whose work, between 1980 and 1992, led to an average of just five cases a year being quashed by the Court of Appeal.
The research presented in the book was conducted over a period of four years in which the CCRC’s response to 146 applications received since 2000 was analysed from the screening and investigation phase to the decision whether to refer cases to the Court or not. The sample consisted of six categories of cases: historical institutional abuse, contemporary sexual offence, forensic and expert evidence, police investigation, court directed investigation, and asylum cases, and thus represents ‘the bulk of the work at the Commission’. In addition to the analysed 146 cases, the qualitative data comprised a total of ninety interviews with current and former members of CCRC staff, staff at the Scottish Commission, and lawyers with experience of Commission applications. The evaluated quantitative data included a large administrative dataset provided by the CCRC, consisting of 11,289 cases, and a questionnaire-based survey of CRMs.
Professor Hoyle then focused on the screening of cases, the first hurdle in the decision-making process where almost half of the applications are discarded. The screening decision is based on minimal information and consists of a superficial review of the case; it has therefore been referred to by one interviewee as an ‘inexact science’. The rates of how many cases are sent to the review stage varies significantly from Commissioner to Commissioner, demonstrating varying confidence that they are able to screen cases accurately. Professor Hoyle highlighted some stark differences in the approaches to screening applied by different Commissioners to the screening of no-appeal cases (i.e. cases for which an appeal has not been determined before the application to the CCRC and which therefore, according to section 13(2) of the Criminal Appeal Act 1995, can only be referred in ‘exceptional circumstances which justify’ the referral): One Commissioner had screened out 96 per cent of the 1,145 applications he or she processed while another discarded only 70 per cent of a total of 405 applications. Another interviewee reported getting alarmed sometimes by such inconsistencies in the screening process.
The Decision-Making Process: The Surround, Field and Decision Frames
When asked how they decide about the referral of a case, Hoyle and Sato’s research shows that Commissioners assume they base their decisions primarily on the ‘merits’ and ‘own facts’ of each case and that therefore two CRMs or Commissioners given identical evidence would likely make the same decision. The perception of being influenced merely by the legislation, decisions of the Court of Appeal, and CCRC guidelines reflects a positivistic assumption of CRMs and Commissioners regarding their own decision-making. Hoyle and Sato, however, draw on the work by Hawkins who adopted a ‘naturalistic approach’ to decision-making which considers the broader decision-making environment. On that basis, they argue that what is regarded as ‘merited’ is not self-evident, but context-sensitive and open to interpretation.
Professor Hoyle explained that in order to make sense of the decision-making process they adopted Hawkins’ concepts of decision-making environments, the ‘surround’ and the ‘field’. The Commission’s surround consists of constantly shifting social, economic, and political factors. At the time of Hoyle and Sato’s research it was characterised by severe cuts to legal aid that took place due to austerity, rising evidence of police and prosecution failing to disclose potentially exculpatory evidence, and increasing challenges to the reliability of forensic and expert evidence. According to Professor Hoyle, there has also been a rise in the number of applications the CCRC receives and consequently a relative reduction of its budget.
The Commission has to respond to such changes in its surround, and it does so by clarifying the decision ‘field’: It structures the internal decision-making process through its (not publicly available) Casework Guidance Notes, formal memoranda, working rules, and informal expectations and assumptions. According to Professor Hoyle, the CCRC’s structuring approach succeeds in producing fairly consistent response outcomes.
Professor Hoyle pointed to developments in forensic sciences as an example for a shifting ‘surround’: A report by the Royal College of Paediatrics and Child Health in 2008 triggered a shift in the assessment of clinical indications such as the ‘attenuation’ of a girl’s hymen to be consistent with child sexual abuse. The report prompted a CRM to determine in a relevant case that ‘what [the expert at trial] viewed as “inconclusive but suggestive”, would now be just “inconclusive”. What she viewed as “rare”, will now be accepted as occurring naturally in a reasonable number of non-abused children.’ After the Court accepted cases on the grounds of these new findings, this led to the CCRC adapting its decision ‘field’ as well and a ‘referral momentum’ was created: Following the report, seven of Hoyle and Sato’s sample cases involving convictions for the rape and sexual assault of children were referred and the appeal subsequently allowed.
While the Commission’s ‘field’ is providing consistency, Professor Hoyle argued that ‘decision frames’ are important to understand why CRMs and Commissioners might still sometimes come to different conclusions when applying the ‘real possibility test’. She defined ‘decision frames’ as structures of knowledge, experience, values, and meanings. As Professor Hoyle pointed out, they do not necessarily match the objective facts of the case but help the Commission staff to decide which facts are relevant and how persuasive evidence is. They are on the one hand influenced by the institutional culture—if the organisation itself is risk-averse, for example, there might be a higher threshold of what evidence is perceived as persuasive. On the other hand, the individual biographies of decision-makers play a role in that, for instance, the experience of having worked as a prosecutor might produce a different framing than that of having worked as a criminal defence solicitor. Professor Hoyle argued that while decisions are primarily made on the basis of a legal frame—in particular the ‘real possibility test’—a ‘narrative’ frame of plausibility and persuasiveness is also of considerable importance: Hoyle and Sato’s research shows that it was important for the success of applications whether applicants managed to present a plausible narrative for their innocence, thereby influencing the tenacity of the CRMs from the start.
Towards a Bolder Approach?
Overall, Professor Hoyle concluded that, due to the ‘real possibility test’, the Court’s jurisprudence is the most important aspect of the CCRC’s surround that significantly shapes the Commission’s field. However, the Commission’s approach that is closely oriented to the Court’s jurisprudence involves the danger of being unable to act in a corrective manner if the Court makes overly restrictive decisions. The alternative, referring more ‘borderline’ convictions in the hope of proactively influencing the Court’s jurisprudence, will, however, lead to a lower success rate and this is feared to cause reputational damage to the Commission. Nevertheless, Professor Hoyle argued that, against the backdrop of the decreasing referral rate, now would be a good time for the CCRC to adopt a bolder approach. She argued that even if the success rate of referred ‘borderline’ convictions is low such an approach would be able to expose systemic failings in the criminal justice system.
Response by Dr Quirk
Subsequently, the respondent Dr Quirk talked about her comparative research on the approaches to miscarriages of justice in British and American jurisdictions for which she has undertaken fieldwork at the Innocence Project in New Orleans. In this context, she highlighted the benefits of having a state funded institution with statutory investigating powers as compared to Innocence Projects that are dependent on donations and the work of volunteers. She also contrasted the different aims of those organisations: on the one hand the bureaucratic benchmark of the ‘safety’ of convictions the CCRC has to observe and on the other the idea of ‘absolute’ innocence to which Innocence Projects are dedicated. Dr Quirk also pointed to an increasing ‘glamourisation’ of potential miscarriages of justice in the United States through successful television series such as ‘Making a Murderer’ and ‘The Staircase’, a development that is not mirrored in Britain. She emphasised the importance of defending rule of law institutions such as the CCRC and recognising the important job they do. In spite of all justified criticism she warned about critical voices getting to shape the discussion. She therefore very much welcomed Hoyle and Sato’s thorough research as a valuable and fact-based contribution to the debate.
Questions from the Audience
Several questions from the audience focused on potential bias in the decision-making process with regard to race, gender, and class of the defendants, and on the representativeness of the case managers. Professor Hoyle answered that she did not find any indications of bias in her research. She pointed to the underrepresentation of younger defendants in the applications, however, and the efforts made by the Commission in 2012 to increase applications of younger individuals by introducing an easy read application form. Professor Hoyle also pointed out that the CRMs rarely meet the applicant in person and suspected that an initial feeling of the applicant’s identity that they might have had gets washed out through the mass of information that they are confronted with during often long-lasting investigations. A representative of the CCRC then asked Professor Hoyle for one thing she would change in the criminal appeals process. She answered that, in her view, the most frustrating issue is the requirement of evidence to be ‘fresh’ so that there is no possibility to attack res judicata where the best evidence in favour of the convicted was already included in the conviction. She would therefore prefer a softening of the fresh evidence requirement. The guest from the CCRC added that in his view the most regrettable issue is that the Commission is not allowed to publicly explain their decisions to refer or not to refer.