Getting a Wrongful Conviction back into Court: A tortured path
Most people wrongly convicted of a crime are quick to lodge an appeal within the allotted 28-day time limit. Unless there was something seriously wrong with the actual trial process however, your only hope of an acquittal is to find some fresh evidence that wasn’t available just a week or so earlier. Still reeling from the shock of what has just happened, shaken prisoners scramble to resource complex gold panning expeditions. Of course, the prospect of finding this fresh material so soon after a trial is unlikely in the extreme, and so – perhaps inevitably – the vast majority of appeals are unsuccessful. Years later, when you finally find a gold nugget, you are debarred from taking it directly to a Judge for a second time. Instead, one must run the gauntlet of applying to the Criminal Cases Review Commission (CCRC): an underfunded, under-resourced government quango.
Once you’ve submitted an application, your application will sit in a queue waiting to be assigned to a Case Review Manager (CRM). Being left to stew for a year, as I was, is not a particularly pleasant experience. Unfortunately, things don’t get much better once your papers are picked up. The CCRC has developed a bad reputation amongst prisoners for leaving them in the dark. This certainly reflects my own experience in 2013, when month after month it proved almost impossible to get any kind of update on the progress of my application, what they were actually doing with all this time that was passing, and when I might expect some kind of response. The House of Commons Justice Committee (HCJC) found in March 2015 that CRMs were still not engaging “fully with applicants throughout the investigation in cases”, and do not meet with applicants face-to-face as a matter of course in cases that make it past the initial screening stages.[i]
“Variations in the experience and expertise” of CRMs are common, an issue that remains largely unaddressed from the 2015 HCJC review.[ii] This has made justice something of a lottery for applicants, who often feel that the success of their case depends upon the personal inclinations, commitment, and proficiency of the person handling their application.
At the end of the review process, the CCRC decides whether there is a ‘real possibility’ that the Court of Appeal will actually overturn the conviction. In doing so, they are essentially putting themselves in the shoes of Judge and second-guessing what he or she might think. One might reasonably argue that the best person to do this is an actual Judge, but the CCRC are seen as a ‘gateway’ service whose job is to filter out potential miscarriages of justice before a Judge ever has to worry about them. The problem is that the CCRC has, historically, been rather over-zealous in this role. Like an aggressive doorman at an exclusive nightclub, they tended to turn most of their customers away, much to the bemusement and frustration of those of us who spent months queuing outside in the cold and rain.
Having subjected the CCRC’s crystal ball gazing to considerable scrutiny in 2015, however, the House of Commons Justice Committee (HCJC) recommended that it should be “less cautious in its approach… and reduce the targeted success rate in its Key Performance Indicators”. The CCRC initially deflected blame away from its own interpretation of the ‘real possibility’ test,[iii] by pointing – quite reasonably it might be argued – towards the Court of Appeal’s “criteria for assessing the safety of a conviction”[iv]. The CCRC even supported calls for the Law Commission to consider an amendment to the law – but that was five years ago, and no such review has taken place.
For the law to develop, the CCRC must bring ‘hard’ or difficult cases, not just obvious or ‘plain’ ones,[v] and they must be willing to push the boundaries of the statute to encourage the natural development and extension of common law by our judiciary. Judges cannot pick the cases that come before them, they must be presented with opportunities to develop the law. It is often the hard cases that really test fundamental principles, so the CCRC must continue to push these cases forward. There are good reasons to think that the CCRC should be hiring legal experts rather than former police officers and civil servants, if only to avoid rigid constructions of the law that are overly deferential to precedent.
The CCRC do seem to have listened to criticism however. In the years following the HCJC review, they have been able to improve their figures considerably. When you look at the percentage of cases they refer to the Court of Appeal which are subsequently overturned, the success rate is now much closer to 50%. Between 2006 and 2015, it hovered around 70%. This is certainly an improvement. It suggests that the CCRC are adopting a less conservative approach, equivalent in numerical terms to other common legal thresholds such as the ‘balance of probabilities test’ used in civil proceedings, or the test used by the CPS when assessing a “realistic prospect of conviction”.[vi]
Nevertheless, with barely 3% of all applications ever making it to referral, and then half of those making it through, nothing it seems, is guaranteed. Having threaded the proverbial camel through the eye of the proverbial needle, one faces a Court of Appeal known for considering fresh evidence “in an isolated fashion rather than reviewing the whole picture in a case”.[vii] This is, in part, a product of selective pleading. Barristers understandably focus their submissions around the strongest grounds in the case, to the exclusion of lesser points, but at the expense of removing much of the context. Important factors that might inform and influence the Judges’ reasoning can thus be missed. A former Commissioner at the CCRC, Laurie Elks offers the case of Tony Stock as a good example of this problem, with the Court “declining to carry out the holistic ‘reasoned analysis’ of the case as a whole… This remains a formidable obstacle to the consideration of referrals where there is even a hint of lurking doubt in the ether”.[viii]
[i] HCJC – op. cit. Paragraph 16, p. 29
[iii] Ibid. paragraph 3, p. 27
[iv] Richard Foster – Foreword, CCRC Annual Report and Accounts, 2014 – 15
[v] H. L. A. Hart, ‘The Concept of Law’, Third Edition, (Oxford, Clarendon Press, 2012)
[vi] Ibid. paragraph 18, p. 11
[vii] Ibid. paragraph 23, p. 15
[viii] Laurie Elks (2010), ‘Miscarriages of Justice: a challenging view’, Justice Journal 7(1)
Mark Alexander, LL.B. (Hons) LL.M.
Mark is a former Rugby School and King’s College London student who was imprisoned in 2010 at the age of 22. He has since completed both his undergraduate and postgraduate law degrees in prison with the University of London. Mark received the Longford Trust’s Patrick Pakenham scholarship award for Law in 2016, and is a member of the Prisoner Policy Network.