Miscarriages of Justice Investigations – Going Beyond the Bundle
Deconstructing a wrongful conviction is a painstaking process. Often, once all the tripwires that floored the original jury have been carefully exposed, a case will require extensive investigative efforts to reveal previously unseen evidence that can exonerate the individual, or at least raise serious doubts about the veracity of the verdict. The All Party Parliamentary Group on Miscarriages of Justice began its work in September 2019 by holding evidence sessions focusing on the role of the Criminal Cases Review Commission (CCRC) in exposing these injustices.
One of the worrying, recurring themes that arose from this was that the CCRC, as Henry Blaxland QC put it, is “too deskbound. There isn’t enough investigation”.[i] This observation isn’t new. Professor Carolyn Hoyle made similar remarks before the House of Commons Justice Committee (HCJC) in 2015. In her research, she found that the CCRC only went ‘beyond the bundle’ – to actively investigate – in about a third of cases.[ii]
Sadly, this painful realisation rings all too true with applicants like myself, who approached the CCRC in good faith, believing that they would uncover the evidence needed to overturn our wrongful convictions. When I submitted my first application to the CCRC, in October 2012, I asked them to commission an expert to revisit the crime scene and conduct various scientific tests that had been overlooked at my trial. The CCRC were directed to lines of enquiry which had not been pursued in the original police investigation, and asked to obtain previously unseen material from the Crown Prosecution Service. When the CCRC failed to explore any of these avenues, I was left feeling disappointed and confused. The shock was compounded by the fact that the CCRC had kept my lawyers and me completely in the dark during the 12 months that they were ‘investigating’ my case. I could only imagine what steps they were actually taking over the course of that year to uncover the truth. Having been lulled into a false sense of hope, the revelation at the end of this process that they had done none of the things we asked them to do made the fall all that much harder.
My only option now was to conduct my own private investigations with the help of friends and family. The expert we commissioned reconstructed events at the crime scene, only to discover that the sequence of acts involved took far longer than the prosecution had allowed for at trial, making it impossible for me to have been responsible. The report was completed in August 2017, three years after the CCRC completed their paper review.
Time has indeed been our greatest enemy in these investigations. It took us many years – for example – to identify, trace, and interview new witnesses, or secure evidence that points toward alternative suspects in the case. Similarly, many of our requests for previously unseen data held by private and public companies, like phone records, have been stymied by the sheer passage of time – time lost to our fruitless CCRC application.
Getting our hands on exhibits overlooked at trial has been an equally fraught and protracted process, but it has yielded significant results. This has included evidence that the victim was in fact alive several weeks after the prosecution had thought – and, five years after the CCRC closed my file, cell site data from my own phone which allows us to confirm – for the first time – where I actually was, and for how long. These basic steps could, and should, have been carried out by the CCRC long ago.
It ought to be said that many applicants feel so despondent after being let down by the CCRC that they simply give up, beaten into a state of despair by the cumulative effect of earlier mishaps at the Appeal Court stage. Those who can muster the strength to continue often lack the resources needed to carry out the kind of complex investigations then needed. I have been extremely lucky in this respect, but private citizens like myself do not have the powers of a body such as the CCRC. It has been extraordinarily difficult to do – in their stead – the job that the CCRC were supposed to have done on my behalf. The challenge has been made all the greater by my continued incarceration. I would have been quite lost without pro bono assistance, or the many generous people who have supported, encouraged, and believed in me along the way. Each one has had to make personal sacrifices, and has borne the burden of my imprisonment with me. This should never need to be the case. What is perhaps most frustrating, is that all of this could have been avoided had the CCRC done some actual investigating.
The CCRC justified their inaction in the following terms: “the Commission will use its discretion to make enquiries which have a realistic prospect of producing fresh evidence or legal argument which might, at its highest, give rise to a real possibility that the Court of Appeal would quash your conviction. The Commission will consider all lines of enquiry raised by an applicant, but it is neither feasible nor justified for the Commission to undertake a full reinvestigation of an issue just because it is raised by an applicant.”[iii] Not only did they get this wrong in my case, but the broader implications of this approach for other cases are far from satisfactory. Investigations should be pursued not because you already know the answers, but because you want to get to the bottom of something. By concerning themselves solely with the sustainability of a conviction in law, rather than seeking to establish the truth, the CCRC are missing out on important opportunities to establish what really happened.
The CCRC should be under a duty, like the police, to pursue “all reasonable avenues of inquiry”[iv] – particularly when those avenues were not pursued in the first instance. I cannot tell you how many times we have followed a lead in the expectation of one result, only to reveal a completely different but equally as important outcome that exposes previously unknown features of the case. If I walk past a rabbit hole, thinking that it doesn’t look particularly promising, then I will miss the complex network of warrens that it leads to. This is the CCRC’s most tragic mistake.
From a purely practical perspective, I lost 25 months to the CCRC process, and a further 16 months in drafting and complaints – but the emotional toll on our family resulting from this injustice has been just as devastating. Had I known that the CCRC were incapable of genuine investigation, I might have embarked upon my own private venture 3 ½ years sooner. Of course, applicants shouldn’t have to resort to this. Like so many others, I put my trust in what was supposed to be a body empowered under the Criminal Appeals Act 1995 “to obtain material from public and government bodies regardless of issues of confidentiality or secrecy, and to appoint officers to investigate matters as appropriate”.[v] We were sold a dream that turned into a nightmare. The CCRC are simply not using these powers in the vast majority of cases, and it is precisely because of this inaction that they are so widely lambasted as ‘unfit’ for purpose.
In its present guise, and with its present funding, the CCRC cannot deal effectively with miscarriages of justice. Statutory change will be of little use if the CCRC consistently fails to avail itself of the powers bestowed upon it.
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.
Mark successfully petitioned for the disclosure of data held by Her Majesty’s Revenue and Customs in relation to his father's aliases and financial activities. You can download a copy of the proceedings in the High Court from April 2020 for yourself below.
You can download a copy of Mark's 2012 application to the Criminal Cases Review Commission and read about their handling of his case for yourself below.
[i] Westminster Commission – Second Evidence Session (Part II)
[ii] HCJC – op. cit. Paragraph 48, p. 23
[iii] Personal correspondence – Catherine Dilks, Customer Service Manager, CCRC, (26 March 2015)
[iv] s3.5, Code of Practice, Criminal Procedure and Investigations Act 1996
[v] Ministry of Justice, op. cit. p. 3