Mark issues statement regarding CCRC’s refusal to refer his case
In 2015, the CCRC opted not to refer our first application to the Court of Appeal
In spite of the new evidence we presented to the Criminal Cases Review Commission (CCRC), it has decided not to refer my case to the Court of Appeal. This is because the CCRC do not think that the Court would deem this evidence as sufficient enough to overturn my conviction. The CCRC have also refused to conduct scientific tests that could yield new exculpatory evidence proving my innocence.
I lodged a formal complaint highlighting a number of errors in the CCRC’s reasoning. I was told that, “Many of the concerns you have raised appear to be an example of one of those occasions… when the Commission adopts an interpretation of the evidence that you do not agree with”. I also noted a number of issues that the CCRC had failed to take into account. They explained that, “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 re-investigation of an issue just because it is raised by an applicant”. I asked the CCRC why it had not set out the reasons behind its choice not to pursue these lines of enquiry, and I also asked them to be more specific about some of their findings. They responded by saying, “Once the Commission has investigated a case, it then sets out in its final decision those facts and arguments that it considers are relevant to its analysis and reasoning”.
My lawyers are now preparing a second application to the CCRC and going through the painstaking process of identifying and pursuing new avenues of enquiry, including those not explored by the CCRC in my first application. We will be conducting our own private investigations in search of further fresh evidence.
Over 5 years have passed now since my father’s death, years dogged by grief and injustice for my family and me. I would like to call on anyone who may have new information about my father’s activities, whereabouts, or murder between October and November 2009 to come forward. You can contact freeMarkAlexander.org and they will be able to pass your message onto me or to my lawyers. You do not have to give your name, but we can protect your identity if you do.
Reforming the CCRC
It should be noted that the CCRC does do a lot of good work, indeed we are fortunate that it exists at all, few other countries face up to miscarriages of justice in the way that we do. However, this is no excuse for complacency. The CCRC is falling short of its potential and something needs to be done about it.
The House of Commons Justice Select Committee (JSC) has been conducting a public inquiry into the effectiveness of the CCRC amid growing concern about the appropriateness of their ‘real possibility’ test – the current benchmark for referrals such as my own. This involves the CCRC second-guessing what the Court of Appeal might do with the case, rather than forming their own independent view. Many miscarriage of justice cases like mine aren’t reaching the Court of Appeal where they belong because the CCRC are applying the test too strictly. This concern has been echoed by the JSC itself, which found “that there may be some miscarriages of justice which are going uncorrected because of the difficulty the CCRC faces in getting some such cases past the threshold of ‘real possibility’”.
Politicians and campaigners alike have criticised the CCRC for this “deferential and subservient” approach, describing how innocent men and women are left “languishing in jail” unnecessarily because the organisation is too “timid” to make the referrals it should be making. If the ‘real possibility’ test is anything like the ‘balance of probabilities’ test used in civil proceedings, then referrals should be made where there is at least a 50% chance of success. The figures seem to confirm the view that the CCRC tends to play it too safe, with 70% of the cases it referred between 1998 and 2008 being successful – just 4% of all the applications the CCRC received. In concluding its inquiry in March 2015, the JSC recommended that “the CCRC be less cautious in its approach to the ‘real possibility’ test” and reduce its targeted success rate accordingly.
Funding is certainly an issue when it comes to the quality of CCRC investigations. For every £10 they received 10 years ago, they now receive just £4, despite a 60% increase in the number of cases they have to handle. The JSC have called on the government to grant the CCRC a further £1 million a year in a bid to combat this shortfall.
Ultimately, however, the CCRC need to be given more powers and greater discretion. Without this, they can never be a truly effective failsafe against miscarriages of justice. Indeed, in responding to my complaint, it was pointed out that “the Commission can only act within the constraints of the Criminal Appeals Act 1995 which sets out our powers and duties”. The CCRC are then, by definition, limited by their governing statute. Whether an applicant is innocent or not is irrelevant. The CCRC are solely concerned with whether the conviction itself is sustainable in law.
This needs to change. Firstly, the CCRC should be given clear directions to operate within the ‘interests of justice’ when conducting investigations. This would broaden its remit and bring it in line with the Court of Appeal which itself admits evidence on this basis, where it is in the ‘interests of justice’ to do so. The CCRC’s current decision making process tends to take a much narrower view, meaning that it will be neglecting lines of enquiry that the Court of Appeal would in fact approve of.
Secondly – and most importantly – where cases don’t meet the ‘real possibility’ test but there is a risk of a miscarriage of justice being perpetuated by further inaction, the CCRC should have the power to refer them to the Court of Appeal. Many campaigners and academics have suggested adopting the original recommendations made by the Runciman Royal Commission on Criminal Justice some 20 years ago, namely that the CCRC should consider whether it has ‘serious doubt’ about the jury’s decision (paragraph 46 of the report), or whether there are “reasons for supposing that a miscarriage of justice might have occurred” (paragraph 332). This is echoed in guidelines set down by Lord Justice Widgery (R v Cooper  1 QB 267, 53 Cr. App. R. 82), who held that in the end, the Court will need to ask itself whether “there is not some ‘lurking doubt’ in our minds which makes us wonder whether an injustice has been done. This is a reaction which may not be based strictly on the evidence as such. It is a reaction which can be produced by the general feel of the case”.
On this point specifically, the Justice Select Committee concluded: “it is concerning that there is no clear or formal mechanism to consider quashing convictions arising from decisions which have a strong appearance of being incorrect. Any change in this area would require a change to the Court of Appeal’s approach, which would itself require a statutory amendment to the Court’s grounds for allowing appeals. We are aware that this would constitute a significant change to the system of criminal appeals in this country and that it would qualify, to a limited extent, the longstanding constitutional doctrine of the primacy of the jury. Neither of these things should be allowed to stand in the way of ensuring that innocent people are not falsely imprisoned. While it is important that the jury system is not undermined, properly-directed juries which have seen all of the evidence may occasionally make incorrect decisions. We recommend that the Law Commission review the Court of Appeal’s grounds for allowing appeals. This review should include consideration of the benefits and dangers of a statutory change to allow and encourage the Court of Appeal to quash a conviction where it has a serious doubt about the verdict, even without fresh evidence or fresh legal argument. If any such change is made, it should be accompanied by a review of its effects on the CCRC and of the continuing appropriateness of the ‘real possibility’ test”.
This is an exciting and encouraging development in our criminal justice narrative, made possible in no small part thanks to the activism of concerned groups and individuals. Their work, and that of the JSC, could herald a fundamental change in our approach to wrongful convictions and the speed with which they can be remedied. If the Law Commission does move for reform then it will be down to our next parliament to act upon its recommendations. When the time comes, make sure your local MP is doing everything he or she can to implement these vital reforms as quickly as possible.
Many of you will know that I don’t view my plight in isolation. I see my case as representative of a much wider miscarriage of justice endemic, one which sees some 3000 innocent men and women wrongly convicted each year in the UK alone. So long as I remain in prison I will continue campaigning for justice, not only for my family and I, but for the wider cause of penal reform. If, through my case, I am able in any way to raise awareness of the urgent and continuing need for change in our justice system then it may just make all this a little less meaningless. It is clearer to me now more than ever that some deeper purpose can be derived from tragedy and that channelling positive outcomes from seemingly senseless life events is possible. I have faced many setbacks and I will face many more, but I am reminded of the monks of Monte Cassino, who despite their monastery being destroyed time and time again, held fast to their motto – Succisa Virescit – ‘cut down it will grow back stronger’.
Thank you to all my family and friends who have stood by me, and to all those supporters who have joined us without knowing me directly. Your generous words and prayers have carried me through each obstacle and every disappointment – in moments of despair, exhaustion, and disillusionment. Without you, this would all be so much harder to bear. There is much left to be done, but with your help I know we will get there.