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One of the many problems plaguing the Criminal Cases Review Commission – the body set up to review potential miscarriages of justice in England and Wales – is the sheer length of time that it takes them to consider any given application. To help address the issue, the House of Commons Justice Committee (HCJC) recommended that statutory provision be made for the CCRC to filter out applications to appeal against the length of a sentence, or ‘summary’ convictions handed down by a Magistrate Court.[i]

As part of their review in 2015, they noted that the “Royal Commission did not envisage the CCRC dealing with relatively trivial cases”.[ii] Whilst this recommendation has yet to be taken up, the CCRC have always resisted the idea, arguing – convincingly in my view – that “restricting the cases it can deal with would [not] have any significant effect on its workload, and therefore the resources taken up to amend legislation would not be justified”.[iii]

It certainly doesn’t help that the government has consistently been granting insufficient funding to the CCRC.[iv] Its budget of £5.5m today is little more than the £5.25m it received in 2014 – 15[v], back when the then Chair estimated that they would need an extra £1 million “in order to clear its queues”.[vi] Richard Foster’s revelation at the time, that for every £10 the CCRC had to spend on a case in 2005, it now has just £4, still holds true today.[vii]

Various participants in the new Westminster Commission set up by the All-Party Parliamentary Group on Miscarriages of Justice (APPG) in 2019 have suggested introducing a new gateway or filter to the CCRC as an alternative way to ease their load.[viii] As well intentioned as this idea is, it does raise some potential concerns. We ought to avoid creating additional barriers to entry wherever possible, or indeed, new opportunities for mistakes to be made. The CCRC already have a screening process with various stages to it which filters out the vast majority of applications, so it is doubtful whether this suggestion would actually change anything for the better.

That said, it does seem entirely sensible for there to be an alternative gateway to the Court of Appeal. The CCRC should be a purely investigative body. If an applicant does not require any further investigation to be conducted in their case, because they have already done the legwork and obtained fresh evidence or some new expert report on their own steam, then they should be able to seek advice from Counsel as to whether there are now grounds to take the case directly back to the Court of Appeal. It makes little sense to make that person wait another six months to a year in a queue, for a review by the CCRC that might take a year, when there is no further work to be done and the CCRC are only being asked to look at the papers. This is a waste of taxpayers’ money. Providing a new formal route to the Court of Appeal in these instances may well alleviate the CCRC’s workload in the way Henry Blaxland QC and Kirsty Brimelow QC recently suggested to the Westminster Commission.

Seeking Disclosure

Whilst the CCRC has powers to request the disclosure of evidence, public bodies are under no duty to comply within any reasonable time limit.[ix] They can – and often do – take as long as they like. As the Chief Executive and Accounting Officer at the CCRC, Karen Kneller identified, “the biggest challenge is not getting material… it can take much longer than it ought to”.[x] This is, as Kirsty Brimelow QC put it, a “fundamental flaw”.[xi]

You might think it would be pretty straightforward to get hold of evidence held by the police or CPS, but the reality is very different once you’ve been found ‘guilty’. If you ever want to have something re-examined, or if you come across an exhibit that wasn’t disclosed to you at the original trial, then you’ll have to meet the requirements set out by the Supreme Court in Nunn.[xii] That means justifying how and why the evidence you want to look at might undermine the ‘safety’ of your conviction. If you’ve never seen a particular exhibit before, this requirement will be extremely difficult to meet, because you won’t know what evidence it contains. Given that non-disclosure of exhibits at trial is one of the most common causes of miscarriage of justice, this dilemma affects a huge proportion of the cases most in need of uninhibited access to police storerooms. Setting the moral defensibility of this position aside for a moment, even if you make it through the maze of red-tape and the police finally agree to disclose the evidence you’ve asked for, there are no time limits. You could be stuck in limbo for years.

The American system, for all its flaws, is far more transparent – at least in this respect. Defence lawyers in America often enter into confidentiality agreements with the District Attorney’s office and police to obtain full and open disclosure, on condition that the evidence won’t be shared with third parties. Many academics have been calling for the UK to learn from the success of Conviction Integrity Units, which have unfettered access to law enforcement evidence and records.It’s high time we shifted our criminal appeals system out of the slow lane.

Time will tell whether the Westminster Commission is able to bring about these and other changes or not, but it is important that the public gets behind their work. You can do your bit by writing to your local MP and inviting them to join the All-Party Parliamentary Group in order to strengthen their membership. Year on year, the liberty and dignity of more and more lives are at stake, ensnared by a trawler-net justice system that not only hauls in the innocent in its eagerness to capture the guilty, but makes it incredibly difficult for the innocent to then disentangle themselves. We cannot afford to put off these changes any longer. Radical reform is needed if we are to provide real and meaningful redress to miscarriage of justice victims.

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.

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[i] HCJC – op. cit. Paragraph 10, p. 28

[ii] Ibid. paragraph 37, p. 19

[iii] Ministry of Justice, Triennial Review of the CCRC – (June 2013) p. 8

[iv] Ibid. paragraph 8, p. 28

[v] Ibid. paragraph 31, p. 17

[vi] Ibid. paragraph 32, p. 18

[vii] Oral Evidence taken by the HCJC, (Friday 6 February 2015), HC 850 – Q. 108

[viii] Westminster Commission – Second Evidence Session (Part II)

[ix] Ibid. paragraph 12, p. 29

[x] Westminster Commission – First Evidence Session

[xi] Ibid. Second Evidence Session (Part II)

[xii] R (on the application of Nunn) v Chief Constable of Suffolk Constabulary [2014] UKSC 37