Review of Criminal Cases Review Commission reveals how innocent victims of wrongful convictions can still be failed

Press release issued 1 February 2013

Findings from the Innocence Network UK (INUK)-led report has revealed how innocent victims of wrongful convictions can be failed and calls for urgent reforms to ensure innocent victims of wrongful convictions are better assisted.

The report, comprising a series of recommendations from some of the UK’s leading academic experts, criminal appeal practitioners and former CCRC Commissioners, was collated at a recent INUK symposium to mark the CCRC’s 15th anniversary. 

Contributions from victims of wrongful convictions and alleged innocent victims of wrongful conviction who are struggling to achieve a referral by the CCRC back to the Court of Appeal (Paddy Joe Hill of the Birmingham Six, Susan May and Eddie Gilfolye), and representatives of organisations that campaign for, and provide much needed support to, alleged victims of wrongful conviction and their families, were also included.

The review sought to address concerns from individuals working on cases of alleged wrongful convictions that the CCRC is not the extra safety net for innocent victims of wrongful convictions, and the growing list of cases refused referral despite serious doubts about the evidence which led to conviction.

Members at the event were asked for their thoughts as to how they think the CCRC could be reformed to give the innocent a better chance of overturning their convictions, while accepting that the criminal justice system is not perfect, and that innocent victims of wrongful conviction may be failed by the CCRC.

Although differing views are expressed in the report there is a broad consensus on the following issues, these are:

• The existing relationship between the CCRC and the Court of Appeal is unsatisfactory and requires, at the very least, a re-examination.

• In particular, the ‘real possibility’ test under s.13 of the Criminal Appeal Act 1995 enshrines a relationship of deference to the Court of Appeal. It prevents the CCRC from referring potentially genuine wrongful convictions of applicants who may be innocent if it is thought that the Court of Appeal may conclude that the case lacks legal merit. This severely compromises the CCRC’s independence and hinders its ability to assist applicants who may be innocent.

• The ‘real possibility’ test under s.13 of the Criminal Appeal Act 1995 needs to be replaced with a different test that allows the CCRC more independence both in its review of alleged wrongful convictions, and in its consideration on whether to refer a case back to the Court of Appeal.

• The wording of the fresh evidence criteria under s.23 of the Criminal Appeal Act 1968, which defines fresh evidence as evidence not adduced at trial, is generally unproblematic. However, both the CCRC and the Court of Appeal tend to adopt an overtly strict interpretation of the test. In particular, evidence that was, or could have been, available at the time of the trial is generally not considered as fresh evidence. A looser interpretation of the fresh evidence criteria needs to be adopted so that victims of wrongful conviction are not procedurally barred from having their convictions overturned.

• The CCRC’s case review approach is generally limited to a desktop review of the case papers. It needs to undertake more fieldwork investigations, such as crime scene visits and re-interviewing of witnesses, particularly in complex, serious cases. While it is accepted that this would require a significant increase in the CCRC’s resources, the resource implications could be addressed by refining the CCRC’s intake to sharpen its focus. For instance, cases based on points of law or legal technicalities that have no bearing on the applicant’s possible innocence could be excluded from the CCRC’s remit. Such a refinement can contribute to more rigorous investigations on potentially genuine innocence cases.

The INUK report on the need to reform the CCRC coincides with the Ministry of Justice’s triennial review to examine the key functions of the CCRC and whether the functions are still required. A pre-publication copy of the INUK report was sent to the Ministry of Justice on the 13 December 2012 to be considered in its review.