Criminal Cases Review Commission
Criminal Cases Review Commission: investigating miscarriages of justice - Part 2
The second article in a two-part series describes the wider role of the Criminal Cases Review Commission (CCRC) and its future work.¹
About the author
David Adams joined the CCRC, in 2017, after working previously as a criminal defence solicitor. Prior to qualification as a solicitor, in 2012, the author had been admitted as a Fellow of the Chartered Institute of Legal Executives.
The CCRC was set up after a series of high-pro file miscarriages of justice, and is a crucial part of a criminal justice system that will never be perfect. If an individual has exhausted their normal appeal rights, this independent investigative body is the only way back into the appeal system.
Some of the starkest miscarriages of justice addressed by the CCRC include the following:
- Mahmood Mattan, who was hanged for a murder he almost certainly did not commit (R v Mattan (deceased), (1998) 24 February CA (Crim Div); Mahmoud Hussein Mattan (1998) The Times, 5 March CA).
- Michael Shirley, who served 16 years in prison for a murder that, subsequently, DNA evidence indicated he did not commit (Shirley v R [2003] EWCA Crim 1976, 29 July 2003).
- Warren Blackwell, who served a five-year prison sentence for a serious sexual assault that never happened (R v Blackwell [2006] EWCA Crim 2185).
- David Ryan James, who served over three years in prison for a murder that probably never occurred (R v James (1998) 31 July CA (Crim Div)).
In addition to the core function of investigating and referring potential miscarriages of justice back to the appeal court, the CCRC has a wider role to play in the criminal justice system to help improve it.
In addition to [its] core function... the CCRC has a wider role to play in the criminal justice system to help improve it
Every case we review is assessed on its individual merits. While no two cases are the same, a review of the convictions quashed following CCRC referrals reveals a number of overriding themes.
New expert evidence
A proportion of the convictions quashed concerns new expert evidence from a wide variety of disciplines. Such new evidence might come from an advancement in the relevant field, either through new testing (for example, in the case of R v Hodgson [2009] EWCA Crim 490) or amended understanding (for example, in R v George [2007] EWCA Crim 2722 and in R v Clark [2003] EWCA Crim 1020), or might be on a topic not even considered by experts during the initial trial (for example, R v Blackman [2017] EWCA Crim 190).
Material non-disclosure
Another common theme in our referrals is material non-disclosure. Significant non-disclosure can impact on a range of issues at trial, but often they relate to the credibility of key witnesses (for example, (1) Dunn (2) Higgins v The Crown [2016] EWCA Crim 1392 and Warren Blackwell above).
Officer misconduct
Officer misconduct has featured in a number of referrals made by the CCRC (for example, Maxwell and Mansell v The Crown [2009] EWCA Crim 2552, R v Choudhery and another [2005] EWCA Crim 1788 and [2005] EWCA Crim 2598, and Foran v The Queen [2013] EWCA Crim 437; [2014] EWCA Crim 2047), and such misconduct can take a variety of forms.
Judicial error
A final theme of note that has emerged from our referrals is in relation to judicial error, most often relating to a misdirection of the jury (for example, R v Mohammed (1); R v Osman (2) [2007] EWCA Crim 2332).
Specific issues can trigger referrals
The themes mentioned above are certainly not exhaustive, but are illustrative of common issues arising. In addition to such general themes, occasionally, specific issues arise with particular offences, which results in a number of referrals being made.
One such issue is in relation to asylum and immigration offences. Many applicants to the CCRC were not advised properly by their representative about defences available to them through statute or international law. In excess of 20 individuals, mainly refugees, have had convictions quashed as a result of CCRC referrals in this area.
Undoubtedly, only the tip of an iceberg, the CCRC took action, working with stakeholders across the entire criminal justice system, and within the third sector, to highlight the problem and the need for improvements.
While most CCRC reviews are triggered by an application, we are also proactive. We worked with Mark Ellison QC in his independent review of possible miscarriages of justice connected to the work of the Special Demonstration Squad (alongside the Attorney General’s Office, the Crown Prosecution Service (CPS), the police, HM Courts and Tribunals Service and the security service) influencing the legal and practical principles, and establishing a protocol for individual cases to be suitably addressed.² This continues to be relevant in the context of the ongoing Pitchford Inquiry into undercover policing.³
Other recently emerging issues also have the potential to lead to future CCRC referrals. One such issue surrounds Randox Testing Services and the potential for hundreds of criminal cases to be affected by unreliable forensic test results. We are liaising with the Forensic Science Regulator and the CPS. Another example concerns the activity, in Northern Ireland, of an informant code named ‘Stakeknife’. We are liaising with Operation Kenova in that respect. 4
More generally, we liaised with Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services and the CPS, supplying what material we could of relevance to their joint inspection on disclosure. 5
The legal profession has an important role in identifying potential miscarriages of justice, which could simply be limited to advising a past client of an emerging issue and providing them with contact details for the CCRC. We would also be glad to hear from the profession about issues that might lead to future miscarriages of justice.
1 Part 1 appeared in (2017) October CILExJ pp23–24.
2 The report, The Stephen Lawrence Independent Review: possible corruption and the role of undercover policing in the Stephen Lawrence case, and summary of findings from Mark Ellison's independent review, available at: http://tinyurl.com/lwqd7m3
3 For details visit: www.ucpi.org.uk
4 For details visit: www.opkenova.co.uk
5 Making it fair: a joint inspection of the disclosure of unused material in volume Crown Court cases, July 2017, available at: http://tinyurl.com/ya5ojn77
- For more information about the work of the CCRC, visit: www.ccrc.gov.uk