Criminal Cases Review Commission
Criminal Cases Review Commission: investigating miscarriages of justice – Part 1
This article describes the role and work of the Criminal Cases Review Commission, which began independently investigating possible miscarriages of justice in 1997.*
About the author
David Adams joined the CCRC in 2017, after previously working 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.
This year marks the 20th anniversary of the CCRC, the independent body established by the Criminal Appeal Act (CAA) 1995, tasked with investigating alleged miscarriages of justice. The CCRC reviews convictions and sentences, whether dealt with summarily or on indictment, in England, Wales and Northern Ireland.
The CCRC’s role is to identify, investigate and correct miscarriages of justice by referring appropriate cases to the relevant appeal court. The statute provides that a reference to the appeal court cannot be made unless the CCRC considers there is a ‘real possibility’ that the conviction or sentence would not be upheld were the reference to be made (CAA s13(1)( a)). The real possibility must generally be based upon new evidence or argument. A referral can normally only be made after an appeal: the CCRC being a body of ‘last resort’. In exceptional circumstances, however, a reference can be made even in the absence of an appeal or something new (although new argument or information will always be required for a sentence).
In 2016/17, the CCRC had a budget allocation of £5.43m. At 31 March 2017, there were 92 personnel, including commissioners. Personnel at the CCRC come from a range of backgrounds, including lawyers, former police officers, probation officers, psychologists and forensic scientists, and bring with them a wealth of experience and perspectives.
The CCRC commenced work in 1997. From that time until 31 July 2017, a total of 22,544 applications had been received (including cases ineligible for review) and 21,573 of those applications had been completed. The CCRC has referred 632 cases to the relevant appeal courts and 419 appeals have been allowed following the referrals made.
It is an investigatory body and substantive reviews can involve, for example, interviews of witnesses, police officers, lawyers, judges and, under statutory controls, jurors. Forensic avenues are pursued whenever they might prove fruitful. Experts are instructed routinely in all manner of fields – often exploring new scientific advances and emerging understanding with the very best experts, including those overseas if necessary.
Powers under CAA s17
In order to carry out its functions effectively, the CCRC has substantive powers under section 17 of the CAA. These powers provide access to material held by any public body and override any other obligation of secrecy. They enable access to the most sensitive material, such as that concerning informants, undercover policing and medical records.
The CCRC’s role is to identify, investigate and correct miscarriages of justice by referring appropriate cases to the relevant appeal court
Clearly, requests by the CCRC need to be reasonable and proportionate, applying the principles of the Human Rights Act 1998 where relevant. Underlying requests must be a reasonable belief that the relevant body holds material which may be of assistance. Consequently, a speculative search for material which would hold no prospect of being relevant to assessing the safety of a conviction would be inappropriate.
The CCRC is an independent body and will make requests for disclosure of information whenever it believes it to be appropriate, enabling a complete and thorough understanding of the whole case. Use of this power is very common to request material from a wide variety of public bodies, including police forces, the Crown Prosecution Service, the courts, the NHS, government departments, local councils and even intelligence agencies. In the past 10 years up until the end of April 2017, the CCRC had issued 18,564 section 17 requests.
The Criminal Cases Review Commission (Information) Act 2016 extended the powers by inserting section 18A into the CAA. While the CCRC normally negotiates access to material held by private individuals or organisations in appropriate circumstances, it can now seek to secure access to such material via an application to the Crown Court.
Given the potentially sensitive nature of the material being accessed by the CCRC, there are strict statutory controls on disclosure, including a criminal offence for wrongful disclosure, within sections 23 to 25 of the CAA. Parallel to those statutory controls is the requirement, established in R v Secretary of State for the Home Department ex p Hickey and others (No 2) [1995] 1 All ER 490, that the CCRC must disclose information acquired in the course of its functions if it would assist the applicant to make his best possible case. These two factors create the need for a very careful assessment of disclosure during every review.
For those within the legal profession it is important to understand the role of the CCRC within the wider appellate system in order that clients can be given appropriate advice.
* The second part of this article will describe the wider role of the CCRC and the commission’s future work.
- For further information visit: www.ccrc.gov.uk