Select Committee on Home Affairs Minutes of Evidence



Memorandum submitted by Campbell Malone, Chairman of the Criminal Appeal Lawyers Association

  I have been asked to write to you in my capacity as Chairman of the Criminal Appeal Lawyers Association, the recently formed organisation of Solicitors with particular experience and interest in dealing with Appellants before the Criminal Appeal Court and applicants to the Criminal Cases Review Commission. Some of the firms involved you will probably be familiar with such as Birnberg Pierce & Co., Taylor Nichol & Co., (who represented amongst others the Bridgewater 3) Glaisyers and Hickman & Rose but there are a number of others.

  I understand that the select committee is to consider the progress of the Criminal Cases Review Commission at the end of this month and my Committee thought it helpful if I wrote to you with some observations based on our joint experience.

  The first and most obvious concern over the CCRC remains the volume of work outstanding both in relation to concerns over the delay in addressing it and also in the Commission's approach to dealing with that outstanding workload.

  We do however feel that the context in which the Commission operates needs to be considered.

  By its constitution the Commission deals with those cases that have already been before the Court of Appeal. The view of most practitioners regularly involved in criminal cases before the Court of Appeal is that the Court does not see itself as a forum where mistakes can be rectified or injustices put right but rather the last bastion of the system. It sees its function as wherever possible to preserve the conviction because by doing so it sees itself as avoiding undermining public confidence in the system. The truth of course is that it does exactly the opposite. Most objective observers of the legal system would consider that it is most discredited when it fails to overturn a conviction until decades have passed and often a considerable campaign mounted sometimes by determined individuals or groups of individuals.

  The result is that the Commission is faced with a larger then necessary workload.

  The Commission itself has to reflect the Court of Appeal in that it can only send cases back where there is a real possibility that if it did so the conviction would be overturned and it is therefore reasonable for the Commission to approach cases on the same basis that the Court of Appeal would but there is a feeling that from time to time the Commission sets too high a barrier. After an initial period which could perhaps be described as a "honeymoon" period when the Commission's references were succeeding at a rate of approximately 70% to 75% there have been a number of unsuccessful references and the experience of many practitioners is that the result has been that the Commission themselves have become more cautious in referring cases. I personally can think of several cases where the Commission would have likely to have referred say two years ago which have recently been refused.

  The Commission might well argue that with experience and a greater feel for what the Court of Appeal will and will not accept they have been more selective but the truth of the matter is that as the law is constantly evolving the Commission should be prepared to refer cases which are arguable and they should not be seen to be conservative. They are not part of the Court process but should be a process of filtration through which cases, which are properly arguable, should be referred.

  There are of course continuing problems with delays. As I have already indicated within the context they operate the Commission has a large workload and I can personally think of examples where it has taken the Commission two years to allocate a Case Worker and where a decision is still awaited 12 months down the line. I do recognise at once in terms of the length of investigation that it is going to vary from case to case but there will be cases which are capable of being open ended and they do need to be reviewed constantly. Once the Commission are satisfied that there is a real possibility that a case if referred may be successful then they should refer it at that stage not necessarily exhausting every possible line of enquiry.

  There is also a concern over the approach of the Commission in dealing with their backlog. We know that of course the Commission's budget was increased to enable them to take on more case workers and address that backlog and some progress has been made. The Commission we know has adopted a vetting procedure where cases are looked at initially to see whether there is merit and it has to be said that there is unease about some instances when the Commission have been seen to be to ready to get rid of a case which more careful consideration would reveal to have such merit. There is a suspicion that the Commission has set itself targets of reducing the backlog which has resulted in applications being rejected on a fairly peremptory basis. Sometimes this may be a fault of presentation and of course solicitors do become involved with their clients and their cases sometimes too subjectively, but equally sometimes the vetting procedure results in decisions being made to reject a case so early that no proper dialogue has taken place between the applicant, and their representatives and the Commission. This may be the fault of those preparing the application on some occasions but certainly not all. I have attached an Annex of some short illustrations based on real cases.

  Another problem that is reported amongst practitioners is an inconsistency of approach of case worker and at commission member level. I would like to emphasize that we all can report many positive experiences of working with the Commission at all levels. There are many able case workers who have demonstrated an ability and willingness to carry out a detailed analysis of the case and a subsequent investigation resulting in a comprehensive Statement of Reasons (whatever the recommendation). Commission members have on many occasions shown courage and perception but it is perhaps suffice to say that it is not always the case.

  The Association would be interested in knowing the rate of staff turnaround particularly at case worker level. I would suspect that a number of case workers come to the Commission for a two to three year period and then move on. In some instances that has got be undesirable.

April 2002


  R -v- H—This was a high profile child murder which rests almost entirely on a confession obtained in very dubious circumstances. The applicant is in many ways a difficult and unattractive individual but his conviction has raised concerns when considered by Liberty, a nationally regarded investigative journalist and broadcaster, a recently retired Detective Superintendent as well as ourselves. A caseworker was appointed at the end of November and Provisional Reasons not to refer sent out at the end of the following January.

  R -v- G—This again was an allegation of murder again with a difficult applicant. The Commission wrote to the client on 5 September saying a caseworker was allocated and inviting further Representations by 17 December. The Commission sent out Provisional Reasons indicating that they were not minded to refer on 10 September.

  R -v- J.H—This was a case where the Commission carried out a detailed investigation. They had available a Report which indicated that the key prosecution witness had serious personality problems which meant that his evidence was unreliable. Amongst the reasons the Commission gave for refusing the application was the decision in the case of R -v- Donald Pendleton which was a CCRC referral dismissed by the Court of Appeal. The Commission were aware that Leave to Appeal had been given to Mr. Pendleton to take the case to the House of Lords and it was widely considered that the case was wrongly decided in the Court of Appeal.

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