APPENDICES TO THE 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.
R -v- HThis 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- GThis 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.HThis 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.