Should the Criminal Cases Review Commission Be Reformed?

The Criminal Cases Review Commission plays a vital role in investigating possible miscarriages of justice in England, Wales and Northern Ireland. It can examine convictions and sentences after the normal appeal process has been exhausted and, where the legal test is satisfied, refer a case back to an appeal court.

However, the Commission has faced continuing criticism that it has sometimes been too cautious, too slow and too willing to anticipate how the Court of Appeal might react, rather than independently deciding whether there are genuine concerns about the safety of a conviction.

What Is the Criminal Cases Review Commission?

The Criminal Cases Review Commission, usually known as the CCRC, was established under the Criminal Appeal Act 1995 and began reviewing cases in 1997.

Anyone who believes they have been wrongly convicted or sentenced can apply for a review. There is no application fee, and there is generally no fixed time limit, although an applicant will normally be expected to have used the ordinary appeal process first.

The CCRC can obtain documents from public bodies, commission expert evidence, interview witnesses and investigate information that the courts may not have previously considered.

The "Real Possibility" Test

Under the current legislation, the CCRC will normally refer a case where it considers there is a real possibility that the relevant appeal court would not uphold the conviction or sentence.

Critics argue that this test encourages the Commission to predict what the Court of Appeal is likely to do. This can result in a cautious approach, particularly where the appeal court has previously taken a restrictive position on similar evidence or legal arguments.

The concern is that the body created to investigate miscarriages of justice may become reluctant to refer a deserving case because it fears that the Court of Appeal will reject it.

Fresh Criticism of the CCRC

Recent parliamentary scrutiny has raised serious questions about the leadership, culture and effectiveness of the Commission. Particular attention has been given to cases in which important evidence, investigative failures or alternative explanations were not examined with sufficient urgency or independence.

The Justice Committee has warned that the Commission has taken an excessively cautious approach and has called for significant changes to its leadership and working practices.

A high success rate at the Court of Appeal does not necessarily prove that the referral system is working properly. It may instead indicate that only the clearest cases are being referred, while more difficult but potentially meritorious cases are being rejected.

Proposals to Change the Referral Test

The Law Commission has examined whether the "real possibility" test should be replaced. One proposal is for the CCRC to decide whether it believes a conviction may be unsafe, rather than requiring it to forecast the likely decision of the Court of Appeal.

This could give the Commission greater independence and encourage it to refer cases where there is a legitimate miscarriage-of-justice concern, even where the outcome is uncertain.

Proposals have also included placing the CCRC under an independent inspectorate, strengthening accountability and improving the way its performance is assessed.

Access to Evidence and Disclosure

The CCRC has statutory powers to obtain information from public bodies such as the police, prosecution authorities, government departments and local authorities. Those powers are essential because undisclosed material can be central to establishing whether a conviction is unsafe.

Problems can still arise where records have been lost, material has not been properly retained, private organisations hold information or the significance of particular evidence is not recognised during the review.

The Post Office scandal demonstrated the devastating consequences that can follow when unreliable evidence, defective systems and failures of disclosure are allowed to remain unchallenged for years.

Funding and Delays

Detailed miscarriage-of-justice investigations can require extensive legal analysis, expert evidence, witness tracing and the examination of records dating back many years. This work is difficult to perform properly without sufficient staff, expertise and funding.

Applicants may already have spent years in prison or living with the consequences of a conviction. Lengthy delays can therefore cause further serious injustice, even where the case is eventually referred and the conviction overturned.

What Happens When a Case Is Referred?

A referral by the CCRC does not automatically overturn a conviction or sentence. It allows the case to return to the appropriate appeal court, which will decide whether the conviction is unsafe or the sentence should be changed.

The CCRC has referred more than 900 cases since it began work. Hundreds of the resulting appeals have succeeded, demonstrating both the importance of the Commission and the reality that serious miscarriages of justice can survive the ordinary trial and appeal processes.

Applying to the CCRC

A person considering an application should explain why the conviction or sentence may be wrong and identify any new evidence, new legal argument, disclosure failure, expert opinion or other exceptional circumstance that has not previously been properly considered.

Applications can be made without a solicitor. Still, legal advice may be particularly valuable in complex cases, where previous appeals have failed or where substantial investigation is required.

The Need for Reform

The CCRC remains an essential safeguard within the criminal justice system. Still, independence must involve more than being formally separate from the courts and government. The Commission must also be prepared to investigate robustly, question previous decisions and refer appropriate cases without being deterred by the possibility that the Court of Appeal may disagree.

A referral that ultimately fails is not necessarily evidence of poor decision-making. In a system intended to correct miscarriages of justice, an excessively cautious refusal to refer a deserving case may be far more damaging.

Reform of the referral test, stronger oversight, effective leadership and adequate resources would help ensure that suspected miscarriages of justice are examined thoroughly and that credible cases are placed before the courts.