October 2012 — Criminal Cases Review Commission

Minutes of the All-Party Penal Affairs Parliamentary Group, held on 23 October 2012.

Speaker: Richard Foster CBE, Chair, Criminal Cases Review Commission

Present:

Paul Goggins MP, in the chair

Peter Bottomley MP

Lord Fellowes

Lord Toby Harris

Lord Hodgson of Astley Abbotts

Baroness Howells of St Davids

Baroness Veronica Linklater

Lord Low

Baroness Masham

Baroness O’Loan

Lord Ramsbotham

Lord Taylor of Warwick

Lord Woolf

Paul Goggins MP opened the meeting, noting that the report on the work of the group in the past year had just been published. It would arrive on desks in the next couple of days.  He then introduced the speaker, Richard Foster, chair of the CCRC since November 2008. Richard had also been Chief Executive of the Crown Prosecution Service, which was where they had met. He was also a trustee of the Refugee Council, and had served as Director of Welfare to Work Delivery responsible for New Deals from 1998 to 2001 and earlier with the Foreign and Commonwealth Office as First Secretary (Stockholm).

He recalled that he had once visited the Offices of the CCRC in Birmingham, in the Alpha Tower, although the Beta Tower had never been built. These were now more austere times. The meeting looked forward to what the speaker had to say about this very important body.

Richard Foster thanked the chair for his introduction, and said he planned to say a little bit about the basics, then he proposed to talk about three individual cases, which would give members a better feel for the work of the Commission. He continued:  ‘We are indeed the snappily named Criminal Cases Review Commission, and we are based in Birmingham. The key point about us is that we’re an investigative body. If you have been convicted, and you maintain your innocence, then almost certainly somebody is going to need to spend time and effort reinvestigating your case if it’s going to go anywhere.

We cover England, Wales and Northern Ireland. We don’t cover Scotland because there is a separate Scottish CCRC, similar to us bot not quite the same. We are a statutory body, created by the Criminal Appeal Act 1995 following the Runciman Royal Commission, and we are the first body of our kind in the world. We remain one of only 3, the other 2 being the Scottish CCRC, and a Norwegian body.

We were set up following a perfect storm of miscarriages, some of which will be very familiar, including the Guildford Four, the Birmingham Six, the Maguire Seven and Judith Ward. Parliament took the view that an investigative body was required that was independent of police, prosecutors and the judiciary.  It also took the view that the Commission had to be independent of government , because what we do is to refer cases back to the Court of Appeal and it was thought to be constitutionally inappropriate to have Ministers saying to the courts: you must do this, that or the other. So we are independent of the executive, in terms of decision-making, although obviously we are accountable in terms of efficiency and effectiveness.

In terms of numbers, we have a budget of £5.5m a year, and some 90 staff, nine of whom are commissioners.  Our staff are all professionally qualified: they are a mixture of lawyers, police officers, people who work in forensics and the like.  Our budget has been in real terms either cut or frozen for the last seven years so it’s worth about two thirds of what it was five or six years ago.  However, you will be reassured to know that our performance has been sustained, in that we refer as many cases as we did, and in some respects it has been improved, in that the waiting times before we can review your case, although they are longer than we would like,  are considerably shorter than they used to be.

We receive around 1,000 applications a year, from people who claim to be victims of miscarriages, and that figure has remained pretty constant for every year that we have been in existence, until now.  What has happened latterly is that we did some work around how people access us. In particular, what do we know for sure about people in prison? We know that they struggle to read and write. And how were we inviting them to apply to the Commission? We asked them to fill in a form and write us a letter. On reflection that did not seem such a great idea.  So we have developed an Easy Read application form, with the help of other organisations working in prison, and on the back of that, our application levels over the last six to nine months have exploded.   In the first six months of this performance year, we have had a year’s worth of applications.  So by the end of the year, we expect our application level to be double what it has been in the past. And obviously managing that will be a challenge for us.

Every application is considered personally by a Commissioner, who will always take the decision what to do about it: whether to refer it or not. At any one time we have got around 500 cases under active in depth investigation by our case review staff. That means that our staff have a case load of about 15 cases each.

We refer, on average, between 20 to 40 cases back to the courts annually as potentially unsafe convictions or sentences.  The majority of our referrals, and this has been true throughout the existence of the Commission, are for offences of the most serious kind. So, for example, 25% of our referrals have been for murder convictions, 12% for rape, and other serious crimes like robbery with violence. On average, 70% of the cases we refer back result in the Court of Appeal quashing the conviction, or changing the sentence.

As to the causes of miscarriage of justice, for anyone working in the field this will be a familiar list:
• Material which should have been disclosed to the defence isn’t – sometimes by design, often by accident.
• Witnesses are unreliable or perjure themselves.
• Investigations are not as thorough as they should have been.  Crucial lines of enquiry are overlooked.
• What is often called ‘target fixation’.  Evidence which supports a theory is given prominence, while evidence which doesn’t is put to one side. That can be particularly so in a very high profile case, where perhaps the prosecution team are under intense pressure to get results.
• Expert evidence is not presented at trial in a way which assists the jury.  Or, more simply, experts get it wrong. We have had a number of cases around sex offences where a few years ago, medical evidence from a physical examination were said to have pointed one way, whilst now the medical view is quite different.

Finally, from time to time, the legal profession itself makes a mistake. Perhaps there is an issue around the summing up, perhaps the defence was not on the ball, or whatever. There tend to be rather fewer of those now.

The Commission has extensive powers. We can require the court to re-hear a case (S13). For that reason we want to be as thorough and painstaking as we can: it’s a considerable power, and not one to be exercised lightly. We can insist on the preservation and the production of any documents held by public organisations, and the associated evidence we require for a review (S17). That includes for example court papers, lawyers’ papers, public and prosecution files, prison reports, probation reports, forensic reports, medical records, social security records, Special Branch, military intelligence and the security service material. I could go on, but you get my drift. If it’s material held by a public body, we can insist on its preservation and production to us, and we make thousands of such requests every year.

Unlike our Scottish counterparts we cannot require the production of documents from private bodies, such as material held by the media, or formerly public but now privatised bodies such as care homes, or forensic organisations. Nor can we interview under caution though again our Scottish cousins can. If we want to do that, we have to exercise another of our powers, which is to require the police to act as an investigating authority on our behalf. We can, and frequently do, commission new forensic testing and new expert evidence. Another responsibility (under section 15 of the Act), although not a power, is to investigate matters referred to us by the courts, such as allegations of jury tampering.

In fact one of the biggest investigations we ever ran was in the case of Adam Joof and others, which resulted in five convictions being quashed, which came to us originally on the back of a request by the Court of Appeal to look into something rather different, involving a whistle blower. That led to a major investigation, fronted up for us by the Chief Constable of Derbyshire. I won’t say much more about that particular case, because it is the subject of an on-going IPCC enquiry.

One thing we cannot do (S23) is make public the contents of a review. Obviously if the case is referred, it is already in the public domain in so far as it is the subject of a Court of Appeal hearing. However if we decide on the basis of our investigation not to make a referral we simply produce a statement of reasons which we give to the applicant. We are prevented by the legislation from making that public. The applicant can, but we cannot. This can be a source of frustration for us. For example, we may undertake an extensive review, and send a statement of reasons to the applicant who declines to make it public but then perhaps raises one or two issues around the case with someone like a constituency MP. We would like to say we did a very full review, and the review didn’t produce a basis for referral.  Perhaps it even produced evidence which strengthened the conviction. But of course we cannot produce the statement of reasons for the good and proper reason that we can’t reveal all sorts of information that it would not be appropriate to have in the public domain.

The test we apply has been the subject of some controversy. There is a small but quite vociferous group of critics who question whether we are applying the appropriate test. The test we apply is safety. Having re-investigated the case we refer it if we find something which we now think casts doubt on the safety of the original conviction. It nearly always has to be something new.  Why don’t we, say our critics, focus on innocence? It is, after all, the innocent we should be most concerned about. Indeed, some go further and say that only the innocent should concern us. And why all this emphasis on the need to find something new? What about cases where the judge and jury just got it wrong?

The criticism, put like that, implies that we might apply one test but, perversely and wrongly, choose off our own bat to apply another. Silly us. But it’s not like that. The short answer is that it’s a statutory test. It’s the test S13 of the 1995 Act requires us to apply. The Act says that we shall not refer a case unless we consider there is a real possibility that the Court would not uphold the verdict and that referral has to be based on something new. In other words, we have to look at the case from the point of view of the test the Court would apply. And since the Court’s test is safety, that has to be our test too. Likewise, we nearly always have to have something new. There is a get-out clause in section13(2) of the Act, which says that in exceptional circumstances we can nevertheless refer a case come what may. But by and large the test of safety has to be something new.

But when it comes to newspaper headlines, “Miscarriages body respects the wishes of Parliament and properly applies the statutory test as it is required to do  by law” doesn’t have the same rhetorical force as, “Miscarriages body is failing the innocent”. I understand the passion behind campaigning groups worried about a particular, perceived, injustice, and the sub-editor’s wish for a snappy headline – never let the facts get in the way of a good story – but it is a pity the real point is not more honestly put. The real point is, of course “Did the 1995 Act get the test right? Should we now change it in the light of 15 years’ experience”.

I could give you my answer to that, but what I want to do is talk about three cases, and invite you to come to your own view about whether we have got the test right.

Warren Blackwell, in a trial in 2002, was convicted of indecent assault. Subsequently, and on a reference from the Attorney General, the Court increased his sentence from 3 years to 5 but declined to allow Warren Blackwell’s appeal. Quite right you might feel since the Court was told that it was a particularly brutal assault involving, among other things, (and forgive me for this, but it helps to understand that this was an abhorrent sexual assault) a file and her genitalia. But it was, nevertheless, a very obvious miscarriage of justice.

It was visiting the scene which first suggested to us when we investigated it that something was very wrong with this conviction. The victim and Warren Blackwell had met at a New Year’s Eve party. The victim said she had been attacked on leaving a party, in a well-lit area close to the road. When we visited it, it was immediately obvious that there were other secluded areas close by. He, she said, had threatened her with something, a knife she thought, and made her walk to the area where the assault was committed. But why not make her walk to the secluded area close by? Why attack in the open when you don’t have to?

The case as presented in court turned on who did it and, as is frequently so in cases of this kind, was essentially his word against hers. She identified him as her attacker. He said he was there at the party but he wasn’t her attacker. It must have been someone else. The jury believe her and convicted him.

When we investigated we found the case was, or should have been, about something entirely different. Not ‘who did it?’ but ‘was there in fact any crime at all?’ We uncovered new evidence which gave rise to very real doubts about the veracity of her account. Not just her identification of him as her attacker, but about her very claim to have been assaulted at all. She had previous convictions of dishonesty. She had made other – not one, but several – strikingly similar allegations of other sexual assaults which, when investigated by different police forces, were considered by those police forces to be false. She had a demonstrable propensity to lie. There was evidence of self-harm. To give you the strength of this, in one case she claimed she had been held to the ground, and the word “hate” had been carved across her chest. The word “hate” had indeed been carved across her chest. But the lines were perfectly straight and the word only appeared as “hate” when viewed in the mirror.

We referred the case. The Crown were quite clear that they did not want to pursue it: they threw in the towel. The original police investigation was the subject of a subsequent IPCC report, which was highly critical of police conduct. That is as clear a case as I can see, where we can be as certain as one reasonably can be about innocence for the simple reason that there is very little evidence if any to support the notion that a crime occurred. Why were we certain that Warren Blackwell didn’t do it? Because we know that nobody did it. Because there wasn’t a crime.

No such doubt about whether a crime occurred with the tragic death of Essayas Kassahun. He was killed by a blow to the head when he went to his friend’s aid in a gang fight in East London. Nine people were charged with his murder but there were only two convictions. One of them was a young teenager called Sam Hallam: this was a recent case, which you may recall.  At trial Sam Hallam doesn’t argue ‘I was there but it wasn’t me’, as Warren Blackwell did. He says, ‘I wasn’t there at all, I was somewhere else entirely’. The identification evidence against him which puts him at the scene of the crime is not that strong, and that was made clear by the judge in his summing up.  But two witnesses place him there, and the alibi that Sam Hallam offers is not at trial supported by his friend. Sam says they were playing football that day, but the friend says he does not recall that, or or even that they were together at all that week. Sam has a chaotic lifestyle. He says if he wasn’t playing football he might have been babysitting. But the jury don’t believe him. They think he was there. They think he was involved. They find him guilty. Because he is 17 at the time he is sentenced to imprisonment at Her Majesty’s pleasure with a minimum term of 12 years. He appeals his conviction but his appeal is dismissed. So he applies to us.

Our review identified new evidence (some of which should have been but was not disclosed to his original defence team) and serious deficiencies in the original police investigation. Notably:
• there was in fact another “Sam” who had initially been rumoured to be the attacker;
• evidence from Sam Hallam’s mobile phone which suggested that his alibi may not have been dishonest; and
• other witness evidence which suggested Sam might not have been at the scene of the crime.

Again, the effect of the new evidence we uncover is to cause the prosecution, part way through the appeal, to throw in the towel. In the words of the Court,  “…….the cumulative effect of these factors is enough to undermine the safety of the conviction……..”  We weren’t able to prove beyond reasonable doubt Sam’s claim that he wasn’t there. But the evidence at trial placing him there was never that strong and the evidence our investigation uncovered further weakened it.

You will note that the Court expresses itself in terms of safety; not in terms of innocence. But that evidence of unsafety was enough to secure the quashing of Sam’s conviction and his release after 7 years in prison following a Commission investigation which his campaign team were kind enough to describe as “exemplary”.

The case of T was different again. T is at Heathrow trying to board a flight to Canada. But her passport is a stolen one and she is arrested. A duty solicitor is present at the police interview which lasts just ten minutes.  She takes her lawyer’s advice and pleads guilty in the Youth Court. She is sentenced to four months’ detention and a training order.

She did it. She admits it. She pleads guilty on legal advice. It’s a relatively minor offence. Why the fuss? But why was T boarding a plane to Canada? A cheap, spur of the moment holiday? No. Was she in fact a drug mule travelling on false papers? No. Running away from home then?No, not that either. It was far more serious. She was fleeing in terror of her life.

T was a young African girl who had been trafficked into this country. She lived in a village. I think she was 15 when she was trafficked. She was imprisoned in a house, repeatedly raped, brutalised, beaten, tied up and forced to work as a prostitute. Her imprisoner told her that he was a juju witchdoctor and I genuinely think she was in fear of her life.

There are various reasons why you might feel, as I certainly do, that a prosecution should never have been brought. Lawyers will tell you about Article 26 of the European Convention on Trafficking which is about not penalising victims who have been compelled to crime by their traffickers; others might mention the defence of duress, nexus of compulsion and the Crown Prosecution’s continuing duty to consider whether bringing a prosecution, even if the evidence is there, is in the public interest. I would put it much more simply. No one who has been treated as T was treated, and was as badly brutalised as a young girl can be, should have as their only experience of British justice prosecution for such an offence when they are trying to get away from such persecution, and when the perpetrators and their crimes go unpunished. In our investigation, we had the luxury of hindsight. But there was, I can assure you, plenty of evidence in front of the numerous lawyers and police officers who dealt with this case at the time which should have been put them on the right trail then and there. Even a pre-sentence report which said that an older man had brought T to the UK and used her as a prostitute failed to ring alarm bells.

It is misleading if not mischievous to suggest that by focussing on safety we are unconcerned about innocence. What could be clearer evidence that a conviction is unsafe than evidence of innocence? However proving a convicted person is factually innocent is a big ask. The jury were certain of guilt on the evidence before them. You or I may believe in their innocence; finding actual proof is another matter. It may simply not be there to be found. Demonstrating that a conviction is unsafe, the uncovering of new evidence to suggest we can no longer be certain of guilt perhaps many years after the original investigation and trial, is not that easy either. Unsafety, in my layman’s language, is the reciprocal of certainty. A judge will always tell the jury that they must not convict unless they are certain of the accused person’s guilt. By the same token new evidence which undermines that previous certainty should be enough to render that conviction unsafe and lead to its being quashed, if the Court so determines. A person whose conviction is quashed has had, of course, the presumption of innocence restored to them.

In summary,
• The Commission is a world first.
• We have considerable powers though there are also some gaps in our powers.
• We refer 30 to 40 cases a year, most involving crimes of the most serious sort, or over 500 since we were first set up.
• We are independent of ministers and the executive and we think that is right.
• The test we apply, the test of safety, is in our view the right test, and there are good reasons for it.
• The value of the Commission is not just about the individual and the individual case, important though that is; it is also about helping safeguard the integrity of the trial process more generally.
• Miscarriages, like the poor, sadly, will always be with us.

We refer between 3 or 4% of the cases that come to us. We are sometimes criticised for not referring more cases than we do. Another way of looking at this is that independent review by this Commission shows that while mistakes are made, and tragic mistakes which can blight individual lives can and do continue to occur, most convictions are in fact safe. To anyone who cares about justice, that should be a source of some comfort.’

Paul Goggins MP thanked the speaker most warmly and welcomed questions.