The Criminal Cases Review Commission: Economy, effectiveness and justice

Criminal Law Review

Volumn , Issue MAR., 2000, Pages 140-151

  James, Annabelle ^b   Taylor, Nick ^b   Walker, Clive ^a  

^a UNIVERSITY OF LEEDS   (United Kingdom)

^b NONE

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EID: 24144498875     PISSN: 0011135X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (101)

1. See ("Runciman") Royal Commission on Criminal Justice, Report, (Cm. 2263, HMSO, London, 1993) chap. 11;
2. Home Office, Criminal Appeals and the Establishment of a Criminal Cases Review Authority: A Discussion Paper (HMSO, London, 1994);
3. K. Malleson, "The Criminal Appeal Act Part 2: The Criminal Cases Review Commission - how will it work?" [1995] Crim.L.R. 929;
4. D. Schiff, and R. Nobles, "Criminal Appeal Act 1995" (1996) 59 M.L.R. 573.
5. First Annual Report 1997-98 (Birmingham, 1998) p. 6.
6. First Annual Report 1997-98 ibid., p. 17.
7. Special priority is accorded to only 1% of cases and will be based on factors such as age and health, the impact on co-defendants and the possibility of general implications: Home Affairs Committee, The Work of the Criminal Cases Review Commission (1998-99 HC 106) (hereafter "Select Committee, Report") paras 37, 38.
8. See also, Government Reply to the First Report from the Home Affairs Committee Session 1998-9, The Work of the Criminal Cases Review Commission (1998-99 HC 569).
9. For details of the process, see First Annual Report 1997-98, Appendix A;
10. Select Committee, Report, para. 10.
11. In law, the decision could be taken by the Case Review Manager alone, as the primary roles of the Commissioners are referrals and policy-making: First Annual Report 1997-98, p. 16.
12. L. Leigh, "Post appeal remedies" (International Association of Penal Law, Conference on Appeal and Post-appeal Remedies, Birmingham, 1998).
13. See N. Taylor, (with M. Mansfield), "Post-conviction Procedures" in C. Walker, and K. Starmer, Miscarriages of Justice (Blackstone Press, London, 1999).
14. See Select Committee, Report, para. 63.
15. Manan, The Times, March 5, 1998.
16. [1999] 3 All E.R. 498.
17. Bentley, The Times July 31, 1998.
18. Gilfillan, December 7, 1998, CA.
19. Cook, February 27, 1998, CA;
20. Coleman, February 15, 1999, CA.
21. Graham, The Times, February 23, 1999.
22. Popat (No. 2), The Times, September 7, 1999.
23. Smith (Wallace Duncan), May 18, 1999, CA.
24. See Bennion, F., "Rewriting history in the Court of Appeal" (1998) 148 N.L.J. 1228;
25. Commentary by Professor J. C. Smith [1999] Crim.L.R. 331 at p. 332.
26. This possibility was left open in Smith (Wallace Duncan), May 18 1999, CA,
27. where the legal basis for the conviction was cast into doubt by Preddy [1996] A.C. 815.
28. See Lovelass (1834) 172 E.R. 1380.
29. [1999] Crim.L.R. 315.
30. See especially Samuel (1988) 87 Cr.App.R. 232.
31. Based on Ward (1993) 96 Cr.App.R. 1 at 23 per Glidewell L.J.: " . . . we must, as it seems to us, apply as best we can the standards of what was considered to be proper and regular at that time."
32. In addition, he was deemed to be familiar with police interrogation and therefore fell within the qualifications in Dunford (1990) 91 Cr.App.R. 150.
33. [1999] 2 Cr.App.R.(S.) 312.
34. Select Committee, Report, para. 18. Its supporters include JUSTICE (Appendix 3) and various practitioners (for example, see Appendix 2 - Memorandum by Bindman & Partners, Solicitors; Appendix 9 - Note by Gareth Pierce, B. M. Birnberg & Co, Solicitors).
35. Select Committee, Report, para. 19.
36. An additional problem was encountered by Iain Hay Gordon in 1998 (see Criminal Cases Review Commission's Reference under section 14(3) of the Criminal Appeal Act 1995 [1998] N.I. 275). In 1953 he received a "guilty but insane" verdict under the Trial of Lunatics Act 1883. He was released in 1960. He applied to the CCRC in order to have the verdict of the jury reviewed by the Court of Appeal. The CCRC referred to the Court of Appeal the question of whether a special verdict of guilty but insane amounted to a conviction, finding or sentence for the purposes of section 10 of the 1995 Act. It held that the intention of s.10 was that the CCRC should be able to refer only those cases in which a right of appeal would have lain under previous legislation. Subsequent changes in the law had led to a retrospective right of appeal only as far back as 1961, when a verdict of not guilty by reason of insanity replaced the special verdict. Thus, the case could not be referred by the CCRC. It is unlikely that a similar case would occur, but the position has been rectified by the Criminal Cases Review (Insanity) Act 1999.
37. This term has been taken to mean "factually safe", see, L. Leigh, "Post-Appeal Remedies", International Association of Penal Law, Conference on Appeal and Post-Appeal Remedies, Birmingham, 1998.
38. This view may have to be modified in the light of Mullen [1999] 2 Cr.App.R. 143.
39. See Ensor [1989] 2 All E.R. 586;
40. A. Samuels, "Incompetence or ineptitude of counsel as a ground of appeal" [1997] Crim.L.R. 1.
41. During the passage of the 1995 Act, it was suggested that the presence of incompetent advocacy could satisfy the referral criteria (Hansard, H.C. Debs., Standing Committee B, col. 126, March 30, 1995).
42. R. v. CCRC, ex p. Pearson [1999] 3 All E.R. 498 at 505, per Lord Bingham CJ.
43. See Select Committee, Report, paras 22-24.
44. See http://www.ccrc.gov.uk.
45. Select Committee, Report, paras 33, 34.
46. See for example, R. Sylvester, "New appeals body 'will be deluged by killers and rapists' ", The Telegraph, January 1, 1997.
47. CCRC Press Release, "Criminal Cases Review Commission receives 1,380 applications in its first year", July 21, 1998.
48. CCRC Staffing and Premises Submission, January 1998
49. (Select Committee, Report, Appendix 1 Annex A).
50. Letter to the Chairman of the CCRC from the Permanent Secretary, Home Office, November 12, 1998 (Select Committee, Report, Appendix 1 Annex B).
51. The CCRC suggested that it would take 72 caseworkers to achieve this: Select Committee, Report, para. 52. The underestimation of staff arises not so much from rate of new applications but from the resources required to resolve them properly.
52. See 〈http://www.hmprisonservice.gov.uk/faq.asp〉.
53. See N. Taylor (with J. Wood), "Victims of Miscarriages of Justice" in C. Walker and K. Starmer, Miscarriages of Justice (Blackstone Press, London, 1999).
54. Mattan was heard five months after the date of referral, but the list in Annex B reveals that several other cases have been pending for well over a year.
55. In the first year of operation, there had been 11 complaints, mainly about delay: First Annual Report 1997-98 (Birmingham, 1998) p. 11. The jurisdiction of the Ombudsman is excluded (Parliamentary Commissioner Act 1967, s.4(5)(d)) unlike for the previous reviews by governmental departments: see P. Hill, "Another weapon in the armoury" (1995) 145 N.L.J. 1620.
56. This procedure is applicable (see R. v. Criminal Cases Review Commission, ex p. Dickinson, November 23, 1998, DC), but resource considerations are relevant to prioritisation (R. v. Chief Constable of Sussex, ex p. International Trader's Ferry Ltd [1998] 3 W.L.R. 1260).
57. The lawfulness of a detention must be kept under review (X v. U.K. (1981) 4 E.H.R.R. 188, para. 51 (App. No. 7215/75, Ser. A, No. 46)), and the review must be considered "speedily" (see Van Droogenbroeck v. Belgium App. No. 7906/77, Ser. A, No. 50; Van der Leer v. Netherlands App. No. 1509/85(1990) Ser. A, No. 170A) in this case by the combination of CCRC (which cannot solely qualify as a suitable body of a judicial nature, unlike the Parole Board in recall cases such as Weeks v. U.K., (1988) 10 E.H.R.R. 293, para. 61 (App. No. 9787/82, Series A, No. 114)) and the Court of Appeal.
58. Unreasonable delay is a breach of art. 6(1), but the European Court does not normally count a preliminary advisory or investigative stage as being determinative of "civil rights": Fayed v. U.K., (1994) 18 E.H.R.R. 393, paras 56, 61, 62 (App. No. 17101/90). The further demands in Art. 6(2) and (3) are also not applicable since the "criminal charge" against the applicant has already finally been determined (unless referred back to the Court of Appeal): Callaghan v. U.K. (1989) 60 D.R. 296 (App. No. 14739/89).
59. Select Committee, Report, paras 36-41.
60. Report, ibid., para. 42.
61. Report, ibid., paras 26, 44.
62. Aside from the fact that few applicants are legally represented, the inquiries by lawyers tend to revolve very much around the case already constructed: M. McConville, A. Sanders, and R. Leng, The Case for the Prosecution (Routledge, London, 1991).
63. Investigators were once available to the Court of Appeal (see: Criminal Appeal Act 1907, s.9, repealed in 1968). The Court of Appeal can now direct the CCRC to carry out investigations but just two matters have been referred under the Criminal Appeal Act 1995, s.15: First Annual Report 1997-98 (Birmingham, 1998) p. 17.
64. Select Committee, Report, para. 30. In R. v. Criminal Cases Review Commission, ex p. Pearson [1999] 3 All E.R. 498 at 520, Lord Bingham C.J. endorsed an approach akin to second-guessing: "The Commission had, bearing in mind the statutory threshold, to try to predict the response of the Court of Appeal if the case were referred and application to adduce the evidence were made."
65. See K. Malleson, Appeals against Conviction and the Principle of Finality (Royal Commission on Criminal Justice Research Study No. 17, HMSO, London, 1993).
66. McIlkenny v. Chief Constable of West Midlands Police Force [1980] Q.B. 283 at 323 per Lord Denning.
67. Runciman Report, para. 10.60. The duty to admit is reduced to a discretion.
68. Lord Chancellor's Department, Modernising Justice (Cm. 4155, London, 1998) para. 5.14.
69. Select Committee, Report, para. 47.
70. Report, ibid., Appendix 11, para. 2.1.
71. Lord Chancellor's Department, Modernising Justice (Cm. 4155, London, 1998) chap. 6; Access to Justice Act 1999, s.12.
72. Select Committee, Report, para. 28.
73. Report, But see the CCRC's response, ibid., Appendix 11, para. 1.1.
74. See First Annual Report 1997-98 (Birmingham, 1998), p. 14. Each case generates around two thousand pages of information, so integrated IT facilities are important.
75. Select Committee, Report, paras 14, 47.
76. They amount to around 7% of the workload, but it might be possible to downgrade them still further if applicants were first required to have made an application under the Magistrates' Court Act 1980, s.142 to the sentencing court and also by revoking s.142(a) (which excludes provision of this section when the High Court has made a declaration on a case stated) and allowing a further appeal to the Crown Court from any refusal by the Magistrates Court to reopen a case under s.142: Select Committee, Report, Appendix 5, para. 8. Summary cases are altogether excluded from the Scottish CCRC scheme (see Criminal Procedure (Scotland) Act 1995, s.194A-L).
77. Select Committee, Report, paras 38, 39. Furthermore, the Select Committee suggests some ring-fencing of resources for at liberty applicants: para. 40.
78. The Times, March 30, 1999.
79. Hickman, L., "Case review body hits out at committee criticism", The Lawyer, April 5, 1999, p. 4.
80. The Scotsman, December 4, 1998, p. 10.
81. Note that the body is empowered to take precognitions on oath under the Criminal Procedure (Scotland) Act 1995 s.194H (as amended) under warrant from a sheriff. In this way, it can compel oral statements from private sources, and this is backed by the powers to obtain documents under s.194I under order from the High Court. These are useful powers not possessed by the English equivalent.
82. Telephone interview with Louise Hall, Head of Information, CCRC, April 14, 1999.
83. J. Robins, "Justice delayed" (1999) 94 L. S. Gaz. 10.
84. See also L. Hickman, "Case review body hits out at committee criticism", The Lawyer, April 5, 1999, p. 4.
85. See the Runciman Report, loc. cit., chap. 10, paras 31, 32, 38, 46. In the view of the Government, the new wording "reflects the current [1995] practice of the Court of Appeal" (Lord Chancellor's Department, Home Office and Law Officer's Department, The Royal Commission on Criminal Justice: Final Government Response (Home Office, London, 1996) paras 178, 180)
86. and this is reflected in subsequent case law (Graham [1997] 1 Cr.App.R. 302;
87. Hickmet [1996] Crim.L.R. 588;
88. Guilfoyle [1996] 3 All E.R. 883;
89. Foley, The Times, March 17, 1997;
90. Mills [1997] 3 W.L.R. 458;
91. Chalkley and Jeffries [1998] 2 W.L.R. 155;
92. Farrow, The Times, October 20, 1998).
93. See R. Nobles "The inevitability of crisis in criminal appeals" (1993) 21(1) International Journal of the Sociology of Law 1;
94. D. Schiff and R. Nobles "Criminal Appeal Act 1995" (1996) 59 M.L.R. 573;
95. R. Nobles and D. Schiff "The never ending story" (1997) 60 M.L.R. 293 at p. 295.
96. See Steele and Campbell v. H. M. Advocate, 1998 S.L.T. 923.
97. H. J. Friendly "Is innocence irrelevant? Collateral attack on criminal judgments" (1970) 38 University of Chicago Law Review 142.
98. Callaghan v. U.K. (1989) 60 D.R. 296 (App. No. 14739/89); Herrera v. Collins 506 U.S. 390 (1993).
99. Council of Europe, The Management of Criminal Justice (R(95)12, Strasbourg, 1995) p. 71;
100. A. Ashworth, The Criminal Process: An Evaluative Study (2nd ed., O.U.P., 1998) p. 306.
101. Source: Louise Hall, Criminal Cases Review Commission, 1999.