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In a Panorama programme on 30 May many criticisms were levelled at the Criminal Cases Review Commission (CCRC) following the release of internal minutes of a board meeting within the organisation. The programme used as a focus the two cases of Eddie Guilfoyle and Kevin Lane, for which it argued it had uncovered new evidence. However, wider concerns were also raised about the way the CCRC operates – primarily in relation to staff workloads and whether this is leading to investigations being undertaken in a proper manner.
Following a Freedom of Information Act request from the Centre of Criminal Appeals (CCA) (appearing in the Panorama programme), some copies of board minutes were obtained from the CCRC over the period 2015-17. Emily Bolton, from the CCA, said: "The CCRC’s own board papers show it is no longer fit for purpose." They have called for a reformed body to be created.
Of course, this makes for worrying reading for anyone who is interested in fighting miscarriages of justice. The CCRC has provided full written answers to the questions posed by Panorama.
As is pointed out by the CCRC, it is to be expected and welcomed that the board is discussing problems the organisation faces and attempting to solve them. It was noted by the Justice Gap that the target for portfolio sizes is 19 cases; currently, it is at an average of 24 per full-time case review manager (CRM). The size of portfolios has been an issue at the commission for some time and steps are actively being taken to reduce it, including the recruitment of new CRMs and encouraging the use of interns - of which the writer was one. The CRMs are encouraged to delegate time-consuming tasks (eg, legal research or searching through voluminous boxes of material) in order that they can focus their time on more worthwhile activities.
The CCRC has also been called “moribund” and “desk bound”, and allegations have been made that investigations are not being fully undertaken. The CCA states that after reading the board minutes, they were left with the impression that case review managers struggle to cope with "large, sometimes unworkable portfolios".
The CCRC counters this by arguing that they “do whatever types of investigation we think a case requires” and points out that reviews of much of the material is desk based. Indeed, balancing the need for an in-depth review and providing a speedy resolution for the sake of an applicant is a slim line the CCRC must try to walk. In the Panorama documentary the amount of time the Gilfoyle review has taken was commented on pejoratively. Part of the CCRC’s response was to call for the Statement of Reasons of the CCRC to be released by Mr Gilfoyle (the CCRC are not allowed to release it), so the “detailed explanations” can be seen.
Another criticism of the CCRC was as follows: "The board agreed that the risk score for OPS/09 (CCRC reputation with the Court of Appeal) should be changed from moderate to severe." And therefore the CCRC is beholden to the attitudes of the Court of Appeal, rather than finding miscarriages of justice.
The CCRC takes an active interest in development and growth within the organisation through internal training and involvement with outside research. There is always a focus on learning lessons from both successful and unsuccessful appeals. Research has been completed on the trends in the Court of Appeal and comparing the CCRC referrals with direct appeals.
Perhaps the problems described can be most accurately characterised as with the system in which the CCRC operates, including the statutory test they must apply before a referral can be made. The former Lord Justice Sir Anthony Hooper went on the record in Panorama stating that the challenge to overturn a conviction through the Court of Appeal is tougher than ever before.
This change in attitude of the Court of Appeal has to be considered by the CCRC under its statutory processes. It is ultimately the Court which decides if a conviction is overturned rather than the CCRC, so it could be argued there is little to no point in the CCRC referring a case where it does not believe the Court of Appeal will treat the case favourably. The conviction will not be quashed, and the Court of Appeal is more likely to treat the next referral (meritorious or not) harshly. If this approach was taken, the CCRC may find it more difficult to maintain the generally high level of success it has with its referrals.