Progressing Prisoners Maintaining Innocence - September 2019

Report back from APPG MoJ Commission. Third Evidence Session:   Monday  03 Sep 2019  House of Lords Committee Rm 3A.

Chair: Baroness Stern.    Apologies from Lord Garnier and Michelle Nelson –  both busy in court.

Members of the Commission present:

Dame Anne Owers, National Chair of Independent Monitoring Boards and former Chief Inspector of Prisons

Dr Philip Joseph, Forensic Psychology Consultant

Erwin James, Editor-in-Chief, Inside Time. 

Those presenting submissions and answering questions from the Commissioners:

Prof. Carolyn Hoyle of Oxford University and Dr Dennis Eady from the Cardiff Law School Innocence Project

Prof. Carolyn Hoyle. Univ of Oxford Centre for Criminology.  Published book on 10 yrs research  ‘Reasons to Doubt: Wrongful Convictions and the Criminal Cases Review Commission’ 

Q1. Baroness Stern asked her to tell us what her book is about. 

Prof. Carolyn Hoyle (CH): Her work explores how the CCRC makes decisions in the context of the law,   All written info is retained including who were the decision makers, case review managers, and the judgements, making it possible to analyse who made the decisions to refer to the CoA or not and why.

Q2.  PJ.  Which of her key findings were most relevant?

CH:  CCRC is not a perfect organisation, and she found more variability than expected in the approach to cases.  They were rather cautious in putting forward referrals,  thoroughness/efficiency balance problems, lack of engagement with other stakeholders, not enough information sharing, and overall they need to be bolder. Are they ‘Fit for Purpose’? Their purpose was not clear, so expression meaningless.  Recommends change from within rather than fundamental restructuring.

Q3. BS:  Did you find deference to Court of Appeal a cultural imperative going beyond a legal mandate of efficiency?

CH:  down to definitions with the 1968 and the 1995 (Real Possibility) Acts.  They are supposed to define the case on merits – how do you define that?  There was variability in how they decide RP., and worried when they rebuked by the CoA.  Could they be bolder?  Yes they could, in ‘grey’ cases where they can see something is wrong, but often they get stuck on Fresh Evidence.  Also they will not push back for a second time, even though they could. Also there are different interpretations on whether to refer. Needs legally trained commissioners assessing for referral, or at least a lawyer to make a final review, as they might see more chance of ‘squeezing’ a case through.   Might not need more resources, just smarter, more selective decisions.  It is a huge challenge for part-time commissioners, who are bound to be less efficient.

Q4:   PJ.  Going back to the SCCRC evidence – is the RP test effect on the CCRC real or a red herring?

CH:  cannot compare, as tiny numbers go through SCCRC.  The CoA looks for safeness of conviction, so the RP test is not the problem.  They could interpret Fresh Evidence less stringently, and the CoA often has a poor understanding of what is presented.  The CoA is not infallible.

Q5:  EJ.  Inside Time receives 4-500 letters a month, many on wrongful convictions.  The CCRC Commissioners should surely be lawyers?  Who are they?

CH:  Remit is lawyers and other disciplines including forensic and medical.  Many cases rest on forensic science. But also some on finance, so knowledge of financial crimes is needed.  Journalists too, such as David Jessel.  So they should not all be lawyers, and a combination is OK, but the actual referral decision has to be based on a legal test. Precedent is important, but makes the system too defensive.  The Application Form is not easy to understand, therefore not accessible to all.  The Statement of Reasons should really be filled in by someone with legal experience.

Q6:   AO.  Asylum cases seem perhaps to be referred with more enthusiasm ?

CH:  These are handled differently and are easy to analyse.  People are often poorly advised  A cynic might say they should not look at cases from the Magistrates Courts.  Easier to see them as a group whom Politics were against. 

Richard Foster became active with the CPS and defence lawyers and the CPS should have stopped some prosecutions.  But huge cuts to Legal Aid, crisis in Forensic Science Service (private services not coping), samples being lost, and Miscarriages of Justice are growing.  Section 23 of the 1968 Act – cases hindered by the Statement of Reasons and these should be published so that things can be learned from them.

Q7:  BS.  CCRC independence – there is a greater willingness to criticise public bodies. The Ministry of Justice analysed the work of the CCRC and recommended changes.  Can the CCRC act as an independent body when  it is funded by government ?

CH: not really within her remit, but thinks rather difficult for CCRC to be independent.  Government has given more funding but still under-resourced and budget issues.  How could the organisation change?  How could different terms be set up?  AO suggested the problem is culture rather than statute.

Q8: BS. How can they be encouraged to be more outspoken? Would it help if the Chair was a High Court Judge? Or would independence be compromised?

CH:  would lead to criticisms of lack of independence from Judiciary. They may be less likely to be critical of convictions.

Q9: PJ, CCRC is too variable, too cautious, too deferential.  Is there something wrong with the original setting up?
CH:  the variability in decision making is paramount.  The mainly desk-based assessments should be wider.  She had looked at how the personalities of individual commissioners and case review managers created variability, and affected the screening. Some are risk averse, others bolder.  If applicants could see this, they would not be happy.   On the other hand applications often lack content.  Not enough to say ‘they lied’ or ‘I was stitched up’.  No legal representation is a disadvantage.  Little chance of success.

Q10:  AO.  What is CCRC morale like?

CH: varies with time and what is happening.  When there is criticism, morale dips.  Better when they have a good case. Once working on a case there is more enthusiasm.

Prof Hoyle was thanked for her input.

Dr Dennis Eady from the University of Cardiff Law School Innocence Project was introduced.  He has been working in this area of Miscarriages of Justice for 25 years!

Q1:  BS. With 25 yrs experience pre- and post- CCRC – how have things changed?  Better or worse?  Easier or harder to overturn?

DE:  Always hard, but overall – far worse.  Is this always due to the CCRC? No, lowered standard of proof and a convictionist society.  The bar has been significantly lowered, and the CoA has become more strict.  The CCRC is stuck between these.  He is a campaigner even though 10years in the University.  There is a greater need for the CCRC than ever.  CH has published an excellent study.  Just a few comments: There is a need for radical change, not just a few tweaks.  Key point is the need for Fresh Evidence.  If that was not strictly adhered to more cases could be opened up.

Baroness Stern stated it is not the agenda of the Commission to just make a few points.  They want to follow through.

Q2: AO.  What is your view on the RP test?  CH thought it was not an issue.

DE:  It should be changed, as it would help. It should include exceptional circumstances and lurking doubt.  The CCRC should go back to govt and say how bad things are.  It is not ‘pretty much OK’ and the current system kills people.

Q3:  AO. The CCRC is too cautious.  If less cautious does it raise false hope? 

DE:  False hope is better than no hope.  Erwin James said from his experience there is no false hope – only HOPE.  DE said there is no such thing as Real Possibility!! Prof Hoyle said she has seen cases where she has been amazed that juries have convicted.   This is a terrible situation.  DE agreed that he has seen so many cases where he cannot see how the accused was charged, how the CPS went ahead with the prosecution, how the Judge could direct and how the Jury could convict.  The Fresh Evidence aspect is a classic irony, as there was no evidence in the first place.

Q4:   AO.  If the Jury got it wrong  - how to address this. Should a Judge intervene?

DE: If there is Lurking Doubt, but no fresh evidence it requires an absurd act of Double Think.  The Innocence Project is working on several cases where law-abiding people are faced with a strange case construction process and nothing can be done.

Q5:  PJ.  The obstacle of Fresh Evidence – is there a way round this?  

DE:  It would help to change the test, but also to change the approach of the CoA.  The CCRC could be given more powers (and this has been suggested before)  - to quash convictions, either to recommend quash or to quash it themselves.  This would take the power of the CoA away.

Easier access to the Supreme Court?  Make the CoA more accountable to … someone… an independent body, e.g. the Supreme Court?  To take the responsibility away.  The CCRC could become something different.

The referral rate is shocking.  While the Innocence Project has had two exonerations this is a tiny success rate, so it doesn’t work.  Can it keep going?  Students are encouraged to work on cases, and all for nothing.

An important point is that the CoA will not accept evidence that was available to the defence at the time of trial, but was not brought before the Court.  Sometimes this could completely exonerate the convict.

Q6:   EJ.  Yes,  he knows there are many examples where such unused  evidence could totally exonerate.  Surely the CCRC should be able to present it?

DE: Indeed.  It’s so unfair.  Medical analogy: Your operation has not gone well, but you have no redress and just have to put up with the consequences.  Ridiculous. This is a recommendation the CCRC could take up.  EJ agreed.

DE: Police corruption is another common factor in Miscarriages of Justice.  They are not accountable.  Sex offence claims are often compounded by police misconduct, where ‘missing’ documents are in fact destroyed.  A credibility check is needed, but this has stopped.   There is no defence against ‘crimes’ alleged to have happened 20 years ago, except the credibility of the accuser.

The CLS Innocence Project had had 14 cases completed with the CCRC and 5 still in process.  In only one case was investigation suggested.  Police investigation.  Computer records are lost.  CCTV is said to be missing.   Records are lost in floods.  DE suggests police stations should not be built on flood plains. 

Fair trials needed.  Lawyer incompetence is common, but CCRC not keen to refer as they don’t know if it would have had an impact on safety of conviction.  You don’t know!   But it might have.  Yet incompetence is not sufficient grounds! 

Q7: PJ. Catch 22 situation.  Please explain.

DE: Post trial disclosure requests.  Not allowed, but if an issue comes to light…. Well it cannot come to light because it is not disclosed.  And if there is no evidence for a first appeal you cannot go to the CCRC.
 
Q8. EJ.  Information sharing.  Does the Innocence Project get to collaborate with the CCRC?  Can Student manpower be offered for investigation?

DE:  No.  Always turned down.  Police expert turned down.   Closed shop. Chink of hope though – for the first time the CCC is meeting an IP client.

Q9:  BS.  Last question as time running out. Interest – has it changed over 25 years?  Different culture with the public view? No longer regarded as interesting?

DE: crimes have much more publicity from media, but media not interested in MoJs.

DE: One last point.  Suggestion that is easy to implement and would have a positive effect.  CCRC could review the initial appeal decision of the single Judge.

Dr Eady was thanked profusely for his contribution.

Evidence session was closed and the public were thanked for coming.

Next Evidence Session:   Mon 9th Sept.  6.30-7.30 pm  same place Committee Rm 3A.
Source: http://www.prisonersmaintaininginnocence.org.uk/