In the Media

Miscarriages of justice: the way forward

PUBLISHED October 19, 2011

?The Criminal Cases Review Commission is not the body we campaigned for. It never was,? reflects David Jessel. The journalist campaigned through his work on the BBC?s Rough Justice and Channel 4?s Trial and Error for a body whose creation he describes as ?the nationalisation of zeal, the taking of fervour into public ownership?.

That zeal hasn?t dimmed. A new collection of essays by campaigners, lawyers, academics and journalists reports a growing urgency for a fully thrashed-out debate around the investigation of miscarriages of justice. A topic that contributors variously feel has been sidelined by politicians, ignored by the mainstream legal profession and dropped off the media?s radar.

?Our system of criminal justice is not perfect,? writes Mr Justice Sweeny in his introduction to the collection. ?Despite all its safeguards, a risk of miscarriages remains. Even in the current state of the public finances, we must continue to recognise and confront that risk. Miscarriages that have taken place, perhaps many years ago, must be identified and put right. The risk of miscarriages must be yet further minimised.?

The Criminal Cases Review Commission receives about 1,000 applications every year and a fraction, about 35, are referred to the Court of Appeal every year. The focus of ire for many campaigners has been the supposed shortcomings of a watchdog that was set up in 1997 because of a public crisis of confidence caused by cases such as those of the Guildford Four and the Birmingham Six. Critics such as Michael Naughton, the founder of the Innocence Network UK, argue that the body was ?shackled? from birth by the Criminal Appeal Act 1995, which requires it to ?second-guess? the Appeal judges. The commission openly acknowledges that in it is ?feeling the affects? of year-on-year cuts. A previous chair, Professor Graham Zellick, in his parting shot described staff as ?angry? and ?dispirited? in 2008.

The commission is required by the 1995 legislation to have 11 commissioners but has been running on nine for more than a year. That statutory requirement was there for ?a good reason?, argues Dr Eamonn O?Neill, the investigative journalist; explaining that both the ?backlog of cases and the importance of getting the right decision of each one requires attention from at least one commissioner at the end of the review process and sometimes as many as three before a case is signed off?.
O?Neill was interviewed to take on the role of commissioner after David Jessel stood down last year but points out that 18 months later no appointments have been made. ?The CCRC is currently not fit for purpose,? he argues. ?If ever a government-funded body needed to be up to full strength then the CCRC is that body.? It has not explained why no appointments have been made, he says. ?This is abominable and unforgivable, particularly for the allegedly innocent caught in the backlog and for those just starting the nightmare process of appealing to the CCRC.?

Jessel, who served as a commissioner for ten years, makes some, in his words, ?modest proposals? to reform the CCRC, including a reassessment of its ?cab rank? principle - high-profile cases such as those of Sally Clark or Barry George ?don?t achieve that status by accident?, he argues. But the journalist also notes that the Commission is ?an inherently good thing and better than anything else on offer?. 

ichael Mansfield, QC, whose cases include the Birmingham Six, Guildford Four and Barry George, goes further. ?There can be no return of the iniquities of pre-history,? insists the silk, referring to the Home Office?s discredited and shadowy predecessor C3. He calls for the Commission to be ?supported and expanded?.
But the problems with the investigation of miscarriages are not limited to the failings, perceived or otherwise, of the CCRC. Louise Shorter, a former producer on Rough Justice who now runs a miscarriage of justice unit called Inside Justice for the prisoners? newspaper Inside Time, discusses the waning interest of the media in doing investigative spadework. In the same week that the BBC axed Rough Justice in 2007 after 27 years of, as Shorter puts it, ?genuine public sector broadcasting?, the Appeal Court quashed the murder conviction of Barri White. He told reporters on his release that ?without Rough Justice I wouldn?t be here today?.

?Today he is a happily married man and a father,? Shorter says, adding that the local police re-opened files and recently arrested new suspects. So why aren?t broadcasters making these programs? She quotes Channel 4?s chief executive Michael Jackson, who described Trial and Error as ?a bit 1980s?. Complicated stories of alleged innocence don?t stand a chance in what she calls ?a climate of reality razzmatazz and celebrity schmoozing?.
And then there are the lawyers. The former solicitor-general Vera Baird, QC, points to the problems of legal aid and pay rates (£49.70 an hour in London), which have been frozen since 2001. ?There remain a few practitioners around the country who are still sufficiently committed or financially reckless enough to take on the often thankless task of trying to overturn false convictions,? she writes in an essay with the defence law Glyn Maddocks and Emily Bolton, of the anti-death penalty group Reprieve. The three of them have formed a new group, the Centre for Criminal Appeals, to investigate miscarriages ( As they put it, the number of lawyers willing to take a look at cases of alleged wrongful conviction is ?dwindling? and, given the economic climate, there can be ?little confidence about how much longer public funding for this sort of work will survive?.

Jon Robins is editing Wrongly accused: who is responsible for investigating miscarriages of justice?, which will be published week beginning October 31 at