RIGHTING MISCARRIAGES OF JUSTICE? Ten years of the Criminal Cases Review Commission Laurie Elks JUSTICE – advancing justice, human rights and the rule of law JUSTICE is an independent law reform and human rights organisation. It works largely through policy- orientated research; interventions in court proceedings; education and training; briefings, lobbying and policy advice. It is the British section of the International Commission of Jurists (ICJ). JUSTICE is a charity (registered charity 1058580). We rely on the help of our members and supporters for the funds to continue our work. For more information visit www.justice.org.uk. JUSTICE, 59 Carter Lane, London EC4V 5AQ Tel: +44 (0)20 7329 5100 Fax: +44 (0)20 7329 5055 E-mail: [email protected] www.justice.org.uk © JUSTICE 2008 ISBN 978 0 907247 45 6 Designed by Adkins Design Printed by Hobbs the Printers Ltd Extract from Criminal Appeal Act 1995 (C35) is reproduced under the terms of Crown Copyright policy guidance issued by HMSO. Article on page 269 © Guardian News & Media Ltd 2004, reproduced with permision. JUSTICE is grateful to the Law Society Charity for its support of this publication. Contents Biography of author 4 Foreword 5 Chapter 1 The Commission’s origins and powers 11 Chapter 2 The meaning of safety 29 Chapter 3 The approach to fresh evidence (1) – Pendleton and after 52 Chapter 4 The approach to fresh evidence (2) – expert evidence 73 Chapter 5 The approach to fresh evidence (3) – further considerations 106 Chapter 6 Modern standards of fairness 133 Chapter 7 Changes in the law 155 Chapter 8 Homicide cases 184 Chapter 9 Sexual offences cases 218 Chapter 10 Police and prosecution misconduct cases 244 Chapter 11 The Commission in the magistrates’ court 260 Chapter 12 The Commission’s sentencing jurisdiction 273 Chapter 13 The Commission in Northern Ireland 288 Chapter 14 Three further topics – non-disclosure, the impact of the Human Rights Act and the significance of plea 304 Chapter 15 Reflections 334 Appendices 352 JUSTICE Biography of author Biography of author Laurie Elks first worked in the NGO sector, including teaching for Voluntary Services Overseas in Nigeria, and as a welfare rights worker for the Child Poverty Action Group. After qualifying as a solicitor in 1980, he spent over 15 years as a commercial lawyer – where he was a partner at Nabarro – specialising in corporate and regulatory work. In 1997, Laurie took up appointment as one of the founding members of the Criminal Cases Review Commission, acting as a decision maker in many of the cases discussed in this book, as well as acting as caseworker on a number of high-profile cases. At the Commission, he assumed responsibility for training Commission Members and staff on the implications of Court of Appeal decisions in cases referred to it by the Commission. This work has formed the basis of the present study. He also had considerable involvement in developing the decision-making processes of the Commission. He is also a member of the Competition Commission. Laurie has lived in Hackney for over 35 years and has been involved in a wide range of community activities, including as founder of the Lee Valley Association. He is a director of Hackney Historic Buildings Trust and acts as custodian of St Augustine’s Tower – Hackney’s oldest building. 4 Righting miscarriages of justice? JUSTICE Foreword On 1 April 1997, the Criminal Cases Review Commission took over responsibility for the review of alleged miscarriages of justice in England and Wales and Northern Ireland. The Commission was set up following the recommendation of the Royal Commission on Criminal Justice – the Runciman Commission – which proposed that review of alleged miscarriages should be transferred from the Home Office to an independent non-departmental public body.1 The establishment of the Commission was warmly welcomed by JUSTICE, which had campaigned for such an independent body for many years. The Commission took over some 300 files from the Home Office and the Northern Ireland Office – including many hoary old cases which the Home Office had deferred sine die as ’too difficult’ – but none of the Home Office’s procedures or personnel. This was not a case where departmental functions were transferred as a ‘going concern’ into a new agency – the Commission started with carte blanche, establishing its procedures and policies, and indeed its defining ethos, from scratch. The governing body of the new Commission consisted of a Board of 15 Commission Members, of whom I was one. Much suspicion attached to the fact that the Chairman, Sir Frederick Crawford, was a declared freemason and that four of the members had a police or prosecution background. It was suggested darkly in some quarters that the Commission might prove to be worse than the Home Office in dealing with miscarriage cases.2 Most of the sceptics – but by no means all – would now agree that the Commission’s achievements have surpassed their expectations. The purpose of this study is to provide an accessible summary of the outcome of the Commission’s referrals during its first ten years. I was a member of the Commission for all but the last three months of this ten-year period and had some personal involvement in about one-third of the cases discussed in this study. I also provided regular training to my fellow Commission Members and to Case Review Managers about the outcome of the Commission’s referrals during this period. I hope that this will provide some valuable raw material to enable readers to judge what the Commission has (and has not) achieved during this period and to measure the outcome of the Commission’s endeavours against prior expectations. 5 JUSTICE Foreword I am intensely aware that I have had very little to say about the 96 per cent of cases that come to the Commission but are not referred. The Commission has been the subject of considerable criticism for the way in which it deals with rejected applications. It has been widely commented, in particular, that there is no obvious explanation for the fact that the Commission’s rate of referral runs consistently at about one half of the rate of referrals made by the Scottish Criminal Cases Review Commission (SCCRC). The SCCRC has a broadly similar (although not identical) remit, but some eight per cent of applications – twice the proportion of CCRC cases – are referred.3 Other criticisms of the Commission relate to the failure to interview more than a small proportion of applicants;4 to the insufficiency of communication with applicants and their representatives; and to alleged deficiencies of investigation, among other matters. It would be the height of conceit on the part of the Commission, or its former members, to say that there is nothing in any of these criticisms and I do not do so. However, the purpose of my study is not to dissect the working methods or the effectiveness of the Commission but to characterise the cases that have been referred. This may be a matter of particular interest to members and supporters of JUSTICE, which campaigned tirelessly under its first Secretary, Tom Sargent, to bring the Commission (or something like it) into being. The JUSTICE campaign was forged when the criminal justice system was vastly different from today, when modern protections for suspects were lacking, and when the use of ‘verballing’ and other means to secure unjust convictions was all too common. The Commission has played an important role in resolving miscarriages from that period, but the great majority of its referrals have been of convictions that have occurred since the Police and Criminal Evidence Act 1984 and modern standards of disclosure were introduced. I hope that the discussion of the Commission’s cases will help to bring into focus some of the modern issues concerning miscarriages of justice. The concept of an ’unsafe’5 conviction has been something of a moving target over this period as the Court of Appeal (Criminal Division) (henceforth the Court)6 has developed its jurisprudence (sometimes in direct response to Commission referrals) and has conducted an occasionally clamorous and public ‘dialogue’7 with the Commission about the wisdom of some of its referrals. The early chapters of this book deal with this dialogue, and developments of the legal test of safety that have affected the Commission’s remit. As will be apparent from these chapters, the issue of what should or should not constitute a safe conviction has attracted the interest of politicians in recent years. In 2007, the government brought forward measures in the Criminal Justice and Immigration 6 Righting miscarriages of justice? JUSTICE Bill to restrict appeals based either upon legal technicalities or upon post-trial changes of the law. The background to these proposals is discussed in detail in chapters 2 and 7 but, in brief, both proposed measures that appeared designed to cut down the effective scope of the Commission’s jurisdiction. In the outcome, the government has pursued its proposal for providing judges with a discretion to disregard post-trial changes of law but has abandoned its proposals to restrict appeals based on legal technicalities. It remains to be seen whether the changes will have any significant impact upon the Commission’s referrals or their outcome. In preparing this study, I have considered all of the judgments on Commission referrals handed down by the Court up to 1 April 2007 – the tenth anniversary of the Commission’s inception. I have also taken account of a small number of cases decided since then which appear to me to be particularly significant or which will assist understanding as to where the law presently stands.