Suzanne Gower, PhD researcher, and former managing director of the legal charity APPEAL shares her thoughts on the long-awaited report of the Westminster Commission on Miscarriages of Justice, “In the Interests of Justice”. Suzanne played a leading role in helping establish the All-Party Parliamentary Group on Miscarriages of Justice (APPGMJ). She then worked to set up the Commission to carry out a full review of the role of the Criminal Cases Review Commission (CCRC).

• Suzanne praises the meaningful inclusion of a diverse range of stakeholder views and welcomes calls for the strengthening of the CCRC through increased sanctioning powers.
• She expresses disappointment in the review’s recommendations on accountability and transparency and the failure to provide an adequate mechanism to rectify current failures in this area.
• She welcomes the restoration of the principle of ‘Lurking Doubt’ as an important and necessary safety valve in the system and suggests that the most crucial recommendation within the report is that the Law Commission take up a broad review of the appellate system.

The publication yesterday of the long-awaited report of the Westminster Commission on Miscarriages of Justice, “In the Interests of Justice”, was of particular interest to me. Having helped to establish and secure the funding for the Commission, I have been watching with interest to see how this work would pay off.

Overall, my impressions are highly favourable. I welcome the report as providing a clear analysis of the current issues facing the Appellate system. I commend the Commissioners for producing a thorough review of the role of the CCRC within the wider appellate system and not focussing their attention on that body in a vacuum. They have recognised the strengths of the current system, while also highlighting some of the significant roadblocks which currently exist to prevent miscarriages of justice from being effectively identified and remedied in a timely manner.

I note with interest that the Commission’s report clearly reflects the input of the individual members of the Commission and the breadth of their skills and experiences has clearly enhanced the quality of the final report. I was especially pleased to note the prominent use of Erwin James’ role as editor of Inside Times with his experience and connections with serving prisoners. The report they have produced is a truly inclusive reflection of the views of stakeholders including serving prisoners with pending or rejected applications, their families, lawyers, academics and crucially the CCRC itself.

It is clear that the Westminster Commission have taken on board these broad range of views in their bold conclusion that the structure of the CCRC requires strengthening, including reforming the roles of the Commissioners to restore them to the position which was envisaged in the terms of the Criminal Appeals Act 1995. Recommendations for the strengthening of the investigative capability of the organisation through an increase in their budget and a strengthening of their available sanctions for non-compliance with disclosure requests are both long overdue. As is the call for increased funding for defence representatives and greater openness in dealings with them.

The open and positive manner of the CCRC’s engagement is to be appreciated and welcomed – although it is clear that when they gave their oral evidence to the Commission in July 2019 there was little said about the behind-the-scenes shenanigans which we now know had surrounded the production of the Tailored Review of the CCRC, subsequently revealed through the Judicial Review proceedings brought by Gary Warner.

The section of the report which I found to be most disappointing was that dealing with accountability and transparency. The Commission have recognised that neither Judicial Review of the lawfulness of decisions nor the CCRC’s internal complaints mechanism offers an effective review of incorrect decisions in individual cases, and have in my opinion failed to offer an adequate alternative. The recommendations of increased openness and communication with applicants do not go far enough to compensate for the current absence of an effective system of accountability.

I do however welcome the support which has been given to the restoration of the principle of ‘Lurking Doubt’ as an important and necessary safety valve in the system. The jury system itself is under some pressure at the moment. Some commentators may be reluctant to support this institutional recognition of the fallibility of juries, given the somewhat precarious nature of their current status within the criminal justice system. Regardless, it is an indisputable fact that juries can and do make errors. Recognising that and identifying an appropriate mechanism for dealing with those cases where the jury verdict is not wholly supported by the weight of the evidence is not a failing but a sign of strength and belief in the system. As Professor Hoyle commented in her evidence to the Commission – “All institutions are fallible. All of us make mistakes. All of us misinterpret.” Neither the Court of Appeal nor the jury system should be considered to be immune to making mistakes. Nor should they fear attempts to strengthen the validity and moral authority of the criminal justice system by providing a stronger and more effective mechanism for identifying and remedying such errors when they do occur.

As an appeal practitioner, one great source of frustration with the system are cases where a lurking doubt exists that a just conviction has been obtained, but where the current framework makes it impossible to bring the case back before the Court of Appeal. Many such cases are the historic sex cases which now form the subject of my PhD research. In these cases, and others, existing evidence was missed during the trial, perhaps due to poor defence representation at trial or where the significance was missed due to a woefully inadequate description being given on the Schedule of Unused Material. This evidence is now not “fresh” and cannot form the basis of an appeal, but the jury never had the opportunity to know of it, and maybe it would have impacted their verdict. It rarely feels as if justice is truly served in these cases.

It is heartening to see the Commission recommending such a wholesale review of the appellate system. This is perhaps the most crucial recommendation within the report. It includes examination of the ‘real possibility’ test, the retention and disclosure of evidence and the ‘substantial injustice’ test in joint enterprise cases.

Although the focus of the Commission’s work was the role of the CCRC, it is clearly not possible to investigate their role in a vacuum given their central place within the wider appellate system. This is reflected in the overall tenet of the report, in particular: the recognition of the impact of the CCRC’s relationship with the Court of Appeal; the devastating impact of austerity on all parts of the criminal justice system; and the inevitable risk of wrongful convictions ensuing from the degrading level of justice provided.

I was working at APPEAL when the last call for evidence came from the Law Commission in 2016, for their 13^thProgramme. APPEAL was one of several organisations that pushed for the inclusion of the reform of the appellate system at that stage. Whilst the proposal was given some consideration by the Law Commission, the suggestion did not ultimately make it onto the shortlist due to the lack of support from the Ministry of Justice. One of the considerations for inclusion in a programme of reform by the Law Commission is the degree of governmental support for the review and the lack of enthusiasm from the Justice Department proved fatal to the proposal at that time.

It is therefore clear that any progress to be made in this area is going to revolve entirely around the governmental response to the Commission’s report and the subsequent work by the Commissioners and the wider APPGMJ in pushing their conclusions. It is pleasing to note that the CCRC have welcomed the recommendation that the statutory test for referral to the Court of Appeal should be reformed, as well as the other recommendations including a significant increase in their budget.  A key criticism of the CCRC from campaigners has been their reluctance to risk upsetting either the Ministry of Justice or the Court of Appeal so their support in pushing for the implementation of the report would be a welcome first step.

For all the fine words and positive recommendations to be found in this report, without appropriate Governmental support it will like all other recent attempts at reform, fail to improve the lot of the wrongfully convicted. The real test for the Westminster Commission and the APPGMJ is yet to come.