Criminal Cases Review Commission

Alex Chalk Excerpts

Tuesday 13th April 2021 Westminster Hall

[The Parliamentary Under-Secretary of State for Justice (Alex Chalk)]

What a pleasure it is to serve under your chairmanship, Sir Charles. I congratulate the hon. Member for Huddersfield (Mr Sheerman) on securing this important debate on strengthening the Criminal Cases Review Commission.

As the hon. Gentleman rightly pointed out in his opening remarks, miscarriages of justice have terrible consequences for all those involved. He highlighted defendants, and their families and friends, and he was right to do so. He might also have added the impact on victims, because for a victim to go through a criminal justice process, only to find out that the wrong person has been convicted, is a cruel blow indeed. I pay tribute to the hon. Gentleman for fighting this fight, for railing against injustice and for shining a light on the risk of miscarriages of justice. We are proud, as I think he is, of the work of the independent CCRC, which, on its establishment in 1997, was the world’s first statutory publicly funded body set up to review alleged miscarriages of justice.

It is worth pausing to reflect on the international context. Before the debate, I read an excellent paper by Kent Roach from the University of Toronto faculty of law. He noted that

“most common law jurisdictions have yet to create new institutions and procedures to correct miscarriages of justice and still rely on the political executive to order new appeals.”

In other words, they petition the Home Secretary or their equivalent to refer a case to the Court of Appeal. He adds:

“Most Australian and American states continue to rely on unfettered executive discretion on applications for mercy or clemency as their exceptional means to correct miscarriages of justice.”

Some have referred to that as a sort of conservatism of the legal system, which emphasises the finality of the process. In parts of the world where there is an embryonic form of CCRC, often the test for that threshold is much higher. For example, in North Carolina an establishment of factual innocence is required before a referral can be made. I make that point because we should not lose sight of the fact that the CCRC, although now of some antiquity, remains an international pioneer.



In September 2020, the CCRC referred its 750th case for appeal, meaning that it has referred one case every eight working days since it was established. Of those cases, more than 450 appeals have been allowed by the appeal courts, and each one of those represents a conviction or sentence that would have stood if it were not for the diligent efforts of CCRC commissioners and their staff. Given the commission’s vital role, it is absolutely right that we should ask whether we are doing all we can to support the CCRC in its work.

I join the hon. Member for Huddersfield in commending the authors from the Westminster Commission on Miscarriages of Justice, which as he rightly indicates was a distinguished panel headed by Lord Garnier and Baroness Stern. We recognise that they have given their time to shine a light on this matter. They produced an extremely worthwhile report, and I thank them for it. I also pick up on the hon. Gentleman’s point about the spirit in which they produced the report. I was reading the foreword, in which I found the remarks that their conclusions were advanced

“in a spirit of constructive criticism, admiration and goodwill.”

That reflects the points that the hon. Gentleman made. We accept those observations in that spirit. Before I move on to some of those recommendations, let me emphasise that I sincerely thank the members of the commission for their clear analysis and detailed conclusions.

The report makes more than 30 recommendations, covering a broad area. I hope the hon. Gentleman, and indeed you, Sir Charles, will forgive me if I do not reflect on each individually, because time does not allow for that. I can say that the MOJ will consider each recommendation made for the Department in detail. I know that the CCRC will do the same for the recommendations that the report makes for it. He will have seen that it has responded already, albeit in a summary fashion. No doubt there will be a further response in due course.

The report highlights areas where there have been criticisms of the CCRC. One is the rate at which it has referred applications to the appeal courts in recent years, a point touched on by the hon. Gentleman. In fact, in the past 12 months, the CCRC has referred 70 cases to the appeal courts. That is more cases than in any previous year. It is important and fair to note that a significant proportion of those relate to the Post Office Horizon case, but none the less, it is right to emphasise that each case must be considered on its merits, with careful consideration of the evidence that exists in each specific case. We suggest that this is a significant achievement, delivered in the context of the coronavirus pandemic, when staff and commissioners have had to adapt to new ways of working.

While there must rightly be a focus on ensuring that those cases with merit are referred to the Court of Appeal or, indeed, other appellate jurisdictions, I agree with the CCRC that the referral rate cannot be the only measure of its success. There will always be factors outside the CCRC’s control that affect the number of applications and, indeed, referrals it makes in a given year. It is important for public confidence and for applicants that cases referred to the CCRC are reviewed thoroughly and objectively. The CCRC continues to closely monitor its referral rate, and it works with practitioners and academics to make sure that it is aware of any potential new cases of miscarriages of justice. I will return to that point in a moment, if I may.

Specifically on the CCRC’s performance, there have been significant improvements. By way of example, in 2017, it closed just over 70% of cases within 12 months. That figure has now risen to 83%. In the same period, the average duration of a review, from allocation to decision, has decreased from 40 weeks to 36 weeks currently. The hon. Gentleman referred to question marks over whether the budget somehow inhibits its having a proactive role. The CCRC takes a proactive role in reaching out to people who may need its services. Of course, it can only review cases that come through its front door, so to speak, which is why its work to reach those who may want to make an application—whether in prisons or elsewhere—is important. This outreach work is taken seriously. It has continued throughout the pandemic, taking place through planned updates to the website and a marked increase in the use of social media. In normal circumstances, it is done through visits to prisons, a stakeholder forum, working with other leaders in the sector, whether Barnardo’s or the Howard League, and other forms of targeted outreach.

The hon. Gentleman referred to the real possibility test. For those listening who might not be familiar with it, this test must be crossed before a case can be referred. The test is whether there is a real possibility that the appeal will overturn the verdict. That test is unchanged from the CCRC’s inception, and as the hon. Gentleman rightly points out, there have been some criticisms of it. In using it, however, the CCRC is applying the express will of Parliament. I am aware that the Westminster commission’s report concludes that the test is problematic. It says, in effect—I hope it will forgive me for the shorthand—that it creates too much deference to the Court of Appeal. In effect, the bar is set too high. Let me make a couple of observations. First, changing the test has wider implications for the work of the CCRC. Indeed, in 2015 the Justice Committee, no less, recommended that any change would have to be undertaken in the light of a change to the Court of Appeal’s grounds for allowing appeals in total.

It is also worth pointing out that the mere possibility that the Court of Appeal will overturn the verdict is likely to be too low a bar, as I am sure the hon. Gentleman would accept. Equally, real possibility is a far lower bar than exists, for example, when the Crown Prosecution Service has to make a decision about whether to charge someone. There has to be a probability that a tribunal of fact, properly directed, would convict. So it is some way short of probability, but of course above mere possibility. I accept that this is an inexact science, but it is not immediately clear to me how amending the test would make a material difference. As I say, we will keep the matter under review.

It is not appropriate for me to comment on how the CCRC, as an independent body, applies the test, but the current chief executive officer told the Westminster commission that she does not feel that it inhibits the ability of the CCRC to make referrals. I am confident that the CCRC will continue to adopt a professional, impartial and objective approach in deciding whether the test has been met in each case.

Let me turn to appeal mechanisms, although the hon. Gentleman did not refer to them in detail. The report recommends changes to the criminal appeal mechanisms. Current legislation already allows the CCRC to refer a case to the Court of Appeal in exceptional circumstances, and it also allows for appeal outside the 28-day limit if the Court considers that there are justifiable reasons for the delay. In simple terms, if a defendant seeks leave to appeal to the Court of Appeal outside the 28-day period, but he or she has good reasons for that delay, he or she can put those before the Court of Appeal, and the Court of Appeal has shown itself well able to make a fair decision about whether extending time is appropriate in that individual case. To be clear, we do not currently have plans to review or amend legislation on criminal appeals, but we acknowledge the points that have been made.

The hon. Gentleman referred to resources. The Westminster commission considers that the CCRC is under- resourced. Decisions about funding are made by the Ministry of Justice annually in consultation with the CCRC. Funding figures for the MOJ in 2021-22 have not been voted on by Parliament and will be released in spring. In considering the funding settlement, it is important to weigh in the balance the fact that the MOJ has provided the CCRC with substantial capital funding over the past two years so that it can upgrade its IT systems and improve its casework processes. That investment alone totals more than £1.5 million, and it will support the CCRC in delivering high-quality casework.

Of course, it is the case that to make fair decisions, good people are required. I absolutely accept that. No amount of technology is going to address that, but it makes an important contribution to the smooth running of the CCRC. Although the hon. Gentleman deprecates the per diem approach, it can mean that the CCRC can potentially recruit counsel to work as commissioners where they might not necessarily want to be full-time employees. It allows the CCRC to recruit high-calibre people to act as commissioners, and it seems to me that that is something to consider properly.

The report also refers to strengthening the CCRC’s leadership and independence. There is no question but that the independence of the CCRC is of vital importance to the public’s confidence in its work. I welcome the High Court’s finding in July 2020 that the CCRC is both operationally and constitutionally independent of the MOJ. The judgment found that changes made as a result of the tailored review undertaken by the Department did not represent a diminution of the CCRC’s independence or integrity. I am confident that the chair, assisted by commissioners and senior management of the CCRC, has the strength and leadership to continue to deliver and improve the work of this vital part of our criminal justice system, and crucially to do so without fear or favour and entirely independently.

The hon. Gentleman mentioned legal aid. We absolutely recognise the importance of legal aid: it is a critical foundation stone of a fair criminal justice system. Significant sums of money are being put into the criminal legal aid system, not least through the first stage of the criminal legal aid review, which has injected up to £51 million into the system. There is an independent review of criminal legal aid taking place at the moment, tasked with securing the sustainability of the criminal legal aid system.

The CCRC remains something of a pioneer by international standards, despite being founded in 1997. It is a highly valued feature of the criminal justice landscape. We will continue to work constructively to strengthen and enhance its vital work. Reports like that of the Westminster commission provide an important challenge and help us to do just that. I will close by thanking the CCRC and paying tribute to its staff for their efforts to investigate miscarriages of justice. Their work strengthens justice and the rule of law, and makes us a fairer nation.

Motion lapsed (Standing Order No. 10(6)).