Criminal Cases Review Commission

Barry Sheerman Excerpts

Wednesday 17th July 2019 Westminster Hall

[Sandy Martin]

I thank the hon. Gentleman for that intervention; he is absolutely right and I will expand on that point later in my speech.

I am raising this issue today because the case of Oliver Campbell, my constituent, is a classic example of a devastating miscarriage of justice, for the resolution of which the CCRC appears to be more of a hindrance than a help.

Oliver was convicted of murder in 1991 and spent 11 years in prison. He is here in Westminster Hall today with a friend, so that he can hear this debate. He knows that I am not being rude when I say that he has a low IQ; he also knows that that is as a result of a brain injury he sustained as a baby. This reduced mental capacity should have been evident to everyone involved in this case from the moment of Oliver’s arrest in 1990, some two months after the murder of an Asian shopkeeper in Hackney.

I have known Oliver for about 10 years. I think that anyone meeting him would come to the same conclusion reached by myself and others, including the BBC’s “Rough Justice” team, Michael Birnbaum QC, Oliver’s long-standing solicitor Glyn Maddocks, and the distinguished broadcaster, Kirsty Wark, namely that Oliver simply was not capable of carrying out such a crime.

Oliver was arrested because witnesses identified one of the two men who carried out the robbery during which the shopkeeper was killed as wearing a distinctive baseball cap. The other man, Eric Samuels, was relatively short and the witnesses also described the two men as being of similar height. Oliver is a large man who is 6 feet 3 inches tall.

Oliver was questioned for several hours in a police station without the presence of an appropriate adult, which he should have had due to his impaired mental capacity, or a lawyer. Eventually, a lawyer was found, but it was only after that lawyer had left the police station, having left clear instructions to be called back if there was to be any further questioning, that the police—in direct contravention of those instructions—pressed Oliver, in the presence of his ex-foster carer but no legal representative, to confess. Within half an hour of persistent suggestion from the police, Oliver had confessed to a murder that I do not believe a reading of the evidence could possibly suggest he had committed. Many of Oliver’s answers to the police were bizarre and made no sense whatever, so it is hard to understand how they could ever have been relied upon.

Oliver’s lawyer was then called back, and Oliver immediately withdrew his so- called confession. However, in December 1991 he was convicted, almost entirely on the basis of this very dubious confession, and he served 11 years in prison. There was no forensic evidence linking him to the baseball cap nor to the scene of the crime. None of the fingerprints or hairs that had been recovered from the scene or from the cap match those of Oliver. His co-accused, Eric Samuels, who admitted taking part in the robbery, said in interview that Oliver had nothing to do with the murder and was not at the scene. However, this information was never put before the jury as evidence. Samuels’ statement was never signed and Samuels refused to take the witness stand.

Samuels was subsequently tracked down and interviewed by the BBC’s “Rough Justice” programme for its 2002 episode, “If the Cap Fits”. He was filmed during the show’s investigation and again described how the cap was taken from Oliver’s head by the man who was actually his accomplice—the man who was actually the murderer—and how it had been dropped near the shop. Samuels again refused to sign a statement, this time on the advice of his key worker.

A ballistics expert was also brought in by the BBC, who established that the murderer must have been right-handed; other experts have shown that Oliver favours his left hand for most tasks. Oliver’s bizarre confession apparently includes details of how he made a holster for the gun out of string and how he had practised shooting in a forest or a field, but he could not tell the police the location or even whether it was a forest or a field. He was pressed to identify how many bullets he had had and how many were fired, but he clearly had no idea what the correct answer to either of those questions was.

After the “Rough Justice” programme was broadcast, detailed and extensive submissions were made to the CCRC by Oliver’s legal team, including by his solicitor, Glyn Maddocks, and his eminent QC, Michael Birnbaum, in the clear hope—indeed, expectation—that the Commission would refer Oliver’s case back to the Court of Appeal.

After two long years, the CCRC concluded that there was nothing new to form the basis of a fresh appeal and that therefore there could be no appeal. That was despite a recent change in the law that would have enabled the Court of Appeal to rely on the statements that Eric Samuels had made, in which he completely exonerated Oliver.

The CCRC also ignored the reports of two very eminent psychologists, who explained that Oliver’s acquiescence to police questioning was due to his limited mental capacity, and his eagerness to please and be accepted. As Kirsty Wark reported at the end of the “Rough Justice” programme, this evidence of Oliver’s mental state, which had never been brought before the original jury, constituted

“fresh new evidence which points to a terrible miscarriage of justice”.

I am bringing this case to the attention of the House for two reasons. First, of course, it is because I believe Oliver to be innocent of the crime of murder. Life is not easy for Oliver; life never would have been easy for him, even without a murder conviction hanging over him. Oliver works five mornings a week at a community café as a cleaner; he spends the rest of his time trying to clear his name. Secondly, however, and crucially, the other reason for us to have this debate here today is because the CCRC was established by this House to make it easier to rectify miscarriages of justice, and I do not believe that it has achieved that aim.

[Mr Barry Sheerman (Huddersfield) (Lab/Co-op)]

My hon. Friend and I are founder members of the new all-party parliamentary group on miscarriages of justice. As he knows, we now have the Westminster commission on miscarriages of justice, led by Lord Garnier and Baroness Stern. Does he believe that we need a fundamental change to the CCRC, both in terms of its structure and its resources?

[Sandy Martin]

I thank my hon. Friend for his intervention and he is right. I was very pleased to have gone to the first hearing of the Westminster commission on the role of the CCRC just the other day. I think it is making good progress and I hope to see a radical change in the way that we deal with appeals on the grounds of miscarriage of justice.

In my view, the grounds for an appeal in this case are compelling. I am not a lawyer but I have an inquiring mind, and the first three grounds submitted by Oliver’s lawyers seem to me to constitute essential issues that cry out to be reconsidered properly by a court.

Ground A is that the admissions made by Oliver in his so-called confession were inconsistent, inaccurate when compared with the rest of the evidence and, on a number of points, simply absurd. Ground B is the report of Professor Thomas-Peter, a well-respected and highly experienced psychologist. That report states that Oliver’s

“lack of mental capacity for understanding anything other than the simplest of questions indicates to me that he would be vulnerable to self-incrimination.”

He added that Oliver had difficulty understanding double negatives and that, from his reading of the available documents,

“it seems that part of Oliver’s defence was based upon his succumbing to intimidation rather than his inability to understand complex questions.”

Ground C is police misconduct. I would very much like to believe that the treatment Oliver received at the hands of the Metropolitan police would not happen today. Oliver was not treated appropriately and consistently in relation to his obvious needs and inabilities: he was questioned without solicitors, and was misquoted back to himself by the officers in order to confuse him. References were made during the interview to fingerprints on a can of lager held by the murderer being Oliver’s, which was not the case and which the police knew not to be the case. If the prints were Oliver’s, they would certainly have been cited in the prosecution’s case; if they were not Oliver’s, the fact that they belonged to someone else ought to have been enough to acquit him. However, that evidence was never brought to the attention of the court. There is still no forensic evidence to link my constituent to this murder.

[Mr Sheerman]

Does my hon. Friend agree that in some criminal justice systems, access to all the evidence that was presented by either side at the trial makes it much easier to look at the case later and mount an appeal, and does he believe that is something we should have in our country?

[Sandy Martin]

I absolutely agree with my hon. Friend, and thank him for his intervention. As far as I can tell, any criminal justice system that does not allow all the existing evidence to be available to both sides of the argument prevents the correct decision from being made in court. I believe the commission needs to look again at Oliver’s case, and that if it carefully re-reads the submission from the QC, it will conclude that there is indeed good cause to send this case to appeal.

The recently established APPG on miscarriages of justice has gained a great deal of support in this House. Oliver’s pro bono solicitor, Glyn Maddocks from Gabb and Co, who has represented Oliver for over 20 years and is a recognised expert in miscarriage of justice cases, is a special advisor to the APPG. He has been working closely with the newly established Westminster commission on miscarriages of justice, which is co-chaired by former Solicitor General Lord Garnier QC and Baroness Stern. Will the Minister confirm whether the Government will give their full support to the Westminster commission as it undertakes its important work?

The purpose of the Westminster commission is to look at the difficulty in overturning wrongful convictions in England and Wales. Such a review, particularly of the CCRC and its relationship with the Court of Appeal, is long overdue. I hope to have an opportunity to submit the failings of the CCRC’s review of Oliver Campbell’s case as evidence to the Westminster commission. We need our justice system to be fit for purpose, to identify and punish the guilty and exonerate the innocent, and when there is clear evidence that that has not happened, we need to know why. However, we also have a fellow human being to consider—a man who is still living under licence, with barely enough income to survive and subject to recall to prison at any time. I strongly believe that Oliver has already had to wait too long to have his name cleared. I urge the Minster to write to the CCRC and ask it to review Oliver’s case once more as soon as practicably possible, and reconsider its decision not to refer his case back to the Court of Appeal.

No one doubts that the job of the CCRC is difficult; it is constantly being asked to do more with fewer resources. I suspect that when it was set up in 1997, it was never expected that it would receive 1,500 applications each year. In its 22 years of existence, it has reviewed nearly 24,000 of the 25,000 applications it has received, many of which have been completely ineligible. The commission has referred 658 cases to the Court of Appeal, of which all but 10 have been heard in the courts. Some 437 convictions have been quashed, and 198 appeals have been dismissed. It is beyond me, and beyond anyone else who knows anything about this case, why Oliver’s case was not one of those referred. However, does the Minister agree that the rate of convictions quashed suggests that a large number of the cases that have not been sent to the Court of Appeal might also have led to convictions being overturned?

There is some concern about the subordinate relationship the CCRC has with the Court of Appeal, and about the difficulty it faces when applying the real possibility test, which it currently uses to decide which cases to refer. I have personally seen from Oliver’s case that the CCRC has acted somewhat more as an arbitrary gatekeeper than as a champion for righting the obvious miscarriage of justice he has suffered.

Oliver will be 50 next year, and has been fighting to clear his name for nearly 30 years. Those within the criminal justice system who have had contact with Oliver professionally, including during his time in prison, have had very serious doubts about his conviction. The governor at Wandsworth described him as

“of very low intelligence and childlike in some ways. Knowing him as we do it is difficult to see how he has ended up in this situation”.

His probation officer said he had serious concerns about Oliver’s conviction for murder. Even the trial judge’s report to the Home Secretary at the end of Oliver’s trial reflected his view regarding the gross artificiality of the result, and the unsatisfactory nature of the trial process that led to it.

It is right that I pay special tribute to Oliver’s legal team, his solicitor Glyn Maddocks and his QC Michael Birnbaum, both of whom have worked tirelessly and resolutely for over 20 years on an entirely pro bono basis to achieve justice for Oliver. Such dedication is rare, but at a time when legal aid is almost non-existent and miscarriages of justice are increasing—surely linked to cost pressures in the criminal justice system—it is an absolutely precious commodity. I hope that many other younger lawyers will be inspired to work on cases such as Oliver Campbell’s.

Several people have said that Oliver Campbell’s case is the clearest example of a miscarriage of justice that they have seen. I am surprised and dismayed that the CCRC, established by this House with the support of all parties following the recommendation of the royal commission on criminal justice under the Major Government, has failed to enable the correction of what is so clearly a wrongful conviction. I call on the Minister to institute a review of the CCRC’s decision-making powers.

[The Parliamentary Under-Secretary of State for Justice (Edward Argar)]

It is a pleasure to serve under your chairmanship, Sir George. I congratulate the hon. Member for Ipswich (Sandy Martin) on securing this debate on the decision-making powers of the Criminal Cases Review Commission—which, like him, I will refer to in my remarks as the CCRC, for brevity’s sake.

I also thank the hon. Gentleman for setting out Oliver Campbell’s situation. I know that the hon. Gentleman is a forceful champion for his constituent, and indeed for his constituency, and I pay tribute to him for that, just as I do to the hon. Member for Huddersfield (Mr Sheerman) for his commitment and dedication to the issue. I must be a little bit careful when paying tribute—a reshuffle looms, so I am not sure whether paying such fulsome tribute to Opposition Members will help or hinder my career prospects. However, the work they have done is truly impressive and important. Although I am sure the hon. Member for Ipswich appreciates that it would not be appropriate for me to discuss an individual case on the Floor of the House, I welcome the opportunity to discuss the broader issue. I am of course happy to discuss his constituent’s case with him outside the Chamber, should the hon. Gentleman feel that would be helpful.

As the hon. Member for Ipswich has set out, the independent CCRC plays a vital and valuable role in maintaining confidence in the criminal justice system. In addition to my tributes to Members present in this Chamber, I pay tribute to the commitment of the CCRC commissioners and staff, and to their work in investigating potential miscarriages of justice. I am sure all Members, both in this Chamber and beyond, share my view that miscarriages of justice are a blight on our criminal justice system; have a devastating impact on all those involved; and can cause people to question that justice system, which we must seek to avoid at all costs.

Since the establishment of the CCRC in 1997, my understanding is that 441 referrals from the commission have succeeded in the courts—I raise the hon. Gentleman by four. Those referrals have resulted in overturned convictions or amended sentences.

[Mr Sheerman]

The Minister has always been very supportive and listened carefully to everything we have been campaigning on, which I appreciate. Some of us went to visit the commission in Birmingham, and we got the impression that it was under-resourced; that it cannot get investigators because it is right out on a limb in Birmingham and should be closer to the centre of legal affairs in our country, here in London; and that very often the commissioners are part time and work from home. Does the Minister think there is a bit of a problem there?

[Edward Argar]

I am grateful to the hon. Gentleman. I suspect that some of his colleagues who represent Birmingham seats might slightly take issue with his suggestion that the city is out on a limb. We believe that the approach adopted by commissioners allows for flexibility and the most effective management of case loads, and I will move on to the tailored review shortly. From my discussions with the new chair of the commission, my understanding is that she felt that the resourcing was adequate and appropriate, but that changes are needed to reflect the findings of the tailored review. I will touch on that in a moment, subject to time.

The CCRC is, as the hon. Member for Ipswich alluded to, the world’s first statutory, publicly funded body charged with the task of reviewing alleged miscarriages of justice. The law provides that the commission can refer cases to an appeal court only when it considers that there is a real possibility that the conviction, verdict, finding or sentence would not be upheld were the referral to be made. The hon. Gentleman and his hon. Friend, the hon. Member for Huddersfield, have set out concerns about the real possibility test and whether it affects the rate at which the commission refers cases to the appeal courts.

The hon. Member for Ipswich asked whether the rate of convictions quashed suggests that a large number of the cases that have not been sent to the Court of Appeal might also have led to the convictions being overturned. Those concerns have been aired before and were considered by the Justice Committee in its report on the CCRC published in March 2015. The Committee considered whether a declining rate of referrals was due to the real possibility test itself, the CCRC’s application of it or the Court of Appeal’s approach to appeals. It found no conclusive evidence of the CCRC failing to apply the test correctly.

We do not feel that it would be appropriate to alter the test simply to demonstrate the independence of the CCRC. Doing so would by definition risk allowing referrals where there was less than a real possibility of a conviction or sentence being overturned. The Committee accepted that the application of the test is a difficult task and is by no means a precise science, but it considered that the CCRC should be willing to err on the side of making a referral where potential miscarriages of justice are concerned. I am assured that is the approach the CCRC adopts, and there must be a realistic chance of success.

Both hon. Gentlemen referred to the work of the recently established commission. I will make two comments on that. First, I fairly regularly meet the hon. Member for Huddersfield, and if the hon. Member for Ipswich would like to join those discussions of the broader issues, as well as meeting to discuss Oliver’s case, he is welcome. I look forward to following the commission’s work. Without making firm commitments, I hope that the hon. Member for Huddersfield will recognise that I have always been willing to engage constructively since I have been in this role, and I look forward to doing so in future.

[Mr Sheerman]

Just to put the record straight, the people we met are really good people. I did not want to denigrate them; they are very good people, but they are under-resourced. I got the feeling, talking to them and talking to people in this area, that senior people in the judiciary do not like the system and are not positive towards it. Is that the real key; that some senior judges do not like the process at all?

[Edward Argar]

The hon. Gentleman is an experienced Member of the House and he is gently tempting me to speculate on areas where I will not tread. I believe the judiciary has full confidence in the process and fully respects the nature of the process. That is reflected in how it engages with the CCRC and the appeals process. He may seek to tempt me, but I fear that on this occasion he has not succeeded.

I note that the CCRC’s analysis has identified other reasons for the recent level of referrals, including the lack of common themes across recent cases and changes in approach by investigators. The CCRC continues to review the reasons for a low referral rate, working with practitioners and academics to ensure that they are aware of any potential new causes of miscarriages of justice.

In February the Ministry of Justice published a tailored review of the commission, as the hon. Member for Ipswich will be aware. The review found that the current delivery model as a non-departmental public body is still the most appropriate. The review did, however, make a number of recommendations relating to improving the commission’s performance. Those recommendations were in part informed by respondents to the call for evidence, who commented that the commission does not provide as timely a service as they would wish. The commission has acknowledged that although internal targets were met, too many cases were taking too long to resolve and more can be done to avoid delay.

The hon. Gentleman has alluded to the amount of time it has taken the CCRC to look at Oliver’s case and the handling of it. The review team found that a single commissioner or a committee of commissioners were making the decisions on the non-referral of cases, despite legislation providing the option for decisions to be made by one or more employees of the commission. The review recommended that responsibility for the final decision on non-referrals in less complex cases should be made by case review managers, rather than commissioners.

[Mr Sheerman]

Before the Minister concludes, will he give way?

[Edward Argar]

I am not concluding just yet.

[Mr Sheerman]

The Minister has four minutes.

[Edward Argar]

Go on, very quickly.

[Mr Sheerman]

Does the Minister understand that many of us got into this issue because of cases in our constituencies? In Huddersfield, I had a tragic case like Oliver’s. Does he realise that even when someone spends 18 years in prison and they come out having been found not ever to have committed a crime, they get nothing?

[Edward Argar]

The hon. Gentleman makes a powerful point, which he has made in our previous conversations. I look forward to picking that specific point up in more detail with him. I think we are due to have one of our regular meetings soon.

As with any case, the CCRC would welcome an application to review Oliver’s case, if new information can be provided. That would be decided by people who have had no previous involvement in the decision making.