Criminal Cases Review Commission

Damian Collins Excerpts

Tuesday 12th March 2024 Westminster Hall

[Gordon Henderson (in the Chair)]

I will call Damian Collins to move the motion and then call the Minister to respond. There will not be an opportunity for the Member in charge to wind up, as is the convention for 30-minute debates.

[Damian Collins (Folkestone and Hythe) (Con)]

I beg to move,

That this House has considered the Criminal Cases Review Commission.

It is a particular pleasure to serve under your chairmanship this afternoon, Mr Henderson. I wish to bring up the case of my constituent, Paul Cleeland, who is sitting in the Public Gallery for this debate, in relation to the work of the Criminal Cases Review Commission. I appreciate, Mr Henderson, that this is not a court, you are not a judge and I am not a lawyer. However, the CCRC is a public body, established by the Criminal Appeal Act 1995, and is subject to scrutiny by Parliament.

The CCRC has been the subject of Select Committee reports, particularly the Justice Select Committee report in 2015, which raised concerns about the threshold for the referral of cases by the CCRC to the Court of Appeal, in particular on the safety first principle. That was acknowledged in the Government’s response to the report. Admittedly, some years later it is now the subject of an inquiry by the Law Commission that was established in 2022, although that piece of work is still at the pre-consultation phase. Therefore, I think this is a legitimate area for a debate in Parliament, as the CCRC is a public body.

Mr Cleeland’s case has been presented in Parliament on numerous occasions since he was convicted of murdering Terry Clarke in November 1972 in Stevenage. The case was raised in Adjournment debates in the House of Commons in 1982 and 1988, and by me in 2011 and again today. Many regard it as a miscarriage of justice, one of a series of miscarriages of justices that we are familiar with, certainly from the 1970s, but one that remains outstanding. Mr Cleeland has always maintained his innocence and never accepted guilt; when he was released on licence from prison after 26 years he still refused to admit any liability for the offence, and he has continued to fight to clear his name since, including repeated appeals to the CCRC for his case to be referred to the Court of Appeal.

For the benefit of the Minister and other hon. Members I will give a brief summary of Mr Cleeland’s initial trial and why it was regarded almost from the start as a potential miscarriage of justice. Mr Cleeland was committed of murdering Terry Clarke, a man that he knew, had worked with and was familiar with. Mr Clarke was shot twice with a shotgun at the rear of his property in Grace Way in Stevenage—one shot in the back and, after he turned to face his assailant, a fatal wound in the chest. It was alleged that the Gye & Moncrieff shotgun was found near the scene of the crime. It was established by the Crown in Mr Cleeland’s trial that that was the murder weapon, although there has never been any forensic evidence linking the gun to the murder or to Mr Cleeland.

There was a concern shortly after the trial about the likelihood that Mr Cleeland would have murdered Mr Clarke in that location and in that way. First, it would have required him to wait for Mr Clarke to return home at two in the morning, in a road that was effectively a cul-de-sac with a series of residential properties where he could easily have been observed. Waiting for someone that he knew, the chances are that he would himself have been recognised by neighbours in the area, so many people questioned whether that seemed likely.

Secondly, there were questions about the motive for the crime. In the local reporting at the time of the murder there seemed more likely scenarios. In particular, Mr Clarke was due to give evidence in Stevenage court the following week and it was believed that he might give evidence against other criminals who he felt were complicit in charges that he faced. There may have been other people with a motive for wanting Mr Clarke off the scene.

There are particular concerns relating to the Gye & Moncrieff shotgun. In the evidence considered by the court in Mr Cleeland’s trial, looking at the spread of the pellets on the body of the victim, it was believed that the shotgun must have been fired between 18 feet and 40 feet away from Mr Clarke. That seems implausible. One of the only eyewitnesses to the murder, the man’s widow, said that the assailant shot at close range, was about 5 feet 8 inches—shorter than Mr Cleeland—and that he had dark hair, while Mr Cleeland had fair hair. There was no corroboration, from one of the only eyewitnesses, that he was likely to have been the murderer.

Later that same month, two sawn-off shotguns were found in a weir near Harlow by Essex police. They referred those guns to the Hertfordshire police investigating Mr Clarke’s death, to consider whether they might have been the murder weapons. The significance of sawn-off shotguns was that they were consistent with the assailant’s approaching Mr Clarke at short range, because a sawn-off shotgun would have produced the spread of pellets in the victim’s body consistent with a short-range shooting, but only from a pump-action gun.

Nevertheless, the case was heard in St Albans Crown court. No verdict was reached. Then it was retried and Mr Cleeland was convicted. The case was subsequently considered in 2002 by the Court of Appeal, which discredited a lot of the evidence produced in Mr Cleeland’s initial trial.

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

I am here to show support from the commission on the future of justice and miscarriages of justice. This is a very well-known case. Our commission, which I co-chair with the Chair of the Select Committee on Justice, the hon. Member for Bromley and Chislehurst (Sir Robert Neill), looks at these cases. If we can be of any help, we will be. We know about this case, and we are looking at the adequacy of forensic science at the moment. We would very much like to help.

[Damian Collins]

I am extremely grateful to the hon. Gentleman for his remarks, and I am sure my constituent is as well. I have some particular asks for the Minister at the end of my speech and they may be relevant for the work the hon. Gentleman is involved in.

I would like to consider what has become known subsequent to the 2002 Court of Appeal case. Much of Mr Cleeland’s conviction rests on the belief by the Crown, as established in the trial, that the Gye & Moncrieff shotgun was the murder weapon and the two guns found in a weir in Harlow were nothing to do with the murder at all. The view of the Court of Appeal was that the two shotguns found in Essex could not be considered to be the murder weapon, and that it might have been established that the Gye & Moncrieff gun was the murder weapon.

Mr Spencer, the forensic expert called to give evidence to the Court of Appeal, discredited a lot of the evidence presented against Mr Cleeland by Mr McCafferty of the Metropolitan Police Service in the original trial. In particular, he noted that there were no case notes for any of the assertions that Mr McCafferty made in the trial, and therefore doubt should be placed on the evidence he had given. Mr Spencer also concluded that there was no hard evidence connecting the gun with either the murder or Mr Cleeland.

There was also the question of the consideration of the other guns that had been found. The summing up of the Court of Appeal case said that it was clear that both Mr Pryor and Mr Spencer discounted the other guns. That was not true. In the transcript from the proceedings of the Court of Appeal, when my constituent was questioning Mr Pryor, Mr Pryor was very clear that he could not rule out that one of the sawn-off shotguns could have been the murder weapon. He may have said he did not believe it was, but he could not exclude that possibility.

It is also not the case that Mr Spencer could have reached that conclusion, because he had never actually examined the guns himself. The Court of Appeal wrongly stated that he had, but he had not—in fact he could not have done, because the guns were destroyed in the 1970s, when it was believed that they were no longer of any importance to the police.

It was clear from the Court of Appeal hearing, despite what was said in the summing up, that there was no forensic link between the gun and the murder and Mr Cleeland, and that the expert witnesses did not discount the possibility that one of the other guns could have been the murder weapon.

[Jim Shannon (Strangford) (DUP)]

I commend the hon. Gentleman for securing this debate; I spoke to him beforehand. He has outlined a very serious case that prompts a lot of questions. Of 31,300 applications received by the Criminal Cases Review Commission, 832 have been referred to the Court of Appeal and only 500 have been successful. The Government and the Minister must try to encourage more people that the process is effective by referring more cases and hearing more evidence. That would instil the confidence, as the hon. Gentleman has clearly outlined on behalf of his constituent.

[Damian Collins]

I agree. The hon. Gentleman raises a point essential to the work of the Law Commission in reviewing whether enough cases are being referred or whether the CCRC is taking too much of a precautionary approach.

Since the Court of Appeal hearing, other cases have come forward. At Mr Cleeland’s initial trial, Mr McCafferty presented evidence that there was lead residue on Mr Cleeland’s clothing and that this was consistent with firearms discharge. The sodium rhodizonate test was the one used at the time—this was the theme of my 2011 Adjournment debate—but it was not a firearms residue test. It was known not to be so: as early as 1965, it was known within the police that it could not detect firearms residue, but only the presence of lead. Concerns were raised that it was not made clear at the trial that the test was extremely limited, and that the lead residue could easily have come from other environmental pollutants. Mr Cleeland was a painter and decorator at the time and worked with lead-based paints. He had also been to a fireworks party on the evening of the murder and could have picked up lead residue there, but that was never clearly explained.

Further forensic evidence produced since 2002 by Mr Dudley Gibbs has also cast doubt on the judgment. He maintained that there is no forensic evidence linking the Gye & Moncrieff shotgun with Mr Cleeland. He also pointed out, significantly, that the gunshot pellets found in the victim’s body were a different size from those found in the Blue Rival cartridges alleged to have been used at the shooting. It was believed at the time by Mr McCafferty, and presented in court to the jury, that the Blue Rival cartridges came with a highly distinctive wadding that would have linked the cartridges to the gun and to Mr Cleeland. Mr Gibbs made it clear that the wadding was not distinctive in any way and could have come from any number of brands of cartridge that could have been purchased. Again, that casts doubt.

In the Barry George case, Barry George was convicted of the murder of TV presenter Jill Dando and later acquitted on the basis that the lead residue found on his clothing and presented in court could not have been evidence of his having fired a gun. Again, it was only a small particle of lead and it could have come from environmental factors. On those grounds, the Court of Appeal overturned the decision, in what is often referred to as the Pendleton judgment, on the basis that it was not possible to know how the jury would have reacted if they had known that the lead residue itself was circumstantial evidence, not evidence of having fired a gun.

All these things apply in Mr Cleeland’s case. The concern throughout—in the subsequent cases he has brought to the CCRC and when he sought to appeal the CCRC’s decision in the divisional court and latterly in the civil court of the Court of Appeal—has been that the CCRC, the courts and the judges have consistently relied on statements that are just not true, and that have been demonstrated in court not to be true. Mr Pryor did not discount the question that one of the Harlow guns was the murder weapon. Neither he nor the other expert believed that there was any forensic evidence linking the Gye & Moncrieff shotgun to the murder or Mr Cleeland—a point that was consistently made.

Mr Cleeland is now in the position of having been accused of being a vexatious litigant simply because he is seeking to correct the record and have the CCRC clearly state these facts instead of relying on previous evidence and previous rulings that are not true and that are inaccurate. He wants the record to be corrected, and he wants the CCRC to acknowledge the complaints that have been made and consider the judgments that have been made by other judges who have relied on evidence presented by the CCRC, which continues to reassert these points.

When we look at the case now, it is hard to know how the jury would have reacted in the 1970s when they considered Mr Cleeland’s case, particularly because almost every principal area of evidence presented by the Crown was subsequently proven to be flawed. That is true even of the evidence from two policemen who described having overheard cell confessions by Mr Cleeland that implicated him in the crime. Subsequent to 2002, those policemen were discredited and regarded as unsafe witnesses, as their evidence was considered to have potentially misled another case. Had that been known at the time, their evidence would have been considered very differently in the case of Mr Cleeland. There is now substantial evidence that challenges what has gone before, but the CCRC continues to reject it. In many ways, it is presenting evidence that does not bear out the facts. Those seem to be the reasons why the CCRC will not refer the case on.

My request to the Minister, which I am happy to set out in writing to her and to the Lord Chancellor, is that there be an acknowledgment of these mistakes; that the record be put right and fresh consideration be given by the CCRC to Mr Cleeland’s case, in the light of these facts having been corrected and amends having been made; and that the Law Commission considers Mr Cleeland’s case directly in its work on the safety principle for referrals.

[Mr Sheerman]

The hon. Gentleman is making a persuasive case. May I urge him to get involved with the all-party parliamentary group on miscarriages of justice, and the wonderful Welsh lawyer Glyn Maddox who specialises in these cases? I would very much like to introduce the hon. Gentleman and this case to him and to that group. It has been a pleasure to hear from the hon. Gentleman; we have heard many more such cases. I have to give a little bit of a prod: the commission needs more resources.

[Damian Collins]

The hon. Gentleman makes a very good point about resources. Lack of resources may be a reason why some of the errors have occurred and why the CCRC has not considered some of the other points that have been mentioned. I am happy to take up his invitation to become involved with the APPG on miscarriages of justice and to refer this case to it.

I am calling for acknowledgment of these errors of fact; for the CCRC to correct the record and reconsider the case in the light of the points that I have made; for the Law Commission to consider the case with regard to its current and open investigation; and for the Government to consider the CCRC’s response in Mr Cleeland’s case, particularly in the light of the corrections. The Government have already commissioned a CCRC review based on another case that was launched last year, so clearly reviews are possible if the Ministry is persuaded that there is a case. I certainly believe that there is in Mr Cleeland’s case.

I would welcome a response from the Minister. I will also follow up to her in writing, setting out my requests, and I will be grateful for a response from her to that letter.

[The Parliamentary Under-Secretary of State for Justice (Laura Farris)]

It is a pleasure to serve under your chairmanship for, I think, the first time, Mr Henderson. I thank my hon. Friend the Member for Folkestone and Hythe (Damian Collins) for securing this debate.

Miscarriages of justice have unbelievable consequences for everybody involved, and they undermine public confidence in our justice system. Since its inception in 1997, the Criminal Cases Review Commission has referred 836 cases, or roughly one every eight working days, of which 571 have resulted in a quashed conviction. Each one represents a conviction that would have stood if it were not for the diligent efforts of CCRC commissioners and staff.

Recognising the importance of an independent body to investigate potential miscarriages of justice, the Ministry of Justice has ensured that the CCRC has the funding that it requires to carry out its work. That is why, since 2021-22, its budget has increased by 18% to support increasing demand and enable the commission to meet its key performance indicators. Importantly, that has also enabled the CCRC to carry out more outreach to promote its services and ensure that justice prevails.

Like everyone in this room, I am only too aware that the CCRC has attracted particular scrutiny over its handling of some recent cases in which its decision making has been questioned and challenged, along with the way it has responded to new evidence. Although my Department works closely with the CCRC to monitor its performance, its decisions are independent of the Government. It applies to each case a test set by Parliament: that there must be a real possibility that the conviction verdict, finding or sentence would not be upheld if the reference were to be made.

I cannot stand here today without acknowledging the terrible miscarriage of justice suffered by Andrew Malkinson. My hon. Friend will be aware that the Lord Chancellor has tasked Her Honour Judge Sarah Munro KC with investigating the conduct of Greater Manchester police, the Crown Prosecution Service and the CCRC, and with providing the answers that Mr Malkinson deserves. When that inquiry reports, my Department will take its recommendations extremely seriously.

[Damian Collins]

In that case, there is also an acknowledgment of the wider implications of the miscarriage of justice. In the case of Mr Cleeland, he could have been wrongly convicted on the basis of flawed forensic evidence. That evidence was presented by a Mr McCafferty, who gave evidence in many, many cases in the 1960s and 1970s, so there could be other miscarriages of justice that may need to be considered as well.

If you will give me some latitude, Mr Henderson, I would like to raise one point that was subsequently discovered, but was not known about at the time that Mr Cleeland went to the Court of Appeal: CCRC raised concerns with the Forensic Science Service about the safety of the evidence presented by Mr McCafferty. That was in 2000, but Mr Cleeland was not informed of it at the time that the Court of Appeal heard his case again. I urge—I will put this in my letter—that any papers still held by public bodies relating to Mr Cleeland’s case that have not yet been released be made available to him.

[Laura Farris]

My hon. Friend is quite correct that Mr Malkinson’s case turned on the presentation of the new forensic evidence, and the issue is when that was known and whether it was adequately dealt with at the time that it was brought to the CCRC’s attention.

I turn now to Mr Cleeland’s case, which I think my hon. Friend has raised in Parliament on more than one occasion. His submissions this afternoon have focused principally on new forensic evidence; he also raised issues around circumstantial evidence, motive and eyewitness and expert evidence. It is obviously not for me to draw any conclusions about all those, but I reiterate that I have noted all my hon. Friend’s points. I hope he understands that I cannot comment or intervene in Mr Cleeland’s case, but what I can say is that I know that Mr Cleeland has made multiple attempts to overturn his conviction and has had his case reviewed by the CCRC before. That is not a final point; I am simply putting it on the record.

I have carefully noted what my hon. Friend said about the evidence that has come to light since the Court of Appeal reached its conclusions in 2002. I reiterate what the CCRC has said to Mr Cleeland: he is entitled to apply again through a lawyer if fresh evidence or information has emerged. This approach aligns with the CCRC’s practice of accepting multiple applications from individuals, provided that they present new evidence or information to be assessed against the “real possibility” test.

I acknowledge the list of requests that my hon. Friend has made today. He has asked that an acknowledgment of mistakes be prepared, that the Law Commission be invited to include consideration in Mr Cleeland’s case in its forthcoming review, and that the CCRC correct the record. Obviously I can provide him with no undertakings on any of those points, other than that I will raise these matters with the Lord Chancellor for further consideration.

[Damian Collins]

My hon. Friend makes a very important point. If the CCRC would acknowledge that in some of its deliberations it has made factual errors or drawn wrong assumptions on the evidence presented, it might then allow Mr Cleeland to apply again based on an acknowledgment of those errors. We are now in a position where the CCRC has not acknowledged that and is therefore refusing to consider new appeals on the basis that it has already considered the evidence that Mr Cleeland has brought. His contention is that it has not properly considered that evidence and that in its findings it seems to be making the same mistakes.

[Laura Farris]

I reassure my hon. Friend that I understand his point, and I will take advice from my officials. First, I will raise the matter with the Lord Chancellor; I told him in advance of this debate that I would do so. Secondly, I will have to check with my officials but, if appropriate, perhaps we can raise the case with the CCRC on my hon. Friend’s behalf.

Based on the statutory tests set by Parliament, the CCRC is fulfilling the role that it was set up to do. Although I cannot comment on how the CCRC applies the real possibility test, I have listened carefully to my hon. Friend’s arguments, and I am confident that it adopts a professional, impartial and objective approach in deciding whether the relevant test has been met in each case.

[Damian Collins]

I have one final intervention, and I am grateful to the Minister for taking it. In the piece of work that it is doing, the Law Commission itself acknowledges that Mr Cleeland has also sought to challenge the CCRC’s rulings through divisional courts and has failed there. However, it was subsequently determined that those appeals were not a criminal matter but one that should be considered by a civil court, and they were instead referred not to divisional courts but the civil court of the Court of Appeal. That set a new precedent and overturned previous cases, so there is now a question about the safety of some of the other cases heard by divisional courts. It has subsequently been determined that they were not the appropriate courts to consider Mr Cleeland’s case, yet his appeals to those courts have been counted against him in the charge that he is a vexatious litigant. There should be some acknowledgment that he was making his appeal to the wrong court. The ruling has subsequently changed, and he should never have been being considered by those courts in the first place.

[Laura Farris]

I thank my hon. Friend for making that point. That is an irregularity that I have not come across before, so I will escalate that point.

I thank the hon. Member for Huddersfield (Mr Sheerman) for representing the all-party parliamentary group on miscarriages of justice. It is important that work like this happens in Parliament. These should not just be constituency cases; they need wider ventilation, particularly with the assistance of the Chair of the Justice Committee, my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill). The all-party group is an important organisation and I am glad that it exists in Parliament.

The Lord Chancellor has asked the Law Commission to conduct a wide-ranging independent review of the appeals system to ensure that the courts have the right powers to enable the effective, efficient and appropriate resolution of appeals. I have listened carefully with respect to the irregularity that my hon. Friend the Member for Folkestone and Hythe has identified, and we will take it up further. I thank him for securing the debate and for drawing this important case to our attention.

Question put and agreed to.