Oral evidence: Criminal Cases Review Commission, HC 850Tuesday 13 January 2015
Oral evidence, 13 January 2015.
Witnesses
Professor Jacqueline Hodgson, University of Warwick School of Law, Professor Carolyn Hoyle, Centre for Criminology, University of Oxford, and Dr Carole McCartney, Northumbria University School of Law, gave evidence.
Chair
Welcome, Professor Hodgson, Professor at Warwick School of Law, Professor Hoyle from the Centre for Criminology at the University of Oxford, and Dr McCartney, Reader in Law at the University of Northumbria. Perhaps I should declare an interest as I have an honorary doctorate from the University of Northumbria. From your research on the CCRC, and probably Professor Hoyle is the first person to answer on this, can you describe how the CCRC approaches a case after it has first received it and then through to screening and investigation?
Professor Hoyle
It varies. It has varied over time according to the increase in demand on resources and the relatively declining resources. First, cases are categorised by a categorisation team and then they are sent to groups, so the case review managers are now located in separate groups that have group leaders and those groups work with two or three commissioners. Those groups will decide how the case should be categorised, how it should be reviewed, whether it should be a very basic type 1 review, type 2, type 3 or type 4 review, which is a much heavier investigatory review. Then, of course, there is a difference. If somebody is at liberty, they might wait in a queue for up to three years. If they are in custody it might be up to one year, so there is a difference if people are at liberty. Then it is down to a case review manager to look at the evidence that has come in with the application and to make a decision on what kind of investigation is to take place and work alongside a commissioner, and group leaders, who to some extent supervise and manage and support the case review managers on their team.
Chair
We have evidence that in this process unrepresented applicants tend to do less well than applicants with legal representation. Could the commission do more to redress that in the way it handles the unrepresented cases?
Professor Hoyle
Jacqui could certainly give much more information on that question, because of her study. From my point of view, I cannot give categorical information on whether or not those cases do make a difference, but in the cases I have looked at in detail, just over 100 cases, it seems to be that when the applicant is well represented by a lawyer, typically, or has had work done by an innocence project on the case, what comes in is a much more powerful and persuasive application. Some of the applicants do not have any sort of representation or support and their cases come in with a few scribbles saying, “I am innocent; I did not do it.”
Chair
That is not a surprise, is it?
Professor Hoyle
It is not a surprise at all.
Chair
And, therefore, does it not put a certain responsibility on the CCRC as to how it handles the unrepresented cases?
Professor Hoyle
I think they are more careful at screening, but it is very difficult if you have 1,500 applications a year coming through to give each of those a type 3 or type 4 review. If the application comes in with absolutely nothing and there is nothing they can find, having used their section 17 powers to get the court transcript and so on, it is very difficult to know how to go forward with that. It does not mean that every case which comes in with legal representation is a strong case or has been well represented. Some lawyers do a very thorough and good job; other lawyers not so much. Some of them are little more than a mailbox for their applicants, but when it comes in with good representation, it does make a difference because the application identifies the key areas for investigation or even provides evidence they can work with. That is certainly going to be an easier application to get through the screening process.
Chair
The CCRC has an investigator on its own team and can require the police to do further investigation. How efficiently does it use those opportunities, those resources?
Professor Hoyle
At any one time, it has one or two investigations advisers as well as legal advisers and the majority of case review managers are also legally trained. I think it uses them well but I have found some variability in the use of investigations advisers. Some case review managers use them a lot to bounce ideas off, and these are people who tend to have investigatory skills. They are often people who used to be in the police service, for example, so they are very good at looking at how a case has been constructed before it went initially to the court or came to the CCRC, and they use them well, sometimes just to bounce ideas off them, sometimes to assist with different types of investigation, but they do not all use them as much as each other.
Chair
On a different issue, why do you think the CCRC has not made applications for the Royal Prerogative of Mercy, given that there are cases which do not quite fit the Court of Appeal threshold but in which they may have very serious doubts about the safety of the conviction? Why do you think they have not done that?
Professor Hoyle
I do not know. They have not, but I do not know why they have not.
Dr McCartney
It is only an impressionistic view because we do not have anything from the CCRC that would tell us why they have not done that, but I would personally say that a lot of it comes down to what the previous panel were saying about this fear that they seem to have interpreted their independence status as being very passive. They come across as a very placid organisation. They are not very proactive, and I think the Royal Prerogative of Mercy would perhaps require some courage on their behalf. They are going to have to stand up and defend this decision and authoritatively take a stand on a particular case. From what we have seen over the years, that is something they definitely shy away from.
Chair
I find this puzzling because it is quite clear that there must be cases where the thinking in the commission is, “There are serious doubts here but it just does not satisfy the test for the Court of Appeal. It does not have, for example, the new evidence.”
Dr McCartney
There definitely are cases. We know of cases where case review managers have resigned and publicly said, “This is a travesty,” and in cases where they go to the Court of Appeal and the Court of Appeal makes some odd decision to reject the appeal, we never seem to get from the CCRC a post mortem on that, “Why did the Court of Appeal turn this down when we thought there was a real possibility?” There have been cases where they felt certain; the three commissioners have said, “There is a real possibility”; they send it to the Court of Appeal; the Court of Appeal then refuses the appeal, and it seems to stop at that point. Why do we have no discussion or debate as to what has gone wrong here, looking at what has gone wrong with the initial trial and failure of the appeal system, but never looking at why did this case get through the CCRC, reach these high hurdles, overcome them, yet still fail at the Court of Appeal? There must be some process beyond that which looks at that. There is no feedback loop, “Why did that go wrong?”
John Howell
May I take you to the issue of the “real possibility” test and ask you how consistent you think the approach to that is, and in particular whether there is a consistency between commissioners?
Professor Hoyle
There is some variability, I think, in their approach to investigations. Given that investigations are likely to produce the evidence, or in many cases will produce the evidence they need to meet the “real possibility” test, I am not sure the extent to which that makes a difference to which cases are referred, but, across the case review managers, there are some who are doing investigations much more often than others. While that to some extent is accounted for by the types of cases they are dealing with at the time, I think that is only to some extent. I think there is some variability in inclination to do that type of investigatory work, in confidence to do it, maybe in skills: we all have different types of skills. There might be some who feel much more comfortable with the finer points of the law, while others feel more comfortable going out to meet the applicant, and so on. It is inevitable that in a large organisation that draws people from both legal and non-legal backgrounds you are going to get some variability, and we have certainly found that, albeit not in the section 17 powers. They nearly all use those in most cases.
John Howell
Do you feel that the CCRC’s approach to the Court of Appeal though is too restrictive, that they are a bit too deferential?
Professor Hoyle
I think it is inevitable that it will be to some extent.
Dr McCartney
It is like the previous panel said: that is the way it has been set up, that for us to expect anything different when the way the statute is interpreted, the way the statute is written and the way the CCRC and the Court of Appeal stand at the moment, you cannot expect anything other than a deferential approach. That is how it is built.
Professor Hodgson
I think those two questions are linked. I think the CCRC is quite a maverick organisation and I think that is one of its real strengths. One of the weaknesses is that inevitably it depends to some extent on who you get. As Carolyn has said, case review managers have different inclinations sometimes in terms of how they will approach a case. Certainly, when cases get all the way through to the committee stage, we saw quite different approaches from certain commission members as well in terms of whether they are trying to second-guess the Court of Appeal, and say, “I can just see the Court of Appeal knocking this back.” Wrong test: that is not the test. The “real possibility” test allows for a real breadth of interpretation and the mistake is that, once you start to keep second-guessing the Court of Appeal, you are then unnecessarily narrowing things.
John Howell
You have supported adding a “lurking doubt” test criterion to the referral test. Considering the attitude of the Court of Appeal, and its ability to restrict that, would any cases referred to it have a realistic prospect of success if that were in place?
Professor Hodgson
It would require legislative change, but I think, potentially. The Court of Appeal still clearly in some cases has an overall interests of justice type of approach. I am not wedded to “lurking doubt”; that was quite appealing that that was put forward. I think somebody in the last session talked about an arguable case. In principle, “real possibility” should be enough, but we have had the CCRC for 17 years and I think it has been a little bit too cautious, a little bit too hesitant. It values its independence from the Court of Appeal very highly, but it also wants to maintain a good relationship with it, and it feels knocked back when it is slapped down and told, “Don’t be sending the likes of these cases to us.” I do not think it should feel slapped down. It is not there to be friends with the Court of Appeal; it is there to be robust and authoritative and it was set up to get more cases in front of the Court of Appeal. Something that will nudge it and give it the confidence not to be in a somewhat self-imposed constrained position would be good.
Professor Hoyle
I think section 13 does include a provision for “lurking doubt”, but the CCRC is very reluctant to go ahead on “lurking doubt” if it thinks the case does not meet the “real possibility” test. I think, though, that what happens during investigations if they cannot find anything in the initial review of the case but there is that sense of “lurking doubt” about the case a whole, you get much more tenacity and much more willingness to find other routes for the investigation to pursue until they find something that ticks the box of the “real possibility” test. The “lurking doubt” informs the culture of investigation without it leading a decision to make a referral. The court perhaps does a similar thing in the sense that it gets the sense of a case but homes in on the specifics in order to quash a case.
John Howell
Do you see the Court of Appeal standing back and taking a broader look at a case as a whole, and how does that affect the work of the CCRC?
Professor Hoyle
I do not have expertise on what the Court of Appeal does. I have watched the court behave in the cases I have followed through but I have not studied the Court of Appeal, so I do not know the answer to that. Incidentally, I think Jacqui is right that the CCRC is reluctant to push cases through under the “real possibility” test that they think have no possibility, because, if the Court of Appeal is using a safety test after they refer, then they have to be careful about referring cases that will not meet that safety test because of the cost, not just to the public purse but to the applicants themselves of raised expectations and to the original victims of the offence, who have to live through the trauma again if they are putting the case forward. That is their rationale. As Jacqui says, they could be a little bit less cautious in doing that.
Professor Hodgson
It is important to remember that we talk about the Court of Appeal as if it is a single unity, that the same old people are going to turn up every day. They do not. There are 40 judges to choose from and differently constituted Courts of Appeal give rather different judgments. Of course one has to be mindful; of course there has to be a degree of symmetry; but mirroring would be a disaster. I think there is scope for pushing the boundaries. The former chair, Graham Zellick, talked about straining at the standards. Interestingly, in our research, some commissioners categorically went the other way and said, “That would be a real disaster if we did that, if we really strained at the standards the Court has set,” and yet, if we thought there was a really poor decision by the Court of Appeal, surely we would not want to follow it. One of the witnesses in the previous panel said that. You would not want to hang on to a bad decision and have it knocking around for 20 years. You would want to challenge that. It would be easy if it were something that was categorically wrong or offensive in some way; nobody would doubt that, and yet once we are with legal criteria everybody thinks we should stick with that. Generally, I should say I am very positive about the CCRC and its work, but I would really like to see it flex its muscles a little bit more, be more confident and push a bit more at the Court of Appeal.
Dr McCartney
A lot of the difficulty arises from the simplistic way that we measure the effectiveness or success of the CCRC with this idea that a 70% success rate is something we should be hanging on to and that is somehow how we are measuring it. That is very simplistic. Also, the difficulty with the Court of Appeal is that if they are taking a very cautious approach, or there is a narrow interpretation of something, that percolates down to the case review manager inasmuch as when they are investigating or looking through the bundle, as we say, they are coming at that from a very narrow perspective because they are already thinking three steps ahead: “This is going nowhere with the Court of Appeal. We know the Court of Appeal will not listen to this, so I am not going to say that in front of the commissioners because the commissioners are going to tell me I am being daft because that is going to get nowhere.” That percolates all the way down and the CCRC was supposed to be created to avoid that, so that we were not always so dependent on previous decisions of the Court of Appeal. This case is peculiar; it is odd; things have gone wrong; we cannot say for certain exactly; we do not have the silver bullet; but we know something has gone wrong here. Instead, all the way through the system, we have this very narrow focus that we are getting the lead from the Court of Appeal.
John Howell
If everything was running as it should be, what sort of referral rate could you expect to see?
Professor Hodgson
I was thinking about this the other day. When the CPS are looking at a realistic prospect of conviction, that is generally understood to be about 51% or more; so “real possibility” seems to me to be potentially less than realistic prospects. I do not think it has to be as high as 70%. It probably has to be over 50% and, if it is above 80%, that is going to be problematic.
John Howell
Do you expect to see it fluctuate over time rather than a steady state as it is at the moment?
Professor Hodgson
That is a good question. If the CCRC is working consistently, some fluctuation. It is remarkably steady; you are right.
Dr McCartney
One of the difficulties is that you are asking that question based on “Given the resources it has, what should be the referral rate?” If you could double the size of the CCRC, I would love to see the referral rate shoot up because we could investigate more cases, we could take more cases to the Court of Appeal and so forth. When I ran the innocence project at the University of Leeds I was always very critical of the referral rate, saying it was far too low, and then after six years I looked at our so-called referral rate from the innocence project and it turned out to be practically the same as the CCRC’s, so I suddenly felt, “Oh, no, I should not be criticising the CCRC because our referral rate is the same.” However, when I reflect on it I say, “My referral rate is like this because I only have 12 students; I only have a certain amount of hours a week.” We are rejecting most people who write to us because we do not have the resources to look into their cases.
Chair
We are going to come on to resources.
Jeremy Corbyn
Thanks for coming along to our Committee today. I have three questions for you. Do you have any figure on the additional funding which should be made available to the CCRC? Have you done any calculations on this?
Dr McCartney
I have not done calculations. The simple answer is more. I am a hopeless optimist, so when the CCRC was created I was dancing around the room thinking, “We have cracked miscarriages of justice because we are going to learn what the causes are. We are going to find out”—
Jeremy Corbyn
You were not alone in that.
Dr McCartney
I am not the only one dancing around the room. I thought we were going to have a feedback loop and we were going to learn what the causes of miscarriages of justice were. We were going to feed that back to the police and the CPS and we were going to stop. I was expecting the CPS application rate to be going down every year, not up every year. Of course, some of that is the good work the CCRC is doing in advertising and making themselves accessible, which is good, although there are still some groups which are seriously under-represented. However, if we are going through all the funding cuts that this Government are insisting upon in policing, the courts, the legal profession—let us not mention legal aid before my hair stands up on my neck—all those cuts are going to result in more miscarriages of justice. Even if you said that the CCRC is operating perfectly now, it is going to need more resources because you are going to have more miscarriages of justice. Corners are cut now in investigations, prosecutions and disclosure, and lawyers are working for peanuts in the dead of night. All that will only increase when we have less money in the system.
Professor Hodgson
You cannot just throw money at it and think that will make it better. The most important part of the CCRC work is the case review managers and all the legwork that they do. I totally agree that we need to be a little bit more analytical and strategic about what is working. For example, the CCRC has done work and has been very proactive and is encouraging more applications. Has that resulted in more referrals? No, not really. It has resulted in quite a dramatic increase in the number of cases screened out at the early stage from around 54% or 51% when I did my research on legally represented applicants to around three quarters now, so more cases but more of them are being screened out earlier on.
Professor Hoyle
The CCRC budget in 2008-09 was £6.8 million. In this last financial year, it has been under £6 million. At the same time they have seen their numbers increase from just under 1,000 cases a year to 1,500 cases a year, as Jacqui mentioned, partly because of these reforms, partly because of more work done in clinics in prisons by the teams there. The queues that had been going down are starting to go up again as a knock-on effect of this. If you think about that £6 million budget, about 80% of it goes on personnel, on commissions and case review managers, so there is about 20% going on investigations. It is that part of it which needs to be increased. I do not think the commission needs any more commissioners. They may think they do and I would not complain if they had some more, but it desperately needs some more case review managers. You will have to ask them what the figure would be, but on a rough estimation it seems to me that a 20% increase would take them back to where they should be, given the cuts over the years in real terms and the increase in cases.
Professor Hodgson
They have had an initiative, have they not, in recent years, where they have had short-term case review managers, types of internships and so on, and that has been really effective, particularly because they have been legally trained, are very focused and so on. If I dare go back, because I did not say anything in answer to the initial question around legal representation of applicants, that is really important because there is an argument, and the commission would probably say, that lawyers tend to attach themselves to the strongest cases. There is some truth in that. Lawyers do a fantastic job—the commission probably does not realise this—in filtering out a lot of cases which they see as no-hopers. The value of good legal representation for an applicant and for the commission is enormous, because the ideal case for the Commission to receive is one which largely has the material set out, “These are the new arguments; these are where the bodies are buried; this is what you should be chasing up,” and off we go. When you used the word “mailbox”, the postbox/mailbox metaphor is a real CCRC classic. Lots of people will say, “The lawyer is just a mailbox. We are always writing to them and they are not doing anything about it.” There are some lawyers like that, but there are some really great lawyers as well, who are doing really helpful work. In our own research, we saw a number of cases of, “Provisional statement of reasons not to refer. Send it back to the lawyer,” and the lawyer says, “Here are three things you should be doing.” The commission does those three things; it goes back and the conviction is overturned. There is real added value from having good legal representation and saving money in the long run.
Jeremy Corbyn
Two other quick points. What would be the effect on performance in dealing with cases if the CCRC did not consider sentence-only cases and only considered conviction cases?
Professor Hoyle
Sentence-only cases comprise about 16% of their applications. That varies across the years. This last year it was 18%. It also varies across jurisdictions. Bizarrely, in England and Wales it is 24% and in Northern Ireland it is 2%, so there is something different going on with Northern Ireland cases, and I think it is about the way people use the appeals process there.
Jeremy Corbyn
Do you have any information on the amount of variation of sentences achieved by CCRC referrals? Have you done any studies on that?
Professor Hoyle
Very little, and no, I have not, so it is impressionistic. It is not a great deal because the court is becoming increasingly reluctant to change sentences which are perceived by the CCRC to be disproportionate.
Jeremy Corbyn
When you say 16% of work, is that 16% of all cases or 16% of the volume of work they do, because clearly some cases require far more work than others?
Professor Hoyle
It is 16% of all applications at the beginning. You asked the question, “What difference would it make?” At 16% it would not make an enormous difference but it would make some difference. If those cases were taken away, it would free up some of the resources to devote to those other cases.
Jeremy Corbyn
But it would not be 16% of resources, would it?
Professor Hoyle
No, it would not, because those cases which go through to a full investigation have a full review.
Jeremy Corbyn
A sentence is much easier to deal with than a conviction.
Professor Hoyle
It tends not to require any sort of investigation beyond looking in the bundle, legal skills required. Sometimes, that is difficult legal work. I am not saying it does not take time and effort, and they have to be very careful in preparing the statement of reasons on those cases, not least because the court seems a little reluctant there, but it does not take the kind of investigative work where they have to get forensics tested, and so on. Of course, what you do not know is, if you do not give people the opportunity to come in on a sentence-only appeal, whether some of those might decide to throw in an appeal on their conviction at the same time, so the figures could be distorted slightly if you took away that power.
Jeremy Corbyn
Moving on to section 17, what evidence do you have of non-compliance and do you think there is a case for extending section 17 powers beyond statutory authorities, which is, I believe, where it resides at the present time? That is for all of you.
Dr McCartney
I do not think you can mount an argument against it, because probationary services—
Jeremy Corbyn
There are plenty of people who may, so I would like to hear what the arguments are for it.
Dr McCartney
In a lot of the cases at the University of Leeds that we would deal with, or at the University of Northumbria, you cannot look into a case without dealing with private bodies. As a university, our student law clinic, we have no powers to force—we had a case we worked on where we wanted CCTV from a hospital car park, but the hospital car park is run by NCP, a private organisation. We cannot get the CCTV. There is not even any point our asking the CCRC to get it because they cannot get it either. We need CCTV to put our client in that hospital car park at a particular time and no one can do it.
Professor Hodgson
Given the sensitivity of the information that they can get from public bodies, particularly when they are looking at things like victim impact statements, victim compensation, health records, social service records, the idea that they could not get the NCP car park CCTV is ridiculous.
Jeremy Corbyn
I get that; I fully understand the point, and I’m glad you have put it that way, but what degree of resistance is there at the moment of cases which are impeded and never get to the Court of Appeal because of the lack of access to private information? Have you any figures on that? You may want to send us a note on that if you do not have it available with you.
Professor Hoyle
I have figures on requests and positive responses from statutory public bodies. They have a 90% success rate with section 17 applications to the court, 85% to the police and 79% from CPS. It is slightly lower from other local authorities at about 67%, but most of their section 17 requests—and they do a mean average of three in each case and in some cases up to 28 requests—are met in a reasonably timely fashion; again, it is a mean average of seven days that the cases come back.
Jeremy Corbyn
It does not sound very good for local government. That is one third of cases which are not responded to.
Professor Hoyle
That is right.
Dr McCartney
It does not even say anything to me that it is 85% from the police. What is happening in the other 15%? Why are the police not responding to the section 17?
Professor Hoyle
Because the data are missing in most of them. In almost all of them they say the data are missing.
Dr McCartney
That is a big concern when the police are now in charge of forensic exhibits.
Jeremy Corbyn
That is very helpful, but the point I am also concerned about is, do you have any estimation of the number of cases which never get referred to the Court of Appeal because of the inability of the CCRC to demand information from private sources, so the case never passes the starting point, if you like? Do you have any information?
Professor Hodgson
No. I think that would be a very useful thing to look at specifically and target, but I do not have information on it.
Jeremy Corbyn
Because if we want section 17 changed, we need to do that.
Professor Hodgson
I understand you need the evidence to show it is necessary.
Dr McCartney
Of course, it is very difficult to know how an investigation would have gone: if you had obtained the information, would it have been referred back or could they have discounted the information had you had it anyway? There are lots of examples of cases where we have documentation, we have been able to get evidence, but it still does not pass the “real possibility” tests anyway. It is very difficult to pick out one piece of evidence and say that was the crucial factor that meant we did not get over the hurdle.
Jeremy Corbyn
One last point from me on section 17. Could the CCRC itself go to court and require a private organisation such as a TV company to reveal information? Does it have that power?
Professor Hodgson
No. It is not a party to the case.
Dr McCartney
I cannot imagine how it would.
Professor Hoyle
Going back to your original point, there are two points to be made that are persuasive. One is that I know of cases where the CCRC have tried to get information from a private body and the private body has said things like, “We would love to give it to you. We can see why it is important information, but we are worried about data protection.” There are cases like that. The second point is that, if you care about the inequities in the criminal process and you have some people coming through the system later when the organisation that otherwise would have been in the public sector is in the private sector and look at what is happening with the Probation Service—
Jeremy Corbyn
It has been privatised.
Professor Hoyle
Yes. When you think about the Probation Service now, it is going to look very different in the next few years from 20 years ago, as will other organisations. If you want equity across the process, you cannot have some people whose cases just happen to have information in the private sector now but would not otherwise be compared with cases where they have remained, for other reasons, in the public sector. It seems wrong that those applications will be treated differently because of the lack of that power. It is wrong.
Chair
Is there any evidence of that having happened?
Professor Hoyle
There have been a lot of changes over the last year, and the NHS would be one obvious example of that. There are cases—I cannot give you numbers; I do not have them—where they cannot get the information because it is in a private body and because organisations are very worried about data protection now because this has become much tougher—
Chair
It is usually because of misinterpreting data protection, of course.
Professor Hoyle
Sometimes it is.
Dr McCartney
Yes, but care homes are the perfect example that Mark Newby was talking about. We have so many cases which are historical cases. Care homes which were once run by local authorities are now private bodies and they will not give out that information because it is sensitive information: who was in a care home at what date. Data protection is a catch-all. There is a real discrepancy here between—
Chair
It is not for me to be answering the question, but this Committee, of all bodies, needs to make it clear that data protection is not a catch-all and public bodies and private bodies have a duty, if in doubt, to seek advice from the Information Commissioner and apply the law correctly, not incorrectly.
Professor Hodgson
When you say, “Are there particular cases which have not been referred because of that?”, and, understandably, the focus now is on those cases which have got one or two years down the line and they are in a committee, do not forget that the vast majority of cases never get past initial screening. There are all kinds of reasons why they may be screened out, and one of them may be that the key bit of evidence is held by a private body. We are never going to get that out of them. The only possible line of investigation is one we cannot pursue. I do not know, but that could be a reason for screening it out.
John McDonnell
Before you go, on the role of the CCRC for the future, at the moment it deals with individual cases of miscarriages of justice, but it makes it uniquely placed to see how the whole system operates. It could play the role of looking at and advocating changes in the criminal justice system to avoid or minimise miscarriages of justice. Do you think that is the role it should now take up?
Professor Hodgson
I think that was a role which was envisaged for it by the Royal Commission on Criminal Justice, that it would be able to feed back and improve practice and prevent miscarriages of justice. There is a will to do that, but they nowhere near have the resources, the time, the expertise to do that. It is a real shame because, as you say, they are uniquely placed; they have data that nobody else has. Yes, you might argue that these are individual exceptional cases; these are not representative; but we do not know that. We need to do some research to look at that. The insights are incredibly powerful and we know that there have been major changes in police practice as a result of some key cases. That is something they could do more of. Just, “There is a little bit at the back of the annual report,” is nowhere near enough. It is a waste of resource that it does not have them, but it would have to come from somewhere else. I know they are keen on engaging additionally with academia and independent researchers. They simply do not have the resource in-house for the expertise to do that at the moment.
Dr McCartney
One of the difficulties—and they are engaging with academia more—is that they are engaging with academia in a fairly navel-gazing way of, “How is the CCRC operating?” What we are talking about is how the criminal justice system is operating and why we are still getting innocent people in prison. That is a question which to me is not being addressed, because of resources, not because of lack of will perhaps, but they just cannot get round to that. That is the biggest disappointment of mine, that we are not learning about the criminal justice process. There is no feedback loop. There is no, “Hang on: in this case, these police officers broke this rule.” What happens? Absolutely nothing. Does anything happen when we find that there is a spate of cases which have all been misinterpreting? There was one recently where footwear marks were being taken illegally in a police station, and it was only through one case going to the appeal courts that they discovered that this police station had got PACE wrong. They had read it wrong. It is that feedback loop we would like. Let us learn from these cases they are dealing with and feed back to the Judicial Studies Board how bad character is leading to miscarriages of justice and so forth. Somebody asked the earlier panel a really exciting question for academics, “What would the Court of Appeal look like if we were going to change the system?” I cannot help thinking why can’t we make the CCRC a body that is about getting innocent people out of prison and reforming the criminal justice process, and we can leave to the Court of Appeal those legal issues? For example, is the joint enterprise doctrine working? No. Let us get the Court of Appeal to look at it because that is a legal question. Is PII being used properly in cases? Very often not. Let the Court of Appeal deal with it. Are indeterminate sentences appropriate? The Court of Appeal could deal with these knotty legal issues, perhaps not on an individual case-by-case basis but on a class case basis. In this class of cases, can the Court of Appeal sort out the joint enterprise doctrine, please, and let the CCRC deal with the individuals and get the individuals out of prison? That is just me, off the top of my head, dreaming, but that is a possibility. Why could we not get the CCRC to be part of this feedback loop and get innocent people out of prison and leave the Court of Appeal with the legal issues?
Chair
Thank you very much. We are very grateful to all three of you for the help you have given us this morning. Oral evidence: Criminal Cases Review Commission, HC 850 26