Critically Consider the Contribution of the Criminal
Cases Review Commission in Addressing the Problem of
Miscarriages of Criminal Justice in England and Wales
Suriyan Hongvilai 1
Introduction
Theoretically, the criminal justice is not only created for punishing wrongdoers,
preventing the crimes or keeping society in safe, but also it is supposed to protect innocent
people from wrongful treatment and wrongful conviction.2 In practice, mistakes are
inevitable. Especially, the criminal justice system is legally involved by human beings
in every step: the police, prosecutors, the defence lawyers, the jurors, the judges, and
prisons. Although the persons involved would carefully practice at each step, the errors
still possibly occur.3
1 Judge of the Office of the President of the Supreme Court, LL.B. - Thammasat University,
Barrister-at-Law, LL.M.- the University of Nottingham (Office of the Judiciary Scholarship).
2 A. Sander and R. Young, Criminal Justice, (3rd ed. OUP, Oxford, 2007) pp. 1, 2.
3 C. Walker(2002) ‘Miscarriages of Justice and the Correction of Error’ in M. McConville and
G. Wilson (eds), The Handbook of the Criminal Justice Process. Oxford: OUP, p 505.
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53
One of the criminal justice goals is the conviction of the guilty and the acquittal
of the innocent4, the miscarriage of justice, therefore, means a failure to render the
fairness in finality of criminal justice to the accused.5 There is no perfect criminal justice
in the world.6 The criminal justice system in England and Wales is not an exception.
The Guildford Four case (convicted in 1976; convictions quashed in 1979), the Maguire
family case (convicted in 1976; convictions quashed in 1992), The Birmingham Six case
(convicted in 1975; convictions quashed in 1991), the case of Judith Ward (convicted in
1974; convictions quashed in 1992), and the Tottenham Three case (convicted in 1986;
convictions quashed in 1991), are the outstanding examples and have been criticized by
the media and the people for a long time. These cases have gradually eroded the public
confidence in the criminal justice in English and Wales. The government responded to
the issues of miscarriages of criminal justice by appointed Lord Runciman of Doxford
to be a chairman of the Royal Commission on Criminal Justice (hereafter ‘the Runciman
Commission’) in order to examine the effectiveness of the criminal justice system of
England and Wales.7 The Runciman Commission was mainly required to reassure in the
verdict that will convict the guilty and acquit the innocent.8
According to 352 recommendations of the Runcuman Commission from its
report, the Criminal Cases Review Commission (hereafter ‘the CCRC’) was consequently
established in 1997 as a powerful tool to investigate claims of wrongful conviction, with
the legal power to refer the assessed cases to the Court of Appeal, in order to address the
4
5
6
7
Supra n.1, p 7.
Supra n.2, p 506.
G. Waller, Miscarriages of Justice, (E.&E. Plumridge Limited of Linton, Cambridge, 1989) p.5.
E. Stockdale and S. Casale, Criminal Justice under Stress, (Blackstone Press Limited, London,
1992) pp.111,112.
8 Ibid p.112
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miscarriages of criminal justice in England, Wales and Northern Ireland.9
It is interesting to consider whether the CCRC has successfully done since
it was created and how well it can address the problem of miscarriages of criminal
justice particularly in England and Wales. Thus this essay will objectively examine the
performance of the CCRC by begin with the clarification of miscarriages of criminal
justice in England and Wales. It will then explain elements of the CCRC – its roles, its
legal power, its structure, its problems and barriers, and its success. The paper will be
concluded by using the CCRC actions in the past to be the lesson of the present and it
can be used to predict the outcome of the CCRC in the future in order to serve the public
interest in criminal justice system.
1. Miscarriages of justice in England and Wales
In the criminal justice system, the accused will be presumed innocent until it
can be proved ‘beyond reasonable doubt’, that those particular accused has committed
the crime.10 If the jurors, who are the fact finders, are not satisfied by the evidence
of the Crown that the accused is the criminal, they have to acquit the charge. Even
through, there would be possibility that those particular accused would be the guilty, it
has to be accepted that ‘it is better that ten guilty persons escape than that one innocent
suffer’.11 These legal concepts are used to avoid the innocence to be convicted and to
show that no one accept that the innocence should be kept in prison. On the other hand,
9 See http://www.ccrc.gov.uk/index.htm Homepage of the CCRC website [2 January 2010].
10 See Article 6(2) of the ECHR and R. Nobles and D. Schiff, Understanding Miscarriages of Justice
(OUP, Oxford, 2000) p.93.
11 Blackstone, Commentaries on the Law of England (1765-9) iv,27 cited in C Walker (2002).
‘Miscarriages of Justice and the Correction of Error’ in M McConville and G Wilson (eds),
The Handbook of the Criminal Justice Process. Oxford: OUP, p 505. ปีที่ 4 ฉบับที่ 1 พ.ศ. 2555
55
it can be said that miscarriages of justice have occurred. Importantly, it seems that when
miscarriages of criminal justice have been considered, most of commentators will focus
just only on the wrongful conviction. Despite, the conviction is solely the final step of
criminal justice procedure. Miscarriages of criminal justice can be factually happened
in each criminal justice procedure level; pre-trial, trial, appeal, and post-appeal.12
1.1 How do miscarriages of criminal justice occur?
Miscarriage of justice is closely connected with the criminal justice system.13
Although there are various theories of criminal justice universally, the most frequently
referred models are King’s three process models; due process, crime control and the
medical model and the three sociological perspectives; the bureaucratic, the status
passage and the power models.14 The ‘due process model’ and the ‘crime control model’,
at the first time, were distinguished by Packer in 1968.15 However, most of the arguments
related to the criminal justice are how to integrate the due process and the crime control
model properly in practice. While the due process model is used to protect the rights of
an accused by asking the state to prove the guilty beyond reasonable doubt, the crime
control model, on the other hand, remains the efficiency of the state in the repression
and punishment of criminal conduct.16 As a result, the effective criminal justice system
is the criminal process in which the justice can be exercised in an appropriate way
whether to repress and punish the criminal or to protect the accused rights by providing
the correct conviction.
Notwithstanding, the criminal justice system elements are the structure
12
13
14
15
Supra n.5, pp.2,3.
S. Greer, ‘Miscarriages of Justice Reconsidered’ (1994) 57 Modern Law Review 58, p.59.
M. King, The Framework of Criminal Justice (London: Croom Helm, 1981) ch. 2 cited in ibid p.60.
H. Packer, The Limits of the Criminal Sanction (Stanford: Stanford University Press, 1968)
cited in supra n.12, p.60.
16 Ibid p.60.
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of the system and the persons involved in each step. Therefore, there is a variety of
possible causes of miscarriages of justice both in the structure and in the actions of the
participants.17
1.1.1 Structure18
The structure of criminal justice system in England and Wales which includes
the institutions, procedures, and the substantive criminal law, may create justice
miscarries by themselves.19
The criminal law may unwillingly give a chance to the guilty for evading the
conviction. It is called the loophole of the law, for example an accused who is charged
by manslaughter allegation, will be able to defense himself that he faced the serious
danger that is imminent and unavoidable and he used the reasonable force with the fair
judgement and he did what he honestly and instinctively believes is necessary in the
heat of the moment in order to convince the jurors that what he did is the self-defence.20
The second problem of the structure is the late of starting hearing date in the
court proceeding due to the caseload problem. It can naturally create the error of memory
especially missing some important detail of prosecutors’ eye witnesses that may lead to
be unreliable evidence.21 The plea bargaining system is hopefully used in Crown Court
and Magistrates’ Court for number of reasons including reducing the number of cases in
those courts and most importantly, it is used as a tool to provide a very good prima facie
justification for the conviction.22 An accused who pleads guilty is assumed to be the true
perpetrator. Unfortunately, some of those who plead guilty will be innocent who will
17
18
19
20
21
22
Supra n.5, pp. 2, 3. Supra n.12 .
Ibid pp.62, 63.
Ibid p.63.
O. Wellborn, ‘Demeanor’, (1991) 76 Cornell L. Rev. 1075, p.1075.
Supra n.12, p.67.
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do so for various reasons.23 Especially, those who are not sure with an unpredictable
judgement and untrustworthy jury bias verdict, will consequently accept the discount in
sentencing rather than daring to fight for their dignity and get the wrongful conviction
with full sentencing punishment in the final. As a result, the plea bargaining system has
been criticised on the basis that it will create the pressure upon the innocent accused to
plead guilty and will reduce the opportunity of acquittal.24
1.1.2 The Participants in Criminal Justice System
Even though, the perfect justice system is set, when there are human beings
involved, justice miscarries can be created in every single stage of the proceedings;
pre-trial, trial, appeal, and post-appeal.25 It can be described by illustrating the persons
involved in each stage and explain why those participants may create miscarriages of
justice whether with or without intention.
The unlawful arrest, the unfair investigation, illegal imprisonment, and pressing
the suspect to confess with unfair treatment, are the breaching treatment of individual
rights perpetrated by the police unexpectedly.26 A very clear example of these is what
happened with Althea Burnett, a blind woman, who was surprisingly asked by the
police officers at her house in London while she was there with her children, to indentify
the police suspected person who was complained that called the taxi from her address
and did not pay the taxi fee. The police did not believe what she told. She, then, was
taken to the police station and detained for more than an hour without any charge. The
Crown Prosecution Service (CPS) claimed that ‘the arrest was unlawful and therefore
23 See for example S. Schulhofer, ‘Plea Bargaining as Disaster’, (1992) 101 Yale L. J. 1979.
24 The European Convention for the Protection of Human Rights and Fundamental Freedoms,
Art 15 cited in supra n.12, p.68.
25 Supra n.16.
26 Supra n.2, pp.505, 507.
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constituted and assault and false imprisonment’.27
Moreover, an unfair pressure confession is another controversial problem
that may destroy the confidence of the hopeful pre-bargaining system and it can also
create unwanted miscarriages of criminal justice. This is possibly caused by the poor
investigation of the police misconduct28 and they are not confident with their corrected
evidence. Therefore, they try to force the suspect to confess in order to secure the
conviction.
After collecting all evidence, the police will then make a decision whether or
not to pass that particular case to the CPS.29 The CPS, then, has the legal power to make
a decision to prosecute, or to drop the case.30 The error may be created in this stage,
especially, when the prosecutors have the momentum to rely on the external factors,
such as the initial charging decision made by the police,31 the pressure from the public
interest, the mass media, the witness intimidation, and the mistake or malpractice by the
police or even by the prosecutors themselves.32 More importantly, in the trial stage, the
burden of proof is in the prosecutors’ hands, thus the tactic to present or to keep hidden
some unsecured evidence may create unintentional miscarriages of criminal justice.33
The examine and cross-examine to witnesses during the testimony is one part of the
most important burden proof of the prosecutors that play a significant role in the way in
which the jury’s conviction may be convinced easily.
The defence lawyers, who legally participated in almost every stage of criminal
proceedings on behalf of the accused, would be the cause of miscarriages of justice by
27
28
29
30
31
32
33
Supra n.1, p.597.
Supra n.5, p.3.
M. Wasik, T. Gibbons, and M. Redmayne, Criminal Justice Text and Materials,
(Essex, Longman, 1999), p.37.
Ibid.
Ibid, p.341.
Supra n.12, p.64.
Supra n. 20, p.1090.
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59
their improper jobs including inadequate preparation, bad tactical decision in the trial
stage, the failure to call witness, and setting bad argument in the appeal stage.34
There would possibly be justice miscarries in the trial. For the judges, they are
sometimes potentially momentum to favour the prosecutor’s evidence rather than acting
as neutral umpires, as it was alleged in the Birmingham Six.35 The defectively accepting
the defendants’ submissions evidence, may produce the unfairness of the judges rulings
or directions to the jury, as it happened in the Maguire Seven.36 The jury nobbling and
juror intimidation are the main concerns of both unjustified conviction and unjustified
acquittal which may create miscarriages of justice lastly.37 Theoretically, the jurors are
ordinary persons who are not experts in criminal justice. Therefore, they are sometimes
misled easily by the tactic of the skilful defendant lawyer or the experienced prosecutor,
especially, in the very complicated cases such as a case of fraud. As the fact finder,
it is not easy for the jurors to identify the reliability of witnesses. The demeanour of
witness while they have been examining or cross-examining, is hardly distinguished
that whether the perjured testimony happened.38 Additionally, the intimidation is not
only the problem of fearful witness to be testified in court, but it is also the cause of
wrongful verdict of the juror.
2. The Criminal Cases Review Commission
Before examining the role of the CCRC in solving the problem of miscarriages
of criminal justice in England and Wales, it is probably better to primarily illustrate the
structure, the legal power and the entitled duties of the CCRC in order to understand
34
35
36
37
38
60
Supra n.5, p.3.
Supra n.2, p.512.
Ibid.
Supra n.12, p.65.
See supra n.20.
Vol.4 No. 1 : 2012
how it works and what it has done since its establishment.
The CCRC was created by the Criminal Appeal Act 1995 followed the Runciman
Commission recommendation and began work on 1 April 1997.39 It replaced the role
of the Home Office in investigating and referring the cases to the Court of Appeal. It
was also intentionally designed to be a unique and independent body which separate
from both the judiciary and the executive.40 The main reason is that the Home Office
where is one of the government body, was reluctant to use its full legal power as it
was given by the Criminal Appeal Act 1968 to refer alleged miscarriages of justice to
the Court of Appeal for fear of being alleged as interfering with the judiciary power.41
There are eleven commissioners who shell be appointed by Her Majesty the Queen on
the recommendation of the Prime Minister.42 This raises a concern to Stephanie and
Lynne that the CCRC is not completely separated from the executive including having
been reliant on the Ministry of Justice for some recourses and the terms and conditions
of the CCRC staffs’ employment which are made by the Ministry of Justice and the
commissioners will be paid by the Secretary of the State.43 However, there has not been
any controversial sign of the relation between the CCRC and the executive since its
creation.
39
40
41
42
43
S. Roberts and L. Weathered ‘Assisting the factually innocent: the contradictions and
compatibility of innocence projects and the Criminal Cases Review Commission’ (2009)
29 Oxford Journal of Legal Studies 43, p.48.
Criminal Appeal Act 1995, s 8 (2), The Royal Commission on Criminal Justice, Report (1993, H.M.S.O., London), p.182, para. 9. cited in K. Malleson ‘The Criminal Appeal Act 1995: Part 2:
The Criminal Cases Review Commission: how it work?’ (1995) Crim.L.R. 929, p.929.
Supra n.1, p.578, K. Malleson ‘The Criminal Appeal Act 1995: Part 2: The Criminal Cases Review Commission: how it work?’ (1995) Crim.L.R. 929, p.929. Criminal Appeal Act 1995, s 8 (3), (4).
Supra n.38. Criminal Appeal Act 1995 s 31(1)(a), K. Malleson ‘The Criminal Appeal Act
1995: Part 2: The Criminal Cases Review Commission: how it work?’ (1995) Crim.L.R. 929,
p.930.
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The eleven of commissioners is designed to set proper proportion of the lawyers
and lay persons who required in the Criminal Appeal Act 1995 section 8 (5) and (6)
that at least one third of the members of the CCRC must be the persons who are legally
qualified and two thirds have to be the persons who appear to the Prime Minister to
knowledge or experience of any aspect of the criminal justice system 44 with the fixed
term of no more than five years and can be renewable for a maximum total of 10 years.45
This is probably the first time that lay persons can involve in reviewing the criminal
cases for referral the alleged miscarriages of justice in the criminal justice system.
The procedure shell begin with whether the submitting application to the
CCRC of appellants or there would be exceptional circumstances which cases can be
referred without the applicant having exhausted the normal appeal processes.46 Once the
application is sent to the CCRC in order to tell the CCRC that what the applicant think
is wrong; the conviction, the sentence or both, then the case will be allocated. At this
stage, the review or the investigation begins. A caseworker will soon send out the order
to the public bodies that keep information about the case which the CCRC may need,
to make sure that all documents will well be kept until they will be asked for. During
the reviewing the case the CCRC staffs will do all the work need including carefully
reading the case papers, obtaining advice and reports from experts in areas like science,
law and investigations, searching information, interviewing people, and visiting the
crime scene. More importantly, it has power to ask external bodies to cooperate and
work on behalf or under its supervision. The case will be cautiously analyzed soon after
that by working staff and one or more Commissioners. At least one commissioner can
44 For full detail please see the Criminal Appeal Act 1995 s 8(5) and (6).
45 K. Malleson ‘The Criminal Appeal Act 1995: Part 2: The Criminal Cases Review Commission:
how it work?’ (1995) Crim.L.R. 929, p.930. 46 Criminal Appeal Act 1995 s 13(2), A. James, N. Taylor and C. Walker ‘The Criminal Cases
Review Commission: Economic, Effectiveness and Justice’ [2000] Cri L R 140, Ibid. 62
Vol.4 No. 1 : 2012
make decision not to refer the case. The decision to refer the case, on the other hand, has
to be made only by three Commissioners sitting together.47
The power to refer the case back to the appropriate courts is based on the three
basic criteria; there is a real possibility that the conviction, verdict, finding or sentence
would not be upheld48; there would be new argument or evidence that has not raised in
both normal appeal process or application for leave to appeal49; the appeal must have
been exhausted from the normal judicial channel, except there would be exceptional
circumstances.50 Once the referral is made, the role of the CCRC ends.
The CCRC has started well and gained widespread support and confidence.51
Moreover, it was also warming welcomed by the Court of Appeal as it can be seen
by the expression of Rose L.J. in Mattan case, the first referral and successful case of
the CCRC in 1998, that “the CCRC is a necessary and welcome body, without whose
work the injustice in this case might never have been identified”.52 Lord Bingham
C.J. expressed similarly tone that “it is essential to the health and proper functioning
of a modern democracy that the citizen accused of crime should be fairly tried and
adequately protected against the risk and consequences of wrongful conviction.53 The
case statistics figures54 since its establishment to 31 December 2009 show that the
47 A. James, N. Taylor and C. Walker ‘The Criminal Cases Review Commission: Economic,
Effectiveness and Justice’ [2000] Cri L R 140, p.141, http://www.ccrc.gov.uk/canwe/
canwe_32.htm [23 January 2010].
48 Criminal Appeal Act 1995, s 13 (1) (a).
49 Criminal Appeal Act 1995, s 13 (1) (b).
50 Criminal Appeal Act 1995, s 13 (1) (c) and (2).
51 A. James, N. Taylor and C. Walker ‘The Criminal Cases Review Commission: Economic, Effectiveness and Justice’ [2000] Cri L R 140, p.142.
52 Mattan, the Time, March 5, 1998 cited in ibid.
53 [1999] 3 All E.R. 498 cited in supra n.50.
54 http://www.ccrc.gov.uk/cases/case_44.htm [24 January 2010].
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CCRC received 12,325 applications in total which includes 279 cases transferred from
the Home Office when the CCRC was set up in 1997. It referred only 444 cases of
11,605 cases completed to the Crown Court and the Court of Appeal, an average of 37
cases a year. If compare with only 7 cases that the Home Office referred to the Court of
Appeal per annum from an average of 700-800 receiving requests each year,55 it shows
that the CCRC seems to be more ready to refer cases than the Home Office used to be.56
However, the numbers of cases heard by the Court of Appeal is 411 cases (290 quashed,
118 upheld, 3 reserved). It can be seen obviously that there have been very rare referral
to the Crown Court with only 33 cases since it was created. Moreover, the numbers of
applicants requesting to appeal their cases to the Crown Court was less than around 14
times of requesting referral to the Court of Appeal.57 This is possibly because most of
those particular cases have probably potential to be heard two times already, including
at least one time by the professional judges. The other is the sentence they received may
short or even non custody and its period can be served by the time the CCRC completed
its reviewing that case.58
If it is focused just only the statistics of the numbers of applications sending to
the CCRC each year, an average of 1,027 cases a year, there may perhaps be seen into
two facets; one is those convicted persons will use the CCRC as just the other chance to
win the case, the other is that there would be huge numbers of alleged miscarriages of
justice that the wrongful convictions need to be addressed and this is the last resource
for convicted persons to clear their name. However, the CCRC has to act as the gate
keeper to sieve out until the real possibility of miscarriage cases that need to be quashed
55 Royal Commission on Criminal Justice, Report (Cm 2263) (London: HMSO, 1993) p.181
cited in supra n.1, p.578.
56 Supra n.1, p.581.
57 Supra n.1, p.581.
58 Ibid.
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is found. That would be the reason why only 1 in 28 of applicants will succeed. The
CCRC has to exercise its discretion to refer the cases to the courts.
The CCRC will refer the case when it meets the circumstances set out by the
Criminal Appeal Act 1995 section 13. It, however, may not refer the cases unless it
considers that there is real possibility that the original convictions, finding or sentence
will not be upheld.59 The real possibility of the conviction would be the result of an
argument or evidence raised in the previous trial or of the exceptional circumstances.60
There is no definition of the words ‘real possibility’ in the Criminal Appeal Act 1995.
According to the judgment of the CCRC, it can be implied that the test of section 13 (1)
(a) should be “more than an outside chance or a bare possibility, but which may be less
than a possibility or a likelihood or a racing certainty”.61 This suggestion was replaced
by the Select Committee about the test of the real possibility that “that there had in fact
been a miscarriage of justice”.62 And the Select Committee also believed that the test
would not be more than the definition that the Court of Appeal may applies when the
cases have been referred back.63 This may lead the CCRC to be forced to follow the
criteria of real possibility set by the Court of Appeal.64 Duff, therefore, concludes that
“the real possibility test implies that it is not for the Commission to determine whether
there might have been a miscarriage of justice; instead, its role is simply to second
guess the Court of Appeal’s likely determination of the matter and apply a parasitic
59 Ibid p.582, supra n.50.
60 See Ensor [1989] 2 All E.R. 586; A. Samuels, “Incompetence or ineptitude of counsel as a
ground of appeal” [1997] Crim.L.R. 1. During the passage of the 1995 Act, it was suggested
that the presence of incompetent advocacy could satisfy the referral criteria (Hansard, H.C.
Debs., Standing Committee B, col. 126, March 30, 1995) cited in supra n.50.
61 R. v. CCRC, ex p. Pearson [1999] 3 All E.R. 498 at 505, per Lord Bingham C.J cited in supra n.50.
62 Select Committee, Report, paras 22-24, cited in supra n.50.
63 Supra n.50.
64 Supra n.1.
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standard”.65 Nevertheless, it seems that the CCRC has this role to weigh the proportion
of the ‘real possibility’ which is approximately 30 percent to fail that is used by the
CCRC.66
Therefore, the relationship between the CCRC and the Court of Appeal should
be considered. Mahmood Mattan is perhaps a good start in term of its relationship with
the Court of Appeal.67 Zellick might be confident and think exactly the same when
he expresses deeply based on his own experience that the CCRC and the Court of
Appeal have respected each other.68 Nobles and Schiff, on the other hand, comment
that however, in their opinion, the CCRC concerned too much about the percentage
of cases which are referred, have the successful appeal results. Despite, it should
concentrate with a likelihood number of cases that might have the potential miscarriages
of justice in order to fulfill its objective of bringing the public confidence in criminal
justice system back.69 It is to be suggested that the CCRC has to balance between the
percentage of successful referral and the interest of quashing of wrongful conviction
that can resolve the problem of miscarriages of justice which is the main entitled duty
that given by the Parliament. Moreover, the CCRC is created to be independent body
to investigate alleged miscarriage of justice. It is not designed to examine the courts’
role or even to be mini version of the Court of Appeal.70 Therefore, it should do its best
to fill in its tasks. The relationship with the Court of Appeal, consequently, should be
65 P. Duff, ‘Criminal Cases Review Commissions and “deference” to the court: the evaluation of
evidence and evidentiary rules’ [2001] Crim L R 341.
66 G. Zellick, ‘The Criminal Cases Review Commission and the Court of Appeal: the Commission’s
perspective’ [2005] Crim L R 937.
67 Supra n.50.
68 Supra n.65.
69 R. Nobles and D. Schiff, ‘The Criminal Cases Review Commission: establishing a workable
relationship with the Court of Appeal’ [2005] Crim. L. R. 173.
70 Supra n.65.
66
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in the way of professional that have to work independently and respectfully each other.
It should not be afraid if the case that is referred would be upheld, even though, the
Commissioners thought that it fit enough on the ground of there is real possibility to
be quashed. Most importantly, it has its own expertise in criminal justice which Zellick
claims that it seems to be better than the Court of Appeal where many of judges are not
specialize in criminal law.71 Therefore, the upheld judgment may be only a variance of
two independent bodies that have already done their job completely. Notwithstanding,
the CCRC may not be able to be an absolute power body. Its power has to be checked
and balanced. When the CCRC has the power to investigate the alleged miscarriages of
justice whether by receiving an application or starting by itself, the final decision should
lay on the judiciary’s hand in order to give their chance to rectify a wrongful conviction
and make the best finality. Otherwise, absolute power may lead to create the second
justice miscarry.
There were some concerns about the investigation when the Runciman
Commission suggested that the CCRC should not have its own investigation department,
instead it should let the police play this important role.72 The commentators raised
the issue that there would be a kind of conflict of interest when the police have the
power to investigate their previous investigation.73 However, the CCRC still have
power to supervise the undertaking of inquiries of investigating offers if they think it is
appropriate.74
71 Ibid.
72 Supra n.44.
73 Gilfillan, December 7, 1998, CA, cited in ibid.
74 Criminal Appeal Act 1995, s 20 (4).
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The evaluation of evidence would be one of the most concerns of the CCRC
in action. It is not always true that the Court of Appeal or if necessary the jury for the
retrial, to take the responsibility to attempt to access the credibility or reliability of
evidence.75 When fresh evidence appears in front of the CCRC whether by providing
of the applicant or investigating team, the CCRC may not be able to avoid evaluating
them in order to save the courts’ time.76 There may be two kind of evidence; favourable
and unfavourable evidence to the applicant. Notwithstanding, whether favourable or
unfavourable evidence to applicant rises before the CCRC, the main reason to refer the
case should be there is the real possibility that that case contains justice miscarry and
need to be reconsidered by the court. Theoretically, the CCRC is not acting on behalf of
the applicant nor serving its interest alone, but it is in the position between the defence
and the prosecution neutrally.77 It has to bear in its mind that it serves the interest of
justice and the value of finality.78 Thus, the CCRC should take further step to trace and
examine the related evidence. As Duff suggests that the CCRC should actively operate
to investigate rather than to conduct hearings what the parties said. He also believes that
the CCRC would be operated as a pro-active inquisitorial rather than passive adversarial
legal system.79 This is because in some circumstances, it is nearly impossible to find
fresh evidence to fulfill the ground to refer the case needs. For example, if the convicted
applicant remained in custody in jail, it is difficult for them to find fresh evidence.80
From this point of view, it is necessary to provide the legal aid funding for
75
76
77
78
79
80
68
Supra n.64.
Ibid.
Ibid.
Supra n.68.
Supra n.64.
Supra n.1, p.578.
Vol.4 No. 1 : 2012
lawyers who prefer to work on a voluntary basis.81 Without the funding, it is difficult for
the lawyers to take their responsibilities on miscarriage of justice cases. Consequently,
those who are suffering with wrongful convictions will find very hard to find lawyers
to take their cases.82 Another reason is that a legal representation can help the CCRC to
speed up the process of reviewing if the applications are well prepared.83
As a result, it may be one of the solutions of the delay and caseload problem
that the CCRC confronted after only two years of it full operation. At that time, it
was estimated that a backlog of cases would take around three or four years to clear.84
Currently, it appears that they have been still major problems of the CCRC. In its report
to the Home Affairs Committee in 2006, it claimed that for the more complex cases, the
waiting time for those who are in custody would be 21 months and 31 months for those
who are not in custody.85 The CCRC has continuously asked for more budgets since it
faced this situation. They honestly believed that the reduction of budget will directly
effect to the capacity in dealing with a backlog.86 Furthermore, the workload has made
the CCRC has not had a chance to exercise its power under the Criminal Appeal Act
1995 section 14 to review an alleged miscarriage of justice in the absence of an applicant.
However, a backlog will erode public confidence in the ability of the CCRC in handling
miscarriages of justice problem, especially convicted persons who are actually suffering
from wrongful convictions. Applicants who are serving short sentence will complete
81
82
83
84
85
86
Ibid, p.579.
Supra n.38.
Home Affairs Committee, The Work of the CCRC HC 289 (2003-2004) at http://www.
publiccations.parliament.uk/pa/cm200304/cmselect/cmhaff/289/4012704.htm accessed 26 April
2007, cited in Supra n.38. CCRC, Annual Report 1998-99, p.12, cited in supra n.1, p.583.
Supra n.38.
CCRC, Annual Report 2006-07 http://www.ccrc.gov.uk/publications/publications_get.asp
accessed 3 November 2007 cited in supra n.38.
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their sentences before the review is done completely.87 Increasing the budget is not the
only one solution for these kinds of problem. There would be various ways to do in
order to address backlog problem in the CCRC; coordinating with external bodies under
the power provided by the Criminal Appeal Act 1995, acknowledging the applicants
all about its role in order that the most applications will meet its criteria88, campaigning
journalists and public to participate for collecting relevant evidence.89
The CCRC is the body standing between two sides of possibly different
understanding the meaning of miscarriage of justice; one is the lay notion and the other
is the legal notion. When they talk about miscarriage of justice to the media or people,
the lay terms will be used. When they deal with the courts, on the other hand, they will
speak in the legal term.90 Therefore, the CCRC has to make sure that they generate both
lay and legal notion of miscarriage of justice and both sides understand clearly which
miscarriage of justice that they have spoken so far.
Conclusion
Generally, a wrongful conviction represents miscarriage of justice. Thus, when
an alleged miscarriage of justice case is referred back to the appellate courts; the Crown
Court,91 or the Court of Appeal,92 with its discretion, it seems that miscarriages of justice
may be solved. Nevertheless, from the point of view of those who feel that the numbers
87
88
89
90
91
92
70
Supra n.50.
Ibid.
Supra n.1, p.579.
Supra n.38.
Criminal Appeal Act 1995, s 11.
Criminal Appeal Act 1995, s 9.
Vol.4 No. 1 : 2012
of wrongful convictions in the current criminal justice system has been still high (with
average of 1,027 a year)93 and look forward to receiving the remedy from the CCRC,
this situation seems that the CCRC has not fulfilled properly the expectation.94
The CCRC has faced unexpected problems including the delay and backlog and
funding. From the limited numbers of Commissioners and resources, the amount of 411
cases that were referred to the Court of Appeal with 291 cases were quashed successfully
or 70 percent. It seems that they have done their jobs well and also can confirm to
the public that the door to the justice is never permanently closed.95 Nevertheless, the
CCRC can only be able to solve the problem of justice miscarry from the wrongful
conviction. It was not designed to prevent miscarriage of justice. Explicitly, it can not
take the CCRC project as the one fit all approach of the whole system of criminal justice
in order to guard against or even remedy miscarriages of justice.96 It merely shows that
there may be possibility of justice miscarry in criminal justice system. What it has done
so far might be useful information for restoring the criminal justice in England and
Wales as a whole.
Most importantly, the benefits of the establishment of the CCRC genuinely
outweigh its drawbacks. The countries like Australia, Canada, and the United States
of America, therefore, prefer to establish a body similar to the CCRC in the U.K.97
Thus the CCRC would confidently be the right key to unlock the prison gate and let the
actually innocent person free.
93
94
95
96
97
Supra n.53.
Supra n.68.
Supra n.65.
Supra n.1, p.582.
Supra n.38.
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Bibliography
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King M. (1981), The Framework of Criminal Justice, Croom Helm, London
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Sander and Young R. (2007), Criminal Justice, 3rd ed., OUP, Oxford
Stockdale E. and Casale S. (1992), Criminal Justice under Stress, Blackstone Press
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Waller G. (1989), Miscarriages of Justice, E.&E. Plumridge Limited of Linton,
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Wasik M., Gibbons T., and Redmayne M. (1999), Criminal Justice Text and Materials,
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Duff P., ‘Criminal Cases Review Commissions and “deference” to the court: the
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Malleson K. ‘The Criminal Appeal Act 1995: Part 2: The Criminal Cases Review
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Schulhofer S., ‘Plea Bargaining as Disaster’, (1992) 101 Yale L. J. 1979
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Legislation
The Criminal Appeal Act 1995
The European Convention on Human Rights 1950
The European Convention for the Protection of Human Rights and Fundamental
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Case
R. v. CCRC, ex p. Pearson [1999] 3 All E.R. 498
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Other Documents
The Criminal Cases Review Commission, Annual Report 1998-99
The Criminal Cases Review Commission, Annual Report 2006-07
The Home Affairs Committee, The Work of the CCRC HC 289 (2003-2004)
The Royal Commission on Criminal Justice, Report (1993), H.M.S.O., London
Electronic resources
http://www.ccrc.gov.uk/index.htm
http://www.ccrc.gov.uk/canwe/canwe_32.htm http://www.ccrc.gov.uk/cases/case_44.htm
http://www.ccrc.gov.uk/publications/publications_get.asp
http://www.publiccations.parliament.uk/pa/cm200304/cmselect/cmhaff/289/4012704.
htm accessed 26 April 2007
74
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