Justice versus Conscience

More potential wrongful convictions could be sent back to the court of appeal under proposals to change the way the miscarriages of justice watchdog decides cases.

Suggestions by the Law Commission, which reviews legislation in England and Wales, for reform of the criminal appeals system include making it easier for those cleared of crimes to receive compensation and enabling investigation into allegations of jury misconduct.

At the moment cases can be referred back to the court of appeal by the Criminal Cases Review Commission (CCRC) only if it decides there is a “real possibility” that the conviction will be overturned, but the Law Commission found this could lead to the watchdog focusing its investigations too narrowly.

In a consultation paper published today, the Law Commission also proposes that the CCRC should be subject to an inspectorate. It follows allegations in the Guardian about the way the organisation has been run.

The CCRC’s chief executive, Karen Kneller, will face MPs on the justice select committee in April, alongside the head of casework and an interim chair, if one has been appointed.

Andrew Malkinson is one of several miscarriage of justice victims who might have been referred to the court of appeal sooner if the test had been less stringent. He first applied to the CCRC in 2009 and it was only on his third attempt that his case was sent back for appeal.

Prof Penney Lewis, commissioner for criminal law, said: “We received persuasive evidence that the ‘real possibility’ test used by the CCRC may lead the CCRC to focus its investigations too narrowly and so neglect lines of inquiry that might exonerate a person. Rather than focusing on what the appeal court may do, we think the CCRC should first form its own view as to whether a conviction may be unsafe.”

Concerns that the “real possibility” test would miss cases were first raised by MPs in 1999 when the CCRC was in its infancy – and it has been an issue of growing concern among appeal lawyers.

Glyn Maddocks KC, who represented Oliver Campbell in a successful appeal last year against his conviction for a 1991 murder, said a review of the test was “long overdue”. Campbell’s case was previously rejected by the CCRC after six years of deliberation.

“We’ve been banging on about this for a long time – it’s too difficult a test,” Maddocks said. “How many miscarriages of justice could have been rectified had this test been examined in more detail sooner than now? It’s crazy.”

The CCRC said it welcomed a review of the test but cautioned that the knock-on impact on previously rejected cases needed to be considered. A spokesperson said it might mean that “more than 25,000 former applicants could legitimately ask for their cases to be reconsidered” and that it was hoped “urgent consideration” would be given to that in the final report.

The Law Commission also criticised the current compensation system, which leaves 93% of applicants whose convictions have been overturned with no money.

Lewis said: “Requiring people to prove their innocence beyond reasonable doubt is contrary to fundamental principles of both criminal and civil law, and can present an

‘Rather than focusing on what the appeal court may do, we think the CCRC should first form its own view’

Prof Penney Lewis Criminal law commissioner

insurmountable obstacle to obtaining compensation for injustice. We think that if a person can prove their innocence on the usual standard of proof – the balance of probabilities – they should be compensated.”

Matt Foot, co-director of the legal charity Appeal, which represented Andrew Malkinson, said he was “seriously concerned” that victims of miscarriages of justice would remain “unable to obtain proper disclosure, or remedy in the courts”.

Foot added that compensation reforms needed to happen without delay: “The paper identifies that the brutal compensation test needs to be changed. The Ministry of Justice doesn’t need to wait any longer to sort that out.”

Lawyers are also concerned that the proposals do not sufficiently challenge the workings of the court of appeal itself. Many believe cases such as Lucy Letby’s reveal the flaw in not allowing fresh evidence to be considered by the court of appeal simply because it could have been put forward at trial.

Maddocks said: “The law needs to be overhauled so that appeal judges can use their discretion over whether new and fresh evidence can be allowed to be introduced when the ultimate aim is to achieve justice. It’s not just the Letby case. They are very tight on allowing fresh evidence to be heard even when it’s sensible and in the interests of justice.”

A spokesperson for the CCRC said: “The CCRC is committed to finding and investigating miscarriages of justice and it is only right that the appeals system is regularly and robustly scrutinised to ensure transparency and continuous improvement.

“The paper makes proposals across several areas of the criminal justice system, some of which we have a clear view on, some of which we have concerns about and some that we need to further clarify and reflect upon.”