Created by the Criminal Appeal Act 1995 and brought into operation as of April 1, 1997, the Criminal Cases Review Commission is now an established criminal justice institution whose functions are four-fold; to investigate alleged miscarriages of justice both in relation to conviction and sentence and to refer them, where appropriate, to an appellate court, to investigate matters referred to it by the Court of Appeal, to inform the criminal justice system as a result of its experiences and to help to sustain the integrity of the criminal justice system. The first two functions are statutory. The latter two may be regarded as useful by-products of the system.

Didactic accounts of the workings of the Commission may be found elsewhere. I propose to say something about the record of the Commission and then to look into the inevitably cloudy crystal ball both to see what challenges the future may bring, the inhibitions and opportunities which such challenges may present and the manner in which the Commission may respond to them.

The Commission is, by statute, a multi-disciplinary body with a wide jurisdiction which investigates the safety of convictions and the legality and propriety of sentences. It is thus not an “Innocence Commission”, to use a phrase current in American debates on the topic. It follows that in a number of cases the applicant is not asserting that he was innocent but rather that he was convicted of the wrong offence, murder instead of manslaughter or that his conviction was procured by official misconduct such that he should not have been tried at all.

It is not the function of the Commission, as gatekeeper to the Court of Appeal, to revisit findings of fact made at trial. The Commission must conclude that by reason of new evidence or argument there is a real possibility that the conviction or sentence, if referred, will be quashed by the appellate court. Critics assert that the Commission should work to a lower standard, perhaps that of possible miscarriage of justice, or “lurking doubt”. This criticism is misplaced: the Commission can only work to the standard which applies to the Court of Appeal itself, namely, whether a conviction is unsafe. It would be pointless to refer cases on any other basis. In any event, even in Scotland where the wider “miscarriage of justice” formula applies, the Courts have intimated that their Commission should act on similar considerations.

Even where the conditions noted above are satisfied the Commission has a discretion not to refer a matter to an appellate court. The statute does not indicate what factors may be relevant in reaching such a decision. The issue of discretion is at the time of writing about to be further tested in the Divisional Court and it would seem inappropriate at this juncture to address the issue further.

The Commission prides itself on the thoroughness with which it approaches cases which present real issues for resolution. Despite this there are inevitably referrals which result in unsuccessful appeals. The Commission does not work to a rule of certainty. “Real possibility” implies that there are cases which the Commission recognises are not clear-cut but which, in its judgment, require the Court’s attention. There are, for example, cases in which plausible witness accounts and expert reports need to be subjected to adversary procedures. There have, however, been a few cases which, in my view, the Commission should not have referred: Knighton and Hakala are examples. The Commission learns from these: it has adopted a system of monthly assessments of Court of Appeal judgments in Commission cases.

Challenges and responses

The past seven years have revealed imperfections in the provisions of the Criminal Appeal Act 1995 relating to the Commission. The Commission cannot at present deal with convictions made before Service courts. The Commission has no compulsory powers to obtain evidence from overseas. It must rely on co-operation from foreign authorities and such authorities are often constrained by civil liberties inhibitions contained in their own laws. The Home Office has agreed in principle that these anomalies must be rectified. A third problem concerns obtaining information from bodies in the private sector. Section 17 of the Criminal Appeal Act 1995 enables the Commission to obtain information compulsorily from public bodies but it confers no such powers in respect of private individuals and bodies some of which perform regulatory functions in the public interest. Here, we are dependant on the goodwill of individuals and institutions some of whom are themselves subject to privacy considerations. Particular difficulties arise with telecommunications providers. Since the Act was passed in 1995 there has been a process of creeping privatisation which has further exacerbated the problems.

The inconveniences of the Act do not end there. While confidential information can be passed to other criminal justice agencies in England, Wales and Northern Ireland, it cannot be passed to agencies in Scotland or abroad. The Commission could not, for example, pass information compulsorily acquired from an agency in England and Wales to the Chief Constable of Strathclyde.

These matters are under study at Home Office level. Some await the introduction of legislation to the theme of which they relate. The notion of thematic unity is no doubt familiar in literary criticism but its invocation in this context by the Home Office is novel. One fears the subterranean influence of the doctrine of unripe time.

Some matters have been addressed. The Court of Appeal will, in future be able to direct the Commission to investigate a matter at leave to appeal stage. This should help to ensure that miscarriages of justice will not arise. A person whose conviction or sentence has been referred will in future have to seek leave before arguing any point upon which the Commission has not made the reference so ensuring that some appellants will no longer be able to take palpably bad points thus prolonging the appeal process. The ability to secure leave will serve as a safety net.

Any future budget cuts as a result of the squeeze on public spending could well inhibit the Commission’s ability to deal speedily and effectively with its case loads. Projections suggest that such cuts would, over a relatively short space of time, result in waiting lists (now virtually eradicated) which will be measurable in terms of years. Certain results are readily foreseeable; delays to applicants, judicial review proceedings to force action to be taken which in themselves take up resources which could otherwise be devoted to casework, and distortion of priorities as cases of immediate public concern such as sudden infant death cases jostle for attention with matters which are less politically sensitive but nonetheless of prime importance to applicants. There will be little time to take up issues of law reform which form a limited, unsung, but I would affirm important part of our work.

And there is a question of recruitment of Commission Members. The Commission has attracted members of high standing but it has not attracted many good applicants from the criminal bar. For this there are several reasons. First, appointments are time limited and so not necessarily attractive to many applicants who are not already in a position to apply for judicial office. Secondly, the pay and pension arrangements are not attractive when compared with District Judges. Official recognition of the standing of Commission Member appointments and of the significant work that the Commission does would, in my opinion, be helpful in augmenting the numbers of well-qualified applicants.

Finally, have we helped to sustain confidence in the criminal justice system? I would affirm that we have. To date 241 convictions and sentences or approximately 35 cases per annum have been referred to appellate courts. In any given year 25 times as many cases have been rejected as presenting no provable miscarriage of justice and of these the vast majority can be shown not to have involved a miscarriage of justice at all. This gives the lie to the assertion that the prisons contain large numbers of wrongly convicted individuals. At the same time the Commission offers an assurance to persons wrongly convicted that their cases will be dealt with fairly, objectively and speedily. Overall the criminal justice system works, perhaps better than it should. But that is another story for another day and another author.