Criminal Cases Review Commission Research Articles

How Joint Enterprise Liability Neutered the Criminal Cases Review Commission in England

In 2016 the English Supreme Court changed the law concerning joint enterprise liablity ub R v Jogee. The decision appeared to provide a remedy for secondary parties that had been convicted under the, albeit faithful application of the old law. The requirement, however, to demonstrate a substantial injustice following the subsequent case of Johnson significantly curtailed the number of appeals based on this change in the law. The substantial injustice test is applied by the English Criminal Cases Review Commission (CCRC) prior to the application of the statutory real possibility test. Up until now, there has not been any research that examines the impact of this situation and the extent that it constricts any remedy for secondary parties convicted under joint enterprise liability.  Using findings from the first study to explore this concept this work examines the limiting effect of the substantial injustice test on the CCRC, explores the application of the corrected law from Jogee, and shows the low number of applicants to the CCRC that identify as black British, despite existing research suggesting this demographic has the highest conviction rate for joint enterprise.

Review of wrongful convictions following police misconduct: A study of the English Criminal Cases Review Commission

Abstract The Criminal Cases Review Commission (CCRC) reviews possible wrongful convictions in England, Wales, and Northern Ireland, referring back to the Court of Appeal cases where there is a ›real possibility‹ that the conviction is unsafe. This article presents findings from a four-year empirical study of decision-making within the CCRC. It explores how Commission staff exercise discretionary powers in identifying and investigating possible wrongful convictions, referring just a few back to the Court.<fnote> Since its inception in April 1997, the CCRC has received almost 29,000 applications and referred 797 back to the Court of Appeal. Of these referrals, the Court has quashed the conviction in 542 cases. In 2019-20, the CCRC received 1,334 applications, and in 2020-21, 1,142.</fnote> It focuses on a sample of cases that turned on police misconduct in pursuit of a socio-legal contribution to our understanding of the response of the state to claims of wrongful conviction. It demonstrates that caseworkers’ approaches to investigation and decision-making is shaped by the law and internal policies such that reasonably consistent decision frames emerge.

Conviction Integrity: The Canadian Miscarriages of Justice Commission

Recently, the Canadian Government has committed to creating an independent Canadian Criminal Cases Review Commission. Minister Lametti initiated a consultation process with stakeholders, led by Justice Harry S. LaForme of the Ontario Court of Appeal and assisted by retired Judge Juanita Westmoreland-Traoré of the Court of Quebec, to precede the implementation of the Commission. The resulting report recommends a visionary innocence commission for Canada that is more independent, better funded, more systematic, proactive, and inclusive, has scope to review far more potential miscarriages of justice, and has broader referral grounds and more remedies than existing innocence commissions in other countries. Hopefully, the Canadian Government will seize this singular opportunity to implement a monument to justice and place Canada as the global leader in addressing wrongful convictions.

‘F**k this game … I'm off’: financial and emotional factors in declining legal representation in miscarriage of justice cases

AbstractIn this article, we use data from interviews with 45 criminal defence lawyers to examine the reasons behind a decline in publicly funded representation in applications to the Criminal Cases Review Commission (CCRC). In doing so, we pay particular attention to the relative significance of financial and emotional factors. Our analysis finds that financial factors related to changes to legal aid are significant drivers of a decline in publicly funded representation, but that the financial unviability of CCRC work is also compounded by emotional factors. These include a sense of insecurity, low levels of satisfaction, and a perceived lack of recognition and appreciation, symbolized by low levels of remuneration and exacerbated by poor relationships with external parties. Emotional factors thus combine with financial factors to reduce the supply of publicly funded advice and deter junior lawyers from specializing in this niche area of practice.

United by Cuts: Exploring the Symmetry between How Lawyers and Expert Witnesses Experience Funding Cuts

This article highlights that defence lawyers and expert witnesses appear to have experienced the impact of criminal legal aid funding cuts in similar ways. Despite the very different and specialized nature of their respective work, both sets of professional participants in the criminal process identify that funding cuts create problems around sustainability and quality of service.
 While a growing body of literature has well documented, and continues to document, the perilous position that defence lawyers are in as a result of funding cuts, less is known about the effect of funding cuts on the work done by expert witnesses. To that end, we conducted two focus groups with expert witnesses during which we put to them some findings from our study of the impact of legal aid cuts on lawyers conducting appellate and Criminal Cases Review Commission (CCRC) case work. During interviews in the CCRC study, it became apparent that defence lawyers were struggling to instruct expert witnesses, so we wanted to explore that issue more with expert witnesses themselves. In doing so, we discovered a significant overlap in the concerns expressed by both defence lawyers and expert witnesses regarding the ways in which their work was affected by funding cuts.
 Keywords: expert witnesses; legal aid; defence lawyers; sustainability; quality; morale.

A Critical Analysis of Post-Conviction Review in New South Wales, Australia

Wrongful convictions leave an indelible mark on society. They are a tangible demonstration that the criminal legal system has failed, and a poignant reminder that all human institutions are fallible. Robust post-conviction review mechanisms are essential to provide an opportunity for justice to be eventually achieved for those who are wrongfully convicted. Through a critical examination of the post-conviction review mechanisms in NSW, which includes determining the existence of independence, transparency and accountability in the system, some deficiencies will be identified and analysed. Drawing on insights from the author’s role as a lawyer for Kathleen Folbigg (a woman convicted in 2003 of the murder of three of her infant children, and the manslaughter of her first child), this article will outline some of the key problems with the current system of post-conviction review in NSW. It then critically compares the existing system with the United Kingdom Criminal Cases Review Commission (“UK CCRC”). The UK CCRC has been chosen because it is a pioneering model which is designed to identify and remedy wrongful convictions in an independent, transparent, and accountable way. The article concludes that a version similar to the UK CCRC should be implemented in NSW to achieve justice for those wrongfully convicted.

Andrew Malkinson: A miscarriage of justice?

In the case of Andrew Malkinson, a number of concerning or disturbing features about the conduct of the case by all involved have emerged. Application is therefore being made to the Criminal Cases Review Commission to reconsider and refer the case.

The Challenges for England’s Post-Conviction Review Body

Since 1997, the Criminal Cases Review Commission of England, Wales and Northern Ireland has served as a state-funded post-conviction body to consider claims of wrongful conviction for those who have exhausted their rights to appeal. A meticulous organisation that has over its lifetime referred over 700 cases back to the Court of Appeal, resulting in over 60% of those applicants having their convictions quashed, it is nonetheless restricted in its response to cases by its own legislation. This shapes its decision-making in reviewing cases, causing it to be somewhat deferential to the original jury, to the principle of finality and, most importantly, to the Court of Appeal, the only institution that can overturn a wrongful conviction. In mandating such deference, the legislation causes the Commission to have one eye on the Court’s evolving jurisprudence but leaves room for institutional and individual discretion, evidenced in some variability in responses across the Commission. While considerable variability would be difficult to defend, some inconsistency raises the prospects for a shift towards a less deferential referral culture. This article draws on original research by the author to consider the impact of institutional deference on the work of the Criminal Cases Review Commission and argues for a slightly bolder approach in its work

Review: Reasons to Doubt: Wrongful Convictions and the Criminal Cases Review Commission, by Carolyn Hoyle and Mai Sato

Review: Reasons to Doubt: Wrongful Convictions and the Criminal Cases Review Commission, by Carolyn Hoyle and Mai Sato

The shifting landscape of post-conviction review in New Zealand: reflections on the prospects for the Criminal Cases Review Commission

ABSTRACT Concerns about the lack of integrity in the criminal process, and resulting miscarriages of justice, dented public confidence in the New Zealand justice system and its limited post-conviction review procedures. In turn, this generated an appetite for a Criminal Cases Review Commission, modelled on the English and Scottish Commissions. This article draws on evidence from the English Commission to consider the prospects for the New Zealand Commission given its proposed investigative powers, its criteria for referring cases to the appeal court and its remit beyond casework. It argues that while it is assumed that the New Zealand Commission will have more liberal powers to refer cases back to the appeal court than its sister Commission in England, evidence suggests that its decisions will be similarly restricted by the Court's statutory obligations and its evolving jurisprudence.

In Australia the jury decides:the reliability and validity of expert evidence: a perspective from forensic pathology

ABSTRACTThe Innocence Project has enabled, amongst many other things, quantification of contributors to wrongful convictions in the United States. There, individual cases of wrongful conviction have multiple causes, including problems with forensic expert evidence. The Criminal Cases Review Commission in England and Wales has found that amongst unsafe convictions there, forensic expert evidence has been a feature. Apply the English experience with unsafe convictions to Australia, and there would be many more cases than we know of. The Victorian Supreme and County Court Practice Note on Expert Evidence (2014) has reduced the risk that providers of expert evidence could contribute to wrongful convictions, but more needs to be done. The medical sector generally has a huge research capability and capacity. In comparison the forensic pathology sector is tiny and is characterized more by its focus on managing workloads. Conclusions about the cause of death are not testable, and other opinions provided by forensic pathologists are derived from medical sciences, and not from specific evidence-based research. This does not mean that forensic pathology evidence is inherently unreliable, but it does mean that more work is required to better establish that reliability.

Reasons to Doubt: Wrongful Convictions and the Criminal Cases Review Commission

Reasons to Doubt: Wrongful Convictions and the Criminal Cases Review Commission

Post-conviction disclosure in England and Wales: Could conviction integrity units (CIUs) modelled on those in the USA be the way forward?

Conviction integrity units (CIUs) operate out of a small number of prosecutors' offices in the USA, and these have since 2007 contributed to several exonerations. In England and Wales, there are obstacles in place that prevent post-conviction disclosure for virtually anyone other than the Criminal Cases Review Commission (CCRC), the body that in effect screens cases for the Court of Appeal. The article examines whether CIUs modelled on those in the USA could be the way forward to help those who have been wrongfully convicted. It is concluded that such units could be useful in England and Wales, and may benefit from being run by a publicly elected post similar to the Police and Crime Commissioners (PCCs) implemented in 2012, as this would ensure greater democratic governance and oversight. It is further concluded that improved third party access to post-conviction disclosure is urgently needed.

Reasons to Doubt: Wrongful Convictions and the Criminal Cases Review Commission

by Carolyn Hoyle, and Mai Sato (Oxford University Press), 2019, 383pp, £75.00 (hardback), ISBN: 978-0-19-879457-8

The role of the gunshot residue expert in case review — A case study

This paper details the review of the gunshot residue (GSR) evidence relating to a 2002 murder involving the discharge of a pistol where the Prosecution used the GSR findings together with voice identification evidence and obtained a conviction in the case of R v Dwaine George. Mr George was subsequently represented by Cardiff University Law School’s Innocence Project who made representations to the Criminal Cases Review Commission (CCRC) based on issues relating to the GSR evidence. The CCRC commissioned their own expert review and based on these findings referred the conviction to the Court of Appeal stating that in their opinion the weight of the GSR evidence was not appropriately conveyed to the jury at the original Trial and there should have been a warning relating to the limited significance that could be attached to the evidence. The Court of Appeal concluded that had the jury been aware of the full extent of the potential alternative sources of GSR in the case and the limited number of particles found on a jacket related to Mr George then this would have affected the decision of the Trial jury. The appeal was allowed and the convictions were quashed.

Forensic Science and Expert Testimony in Wrongful Convictions: A Study of Decision-Making at the Criminal Cases Review Commission

The Criminal Cases Review Commission reviews possible wrongful convictions in England, Wales and Northern Ireland, referring back to the Court of Appeal cases where there is a ‘real possibility’ that the conviction is unsafe. This article presents findings from a four-year empirical study of decision-making within the Commission. It explores how Commission staff exercise their discretionary powers in identifying and investigating possible wrongful convictions from approximately 1,400 applications a year, referring just a few back to the Court. It focuses on a sample of cases that turned on forensic evidence and expert testimony, showing that while there is some variation in individual caseworkers’ approaches to investigation, decision-making is shaped by the law and internal policies such that reasonably consistent decision frames emerge.

Learning by experience on the Innocence Project in London: the employer/employee environment

The Innocence Project London is a pro bono project dedicated to investigating wrongful convictions in the context of individuals who claim actual innocence i.e. they did not commit the crime for which they have been convicted. Law students undertake work on the cases of convicted individuals who have maintained their innocence but have exhausted the criminal appeals process. The only avenue available to these individuals is to make an application to the Criminal Cases Review Commission (CCRC), which was set up to investigate the cases of people who believe they have been wrongfully convicted. The CCRC has the power to refer a case back to the Court of Appeal but requires new evidence or a new legal argument not identified at the time of the trial, which might have changed the whole outcome of the trial had the jury had been given a chance to consider it.Whilst the notion of innocence projects has been much debated in literature the purpose of this paper is to present the pedagogy of the Innocence Project London and the meaningful learning opportunity it provides to students. The pedagogy combines experiential learning with elements of work based learning to create an employer/ employee environment. Law students are ‘employed’ to work on the Project where the employment process starts with a two-stage application. The clinical learning model on an innocence project is distinct from the traditional clinic approach, in that students start work at the end of a case rather than at the beginning. The problem-solving therefore is developed in the context of critical judgement based on what happened when the case was decided in court as opposed to how the case should be presented in court. The learning for the students has been significant.

Exceptional Procedures to Correct Miscarriages of Justice in Common Law Systems

This paper examines exceptional procedures to correct miscarriages of justice in the common law world. The first and most studied exceptional procedure is the Criminal Cases Review Commission (CCRC). Although the CCRC has been a success in terms of referring over 600 convictions and sentences back to the appeal court, with about 66% of them being overturned, it also rejects over 95% of applications to it. Not surprisingly, it has engendered controversy. One interesting modification of the CCRC idea is North Carolina’s Innocence Inquiry Commission (NCIIC). This commission, created in 2006 reflects the focus in the United States on factual innocence, something that is not required with respect to the CCRC or other exceptional procedures in the common law world. Other models that will be examined in this chapter include a Scottish commission similar to the CCRC, the creation of a second right of appeal based on “fresh and compelling evidence” in two Australian states, and Canada’s 2002 reform of a system that allows the political executive to grant relief on applications for mercy and clemency. The lack of consensus about exceptional procedures facilitates discussion of how the criminal process ought to respond to exceptional demands to re-open convictions and the implications in terms of values and incentives for the procedural and substantive choices that are made. In short, we are in an era of experimentation and innovation that demands comparative analysis.

Case Transcript: England & Wales - Regina v Seema Misra, T20090070 - Commentary and Index to the transcipt by Stephen Mason

Case citation: Regina v Seema Misra, T20090070 Case commentary and Index to the transcript by Stephen Mason England & Wales; theft; electronic evidence; Post Office Horizon System; ‘reliability’ of computers From the EDITORIAL by Stephen Mason: In this issue of the journal, the transcript of the trial of Seema Misra is published in full. I thank His Honour Judge Stewart for granting permission to buy a copy of the transcript and to the publication of the transcript. Judge Stewart requested me to obtain the permission of Seema Mira to the publication of the transcript – an action I certainly would have taken in any event. I also thank Seema Misra for her agreement to publish the transcript. Seema Misra agreed to the publication, knowing it would be available to anyone with access to the internet or a legal electronic database. I am given to understand by Alan Bates, the chair of Justice For Subpostmasters Alliance , that Seema Misra’s case is now before the Criminal Cases Review Commission, and Seema Misra understood that making the transcript available publically in this way would, in her opinion, help her case. We are pleased to be able to present the full case transcript for Regina v Seema Misra, T20090070 in the Documents Supplement to this issue of the journal. The page layout and pagination of the original transcript for each day have been retained for ease of reference to the text searchable PDFs. The links in this Index will take you through to the transcript of proceedings in the Documents Supplement for that particular court day.

Case Transcript - Regina v Seema Misra, T20090070 Day 6 Monday 18 October 2010

Case Transcript - Regina v Seema Misra, T20090070 Day 6 Monday 18 October 2010England & Wales; theft; electronic evidence; Post Office Horizon System; ‘reliability’ of computers From the EDITORIAL by Stephen Mason: In this issue of the journal, the transcript of the trial of Seema Misra is published in full. I thank His Honour Judge Stewart for granting permission to buy a copy of the transcript and to the publication of the transcript. Judge Stewart requested me to obtain the permission of Seema Mira to the publication of the transcript – an action I certainly would have taken in any event. I also thank Seema Misra for her agreement to publish the transcript. Seema Misra agreed to the publication, knowing it would be available to anyone with access to the internet or a legal electronic database. I am given to understand by Alan Bates, the chair of Justice For Subpostmasters Alliance, that Seema Misra’s case is now before the Criminal Cases Review Commission, and Seema Misra understood that making the transcript available publically in this way would, in her opinion, help her case.We are pleased to be able to present the full case transcript for Regina v Seema Misra, T20090070 in the Documents Supplement to this issue of the journal. The page layout and pagination of the original transcript for each day have been retained for ease of reference to the text searchable PDFs. The links in the Index will take you through to the transcript of proceedings in the Documents Supplement for that particular court day.