By Jon Robins
A new cross-party group of parliamentarians was launched this month with the mission of improving the lot of the wrongly convicted.
"Miscarriages of justice have a truly devastating consequence for those who are convicted," said its chair Barry Sheerman, Labour MP for Huddersfield. "When they happen the state has to ensure there are quick and effective mechanisms in place to correct them. Currently those obligations aren't being met."
This year marked the 20th anniversary of the Criminal Cases Review Commission (CCRC), the miscarriage of justice watchdog set up as a direct consequence of scandals such as the Birmingham Six and Guildford Four which did so much to shatter public confidence in our justice system.
The commission presently receives about 1,500 cases a year but in 2016 it referred just 12 cases back to the Court of Appeal. That represents a referral rate of just 0.77%, a dramatic and unexplained fall off from an average of 3%.
When the CCRC opened its doors in 1997 it was deluged by applications from prisoners protesting their innocence, as it has been ever since. I interviewed the current chair Richard Foster in 2016, who told me that over the previous decade "we have had our budget cut in real terms by about a third and we have seen our workload increased by about 70%". Ten years earlier, I interviewed his predecessor Professor Graham Zellick who then talked of his staff being "angry" and "dispirited" as a result of the funding crisis.
"If you compare our £8m budget with the amount of money spent on the other side by the police and Crown Prosecution Service, it is not even a crumb off the table," he told me at the time.
No part of our impoverished justice system has suffered quite so much under austerity as this most vital safeguard. In 2015 an investigation by the House of Commons' justice committee concluded that the watchdog was "performing reasonably well" but there are many who take issue with that lukewarm assessment (including most of the lawyers and academics with frontline experience who gave evidence).
MPs urged the CCRC to be "less cautious" and refer more cases back to the Court of Appeal. "If a bolder approach leads to five more failed appeals but one additional miscarriage being corrected, then that is of clear benefit," they said. There is no evidence that that is happening – in fact the referral rate suggests the opposite. Something the CCRC last week publicly said it shared concerns about.
@ccrcupdate is as concerned as anyone by the drop in referrals. Every case we see is looked at independently and on its merits but we can only refer the cases where there are grounds to do so.— CCRC (@ccrcupdate) November 29, 2017
There is no shortage of urgent issues for the cross-party group to discuss. For a start, the deluge of fresh allegations into decades-old claims of sexual abuse cases has created a new generation of miscarriages of justice. Then there is the reluctance of the Court of Appeal to reflect a landmark ruling by the Supreme Court on 'joint enterprise' (often used in gang/ knife crime convictions) holding that the law had taken "a wrong turn" in 1984.
The group must also highlight the disgraceful decision by the Coalition government to scrap compensation for many victims of miscarriages of justice. To be entitled to compensation under the scheme, you now have to demonstrate your innocence which, in most cases, amounts to an insurmountable hurdle.
At the heart of the APPG's work must be the relationship between the CCRC and the Court of Appeal. The most significant recommendation made by the 2015 House of Commons' justice committee was for the Law Commission to review the Court of Appeal's grounds for allowing appeals. The then lord chancellor Michael Gove kicked that into touch, ignoring the MPs seemingly on the assurance of a belated written submission from the judiciary.
"We note the views expressed by the former Lord Chief Justice, Lord Judge, and we do not believe that there is sufficient evidence that the Court of Appeal's current approach has a deleterious effect on those who have suffered miscarriages of justice," Gove wrote.
Professor Michael Zander QC, emeritus professor at LSE, was on the original Royal Commission that led to the establishment of the CCRC. He told the justice committee that the Court of Appeal had always failed to get to grips with some miscarriage cases.
"The Court of Appeal is the crucial issue," the academic said. "It is hopeless, completely hopeless. They won't budge from their position which they have taken and held for more than 100 years."
Jon Robins is editor of the Justice Gap. He is a freelance journalist. Jon's books include The First Miscarriage of Justice (Waterside Press, 2014), The Justice Gap (LAG, 2009) and People Power (Daily Telegraph/LawPack, 2008).