A long walk to justice: The case for a Criminal Cases Review Commissionby Mike White
The coalition agreement signed this week between Labour and New Zealand First included a provision to set up a Criminal Cases Review Commission, an independent body to investigate miscarriages of justice.
No details have been released about what shape it might take, but new Justice Minister Andrew Little told RNZ the new government "has committed to dealing with miscarriages of justice including historical ones" and that it would be a focus for him.
In 2015 North & South's Mike Whit travelled to the UK to investigate the success of similar bodies there.
Long Walk to Justice
“For 16 and a half years we have been used as political scapegoats, by people in there at the highest,” he shouted, pointing to the court behind him. “The police told us from the start that they knew we hadn’t done it. They told us they didn’t care who done it. They told us that we were selected and they were going to frame us just to keep the people in there happy. That’s what it’s all about,” he spat, every word laden with bitterness and frustration. “Justice – I don’t think them people in there have got the intelligence, nor the honesty, to spell the word, never mind dispense it. They’re rotten.”
Shaken by this case and many others where innocent people had been jailed for years, the British Home Secretary that afternoon announced a Royal Commission into the justice system. That commission recommended that instead of the government handling miscarriage of justice appeals, a new and independent body should be established. Any person who believed they’d been wrongly convicted of a crime could apply to this Criminal Cases Review Commission (CCRC), which would reconsider their case. There was no cost to the prisoner, no need for a lawyer, and if the commission believed a mistake had been made, it could refer the case back to the Court of Appeal.
The prayers of hundreds of prisoners and justice campaigners seemed to have been answered. Finally now, justice for so many might truly be done.
The English CCRC was set up in Birmingham, partly to acknowledge the events that led to its establishment. What happened 40 years ago isn’t easily forgotten in Birmingham, and in a grassy park just a few hundred metres from the CCRC’s office is a memorial to the victims of the bombings at the Mulberry Bush and Tavern in the Town pubs.
The CCRC was a world first – an official body looking at miscarriages of justice – and since 1997 it’s received more than 18,000 applications from people asking for their cases or sentences to be reviewed. It has referred 570 of them to the Court of Appeal, and 370 convictions have been overturned.
There are many reasons why people are wrongly convicted: faulty eyewitness identification; coerced or false confessions; non-disclosure of evidence by police; incorrect scientific or expert testimony; police malpractice or blunders; poor representation by defence lawyers.
Each year the CCRC receives about 1500 applications. Forty investigators, mostly lawyers, examine these cases and make recommendations to a board whose members have backgrounds in areas such as law, forensics, the probation service and journalism. Former detectives are also employed to help with investigations and the CCRC can compel public bodies to hand over information and give evidence.
Only about one in every 30 cases is referred back to the courts to be reconsidered, but there are several reasons this figure is so low, including that applications must be based on new argument or evidence that wasn’t heard at the original trial or appeal – no matter whether it was interpreted wrongly. Moreover, the CCRC can send cases back to the courts only where it believes there is a “real possibility” the conviction will be quashed, which effectively sees the CCRC second-guessing how the Court of Appeal will act.
Two years after England implemented its CCRC, Scotland followed suit. Its test for referring cases is simply if it believes “there may have been a miscarriage of justice”, and its powers are even wider – it can interview anyone and recover documents from anybody, public or private.
The final opportunity to review suspect convictions in New Zealand is similar to what England and Scotland had before they implemented CCRCs. It’s called the Royal prerogative of mercy and is the only course open to prisoners who have lost their appeals in the courts. (Prisoners whose cases were heard before New Zealand’s Supreme Court was created in 2004 can still appeal to the Privy Council – as John Barlow, Mark Lundy and Teina Pora have done.)
The system works like this. A prisoner applies to the Governor-General, who hands the case on to the Justice Minister, who hands it on to the Justice Ministry, where officials consider whether a mistake has been made. In high-profile cases, they may co-opt a senior lawyer or retired judge to help review the case. Their recommendation is sent to the Justice Minister, who then sends it back to the Governor-General, who rubber stamps the bureaucrats’ recommendations. While the Governor-General can issue a pardon (such as for Arthur Thomas) or refer the case back to the courts, most applications are declined.
There are many criticisms of the Royal prerogative of mercy process: it doesn’t investigate cases; it isn’t a dedicated unit with specific expertise in these cases; its operation isn’t transparent; it runs the risk of public pressure and political interference because of the Justice Minister’s involvement; that political involvement contravenes the traditional separation of powers between judiciary and executive; crucial decisions are left in the hands of a few bureaucrats; the referral rate is very low, with a sense it favours finality over justice; only a few QCs are used to review cases; and cases take too long to be reviewed – Scott Watson, convicted of murdering Ben Smart and Olivia Hope, waited four years for a decision.
Threaded through this is considerable concern that the system lacks true independence – what you have is one part of the justice system reviewing another part. How likely is it that a Ministry of Justice functionary will say that police or senior judges have got it completely wrong? Or that a Justice Minister will admit the system they are responsible for bungled things? Thus, it’s understandable if prisoners have little confidence their case will be reconsidered objectively and don’t even apply.
Critics of the current system argue an independent body with wide powers to reinvestigate cases would offer a much better chance of uncovering miscarriages of justice. More important, it would give the public far greater confidence that the justice system is working.
Ever since the Arthur Thomas case in the 1970s, where police planted evidence to convict an innocent man, it has been clear our justice system doesn’t always get it right. In 2006, retired judge Sir Thomas Thorp suggested up to 20 innocent people were in New Zealand jails. He later suggested this was an understatement.
The cases of David Dougherty, Aaron Farmer, Jaden Knight and Phillip Johnston – all wrongly imprisoned – are proof police and courts do get it wrong. The high-profile cases of David Bain and Rex Haig, whose convictions for murder were quashed, have further reinforced concerns about flaws in our justice system.
Over the past decade, legal bodies, MPs of all parties and even Parliament’s justice select committee have called for a more open and independent system, such as a CCRC, to look at possible wrongful convictions.
Despite this, the National government has shown no interest in making any changes. Former Justice Minister Judith Collins swatted aside suggestions of a CCRC, insisting the current system was sound. This position was adopted by her successor Amy Adams.
It’s also the position of the Justice Ministry, which has clung to its powers in this area. In 2003, it conducted a review of the Royal prerogative of mercy system and recommended an independent board consider miscarriages of justice cases. However, by 2006 it had curiously changed its view, saying its work was of a high standard and the ministry was the appropriate body to consider wrongful convictions. But not only was this a subjective assessment of its own performance, it came despite admitting there was “a modest knowledge base about the occurrence of miscarriages of justice in New Zealand and the operation of the Royal prerogative of mercy”.
The worry that patch protection and political concerns may be taking priority over finding the truth and delivering justice is compounded by statements such as this, found in ministry documents: “It is important not to undermine the credibility of the criminal justice process; the prerogative should therefore be exercised sufficiently rarely to ensure that in most cases, trial and appellate decisions are upheld, and care must also be taken not to impugn the jury’s fact-finding role.”
Critics argue that the credibility of the criminal justice process would be better maintained not by manipulating the present system, but by having an independent body overseeing it.
This concern with how the justice system is perceived, rather than correctness of verdicts, was expressed more baldly by English judge Lord Denning when revelations of wrongful convictions were rocking English society. “We shouldn’t have all these campaigns to get the Birmingham Six released if they’d been hanged. They’d have been forgotten and the whole community would be satisfied… It is better that some innocent men remain in jail than that the integrity of the English judicial system be impugned.”
Fortunately, Paddy Hill and the others wrongly convicted of the Birmingham bombings weren’t hanged. Fortunately, English decisionmakers looked beyond Denning’s brutal simplicity for answers and sought to establish a body that would correct miscarriages of justice rather than bury them.
It would be wrong to say the CCRCs in England and Scotland have been panaceas, however. Many who campaigned for their establishment are disillusioned with the results. When Paddy Hill was freed, he established the Miscarriages of Justice Organisation (MOJO) to help the plight of others wrongly imprisoned.
“He thought it would only take a year,” says MOJO caseworker Paul McLaughlin. “It was just that there were more people than he thought.”
MOJO’s office in Glasgow is a small room with two staff, desks cluttered with files and a poster of Martin Luther King on one wall. On another is a montage of photos of the wrongly convicted prisoners they’ve freed.
Paddy Hill is now in his 70s, tired, unwell and still an angry man, says McLaughlin. Sixteen years in prison broke him and nobody’s worked out how to put Paddy back together. The system, says McLaughlin, is still rotten. Despite scores of injustices being highlighted, authorities remain reluctant to accept how often wrongful convictions occur, fearing it will undermine public confidence in the system. “But the system’s already undermined. The fact these people went to jail undermined the system – get a grip.”
McLaughlin points to the case of Victor Nealon, sentenced to life in prison in 1997 for attempted rape. Despite police claiming no DNA evidence existed, it was eventually discovered the victim’s clothes had never been tested. When they were, they showed DNA from another man, not Nealon. The English CCRC twice rejected Nealon’s applications and only after a third approach did they refer it to the Court of Appeal, which quashed his conviction.
After 17 years in prison, Nealon was freed two weeks before Christmas with £46, a train ticket to Shrewsbury and nowhere to stay. He has been refused compensation. McLaughlin says Nealon’s case shows how hard it is to achieve justice, despite the CCRC, and how the system brushes cases like Nealon’s under the carpet. “If I’m sitting in a jail cell saying, ‘I’m innocent, I’m innocent, I’m innocent,’ for 17 years – who’s listening? If he’d been kidnapped and held hostage overseas he’d have got intensive psychological treatment. But if you’re kidnapped by your own government – oooh, that’s embarrassing. We don’t want to talk about it.”
In an office on the other side of the River Clyde, the picture on the wall is a serene loch rather than Martin Luther King, but the aim of correcting injustice is the same.
Gerard Sinclair, the Scottish CCRC’s chief executive, says there’ll always be wrongful convictions because everyone involved – police, witnesses, experts, lawyers and judges – can all make mistakes. Nor is the appeal system, including the CCRC, perfect.
“Are all miscarriages corrected? I’m sure they’re not. But the question I pose when challenged by critics is, ‘What’s your alternative?’”
The right of a final appeal to the Scottish Secretary was created in 1926. In the following 73 years, only 20 cases were sent back to the High Court. In the 15 years since the Scottish CCRC took over this role, more than 100 cases have been sent back, and over 70 quashed.
Under the old system, about 20 to 30 claims of wrongful conviction were lodged each year. Now the Scottish CCRC receives 150 applications annually which are investigated by eight lawyers. Its total cost is just £1 million ($NZ1.94 million) a year and Sinclair says justice in Scotland has improved dramatically.
“Is it the perfect model? Well, I don’t think there is a perfect model. But I think it’s a far better model than the models that presently exist in other countries.”
Sinclair is well aware of New Zealand’s situation and supports calls for change. “I’d certainly like to see the [CCRC] model taken up. I’ve yet to see what the barriers are and what’s stopping it. I assume it must be political. But my advice to those who object to it is – dip your toe in the water. You have nothing to fear by the creation of an independent commission. I suspect they will probably only be persuaded of that, not by speaking to us, but by speaking to the senior judiciary and politicians in Scotland. We’ve never felt we were anything but a welcome addition to the justice system.
“Our role is to investigate cases without fear or favour. We’re not acting for the Crown, nor are we acting for the applicant. We are acting on behalf of the interests of the public to make sure if there is a possibility of a miscarriage of justice that we provide a route back to the appeal court to be reconsidered.
“I think it’s very cost effective, it assuages public concern, and those working in the justice system see it as a very useful tool – so I don’t understand what the issues are.”
South of the border, however, there is greater concern about the CCRC model. Michael Naughton from Bristol University, who established the UK’s network of Innocence Projects, where students investigate wrongful conviction cases, has been one of its strongest critics. He argues the CCRC is too cautious in sending cases back to the courts and says it needs to reinvestigate cases more thoroughly rather than simply review files.
“The CCRC is a symbol that we’ve done something about miscarriages of justice. But the system is still broken – the criminal justice system is not looking for truth. It doesn’t matter what you’ve done, it’s what they can prove you’ve done.”
London journalist Bob Woffinden also agrees that concentrating on a CCRC is wrongheaded.
“My fundamental argument is, why the hell can’t we make sure we get the trial right the first time? Why don’t we concentrate our energies there? Why are we concentrating on how we get up all this spilt milk? It seems to me utterly ridiculous that we have a flawed system and we’re focusing not on the main bit of the flawed system, but on what comes afterwards.”
He thinks the justice system’s reluctance to consider mistakes might have been made by police, lawyers, judges and juries is ludicrous. “Imagine taking something back to Marks & Spencer and being told, ‘Oh, I’m sorry, there can’t have been a flaw, our staff don’t make mistakes.’ Not only would that be totally absurd, but it would be illegal. And yet that’s exactly what happens at trial.”
Equally, the requirement to find “fresh evidence” to warrant an appeal or retrial was nonsensical. “If the original trial evidence was a load of cobblers, why does there need to be new evidence? Why can’t we just say, all this was a load of cobblers. There are loads of cases where, logically, you can’t get new evidence.”
Woffinden has been involved with wrongful conviction cases for 30 years and says having a CCRC simply institutionalised miscarriages of justice. “Once it was set up it appeared not only as if the country was expecting a regular flow of miscarriages of justice but that it was prepared to tolerate this. My view remains that it would be hugely beneficial to abolish the CCRC now, today, because then, to quote the Van Morrison song, we’d get down to what is really wrong.”
But many more people see the CCRCs in England and Scot-land as having huge value, despite their imperfections.
“I’ve practised in the United States, without a CCRC,” says lawyer Emily Bolton, “and I think you have to be very bloody careful about who you criticise here, because the CCRC is a frigging miracle.”
Bolton established an Innocence Project in New Orleans before returning to the UK and founding the Centre for Criminal Appeals which investigates wrongful convictions. She stresses investigation is the crucial part of uncovering such cases, and the CCRC’s power to obtain documents and compel witness statements was what got most innocent people out of jail.
While the CCRC has specialised investigators, New Zealand’s current system doesn’t reinvestigate cases and relies on any new evidence a prisoner or their supporters can somehow manage to come up with by themselves.
“It’s a classic irony, isn’t it,” says Bolton. “The most important cases that ask the hardest questions of the criminal justice system are being done by a pack of impoverished journalists off their own bat; are at the bottom of the list for lawyers to get to when they’ve done their paid work; and by a bunch of keen but possibly over-enthusiastic students with no experience whatsoever. If your life was on the line, would you want to be helped by that assortment?”
While many spoken to by North & South argued the English CCRC had problems – mainly to do with a lack of funding and the extremely high threshold cases had to surmount to be sent back to the Court of Appeal – there was almost universal agreement it was an improvement on the old system where cases were considered by the Home Office’s C3 division, similar to what occurs in New Zealand.
As Louise Shorter, an investigative journalist who established the Inside Justice lobby group, put it: “Anything has got to be better than having a government department doing it.”
Jon Robins of legal forum The Justice Gap says the CCRC was never going to be a magic panacea, nor was it going to stop innocent people being wrongly convicted. “But the C3 was a complete joke. And to hark back to the days of the C3 would be completely fucking bonkers, you can quote me on that.”
But perhaps the person with the best understanding of the UK and New Zea-land systems is a Kiwi lawyer now practising in London. After training in New Zealand, Malcolm Birdling did a PhD at Oxford University comparing the CCRC with the Royal prerogative of mercy, and has appeared at the Privy Council in both the Mark Lundy and Teina Pora cases. He says without doubt there are prisoners currently in New Zealand jails who are innocent but won’t get justice under the present system.
“The CCRC will go out and get to the bottom of things and, if it’s warranted, conduct investigations and then determine if there’s something that requires the attention of the appeal court. Where-as the Royal prerogative of mercy system as it is in New Zealand will rely on me begging, stealing and borrowing whatever professional assistance I can get to get people to pull together a case, and then hope the Ministry of Justice, given their very tightly circumscribed constitutional position, can do something about it. And to suggest that’s better than having a body that’s actually funded to go and do these investigations and find the problem – it isn’t credible.”
Birdling says no matter what the truth is in cases such as Pora’s, the fact there have been doubts about them for so long saps public confidence in the justice system. If there was an independent investigative body, such as a CCRC, the cases could have been resolved much more quickly.
“For such a small amount of expenditure, having a commission that could actually assuage those doubts would seem to me to be money well spent.”
Birdling notes that while change will ultimately be a political decision, it shouldn’t be party political. “Because there have been politicians from all sides of the House who’ve expressed a desire to change the current system and have understood the reasons why it ought to be changed and I’d hope that would coalesce around a movement to change the system. I’d also hope it wouldn’t take 20 years.”
Mike White researched this story during a Wolfson Press Fellowship to Cambridge University.
This was published in the March 2015 issue of North & South.
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