THE JUSTICE TRAP
How the Cash-Strapped Miscarriages of Justice Watchdog is No Longer Independent or Doing Its Job
Jon Robins explores the state of the Criminal Cases Review Commission and the dwindling number of potential miscarriages of justice being referred to the Court of Appeal.
‘Hindrance not a Help’
Oliver Campbell was convicted of murder in 1991 and spent 11 years in prison.
In July 1990, an Asian shopkeeper was shot and killed in front of his son during a robbery of his off-licence on the Lower Clapton Road in Hackney, East London.
Witnesses agreed that the two men who carried out the robbery were black and around 5 ft 10 inches tall. Oliver Campbell has often been described as ‘a gentle giant’. At 6 ft 3 and well-built, he has a striking and imposing build.
He was sentenced to life despite his co-accused admitting the robbery and providing a written account identifying the killer and confirming that Campbell had nothing to do with the murder. The jury was never told of this account.
Oliver Campbell has now spent 30 years of his life fighting to clear his name. He was arrested because witnesses also recalled one of the pair wearing a distinctive baseball cap.
Last week, the 49-year old was at the House of Commons sitting in on a debate led by the Labour MP for Ipswich, Sandy Martin, who he has known now for about 10 years. “He knows that I am not being rude when I say that he has a low IQ, he also knows that that is as a result of a brain injury he sustained as a baby,” he told fellow MPs.
Campbell was questioned for several hours in a police station without an appropriate adult or lawyer. It was only eight hours after he was arrested that he was interviewed with a solicitor. He made his confession after that lawyer left the station, having requested that he be contacted if the police were going to recommence Campbell’s interviews.
The officers did and, as Sandy Martin explained: “Within half an hour of persistent suggestion from the police, Oliver had confessed to a murder that I do not believe a reading of the evidence could possibly suggest he had committed.”
Even though the man’s lawyer was called back in and his client retracted his confession, Campbell was convicted almost solely on the strength of that confession and because he owned the baseball cap worn. There was no forensic evidence linking him to the scene of the crime (or the hat).
She refers, rather dismissively, to “some controversy” over the CCRC’s new line that referrals are “not the be all and end all”.
In 2002, Kirsty Wark presented a BBC Rough Justice investigation – If the Cap Fits – which highlighted the vulnerability of suspects with severe learning difficulties in police interviews. A psychologist Brian Thomas-Peter explained that Oliver Campbell, like many people with severe learning difficulties, developed strategies to sustain conversations that he did not fully understand and, as a result, might have unknowingly implicated himself in a crime he did not commit.
Campbell’s confession was littered with gaps – for instance, he couldn’t describe the gun – and internal contradictions – such as giving different accounts of the number of bullets and where the gun was hidden. At one point, he spoke bizarrely (and implausibly) about how he crafted a string holster to hold the weapon.
An expert in ballistics told Wark how he was “99% sure” that it was impossible for Campbell to have fired the gun. He is a left-handed man whose use of his right hand was badly impaired by his childhood brain injury. His co-accused, Eric Samuels, was secretly filmed recounting what happened on the night explaining how the seemingly incriminating cap was snatched from Campbell’s head by the man who pulled the trigger.
Following the Rough Justice investigation, an application was made to the miscarriage of justice watchdog, the Criminal Cases Review Commission (CCRC), by his lawyer Glyn Maddocks. It took two years for the CCRC to reject the case.
Sandy Martin raised the Campbell case last week because it was “a classic example of a devastating miscarriage of justice for the resolution of which the CCRC appears to be more of a hindrance than a help”.
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Earlier in the week, the All-Party Parliamentary Group on Miscarriages of Justice launched a Westminster Commission into the CCRC. The day after Sandy Martin’s debate, the CCRC presented its latest annual report before Parliament, revealing that it had referred just 13 cases back to the Court of Appeal last year.
The CCRC is an organisation with a single job. It was set up to send cases of alleged miscarriages of justice back to the Court of Appeal. But, the new figures confirm a disturbing trend. Over the first two decades, the watchdog sent 33 cases a year on average back to the Appeal judges. The number referrals collapsed three years ago when, in 2016, it referred just a dozen cases (and only 19 in 2017).
The CCRC Compromised
The CCRC, set up in 1997 as a result of miscarriage scandals including the Birmingham Six, Guildford Four and Cardiff Three, replaced a shadowy Home Office unit called C3.
In its last year, C3 received 900 applications and referred nine cases – equating to 1%. For the second time in three years, the CCRC’s referral rate has dropped below even that of the tiny discredited Home Office department: 0.9% and 0.7% in 2016 when it only referred a dozen cases.
So, why is the CCRC sending so few cases back to the Court of Appeal?
In its new annual report, the CCRC purports to identify a number of possible causes. Number one is “the absence of thematically linked multiple referrals” such as cases relating to child abuse or the West Midlands Police serious crime squad.
In the last two years, of the total 32 referrals, more than half (18) relate to what could be described as a single “thematically linked” class of applicants, refugees and asylum seekers. Since 2012, the CCRC has been investigating the cases of those wrongly convicted of entering the UK illegally – vulnerable people incorrectly advised by lawyers to plead guilty because they didn’t have the correct paperwork when, in fact, they have a statutory defence.
The CCRC is to be commended for pursuing these important cases, but if you put that work to one side, then the watchdog is barely sending any cases back to the Appeal judges.
The watchdog also highlights the dramatic increase in unrepresented applicants. You don’t need a lawyer to apply to the CCRC, but the reality is that your prospects of success are vastly increased if you have one. Over the course of the CCRC’s 20-plus years in existence, about two-thirds of applicants did not have a lawyer – but last year, this shot up to nine out of 10.
The brewing crisis in criminal defence work as a result of a 20-year freeze on legal aid (and an 8.75% cut in 2014) hasn’t helped. Apart from a committed few, hard-pressed lawyers don’t go anywhere near appeals work. Why waste time pursuing intractable cases for demanding clients (prisoners have a lot of time on their hands) for little or no money when there is no chance of it being overturned?
So why, to ask the question again, is the chronically underfunded and massively oversubscribed CCRC sending so few cases back to the Court of Appeal?
When the watchdog was launched, its budget was £7.5 million and it dealt with 800 cases a year. It received just £5.2 million last year (down from £5.45 million the year before) and it had to deal with 1,371 applications. That the funding crisis is impacting on the CCRC’s ability to do it core job falls into the category of ‘the bleeding obvious’ but, as it’s not mentioned in the CCRC’s analysis of its referrals, I thought I’d mention it.
But, I think there is more to it. The CCRC is obliged to have 11 commissioners and the agreement of three are needed to refer a case back to the Appeal judges. The critical role of the commissioners has been undermined and I’d argue the group’s independence compromised.
“A classic example of a devastating miscarriage of justice for the resolution of which the CCRC appears to be more of a hindrance than a help”Sandy Martin MP
Earlier this year, the CCRC appointed five new commissioners on new terms. New arrangements have fundamentally changed the commissioners’ role at the watchdog body with powers being devolved to employees. They used to be employed on a salary basis with pensions, but now they are paid a daily fee with a minimum one day a week commitment. As its annual report explains, commissioners appointed before the changes received salaries at an equivalent full-time rate of £93,796 per annum. Now they receive a daily fee of just £358 per day to schlep up to Birmingham, where the CCRC is based, if required.
Six years ago, there were nine full-time equivalent commissioners and, after the departure of David James Smith last October, there is not one remaining.
This is not a job you can do one day a week.
The CCRC has been undermined both by successive governments and an increasingly conservative Court of Appeal. It new chair, Helen Pitcher, writes in her introduction to the new annual report that to “focus only” on the number of referrals is to “discount the benefits of everything we do in the process of looking for those referrals”. She refers, rather dismissively, to “some controversy” over the CCRC’s new line that referrals are “not the be all and end all”.
Tell that to Oliver Campbell.