THE JUSTICE TRAP
Why the Miscarriages of Justice Watchdog is in Crisis
Jon Robins on the case of Oliver Campbell and what it reveals about our creaking criminal justice system.
The case of Oliver Campbell is a disturbing one. Sentenced to life in prison for murder, his co-accused admitted to being involved, insisted that Campbell had nothing to do with it and named the killer.
But, that evidence was never put before the jury which sentenced the then 20-year old Campbell for the murder of off-licence owner Baldeev Hoondle on the Lower Clapton Road, in east London, in 1990.
In 2005, the miscarriages of justice watchdog, the Criminal Cases Review Commission (CCRC), refused to refer Campbell’s case back to the Court of Appeal. As a consequence, he spent more than a decade in prison. The only path to clearing his name remains blocked.
After Byline Times published an article on Campbell’s case in July, the CCRC tweeted: “[The CCRC] looked in great depth at this case when we reviewed it. Would be interesting if Mr Campbell and his reps published the [CCRC] decision [document] giving detailed reasons why we could not refer then. People could then evaluate it for themselves.”
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The document setting out the CCRC’s reasons for not referring a case is known as the ‘statement of reasons’ and belongs to the person applying for their case to be reconsidered – not the commission – who is unlikely to want to publicise the reasons why the state-funded body set up to investigate wrongful convictions doesn’t think they have a compelling case. This is particularly true if the individual takes exception to the CCRC’s conclusions – and Oliver Campbell certainly does.
The CCRC has a point. How frustrating must it be for the commission to decide to reject a case after thoroughly investigating it, only to be unfairly criticised in the press and effectively prevented from publishing the evidence of its hard work?
With that in mind, Byline Times approached Oliver Campbell’s legal team and asked if he would be prepared to release the 2005 CCRC statement of reasons.
As a result, Oliver Campbell has taken the highly unusual step of making public the statement of reasons. “We’ve nothing to hide and Oliver has nothing to lose,” his lawyer Glyn Maddocks said. “I hope people take the time to read it and make up their own mind.” For Maddocks, the statement of reasons is “a highly flawed document that fails to get to grips with our arguments”. He added: “That was our view then, and remains so now. The CCRC’s document contains multiple errors of facts and law. This is precisely why we challenged the decision to reject the case.”
In 2005, a judicial review of the decision to reject Campbell’s application failed – an unsurprising move which says little about the merits or otherwise of his case. Whilst the CCRC is frequently challenged, the High Court almost always refuses to interfere with its decisions. As Glyn Maddocks puts it its: “Oliver has been failed by the Court of Appeal, the miscarriages of justice watchdog and the High Court. All could have stepped in and corrected an appalling travesty of justice. None of them did. We need a way of handing these cases. The system doesn’t work.”
Last month, Labour MP Sandy Martin raised Campbell’s case in the House of Commons to highlight concerns about the CCRC. He said 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”.
The statement of reasons highlights the limitations of the entire system, not simply the failings of the under-funded and oversubscribed CCRC. It also shows the limitations of a Court of Appeal which is only prepared to take the most narrow view of fresh evidence in relation to a particular case.
Supporters of Oliver Campbell argue that he, like other vulnerable suspects, falsely confessed to a crime that he didn’t do. In the application to the CCRC, his lawyers argued that Campbell’s admissions that he was involved in the killing were “contrary to the evidence”, “simply absurd” and pointed to “substantial police misconduct”.
According to an eminent psychologist instructed by his lawyers, Campbell’s nonsensical admissions provide a compelling reason as to why he confessed to a crime that he did not commit. Campbell had suffered a brain injury as a young boy and consequently had a low IQ which meant that he struggled with conversational complexities and was, by nature, acquiescent and highly suggestible.
Accepting the truth of the nature of Campbell’s vulnerability, and the CCRC didn’t take issue with it, a highly vulnerable young man was questioned for several hours in a police station without a 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, leaving strict instructions that he was to be contacted if the police were going to start questioning his client again.
There is also the issue of Campbell’s co-defendant, Eric Samuels, who spent five years in prison as a result of his involvement in the crime. Campbell, his lawyers told the CCRC, had “had the worst of all worlds”. Their client was tried jointly with Samuels who escaped a murder charge by pleading guilty to robbery. The jury heard Samuels’ account implicating Campbell, but didn’t hear the version of events Samuels later related to a police officer as he was taken to an identification parade in which he said that Campbell had nothing to do with the robbery and identified the real killer as a man named “Harvey”. “It is plain that Mr Samuels now maintains that Mr Campbell is innocent,” the lawyers argued.
Why didn’t the CCRC Refer Campbell’s Case to the Court of Appeal?
The commission’s primary concern is not the guilt or innocence of an individual but the safety of their conviction. As Lady Hale, president of the Supreme Court, has said: “Innocence as such is not a concept known to our criminal justice system.”
Under the CCRC’s governing statute, it can only refer a case where there is fresh evidence and it believes that there is a “real possibility” that a conviction will be overturned by the Court of Appeal. In effect, the commission is forced to ‘second guess’ the Court of Appeal.
The number of referrals from the CCRC to the Court of Appeal crashed three years ago. For its first 20 years in existence, the commission sent on average 33 cases a year back to the Appeal judges. Last year the CCRC sent just 13 cases back. Critics argue that the CCRC is less a fearless independent watchdog and more the Court of Appeal’s gatekeeper.
On the Campbell case, the CCRC concluded that no new evidence was put before the commission to persuade it “that there was a real possibility that the Court of Appeal would find Mr Campbell’s conviction unsafe”.
But, the CCRC went beyond that. It was not persuaded that Campbell falsely confessed. Instead, it found that there was more evidence to support the view that Campbell confessed because of “a sudden turn of conscience”. It came to that conclusion despite the fact that its own expert found aspects of the case “worrying”, such as Campbell’s off-the-record conversations with the police and the “highly manipulative and relentless interviewing tactics” of investigating officers.
What did the CCRC make of Eric Samuels’ accounts? It noted that a BBC Rough Justice investigation presented by Kirsty Wark covertly recorded and broadcast an interview with Samuels in which he again insisted that Campbell had nothing to do with the robbery and that he had previously made a statement to a solicitor saying as much.
“Mr Samuels has not agreed to sign or release this statement,” the commission recorded. “Consequently, the CCRC is unaware of the contents of the statement.” The CCRC rather predictably took the view that there was no “real possibility” of the Court of Appeal accepting arguments over the admissibility of third party evidence of Samuels’ claims. So that was that.
There is nothing in the statement of reasons to dampen down concern about what appears to be a shocking miscarriage of justice. Campbell’s barrister Michael Birnbaum QC said he had not seen a case like it in his 50 years at the Bar: “I agree with Sandy Martin and Kirsty Wark. It’s very hard to imagine that Oliver Campbell could have been involved in this murder. He is a ‘gentle giant’ who suffered serious brain damage when he was a baby. I believe that he was totally at a loss when he was alone with police officers determined to get a confession from him. What’s more, Oliver’s co-defendant, undoubtedly one of the robbers, had told a police officer that Oliver was not there and had named another man as the gunman. Yet the jury were never told that he had exonerated Oliver.”
Whatever view is taken of the CCRC’s final assessment of Oliver Campbell, a thorough investigation took place. A psychologist was instructed to assess Campbell’s neuropsychological functioning, DNA tests were commissioned, investigating police officers were interviewed, and they attempted to track down Samuels. But Glyn Maddocks points out that no one from the CCRC met his client. “As soon as you speak to Oliver, you know he’s no killer,” he said.
The CCRC rejected the case in 2005 when the watchdog was in its relative infancy. Since then, its budget has dwindled from £7.5 million to just £5.4 million and its workload has increased by 50%. There is a clear crisis at the CCRC as evidenced by the dramatic fall in the number of referrals. Another indicator of the problems is the deteriorating quality of the CCRC’s statement of reasons – a point that has been made by academics and lawyers.
The 68-page document released by Oliver Campbell is thorough even if it is, as his lawyers insist, “deeply flawed”.
“Nowadays, one quite often finds conclusions and opinions which don’t make sense,” one QC wrote this month in a submission to the All-Party Parliamentary Group on Miscarriages of Justice. “I find a good many to be irrational – not just wrong, but so wrong that no reasonable commissioner could have drawn the conclusion in question.”