‘The Miscarriage of Justice Watchdog Urgently Needs to Fight for Its Independence and Prioritise Getting Innocent People Out of Prison’

Yesterday we discovered that the miscarriage of justice ‘watchdog’ was considering rejecting Andrew Malkinson’s case as recently as 2022, despite the presence of ‘compelling’ DNA evidence.

This revelation featured in a devastating report by barrister Chris Henley KC into the conduct of the Criminal Cases Review Commission (CCRC) in the case of a man wrongly imprisoned for 17 years for a rape that he did not commit. 

Malkinson had his conviction overturned last summer after the body that is supposed to be the system’s safety net rejected his case twice previously. The stark fact is that he had his conviction overturned, not as a result of the CCRC, but in spite of it.

Imagine that Lucy Letby is innocent. I don’t know if she is, but plenty of serious-minded commentators are convinced that the nurse convicted of the murder of seven babies last year did not have a fair trial and argue that that the prosecution case is unpersuasive. Her fate now resides with the CCRC. 

Journalist Chris Mullin, in a new edition of his book Error of Judgment about the Birmingham Six, observes that “one can just about imagine” a case similar to the miscarriage of justice that sent six innocent Irish men convicted of the 1974 pub bombings to prison for 16 years. Actually, it’s not difficult to imagine – see, the Birmingham Four. What confidence can they and their loved ones have? The odds are so massively stacked against the wrongly convicted. The system doesn’t work. 

Since Malkinson’s acquittal last summer, he has displayed superhuman reserves of restraint and dignity – as anyone who has seen the BBC documentary The Wrong Man can attest to. Yesterday, he called on the CCRC’s chair, Helen Pitcher OBE, to go. The new Justice Secretary, Shabana Mahmood, has said Pitcher is “unfit to fulfil her duties” and is seeking her removal. 

Clearly, Helen Pitcher needs to step down – but she’s hanging on. “I have been credited by the Ministry of Justice for substantially turning the CCRC round,” she told the Guardian today. “I honestly believe I am the best person to take this forward for as long as I have the opportunity to do so.”

As far as justifications go for keeping her job, it’s hardly persuasive. The CCRC urgently needs a chair to fight for its independence and to prioritise getting innocent people out of prison. What does Pitcher mean by “turning the CCRC around”? The commission has lost its way – and there’s nothing in the group’s communications with the outside world to suggest that it ‘gets it’. 

The story of the defanging of the CCRC ‘watchdog’ isn’t widely understood. Two points are relevant: it didn’t just happen on Helen Pitcher’s watch; and it’s not all about money.

On the latter, it needs to be recognised that of all the institutions in our failing justice system, the one that has been most badly hit by austerity is its safety net. Chris Henley points out the CCRC’s budget for 2024 is 17% less than the amount it had received on average since 1997; whereas the numbers of cases have “grown enormously”. No surprise then that the CCRC isn’t doing the job we need it to do.

But the rot set in before Pitcher joined. At the end of last year, the Future Justice Project hosted a meeting of veterans from the miscarriage world – defence lawyers and campaigners who had fought the brave fight for an effective watchdog in the wake of scandals such as the Birmingham Six, as well as those who worked at the CCRC in its early days. 

“What we need to do is find out whether Andrew Malkinson was an outlier,” said David Jessel, former presenter of Rough Justice and Trial & Error, who went on to be a CCRC commissioner, and who chaired the event. “Mistakes happen, we all know that; but how much of what happened was the inevitable outcome of the system as it is now?”

It was Pitcher’s predecessor, Richard Foster, who presided over a period of – to quote a High Court ruling from 2022 – “dysfunction” and “political interference” which fatally undermined the group. During his tenure, the Ministry of Justice foisted changes on the CCRC against the wishes of its commissioners – three of them were at the roundtable event. “It was the beginning of the end in terms of undermining the independence of the CCRC and the commissioners,” one, Alexandra Marks, said.

Yesterday’s Henley report identified opportunities missed dating back to 2009, when there was “a complete failure” by the CCRC to “get to grips with the potential significance” of then new DNA evidence in Malkinson’s case.

Concerns about the CCRC came into a sharp focus in 2016 and 2017 when the number of cases it sent back to the courts collapsed – just 12 and 13 for the two years respectively from a 33-a-year average over the first 20 years. 

In Pitcher’s first public statement as CCRC chair in 2018, she insisted that the number of referrals was “not be the ‘be all and end all’”. This was news to those who believed that the CCRC had one job to do: exonerate the wrongly convicted.

The CCRC has become an organisation obsessed with hitting key performance indicators, mainly relating to deadlines and ‘closing’ files.

Academic Dr Steve Heaton told the roundtable that the total figure of referrals was misleading and not a reliable indicator of performance. For years, the CCRC held out the academic’s research as indicating a clean bill of health (until he asked them to stop in 2016). 

According to Dr Heaton, the CCRC has referred 227 case in the last eight years. He argues that the commission’s ‘successes’ are overstated because those numbers are inflated by ‘group referrals’ (for example, the Post Office Horizon cases) – often cases where the commission has had little involvement. 

He reckons that just 16 cases have been overturned due to the CCRC’s investigative efforts in the last eight years. That’s shocking. 

Jon Robins is the Editor of thejusticegap.com, a lecturer in criminology at Brighton University, and the author of ‘Guilty Until Proven Innocent (Biteback, 2018) and Justice in a Time Of Austerity’ (Bristol University Press, 2021, with Dan Newman)