Innocence Projects: Addressing CCRC Limitations & Miscarriages of Justice, Study notes of Law

Download Innocence Projects: Addressing CCRC Limitations & Miscarriages of Justice and more Study notes Law in PDF only on Docsity! APPENDIX 2 STATEMENT OF INNOCENCE NETWORK UK (INUK) 1. The Innocence Network UK (“INUK”) makes the following statement in its intervention in the case of Nunn v Chief Constable of the Suffolk Constabulary & Anor.1 In preparing this statement, we surveyed our member innocence projects and INUK advisors on their ability to obtain disclosure since the Nunn judgment in the Divisional Court. We have also relied on academic research conducted on the Criminal Cases Review Commission (“CCRC”) to assist the Supreme Court in understanding the CCRC’s statutory role and how it operates in practice. 2. Overall, it is submitted that as a review body with limited resources, the CCRC is generally unable to proactively identify lines of enquiry and undertake detailed investigations in every single application. As such, alleged miscarriage of justice victims continue to rely on the investigatory assistance provided by innocence projects and lawyers who have to find fresh evidence or arguments that could persuade the CCRC to refer a conviction back to the Court of Appeal. 3. To perform this investigative function adequately, lawyers and innocence projects must be able to obtain disclosure from the police or the Crown Prosecution Service (“CPS”) of vital materials that could assist in its investigation, such as laboratory records for forensic reviews and exhibits for forensic testing. BACKGROUND (a) About Us 4. INUK is an organisation that was established in 2004 to facilitate the setting up and support the subsequent operations of innocence projects in the UK. It was set up as a practical response to research findings on the limitations of the CCRC in assisting alleged miscarriage of justice victims and the consequent need to resurrect assistance in this area previously provided by organisations such as JUSTICE and Liberty prior to the CCRC’s establishment. 1 [2012] EWHC 1186 (Admin). 2 5. INUK currently has 26 member innocence projects based in universities across England, Wales and Scotland and 1 member innocence project in a law firm. Innocence projects undertake investigations on cases of alleged miscarriages of justice on a pro bono basis. INUK member innocence projects generally work on cases where the convicted person has exhausted the normal appeal process. Where fresh evidence or argument is found, the innocence project will submit an application to the CCRC or the Scottish Criminal Cases Review Commission (“SCCRC”) on behalf of the applicant. Routinely, innocence projects will work with its pro bono forensic advisors to explore the possibility of DNA testing, especially in pre-DNA cases or cases where the convicted person could potentially benefit from advancements in DNA testing techniques. (b) Statistics 6. INUK provides a vital public service in screening out unmeritorious applications from those that may be genuine miscarriages of justice. As of January 2014, INUK has received 1348 requests for assistance and assessed 827 full applications. Of these 827 applications, 129 cases have been deemed eligible, i.e. with further investigation by a member innocence project may fulfil the CCRC’s or the SCCRC’s referral criteria. 7. Of these 129 eligible cases, 114 have been referred by INUK to innocence projects for further investigation following a review. Around half of the applications referred to innocence projects for further investigation have had previous unsuccessful applications to the CCRC or SCCRC prior to contacting INUK. 8. 11 cases referred by INUK to its member innocence projects have been submitted to the CCRC and 1 case has been submitted to the SCCRC. Of these 12 cases, 2 cases have been referred to the Court of Appeal by the CCRC and 1 to the Scottish High Court of Justiciary by the SCCRC. (c) INUK’s role in highlighting the limits of the CCRC 9. Since its establishment, INUK has also sought to initiate public debate and raise awareness of the limits of the CCRC in assisting alleged miscarriage of justice victims. In recent years, through two highly publicised symposiums, it has brought 5 here have been anonymised: Example A 18. The client was convicted prior to the availability of DNA testing, disclosure from the police and the Forensic Science Service (“FSS”) was obtained on what exhibits had been destroyed or retained and a review by a forensic scientist was commissioned. Example B 19. Since the client’s conviction, there have been advancements in DNA testing techniques. The University of Bristol Innocence Project obtained disclosure from the police of laboratory notes to enable its forensic scientist to undertake a review to determine if the client could potentially benefit from new DNA testing techniques. Example C 20. The client alleges police impropriety in the investigation of his/her case. As part of its investigation, the University of Bristol Innocence Project sought disclosure of the specific police officer’s disciplinary records. (c) Our experience in obtaining disclosure pre-Nunn 21. When an innocence project requires the disclosure of specific information or documentation to assist in its investigation, it will usually put the request in writing to the CPS and/or the specific police force concerned. The letter would typically specify the material requested, an explanation of how the material could potentially assist in an application to the CCRC and an undertaking that the material will be kept confidential should disclosure be granted. 22. Innocence projects’ requests for disclosure have yielded mixed responses, with some police forces more willing to provide disclosure than others. For example, in one case, South Wales Police was quick to disclose information pertaining to which exhibits have been retained and their respective storage locations, which greatly facilitated the University of Bristol Innocence Project’s forensic review and subsequent application to the CCRC. 6 23. In another case, a request for files held at the Forensic Science Service (“FSS”) archives for disclosure was refused by West Yorkshire Police. The reasons for refusal given by West Yorkshire Police were that the client’s appeal opportunities have been exhausted; the papers requested were confidential relative to a criminal investigation; and, the potential harm that could be caused to the relatives and family of the victim. The refusal by West Yorkshire Police was subsequently overridden by the CPS, following a letter before claim sent to both West Yorkshire Police and the CPS in accordance with the pre-action protocol for judicial review. (d) Requests for disclosure post-Nunn 24. INUK member innocence projects at the University of Southampton, University of Greenwich, Nottingham Trent University, University of the West of England and the University of Bristol have indicated that the Divisional Court’s decision in Nunn has led to a general narrowing of disclosure, with their investigations on hold awaiting the outcome of the decision of the Supreme Court in Nunn’s appeal. THE CCRC’S CASE REVIEW PROCESS AND ITS LIMITATIONS 25. The CCRC generally undertakes desktop reviews of applications to determine if there is a “real possibility” that a conviction, verdict or sentence would not be upheld by the appeal courts. This means that, in general, the CCRC does undertake the type of comprehensive re-examinations and re-investigations that JUSTICE envisaged. As noted by Dr Michael Naughton in his book The Innocent and the Criminal Justice System: “The CCRC…does not undertake thorough investigations to determine whether claims of innocence are true…Instead, the ‘real possibility test’ means that it seeks to determine whether alleged wrongful convictions might be legally unsafe…This renders its reviews for the most part as mere ‘desktop reviews’ of applications. The CCRC seeks to determine whether there is an apparent breach of process, or whether there is any possible fresh evidence that might undermine the evidence that led to the conviction.”4 26. In addition, INUK member innocence projects’ experience of working on prospective 4 Naughton, M. (2013) The Innocent and the Criminal Justice System (Palgrave Macmillan): pages 170-171. For an in depth discussion, see also Naughton, M. “Introduction” and “The Importance of Innocence for the Criminal Justice System” in Naughton, M. (Ed) (2009) The Criminal Cases Review Commission: Hope for the Innocent? (Palgrave Macmillan): Chapters 1 and 2. 7 CCRC applications, accounts from lawyers and former CCRC Commissioners strongly suggest that in practice the CCRC’s case review process is generally limited to a consideration of the issues presented by applicants and issues that may be spotted by the CCRC caseworker to see if there might be grounds for a referral to the appeal court. (a) Innocence projects’ experiences with the CCRC (i) Circumstances where an innocence project will make an application to the CCRC 27. An innocence project will generally only make an application to the CCRC (or the SCCRC) if its investigation yields fresh evidence or arguments that might fulfil the CCRC’s ‘real possibility test’ under s.13(1) of the Criminal Appeal Act 1995. 28. An application may also be made if the innocence project identifies a line of enquiry that could potentially produce evidence that undermines the safety of the conviction, but is unable to further pursue the line of enquiry due to the innocence project’s lack of resources or investigatory powers. In such a scenario, the innocence project will outline in its application to the CCRC why it thinks it would be useful to pursue the line of enquiry and how it could potentially lead to evidence that fulfils the ‘real possibility test’. 29. Representatives from the CCRC have repeatedly emphasised to INUK’s member innocence projects at various INUK training conferences, the importance of presenting fresh evidence or arguments in applications to them. At the most recent INUK training conference held at the University of Sheffield in November 2013, Commissioner Ranjit Sondhi highlighted the need for innocence projects to present fresh evidence in CCRC applications: “It may help to concentrate on the following questions: Is it new? So, for instance, new evidence will include the testimony of a witness whose evidence is newly emerged and where there is a good reason it could not have been adduced at an earlier stage. In this category we have things like changes in scientific or medical understanding, previously unknown information that affects the credibility or reliability of an important witness. As well as being ‘new’ in the appropriate sense, a point will also have to be significant if it is going to result in or contribute to a referral and, ultimately, to the quashing of a conviction. So 10 excerpts from contributors at the Symposium highlight the limitations in the CCRC’s case review process: Former Commissioner David Jessel indicated that: “The majority of cases at the CCRC are not investigated at all. They are simply limited to a review of the application form to come to a decision that there are no grounds for referral. This means that genuine miscarriages of justice will inevitably slip through the net. There is always a balance to be struck between the analytical approach and the investigative approach. The shortage of funds and the mindset of the CCRC have skewed that balance towards the analytical at the expense of the investigative. It is a lot easier to analyse a case onto the reject pile than to investigate a case onto the referral pile. To conduct any extra investigation or proper preliminary analysis is going to mean that the CCRC needs to roughly triple its size. The alternative is a refinement of the CCRC’s intake to sharpen its focus by taking out for instance, the non-custodial cases, cases based on points of law, cases where for years the applicant has not expressed any claim to innocence. This would be unfair and unjust but the upside is that it should sharpen the CCRC’s focus, leading to more rigorous investigations and potentially genuine innocence cases.”7 37. Laurie Elks, also a former CCRC Commissioner, highlighted the lack of thoroughness in the CCRC’s review in relation to ‘fast track/Screen cases’: “It is clear that in such Screen cases, there is a danger that process will eclipse thoroughness not least because the expectation that a case will be reviewed quickly may operate subliminally on the thinking and analytical approach of the case review manager. The CCRC is aware of this problem and has introduced a system of spot checks whereby random fast track and single member cases are selected for audit by another Commissioner. This is an excellent innovation but it does not entirely eliminate concerns that there may be a handful of fast track cases where the expectation of closure within normative time limits may limit the perception of genuine investigative issues.”8 38. The deficiencies in the CCRC’s investigatory process are further illustrated by the case of Victor Nealon. Nealon was convicted of attempted rape in 1997 on the basis of disputed identification evidence. In 1997, Nealon applied to the CCRC to ask for a review of the forensic evidence in his case. The CCRC declined on the basis that it had been dealt with at trial. Unfortunately, had the CCRC bothered to make a more thorough enquiry, it would have discovered that no forensic examination had in fact been undertaken. In 2002, Nealon made a second application to the CCRC and requested again for forensic testing. The request was once again denied on the 7 Jessel, D. cited in INUK (2012) Report on the Symposium on the Reform of the CCRC (INUK), p.52. 8 Elks, L., ibid, p.55. 11 grounds that the CCRC ‘do[es] not undertake speculative DNA tests’. In 2009, Nealon finally managed to commission the DNA testing privately and DNA was found in intimate areas of the clothing, which was not his, but belonged to an unknown male.9 On the basis of this new DNA evidence, a third application was made to the CCRC. After its review, Nealon’s conviction was referred by the CCRC and quashed by the Court of Appeal on the 14 December 2013. He had served 17 years in prison, all of which could have been avoided had the CCRC been willing to investigate the case properly, or the police and CPS been prepared to permit testing of the DNA evidence earlier. Crucially, if the Nunn decision had been applied to Nealon’s case, there is a real chance that Victor Nealon would never have been able to access the DNA evidence for his “speculative” testing, and would still be behind bars. (c) Academic authorities on the limits of the CCRC’s case review process (i) Naughton, M (Ed.) (2009, 2012) The Criminal Cases Review Commission: Hope for the Innocent (Palgrave Macmillan) 39. In addition to the accounts cited above, a key academic authority on the limits of the CCRC is the edited book The Criminal Cases Review Commission: Hope for the Innocent.10 40. The book emphasised a range of issues with the CCRC’s case review processes. The chapter by Dr Andrew Green, Lecturer at the University of Sheffield and co-founder of United Against Injustice, a federal organisation of miscarriage of justice support groups, highlighted the CCRC’s reluctance to investigate evidence neglected by trial lawyers on the basis that such evidence is unlikely to constitute the kind of fresh evidence required for a referral to the appeal court: “The meetings of organisations which offer to help those who believe themselves to have been wrongly convicted are frequently attended by people who say that evidence they expected to be used by the defence in the cases in which they were involved was not used. They are advised that such evidence is not to be considered by the CCRC, and that they must find fresh evidence, as the legal 9 Newby, M. cited in INUK (2012) Report on the Symposium on the Reform of the CCRC (INUK), pp.53- 54. 10 The book comprises of 16 chapters by academics, practitioners, campaigners and investigative journalists who work in the area of miscarriages of justice and detail their experiences in dealing with the CCRC on specific cases. 12 system defines it. These organisations, often echoing advice from solicitors, relay the clear message from the CCRC that evidence available at trial but unused cannot constituted fresh evidence for the purpose of appeals.”11 41. The chapter by Dr Dennis Eady, case consultant at the Cardiff Law School Innocence Project and Founder of South Wales Against Wrongful Convictions emphasised the CCRC’s lack of thoroughness, pro-activity and failure to investigate many of the issues raised by applicants: “When the CCRC came into being many wrongly convicted people and their supporters expected, or at least hoped, that it would be a proactive investigative body…In practice, the CCRC responds to issues raised by applicants when they see this as appropriate. It does not, generally, review the case as a whole or delve proactively into areas not raised by the applicant, unless its enquiries specifically lead onto other areas.”12 42. The chapter by investigative journalist Satish Sekar highlighted the CCRC’s lack of thoroughness in its review of possible miscarriages of justice caused by Home Office pathologist Michael Heath who resigned from the Home Secretary’s Register for Forensic Pathologists after the Home Office Tribunal found several charges relating to his performance and conduct proven: “I believe that the evidence clearly shows that the CCRC has slipped below the high standards of investigation that we have a right to expect from it. My experience of the CCRC suggests that this level of investigation has become the rule rather than the exception to it.”13 43. Further, the chapter by Glyn Maddocks and Gabe Tan, based on Maddock’s experience as a criminal appeal solicitor and the findings of a focus group interview with Commissioners and Case Review Managers at the CCRC, revealed a lack of consistency in the level of investigative thoroughness and co-operation with applicants’ solicitors afforded to applicants.14 11 Green, A “Challenging the Refusal to Investigate Evidence Neglected by Trial Lawyers’ in Naughton, M. (Ed) (2012) The Criminal Cases Review Commission: Hope for the Innocent? (Palgrave Macmillan), p 51. 12 Eady, D. “The Failure to Live Up to its Stated Values? The Case of Michael Attwooll and John Roden” in Naughton, M. (Ed) (2012), ibid, p 67. 13 Sekar, S. “The Failure of the Review of the Possible Wrongful Convictions Caused by Michael Heath” in Naughton, M. (Ed) (2012), ibid, p 86. 14 “….some CRMs may be more detailed and meticulous in the fact-finding process of the investigation, and may be more proactive in liaising with applicant solicitors in examining possible fresh lines of inquiry. On the other hand, others seem to take a more neutral approach and deal with cases allocated to them in what appears to be a less inquisitorial and a much more ‘mechanistic’ way, where case investigation seems to be a question of ‘going through the motions’”, Maddocks G and Tan G “Applicant Solicitors: Friends or Foes?”, p 124. 15 criteria, it recommended that “[i]n practice, the Authority will need no further justification for investigating a case than a conclusion on the part of its members that there is, or may be on investigation, something to justify referring it to the Court of Appeal.”22 49. The CCRC’s resources and budget renders it an almost impossible task to undertake thorough re-examinations in the vast majority of cases, as stated above by former CCRC Commissioners David Jessel and Laurie Elks. 50. In 2012/13, the CCRC comprised of 38 Case Review Managers and 10 Commissioners. This is against a caseload of 1,625 applications received that year, an increase of 585 cases from the previous year.23 51. The CCRC has expressed concerns in its Annual Reports 2011/12 and 2010/11 that it expected to see its financial situation deteriorate further and that it anticipated that it would struggle to maintain performance.24 It noted that “A final set of risks deemed significant for the Commission are those concerning the retention and management of sufficiently skilled staff as number are reduced as a consequence of budgetary constraints.”25 52. Although the CCRC received an increase in budget for 2013/14, it is unlikely to result in a significant change in depth and thoroughness of CCRC’s investigations. Concerns have also been expressed by Richard Foster, Chair of the CCRC, who is on record as doubting that the CCRC’s budget will be “enough to cope with these additional volumes.”26 53. It is, therefore, crucial that lawyers working on alleged miscarriages of justice, 22 Ibid, p.185. 23 CCRC Annual Report 2012/13, p.7. 24 Ibid, p. 10 and CCRC Annual Report 2011/12, p 43. 25 CCRC Annual Report 2011/12, page 43. 26 “Money really has been tight. We had a period from 2008-09 until this year in which we had no increase in funding at all, so in real terms our budget is 25% less than it was in 2008-09; austerity came to us rather early. This year we have had a slight increase in funding of 450,000 in recognition of the fact that our volume of applications has gone up by 75% in the last couple of years. Obviously that increase which is an increase of about 8% in our budget is nothing like enough to cope with those additional volumes.” See Justice Committee (2014) “The Work of the Criminal Cases Review Commission” HC 971, 14 January, p 2. 16 innocence projects and other pro bono organisations are able to undertake investigations and reviews that the CCRC might not be inclined to conduct due to the lack of funding. 54. The forgoing is not a criticism of the CCRC. As highlighted above, the volume of applications to the CCRC, coupled with the highly nuanced and complex nature of many of these cases, inevitably means that not all applications can be awarded the same level of investigative resources. The CCRC is, therefore, to a large extent reliant on applicants’ solicitors, innocence projects and other representatives to obtain and review the volume of material and identify grounds on which it can follow up.27 27 Hodgson and Horne, above, p 21, para 10.9.