Our research

The potential impact of legal aid cuts by Prof Richard Vogler, Dr Lucy Welsh, Dr Liz McDonnell and Dr Susann Wiedlitzka (Sussex University)

This three year project at the CCRC involved five stages.

(1) A statistical analysis of CCRC data from 1997-2017
(2) A detailed review of 280 individual CCRC case files from 2012-2014
(3) A questionnaire survey of 16 legal practitioner respondents,
(4) Semi-structured interviews with 45 legal practitioner respondents
(5) Two focus group sessions with CCRC staff.

The final 4 stages were funded by the ESRC, and the first was funded by the Sussex RDF.

The conclusions, in summary, were:
(1) There was a very high level of acceptance by both applicants and their representatives of the Easy Read application form introduced in 2012.

(2) There was considerable evidence to suggest that both the regime and the administration of tests and audits by the LAA was undermining lawyers’ efforts to conduct CCRC casework efficiently and in a financially viable way.

(3) Levels of representation of CCRC applicants, which have previously been recorded at 34%, declined to an average of 23% in the period 2012-2014, and to as low as 10% towards the end of that period.

(4) Declines in the representation of CCRC applicants appear to be associated with the reduction of legal aid fees in 2014, with serious impacts on all participants in the system.

(5) Legal practitioners explained they have been increasingly driven to undertake unremunerated work or to abandon practice in this area altogether. The resulting market contraction for legal services in this specialism appears to have led practitioners to be more selective about the type of case they take on, and reportedly has resulted in greater reliance on unskilled staff or volume processing by a diminishing number of legal professionals.

(6) The CCRC itself has been faced with poorly expressed, underprepared and often misguided applications, submitted by unrepresented individuals, who have had no advice on the viability of their application. This appears to have increased the already substantial workload of the CCRC.

(7) The results suggest an association between legal representation and success of applications, particularly at the initial review stage.

(8) There was agreement from all research participants (including various levels of legal representative and CCRC staff) that well-informed and professional representation of CCRC applicants is valuable.

(9) There was scope for the improvement of communications and understanding between CCRC staff and legal professionals.

(10) Reductions in legal aid funding appear to have had an impact on the commissioning of expert evidence by legal practitioners, to some extent shifting this burden on to the CCRC itself.

Link to final report: The CCRC Legal Aid and Legal Representatives – Sussex University March 2021
Link to the CCRC’s response: CCRC Response to Sussex University – June 2021


“Women who kill” by Centre for Women’s Justice

Centre for Women’s Justice (CWJ) is a legal charity working to hold the state to account and challenge discrimination in the justice system around male violence against women and girls. Formed in 2016, CWJ has undertaken a wide range of highly publicised strategic legal challenges and collaborative projects through partnerships with women’s sector organisations.

Justice for Women (JfW) is a feminist campaigning organisation that supports, and advocates on behalf of, women who have fought back against or killed violent men. Over the past years, JfW has developed considerable legal expertise in this area and has been involved in a number of significant cases at the Court of Appeal that have resulted in women’s original murder convictions being overturned.
 
The research conclusions, in summary, are:
(1) Despite efforts in recent years to improve the police response to domestic abuse, including coercive control, this research confirms that police practice remains inconsistent and often fails to protect women from abuse.

(2) Women who have killed their abuser are likely to be traumatised when they first engage with criminal justice agencies. At this critical moment sensitivity and skilled responses are needed from the police and initial legal representatives to allow women to make key decisions which will have significant consequences for their case – such as choice of legal representative and whether to speak in interview.

(3) Lawyers’ understanding of violence against women and girls is critical if they are to provide good legal representation and provide the appropriate defence/s for women in these cases.

(4) Memory issues are common in these cases. This is often a response to trauma which preceded the killing, or to the killing itself. However the issue is not well understood and may be interpreted by the prosecution and the judiciary as malingering.

(5) The use of psychiatrists and psychologists can be problematic when there is a hierarchy of experts, when experts disagree or appear biased, and when experts are not trained is issues around violence against women and young girls.

(6) Once women are convicted, the chance of an appeal is extremely slim. Many of the difficulties that women experience, such as poor legal representation, are not grounds for appeal.

Link to final report: Women Who Kill: how the state criminalises women we would otherwise be burying

 

Internal CCRC Research Project on Loss of Time Orders by Kiran Telhat

Section 29 of the Criminal Appeal Act 1968 enables the Court of Appeal (Criminal Division) (CACD) to direct that all or part of the time that an applicant for permission to appeal has spent in custody since the commencement of the appeal proceedings shall not count in relation to the sentence they are serving. A loss of time order cannot be made when permission to appeal has been given or when the appeal comes to the Court by way of a reference from the Criminal Cases Review Commission (CCRC).

One of the themes that has arisen from the CCRC’s visits to prisons is the growing fear amongst the prison population of having sentences increased by the Court via loss of time orders. This fear comes with the misconception from prisoners that they could be made to serve years, or even the whole of their sentence again. This fear is widespread, particularly amongst vulnerable groups of prisoners, and it is a fear which appears to dissuade people from appealing to the Court. It may well contribute to the high number of applications to the CCRC where the individuals have not previously attempted to appeal.

This internal CCRC research project, conducted by CCRC intern Kiran Telhat, began after ‘loss of time’ was raised as an issue during Lord Justice Fulford’s visit to the CCRC in early 2020. The research has also been conducted against the background of the number of appeals to the Court of Appeal having dropped considerably over the last 3 years, and it therefore raises the question whether loss of time orders are now needed as a deterrent. This project also forms part of the CCRC’s objective to gain an increased awareness of applicants’ understanding of the Criminal Justice System so that we can better respond to the needs of applicants and protected groups.

The report presents:
1) A literature review in connection with loss of time orders.

2) Quantitative data on the frequency of loss of time orders being raised as an issue in CCRC ‘no appeal’ cases and in telephone calls to the CCRC.

3) Qualitative and quantitative data from prisoner groups and CCRC staff on the frequency of loss of time orders being raised as an issue by applicants and potential applicants.

4) The key messages the CCRC should be sending out to applicants about loss of time orders.
 
The report concludes that:
1) There are widespread misconceptions among the prison population about what loss of time orders are and how they operate.

2) Rather than acting as a deterrent to those wishing to bring unmeritorious appeals, it seems that loss of time orders may be acting as a fear mechanism, especially in cases where they are not clearly understood. Loss of time orders may be acting as a barrier to meritorious appeals.

3) The most vulnerable group negatively impacted by loss of time orders appear to be those who are serving short sentences. The fear of receiving a loss of time order may deter them from making an appeal, despite the fact that they may have meritorious grounds of appeal.

4) It is arguable that the negative impact and fear associated with loss of time orders now outweighs their effectiveness at deterring unmeritorious appeals.


Link to final report: Loss-of-Time-CCRC-Intern-Project-2020-Final-Report.pdf

Reasons to Doubt: Wrongful Convictions and the Criminal Cases Review Commission

Professor Carolyn Hoyle

This book is the result of a study over several years by Professor Carolyn Hoyle from Oxford University Centre for Criminology.

Professor Hoyle and her team had access to CCRC casework files as well as to staff and Commissioners. Through in-depth analysis of case files and interviews the authors scrutinize the Commission’s operational practices, its working rules, and assumptions, considering how these influence its understanding of the real possibility test. The book was published in February 2019 by Oxford University Press. More details can be found here.

Professor Carolyn Hoyle relied in part on her research at the CCRC for her chapter Compensating Injustice: The Perils of the Innocence Discourse in Young, S.M., Hunter, J., Roberts, P., and Dixon, D (eds), The Integrity of Criminal Process: From Theory into Practice, (Hart 2016). See details of The Integrity of Criminal Process: From Theory into Practice.

The Court of Appeal and the Criminalisation of Refugees

Yewa Holiday, Elspeth Guild and Valsamis Mitsilegas

This independent research project, invited by the CCRC, examines the situation of refugees in England and Wales who are prosecuted to conviction for irregular migration in circumstances which are contrary to the mandatory requirement in international refugee law that refugees not be penalised for irregular entry or presence in a country.

Between 2005 and 2016, the CCRC referred close to 60 such cases for appeal; around one third were referrals to the Court of Appeal.

In 2016, The Court in R v YY and Nori [2016] EWCA Crim 18 (‘Nori’) stated that refugees who had been convicted of offences of irregular migration but who had not appealed their convictions and were now out of time to do so need no longer apply to the CCRC.

Instead refugees in this position could go straight to the Court of Appeal. The Court also suggested that the CCRC ought to change its policy on exceptional circumstances as in the Court’s view, the CCRC appeared to be applying exceptional circumstances as ‘a matter of routine’. The CCRC changed its policy on exceptional circumstances after the Nori case. The research question – Does the approach of the Court of Appeal after R v Nori protect refugees from criminalisation? – investigates whether refugees are appealing direct to the Court and the outcomes; and evaluates the impact of Nori on refugees and on the decision-making of the CCRC and the Court. The CCRC identified the research topic as one that is important to its functioning as a reviewer of miscarriages of justice. The paper, ISBN 978-1-5272-3266-2, was published by the CCRC in November 2018.

See the Commission’s response to the paper.

The Criminal Cases Review Commission Last resort or first appeal? An examination of the CCRC’s discretion to refer cases not previously appealed

Professor Jacqueline Hodgson, Dr Juliet Horne Dr Laurène Soubise

The CCRC Research Committee agreed in November 2016 to a No Appeal project by Warwick University looking at the high number of applications to the CCRC from individuals who have not appealed their convictions or sentences (no appeal cases) before applying. Published November 2018.

Research conducted by an intern on the CCRC’s Kalisher Internship scheme

The brief study was focussed on establishing whether any parallels can be drawn between how the Court of Appeal (CoA) deals with cases that it hears upon referral from the commission (“referral cases”) and those appeals that it deals with in the normal way (“direct appeals”).

A Plea of Convenience: An examination of the guilty plea in England and Wales 

Dr Juliet Horn, 2017, University of Warwick

Examines the extent to which the criminal justice system creates a significant risk that innocent defendants will plead guilty and then fails to offer an adequate remedy.

Wrongful Convictions of Refugee and Asylum Seekers: Responses by the Criminal Cases Review Commission

Dr Mai Sato, Professor Carolyn Hoyle, and Naomi-Ellen Speechley, 2017

This article was published in [2017] Criminal Law Review 106.

Summary: Wrongful Convictions of Refugee and Asylum Seekers: Responses by the Criminal Cases Review Commission [2017] Criminal Law Review 106. Mai Sato, C Hoyle and Naomi-Ellen Speechley,

The Criminal cases review commission reviews possible miscarriages of justice in England, Wales and Northern Ireland when applicants have exhausted other avenues of appeal, with a view to referring unsafe convictions back to the appeal court. This article considers the CCRC’s handling of applications from refugees and asylum seekers who claim to have been wrongfully convicted of entering the UK illegally. These cases commonly relate to people who could not obtain travel documents lawfully and were erroneously advised by defence lawyers that they should plead guilty. The article 1st examines the sources of these wrongful convictions by reviewing CCRC referrals to the appeal court. It then reviews the CCRC’s wider engagement with other criminal justice agencies in an effort to prevent further wrongful convictions of refugees and asylum seekers. The failing of the criminal justice agencies to properly protect refugees and asylum seekers reflects a wider anxiety about the negative effects of immigration, and the societal appetite to use punitive measures to control immigration. The article concludes by arguing that the CCRC’s campaign was effective, and demonstrates the importance of interagency communication in preventing miscarriages of justice.

Article 31(1) of the Refugee Convention and the Criminalisation of Refugees in England and Wales

Dr Yewa Holiday

Dr Holiday’s doctoral thesis was entitled The Criminalisation of Refugees in England and Wales in the context of Article 31(1) of the 1951 Refugee Convention. Dr Holiday has provided this summary of the thesis.

The Criminalisation of Refugees in England and Wales in the Context of Article 31 (1) of the 1951 Refugee Convention

In The Criminalisation of Refugees, Yewa S Holiday explores the compatibility of the UK prosecution of refugees with Article 31(1) of the Refugee Convention which prohibits the penalisation of refugees who have entered or are present illegally in a country. In a world of movement and displacement where refugees are often unable to access or use their own travel documents, they may be subject to criminal prosecution for unlawful entry or presence. Yewa examines the failure of the legal system to fulfil the UK’s obligation under Article 31(1). Using legislative, judicial, historical, and governmental sources as well as case materials from the UK’s miscarriage of justice body, the Criminal Cases Review Commission, she argues that Article 31(1) constitutes a ‘fundamental’ principle of non-penalisation; and that the way to secure protection for refugees from prosecution for offences of unlawful entry and stay is by way of a plea in bar to trial rather than a defence.

Wrongful Convictions

Dr William Murray Schmidt. Deposited in the University of Cambridge Library in 2015

This research explores, through the analysis of CCRC casework, the causes of wrongful convictions and looks at what factors statistically predict the Commission’s referral of a conviction for appeal and at what factors predict an appellate court quashing a conviction following Commission referral. Dr Schmidt aims to have published in 2017/18 an academic article based on his CCRC research. In the meantime, you can read a summary of Dr Schmidt’s research.

A critical evaluation of the utility of using innocence as a criterion in the post conviction process 

Dr Stephen Heaton of University of East Anglia published 2014/15

An extensive study exploring the basis of the Commission’s decisions to refer conviction cases and the Court of Appeal’s subsequent appeal decisions.

Correction of Miscarriages of Justice in New Zealand and England 

Dr Malcolm Birdling, published 2012

A comparative study of the mechanisms for correcting miscarriages in New Zealand and England after initial appeal rights are exhausted.

Fresh Expert Evidence in CCRC Cases

William E O’Brian Jr. Published 2011

Discusses the possibility of a further role for the Commission in cases involving expert evidence.

The extent and impact of legal representation on applications to the CCRC 

Professor Jaqueline Hodgson and Juliet Horne, Published 2009

Examines the extent to which applicants to the CCRC are legally represented and the impact this representation has on the outcome of the case.

An evaluation of ‘No Appeal’ applications to the CCRC 

Professor Jacqueline S. Hodgson & Dr Laurène Soubise, Criminal Justice Centre, School of Law, University Warwick

Almost 50% of applications to the CCRC consist of ‘No Appeal’ (NA) cases. The Commission cannot refer a conviction to the Court of Appeal if there has been no appeal or leave to appeal has not been sought, unless there are exceptional circumstances justifying the reference. Exceptional circumstances are not defined in the Act. The Commission’s own definition of exceptional circumstances, therefore, and its expectations of how these circumstances might be established, perform an important gatekeeping role in managing these applications.

Given that these cases represent such a large portion of CCRC applications, it is important that the CCRC is able to deal with these cases effectively within the resources available, whilst also ensuring that applicants are not screened out of the process prematurely. Our research aims to provide information on the nature of NA cases that come to the CCRC and why there are so many of them. Applicants are encouraged by the CCRC to pursue their appeal, and this evaluation will track whether Court of Appeal processes facilitate this and whether there are other barriers, such as a lack of legal representation.

Having developed a template reflecting the issues outlined in the research questions, we have already collected data on 250 NA cases. We are currently in the process of sampling some non-NA cases, for comparative purposes, before beginning analysis at the end of the summer.

(This information was provided by Warwick University 31 July 2017.)

Joint Enterprise Cases
 
Dr Louise Hewitt – Greenwich University
 
Witness Testimony
 
Dr Rebecca Helm – Exeter University
 
Digital Evidence
 
Professor Michele Burnham and others – Glasgow University
 
Human Trafficking
 
Professor Richard Vogler, Dr Shahrzad Fouladvand and others – Sussex University