A review of applications to the CCRC, and CCRC analysis and decision-making in respect of those applications.

The review examines the approach taken by the CCRC towards the examination of non-expert witness testimony. The primary focus of the project is to examine how the CCRC assess the credibility of evidence from new witnesses that is introduced in applications made to the CCRC.

The review also examines the CCRC approach to considering evidence in applications that called into question the memory or truthfulness of non-expert witnesses who gave evidence at trial.

The review sample includes 400 randomly selected applications from 2017 and 2019 and ten applications from 1999 to 2017 that had been purposefully selected by the CCRC as cases in which CCRC personnel engaged in in-depth analysis of issues relating to non-expert witness testimony.

Children in the criminal justice system have complex needs and face diverse challenges which potentially increases their susceptibility to unfair trials, wrongful convictions, and miscarriages of justice.

It is crucial for children to know their right to appeal and how to engage the appellate process, however children seem to be under represented as appellants and applicants to the CCRC. Limited literature and lack of empirical studies about children and criminal appeals in England and Wales make it difficult to assess children’s engagement with the appellate process. In January 2021 a funded PhD by Northumbria University commenced to investigate children and criminal appeals in England and Wales.

The PhD project is an empirical study which employs qualitative methods of data collection and analysis to achieve the study’s aim and objectives. It involves two phases of data collection and analysis: a review of CCRC case files and interviews with children and stakeholders.

This project aims to investigate the (under)representation of children as appellants and CCRC applicants in England and Wales. Specifically, the study has the following objectives:

a) to identify the number of child defendants appealing their convictions/sentences;
b) to explore children’s knowledge of appeals and the operations of CCRC;
c) to identify the support systems available for children to understand and approach the appeal process;
d) to assess the factors influencing/deterring children as appellants/CCRC applicants;
e) to investigate the role of stakeholders (Youth Offending Team officers, legal persons) during children’s appeals.

Convicted individuals’ experiences of accessing the justice system via the CCRC, and of seeking legal advice to assist with applications to it, are crucial for understanding how people encounter (post)appeal procedures, their perceptions of priorities for change, and applicants’ perceptions of legitimacy in the criminal process more broadly.

The CCRC’s powers are being reviewed as part of a Law Commission consultation on criminal appeals. However, people who believe they have been wrongfully convicted and seek to have their case reviewed by the CCRC have rarely had their experiences of ongoing legal need independently and systematically analysed.

Experiences of access to justice through the CCRC cannot be fully understood without user perspectives. To remedy this gap in knowledge, this study significantly developed research into access to justice and the CCRC.
Specifically, it produced new data (through in-depth semi-structured interviews) on how (prospective) applicants to the CCRC experience the
(post)appeal stage of the justice system, especially in the context of funding cuts.

The overall objectives were to produce qualitative data and to make recommendations that create opportunities for change, including:

• CCRC processes/procedures that better accommodate (unrepresented) applicants’ needs;
• greater awareness of applicant experiences at policy-maker level;
• better understanding of applicant/client experiences among defence lawyers, leading to improved access to justice through service provision;
• greater awareness about funding, and the CCRC, among the applicant community

This study examined the nature and outcome of CCRC applications involving charges of rape where it was claimed by the applicant that their conviction was unsafe due to non-use, or failures in the use of, digital communications evidence (DCE).

This included claims of inadequate police investigation, non-disclosure, poor legal representation, or where DCE was identified as an issue during the case review process.

The research took place in the context of increasing public and political attention about demand for digital evidence in the form of communication technologies (e.g. social media posts, multi-media messaging, photographs, and call logs).

This independent research project examined 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 research question – Does the approach of the Court of Appeal after R v Nori protect refugees from criminalisation? – investigated whether refugees were appealing direct to the Court and the outcomes; and evaluated 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 was published by the CCRC in November 2018.

This research project arose in response to a call by the CCRC for research on human trafficking and modern slavery cases in order to examine pressing concerns that could result in unsafe convictions, some of which had been reflected in the growing number of CCRC referrals in this area to the Court of Appeal, or the Crown Court for an appeal by way of a retrial.

The main themes of the project were about the functioning of the National Referral Mechanism (NRM); confusion about the relationship between criminal proceedings, immigration proceedings and the NRM amongst those dealing with victims of human trafficking in the criminal justice system; wrongful prosecution of victims of human trafficking; delays in sharing information and intelligence contained in the NRM system and poor quality referrals which delay the identification of victims; lack of recognition of victims of human trafficking at the police interview and at the time of conviction; and ‘county lines’ prosecutions linked with criminal exploitation.

The focus of this research was to advance an understanding of the applications that the CCRC receives where the applicant has been convicted under joint enterprise liability.

This involved reviewing 247 applications made between 2009 and 2020 from individuals convicted under joint enterprise, for convictions that ranged from 1978 to 2020.

This study explored:

• the type of joint enterprise that is the subject of applications to the CCRC;
• how the corrected law in Jogee is being used in applications;
• the number of applicants that had legal representation; and
• the demographic characteristics of applicants.

The conclusions, in summary are:

1. Individuals convicted as secondary parties to a joint enterprise form the highest number of applicants to the CCRC.
2. A low number of applications sought to use the corrected law in Jogee and argue a substantial injustice according to Johnson.
3. Although applicants are able to find legal representation, the quality of it varies and some advice appears misguided. This is especially true where Jogee is referred to for individuals convicted as joint principals or used alone without reference to substantial
   injustice.
4. A low number of applicants identify as Black British, where existing data suggests this demographic has the highest conviction rate as secondary parties.

As a result of these conclusions, the recommendations concerned: the statutory real possibility test being placed in a framework of developing Court of Appeal Criminal Division (CACD) jurisprudence concerning substantial injustice, which specifically affects applications from secondary parties convicted using joint enterprise; how the CCRC should provide an advisory note to legal representatives where they use the corrected law from Jogee incorrectly; and the need for further research into the low number of applications from Black British men convicted as secondary parties despite existing research showing they are disproportionately represented in conviction rates.

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.

‘Women who kill – how the state criminalises women we might otherwise be burying’

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, were:

(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.

This project aimed to evaluate the success of the Easy Read Form NG introduced by the Court of Appeal in 2019.

The CCRC reviews potential miscarriages of justice and has the power to refer cases to the Court of Appeal if there is a real possibility that a conviction or sentence will not be upheld on appeal. It is not the CCRC’s role to usurp the functions of the Court of Appeal.

Therefore, the CCRC will generally only review cases where the applicant has already appealed either their conviction or sentence.

However, where the CCRC identifies exceptional circumstances that prevent an applicant appealing without their help, the case can still be reviewed.

It is rare that the CCRC will identify exceptional circumstances. Therefore, it is important that applicants who are turned down have a clear route to appeal.

This project focuses on the Easy Read Form NG, to determine whether it has assisted such applicants in making appeals. The Form NG was designed to make the appeal process easier for applicants who are not represented, so the data collected for this project focuses on how many applicants appealed
after being turned down by the CCRC on the basis that they had not yet taken their case to the Court of Appeal.

This book was 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.

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 was also conducted against the background of the number of appeals to the Court of Appeal having dropped considerably over the previous three years, and it therefore raised the question whether loss of time orders were now needed as a deterrent.

This project also formed 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.

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. It was published in November 2018.

Published in February 2023, this internal research report by CCRC intern Megan Morrison analyses Crown Court cases accepted for review by the CCRC on the basis that there were ‘exceptional circumstances’ justifying the CCRC’s involvement despite there being no previous attempt to appeal.

This project examined 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.

This article was published in Criminal Law Review 106 (2017).

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 first 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 article concludes by arguing that the CCRC’s campaign was effective, and demonstrates the importance of interagency communication in preventing miscarriages of justice.

This research explored 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 Holiday 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 CCRC, 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.

This research explored, through the analysis of CCRC casework, the causes of wrongful convictions and looked 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.

You can read a summary of Dr Schmidt’s research.

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

Abstract to PhD thesis

This thesis sets out to provide a deep analysis of the mechanisms for review of
convictions in New Zealand and England after initial appeal rights are exhausted, and to identify the key areas of similarity and difference between these systems, the reasons for these differences, and their implications.

The appeal systems in each jurisdiction are briefly examined, alongside the pressures and restrictions on their functioning. Particular attention is paid to the options for appeal out of time, and for revisiting appeal decisions if new material comes to light.

The main discussion is of the specialist procedures for review of suspect convictions in each jurisdiction: the Royal Prerogative of Mercy process carried out by the New Zealand Ministry of Justice and the work of the English Criminal Cases Review Commission.

This discussion presents the results of empirical research carried out by the author utilising the files of each of these bodies. It investigates the legal context in which each body functions, and provides an account of how each body functions in practice, by examining the circumstances in which each body will contemplate referring a matter back to an appeal court and the means by which a determination is made as to whether to do so in an individual case. In addition it examines the various factors (legal and non-legal) which impact on their work.

Finally, the key features of the two systems are contrasted, with a discussion of the areas of similarity and difference, as well as the possible implications of these, in particular for reform of the New Zealand processes.

This research discussed the possibility of a further role for the CCRC in cases involving expert evidence.

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.

This 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 tracked whether Court of Appeal processes facilitate this and whether there are other barriers, such as a lack of legal representation.