Criminal Cases Review Commission says ‘urgent improvements needed in legal aid funding’ in response to University of Sussex research report

Sussex University’s report “The Criminal Cases Review Commission: Legal Aid and Legal Representatives” was published in May 2021. Its work was funded by the Economic and Social Research Council. 

“We are grateful to the University for such detailed independent research on a topic which urgently needs serious improvements to be made if the Criminal Justice System is to be as effective as it can be”, said Chairman of the CCRC, Helen Pitcher OBE. 

Sussex University suggested 12 recommendations in its findings. One of the key themes was the subject of legal aid funding. The report found there was a decline in levels of legal representation in the applications made to the CCRC. These submissions fell from a historical average of 34% to 23% in 2012-2014. Alarmingly, this figure dropped again to just 10% in 2018-2019.  

Although the research suggests that there is an association between legal representation and the success of applications, Helen says it’s not essential for applicants to have legal counsel when asking for their case to be investigated – but it helps: “There is no doubt that applicants can sometimes be better served with input from a legal specialist. A legal eye can certainly help an applicant to better understand the key points surrounding their case and any key nuggets of evidence or information as part of that claim.”  

“When an applicant understands what helps state their case, or has legal representation, that approach can certainly help with reviews and prevent unnecessary delays,” added Helen.  

The CCRC agreed that the application of Sufficient Benefit Tests (SBT) by the Legal Aid Agency (LAA) in relation to CCRC casework should be reviewed to allow lawyers to conduct more sifting work and recognise the value of legal aid cases within the judicial system. The report also proposed that interim payments for CCRC casework be granted, to ease cashflow for law firms, which the CCRC also says is a good idea. 

“We really welcome the recommendation that the Legal Aid Agency review its audits and assessments of our casework,” said Helen. “When it comes to assessing how we engage with lawyers we’d be more than happy to do more of this and introduce more interactive events. We also see the value in making sure legal representatives and applicants fully understand their submissions and keep them about updated on the status of their case reviews – taking account of any sensitivities concerned, of course.”  

Legal professionals and the CCRC working more closely on post-conviction disclosure and section 17 powers were also cited in the report, although what the CCRC can disclose itself during and after its reviews is limited by law. The report found that legal professionals are selective about what information is provided as part of an application. It also stressed how important it is that legal professional make sure grounds are very clearly stated, what further investigations are considered necessary, and how that investigation will assist in determining the Real Possibility (RP) test: “This sort of approach is invariably of great assistance for us in helping shape the most efficient review possible. We always remain open to engaging more with legal representatives about how best they might add value to the applications they lodge with us.”  

Interestingly, as with the Westminster Commission’s recent report, the University also emphasised the crucial need for the CCRC’s own funding to increase. 

The University of Sussex is not the only organisation the CCRC has collaborated with on the issue of legal aid. It continues to support the Independent Criminal Review of Legal Aid (ICLAR) that was commissioned by the Ministry of Justice. The CCRC took part at a round table event about this in Birmingham last week and will be submitting its evidence to them shortly. It also plans meet the review’s Chairman, Sir Christopher Bellamy QC, to discuss this evidence in more detail soon. 

The CCRC has submitted its response report back to the University and has personally thanked them for carrying out such important research. 

Ends 

Notes to editors 

You can read a full copy of the CCRC’s official response to the University of Sussex here: Response-to-Sussex-University-June-2021-07-06-2021.pdf

Our evidence to ICLAR will be available on our website shortly (to follow on once our response to the University of Sussex has been published). 

Other key headlines identified by the CCRC based on the University of Sussex report are: 

• The declining level of legal representation in applications to us fell from 34% to 23% in the period 2012-2014, and then dropped to just 10% in 2018-2019.  
• The number of people exiting the criminal bar because of funding cuts and low legal aid payment rates is an increasingly worrying trend.   
• Many appropriately qualified solicitors simply cannot afford to continue representing people through legal aid. The same thing is happening with silks, and something really must change.   
• It is not essential for applicants to have legal counsel when asking for their case to be investigated – but it helps.   
• A legal eye can certainly help an applicant to better understand the key points surrounding their case and any key nuggets of evidence or information as part of that claim.  
• When an applicant understands what helps state their case, or has legal representation, that approach can certainly help with reviews and prevent unnecessary delays.  
• Our ability to disclose is legally determined by statute, case law and legal privilege. However, we do support the need for a consistent approach on this and encourage applicants to consider disclosing the decisions made by us, and the reasons for this, as appropriate.  
• Long running cases account for just 6% of applications taking more than two years – with 80% of cases completed within 12 months. The average review time of our cases is less than 36 weeks.  

For further information or to request an interview please contact External Affairs at press@ccrc.gov.uk or on 0121 232 0900. 

1. The Commission is an independent body set up under the Criminal Appeal Act 1995. It is responsible for independently reviewing suspected and alleged miscarriages of criminal justice in England, Wales, and Northern Ireland. It is based in Birmingham and is funded by the Ministry of Justice.
2. There are currently nine Commissioners who bring to the Commission considerable experience from a wide variety of backgrounds. Commissioners are appointed by the Queen on the recommendation of the Prime Minister in accordance with the Office for the Commissioner for Public Appointments’ Code of Practice. 
3. The Commission usually receives around 1,400 applications for reviews (convictions and/or sentences) each year. Since starting work in 1997, the CCRC has referred around 3% of applications to the appeal courts. 
4. The Commission considers whether, because of new evidence or argument, there is a real possibility that the conviction would not be upheld were a reference to be made. New evidence or argument is argument or evidence which has not been raised during the trial or on appeal.  Applicants should usually have appealed first. A case can be referred in the absence of new evidence or argument or an earlier appeal only if there are “exceptional circumstances”. 
5. If a case is referred, it is then for the appeal court to decide whether the conviction is unsafe or the sentence unfair. 
6. More details about the role and work of the Criminal Cases Review Commission can be found at www.ccrc.gov.uk The Commission can be found on Twitter using @ccrcupdate.