19 May 2021
An insightful report: “The Criminal Cases Review Commission: Legal Aid and Legal Representatives,” has been published by Sussex University, after the Criminal Cases Review Commission (CCRC) called for research exploring the effects of legal aid changes on applications made to the CCRC.
The report brought the issue of legal aid funding into sharp focus and the fact that many law firms and their representatives simply cannot afford to take on CCRC cases of this kind.
Chairman of the CCRC, Helen Pitcher OBE said: “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 has to change.”
Other findings of the report cited funding issues, the application system for legal aid and working with the legal profession to help them to better understand the journey of an application that is made to the CCRC, proposing 12 recommendations under four themes:
- Improving the system for applicants.
- Supporting legal professionals to conduct CCRC casework.
- Mitigating the impact of legal aid funding issues at the CCRC.
- Areas of further research.
An important finding explored the declining level of legal representation in applications to the CCRC, falling from a historical average of 34% to 23% in the period 2012-2014, and then falling further to 10% in 2018-2019.
The findings also support Hodgson and Horne’s assessment that legally represented applicants were more likely to have their cases sent for review. The CCRC has consistently said that applicants whose cases have potential are more likely to be able to secure legal representation.
Also featured in the report were issues raised by lawyers about post-conviction disclosure. The CCRC’s ability to disclose is legally determined by statute, case law and legal privilege. However, the CCRC does support the need for a consistent approach on this and encourages applicants to consider disclosing the decisions made by the CCRC, and the reasons behind them, as appropriate.
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 said lawyers can assist those who consider they have been wrongly convicted by facilitating an efficient review. They can also give advice to those who have not appealed, by outlining the case to an applicant and what might have gone wrong – and therefore help people to better understand the outcomes after a CCRC review.
Comments from individual lawyers about how long some applicants wait for decisions are acknowledged by the CCRC. However, 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 the CCRC’s cases is less than 36 weeks.
“On behalf of the CCRC I would like to thank Sussex University for its detailed independent research on a subject which is of great importance to the Criminal Justice System. The CCRC has been delighted to work with them on this,” said Helen.
Looking ahead, the CCRC is factoring in the conclusions reached by Sussex University’s research in its response to the recommendations recently made in the Westminster Commission report.
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Notes to editors
The 12 recommendations in the report are:
- That legal aid funding rates should be reviewed, with a view to increasing them to more realistic levels in the context of the specialised nature of CCRC casework.
- That CCRC further review application-related documents for clarity and utility for both legal representatives and unrepresented applicants.
- That the CCRC adopt/publish a clearer policy around the use of experts (and other forms of investigation).
- That the application of Sufficient Benefit Tests (SBT) in CCRC casework be reviewed to allow lawyers to conduct more sifting work, and to recognise the value of that work in the system generally.
- That interim payments (both disbursements and bills) for CCRC casework should be allowed, in order to ease cashflow for firms.
- That the LAA should review the way in which it audits and assesses solicitors’ CCRC casework, and develop a more dialogic relationship with casework providers.
- That the CCRC review engagement with legal professionals around what investigations are being conducted.
- That the CCRC review its guidance information available for legal representatives, and consider dialogic seminar style events for greater interaction, openness and engagement.
- That legal professionals should get involved with any training and engagement events provided by, and in discussion with, the CCRC.
- That legal professionals and the CCRC work together in relation to post-conviction disclosure.
- That legal professionals are selective about what information is sent to the CCRC, making sure that grounds are very clearly stated (either on the Easy Read form or by letter), what further investigations are considered necessary, and how that investigation will assist in determining whether a ‘real possibility’ of the conviction being overturned exists.
- That the CCRC’s budget be increased.