You can apply to the CCRC without using the assistance of a lawyer. However the CCRC has only referred one or two cases to the appeal court in which lawyers were not involved. We have the impression that applications may not be taken seriously without the support of a lawyer. We therefore recommend that when an application is submitted, it should be done so in collaboration with a lawyer.
Lawyers can get legal aid to assist you with your application. They can find out about this from the CCRC.
You may choose to simply feed information to the lawyer of your choice, and hope that it is all passed on to the CCRC. Or you may choose to prepare the whole application yourself, and then find a lawyer willing to support it. Whichever course of action you choose, this Guide will, we hope, assist you.
If you prepare the whole application yourself, you will retain control of it. Many of those whose cases are known to UAI member organisations feel that one of the reasons they were wrongly convicted is that their lawyers let them down by being lazy or incompetent. If you feel this was your experience, you might well want to ensure that your case is properly presented to the CCRC, and so will want to do it yourself. We aim to make it possible for you to do this.
You can also ask one of the member organisations of United Against Injustice to help you. Please look at the list of member organisations, and choose one which is closest to you geographically, or which deals with cases like yours.
The application form
The form is straightforward. It is not a test. If you do not have all the information asked for, the CCRC will probably find it for you – for example, your crown court number or case number (in part 2).
If you have not yet appealed, part 3 asks you to give reasons why. These reasons need to be those that will persuade the CCRC to treat your case as exceptional. For example, if following your trial your barrister advised you that there were no grounds for appeal, and if you have asked solicitors to prepare an appeal for you but they have refused (probably because you can’t afford to pay them), then say so.
Further guidance about reasons why the CCRC might treat your case as exceptional are given (confusingly) in part 4. They apply to part 3.
This Guide is really only concerned with part 4. It provides you with a box covering half a page. You cannot possibly explain your case in half a page. The simplest case any of us have dealt with requires an application of several pages. We advise that you write in this box ‘Please see separate submission (enclosed)’, and write all that you need to tell the CCRC on separate sheets of paper. Everything you send the CCRC will be read carefully and all your points will be considered. In our experience, the case workers are quite diligent in this respect.
For an example of an application which met with the approval of the CCRC (although it did not lead to a referral), click here (PDF file).
Communicating with the CCRC
For contact details, see the end of this Guide.
The CCRC’s own instructions to its Case Review Managers (CRMs) can be downloaded from this site (PDF file). We recommend you read them.
You will see that the CCRC will communicate only with the applicant, the applicant’s lawyer, or a campaign group – not all of these. But you could ask the CCRC to copy letters to the other people involved, as long as everyone agrees to this.
CCRC system for processing applications
The CCRC’s case review system is explained in their Annual Report. You can obtain their latest Annual Report by simply asking them for it – they do not charge for it.
Stage 1 is a screening process in which applications which do not qualify for consideration by the CCRC (the applicants might not have appealed and cannot persuade the CCRC that their case is exceptional), and applications that do not give the CCRC any reason to investigate further are weeded out.
About 33% of applications fail at this stage. We suspect that if your application is so brief that it can fit into the box in section 4 of the application form, then it will be likely to fail at this stage. If no applications extended beyond this box, then most could be processed very quickly. The CCRC would turn over applications very quickly, and produce impressive output figures. Perhaps that is why the form does not tell you that you can send in additional submissions.
If you follow our recommendations in this Guide, your application should at least progress to ‘stage 2 screen.’
Stage 2 Screen
This is really a separate stage at which cases are separated into those that need five days’ work or less, and those that will take longer to review.
Cases can be referred to the appeal court after this stage, but in 2003-4, only 2.4% of cases completed at this stage were referred, compared to 11.7% of cases completed at the following full stage 2. In other words your application will stand a better chance of referral if it gets to Stage 2.
A few cases are simple enough to be processed adequately with five days’ work. These are most likely to be cases in which a recent appeal decision applies to other cases. For example, if the pathologist who gave evidence against you has subsequently been discredited, your case might be referred because of this. But please take note of the information in the section below headed ‘Everything must be in the Statement of Reasons.’ If you have other fresh evidence or argument you want the appeal court to hear, you will want the CCRC to conduct a more thorough review so that it can be included.
51% of cases are completed at this stage. Combined with the stage 1 rejects, that makes 84% of cases, the vast majority of which will not be referred to the appeal court. You probably want your case to be included in the remaining 16%.
At this stage the CRMs appointed to deal with more complex cases get down to serious work. They will start by reading all the material they have gathered, and then they will write to you listing point by point all everything you have asked them to consider or investigate. They are very thorough, but you may want to reply and add points if you think they have missed anything out.
We have asked CRMs what limits are placed on their investigations. They answer that there are no limits. They will investigate anything that is significant and relevant to the case. But we find it difficult to believe that there are no limits to what they can do, and have identified some constraints under which they work (more details below).
The CCRC has extensive resources if it chooses to use them. In addition to the expertise of its own staff, it can commission reports from external experts and appoint an Investigating Officer (see stage 4).
Very few cases reach this stage, at which an Investigating Officer is appointed. You may not even want your case to reach this stage, as the Investigating Officer appointed will invariably be a serving police officer.
A decision to refer your case for an appeal will be a cause for celebration. But most cases are not referred. In 2003-4 there were 901 cases completed and 30 referrals (3.3%).
CCRC decisions can always be challenged. In one case, when the final decision was issued, a previously undisclosed document was enclosed with the Statement of Reasons. Using the evidence in this document, the ‘final’ decision was successfully challenged, and the case referred.
And if you find new evidence, the CCRC can always reopen the case.
If you are dissatisfied with the CCRC’s decision, then you can consider judicial review. You will have to find a lawyer willing to do this for you. So far judicial reviews of CCRC decisions have been unsuccessful, since the CCRC has been given wide discretion concerning how thoroughly it should investigate cases and on what basis it makes its decisions. But although the judicial review in the case of Mills and Poole failed technically, it led to a further review of the case by the CCRC and a referral for an appeal which was successful.
Powers of the CCRC and section 17 of the Criminal Appeals Act 1995
The CCRC was given two specific powers by parliament. One is to appoint Investigating Officers (s.18 – see previous section of this guide). The other (s.17) is to order any public body to preserve any document or record it holds and to let the CCRC see them and take them away or make copies of them.
Such documents can include those relating to any case the CCRC investigates, and any other case which may be in any way connected with that case.
The term ‘public body’ means any police force, any government department, local authority or other body constituted for purposes of the public service, local government or the administration of justice, or any other body whose members are appointed by the government department or which is mainly funded by the government.
When the CCRC decides a case should go forward from stage 1 (that within 30 days of the application being received), administrators will order public bodies to ‘secure the preservation of any relevant materials and documents,’ by sending out ‘Section 17 notices’ to these organisations. It is therefore very important that when you submit your application, you tell the CCRC which public bodies may hold records which relate to your case.
Do not assume that the CCRC will know which organisations should be sent Section 17 notices. Tell them clearly which organisations may hold records relating to your case, and also tell them why you think they may hold such records. Refer to our documents checklist for guidance.
Experience tells us that in every miscarriage of justice case, there are relevant documents which have not been disclosed. Parliament has given the CCRC the power to find those documents and examine them. Make sure they use that power to the full.
Constraints on the CCRC
Of course the CCRC does not have infinite resources, and it needs to process most cases quickly so that it can reduce the backlog of cases and appear to be an efficient organisation. Its funding has recently been cut. So its staff are looking for reasons to reject applications at an early stage.
UAI and its member organisations believe the CCRC should be given more resources, and will support any request by the CCRC for more money. But when we are supporting applications, we are not concerned with the CCRC’s problems: we can only be interested in obtaining the most thorough possible investigation of every case.
Because the CCRC has to economise, staff are discouraged from leaving the office. So when they ask a public body for documents, and that public body denies having documents, the CRM concerned simply accepts this denial. Remember they may be asking for documents from the police who investigated the case under review – perhaps the same police officers who withheld the documents in the first place.
If you think that relevant documents are being withheld despite the CCRC’s requests for them, then put pressure on them to go and look for the documents. Only if we continue to put pressure on them are they likely to change their policy. When parliament gave the CCRC power to demand physical access to records and to go to the places where documents are stored and take them away, or at least make copies (Criminal Appeals Act, s.17(2)), it clearly expected the CCRC to do just that.
Evidence not used by the defence
This is a major problem. Evidence that was available at the time of the original trial, and which the defence had, or knew about and could have asked for, will not be accepted by the Court of Appeal, according to the CCRC. But it’s not as straightforward as that.
Section 13 of the Criminal Appeals Act states that the CCRC can only refer a case to the appeal court if there is ‘a real possibility’ that the conviction will not be upheld. So the CCRC has to assess what the court’s decision might be. The only way to make this assessment is to look at past judgments of the court.
The Court of Appeal has indeed often expressed its reluctance to admit evidence that was available to the defence at the original trial. According to the Criminal Appeals Act, s.4, the court can only hear such evidence if ‘there is a reasonable explanation for the failure to adduce the evidence at the trial.’
You may think that the incompetence of your lawyers is reasonable explanation enough, but appeal court judges don’t want to hear allegations from people like you that their fellow lawyers are incompetent. Perhaps a better tactic is to argue that you were not competent to instruct them.
However the Court of Appeal does not make consistent decisions. Different panels of judges can have very different views on matters like this. Sometimes it does agree to hear evidence available at the time of the trial, but not used, ‘in the interests of justice.’
So when the CCRC rules out any evidence that the defence had, or might have obtained at the trial, it is assuming the Court of Appeal has a consistent view on the matter. The CCRC is wrong to make this assumption, and should be challenged whenever it does so.
For example, an application asked the CCRC to obtain the medical records of the co-accused of someone challenging her conviction for murder. These records might have shown that the co-accused could have, perhaps probably did, carry out the murder on his own. The applicant and her supporters don’t know what the records said, and nor does the CCRC, because they refused to obtain them, simply because they knew that the defence had been aware of their existence. The applicant argued with the CCRC about this, but to no avail. But we should continue to argue with the CCRC whenever they make decisions like this.
The CCRC and the Court of Appeal
As we said in the previous section, section 13 of the Criminal Appeals Act states that the CCRC can only refer a case to the appeal court if there is ‘a real possibility’ that the conviction will not be upheld. The CCRC therefore attempts to work out how the appeal court makes its decisions, and what are the rules by which it operates.
This is not easy because none of the rules are laid out anywhere. They are contained only in its numerous judgements made over many years. Besides, the appeal court is inconsistent. Not only do the rules change over time as the court makes attempts to adapt itself to changing circumstances, but judges in different courts make incompatible decisions.
When lawyers present arguments to the court they have to pretend that the court is consistent in its judgments, or they would be considered to be treating the court with disrespect. You may think that the court does not deserve any respect, but whatever you think, only the Court of Appeal can overturn your conviction, so you have to pretend to respect it, like everyone else.
Fortunately there is a way through this muddle, which is a ruling in the House of Lords in the case of Pendleton 2001. Since this is a ruling by a superior court, the Court of Appeal should follow it strictly. It applies to fresh evidence (Fresh Evidence section in this Guide, below.)
Pendleton requires the court to apply what is known as the jury impact test to fresh evidence. The Lords said in their judgment (paragraph 19), ‘…it will usually be wise for the Court of Appeal, in a case of any difficulty, to test their own provisional view by asking whether the evidence, if given at the trial, might reasonably have affected the decision of the trial jury to convict. If it might, the conviction must be thought to be unsafe.’
The Lords made it clear that the Court of Appeal should not try to put itself in the position of the jury, and make its own assessment of the case as a whole. The appeal court does not hear the witnesses testimony that the jury heard. All they can decide is, if they hear fresh evidence which is admissible and capable of belief, whether that evidence could have made a difference to the jury’s decision, if they had heard it. If so, then they must overturn the conviction.
That seems straightforward. But appeal court judges being the kind of people they are, insist on tinkering with this and adding their own modifications. The CCRC watch these developments and try to assess the chances of cases according to them.
We argue that, since the Court of Appeal has a record of inconsistency, and since Pendleton is the ruling of a higher court, the CCRC should stick with this straightforward ruling and ignore other judgments. If you think that the CCRC is refusing to refer your case even though your fresh evidence passes the ‘jury impact test’, then argue this point with them.
This is another argument we need to win.
S.315 (4a) of this Act specifies that when the CCRC refers a case for an appeal ‘the appeal may not be on any ground which is not related to any reason given by the Commission for making the reference.’
In other words, if your case is referred to the Court of Appeal, the court should only consider what is in the CCRC’s Statement of Reasons. This is a major change from the earlier position, where once a case was referred, further fresh evidence could be obtained and put into the appeal.
S.315 (4b) does go on to say that ‘The Court of Appeal may give leave for an appeal mentioned in subsection (4A) to be on a ground relating to the conviction, verdict, finding or sentence which is not related to any reason given by the Commission for making the reference.’ But you have to rely on the kindness of the judges to get other grounds admitted.
We don’t recommend relying on the kindness of judges. Make sure every possible ground of appeal, and every item of possible fresh evidence, is included in the Statement of Reasons. Leave nothing to chance.
For example, in the judgment in the case of Tomlinson, the judges refused to overturn the conviction on the grounds included in the Statement of Reasons. But then they added ‘However, we are troubled by certain other material unearthed by the Commission,’ and later concluded: ‘It may be that having read this judgment those representing the appellant will wish to make an application for leave to argue a further ground of appeal… we would be disposed to entertain such an application if made. For that reason we suspend our judgment and for the time being refrain from dismissing the appeal.’
So make sure everything is included in your application to the CCRC, and then included in the Statement of Reasons if your case is referred, because neither you, your lawyers, or the CCRC can predict what the judges are going to take an interest in, or what decision they might make.
Providing the CCRC with what it needs
Although we may appear critical of the CCRC at times, the purpose of this Guide is to help applicants provide the CCRC with better quality applications.
Rule 1 is include everything. Do not assume that your CRM will find all the evidence. S/he may or may not do so. S/he may search things out on her or his own initiative, or s/he may not bother. No doubt all CRMs are highly intelligent, diligent, committed and motivated to uncover injustice and right wrongs. But they might have off days. Take no chances and assume you will have to force them to do their work properly.
Rule 2 is spell out every detail. When you ask them to investigate something, you should tell them why this matter is important, and how it fits into your case.
Tell them what difference it would have made to the jury’s decision if this evidence had been heard in court. Never assume that a CRM is going to work this out for her or himself. Make every connection clear in the logical chain between what you are asking them to do, and how the result of their investigation could affect the safety of your conviction.
The following is an example of what was necessary to persuade a CRM to investigate whether police interview tapes had been altered so as to cut out something the police had said.
What Miss X alleges is that the investigating officer told her, during an interview, that they had told Mr Y about the change of clothing, and that he said, ‘Well Mr Y doesn’t believe you any more now that we’ve told him about the clothes,’ meaning that he no longer believed her to be innocent of involvement in the murder of her father. If the police did in fact do this, then the effect would have been to intimidate Miss X and make the interview oppressive. Miss X was clearly extremely distressed and vulnerable while she was in police custody, and she had regarded Mr Y as one of the few people who would support her. This interview, and possibly all the interviews, could have been rendered inadmissible as evidence as a consequence. The interviews were played to the jury. They contained what the prosecution alleges is a partial admission, that Miss X was aware during the car journey to the murder scene, that [her co-defendant] might harm her father. The jury’s decision could have been different if they had not heard this evidence.
If the police did in fact show evidence to Mr Y with the intention of affecting his evidence, then they would be guilty of malpractice. Whether Mr Y changed his evidence as a result of what the police may have done, only he can say. If the tapes are analysed and they show indications of interference, then Mr Y should be interviewed about this matter.
Most applications are based on evidence that was not heard at the original trial. We have already discussed whether evidence available to the defence at the trial, but not used, can ever be considered ‘fresh’ (above, Evidence not used by the defence).
The CCRC just ask you whether there is some ‘new factor which the courts have not considered before.’ You are not being asked for evidence ready to put to a court but just to tell them where to look for evidence.
Of course if you can present ready-made fresh evidence to the CCRC, no doubt they will be pleased and you will keep some control over that aspect of your case. For example, if you can find an expert witness who will provide a helpful report, and your solicitor can arrange this, then go ahead.
But there can be problems. You can damage evidence. For example, suppose you find a new alibi witness. Your friends go and see that witness. They can then be accused of putting pressure on the witness, and then the witness would no longer be believed. Or you could be said to have fed the witness with information, so that their evidence didn’t really come from them.
You have to get just enough information to supply to the CCRC so that the CRM will go and interview the witness, turning your information into evidence that can be put before a court.
In the example application, you will note that the people approached on behalf of an applicant were bouncers at clubs – not the sort of people who would be intimidated. But the submission just outlines what they have to say, and gives their contact details: enough to persuade the CRM to go and interview them.
if you contact a witness who then tells the police about what you’re doing, you could get into serious problems. The police may do all they can to prove that you are attempting to pervert the cause of justice! To deal with this problem, UAI intends to develop a protocol for contact with witnesses. This will include
written instructions to the investigator from the prisoner whose case is being supported;
letters to the prisoner telling her or him exactly what you’re going to do; and
a full written report compiled immediately after contact with a witness saying what was discussed.
The CCRC can also damage fresh evidence. For example, a witness was found who could help establish an alibi for someone wrongly convicted of murder. The case was taken on by a commissioner, who, instead of contacting the witness, contacted his boss. The boss gave misleading information (since his knowledge was merely hearsay) and indicated to his subordinate that they should not become involved in the case.
In the case of Ishtiaq Ahmed, the CCRC informed the Thames Valley Police that a key prosecution witness had retracted her evidence. Police officers involved in the original investigation and against whom a complaint had been made by Ishtiaq Ahmed of falsifying evidence, were informed of what was happening and given the opportunity to contact the main prosecution witness to ensure that she would no longer stand by the retraction. The case was referred, but the appeal judges upheld the conviction, because they decided to believe the witness when she said she stood by her evidence at trial once more.
Tell the CCRC that they should on no account tell the police what lines of investigation they are pursuing.
The fresh evidence you need may be in the form of expert reports on aspects of your case that were not considered at your trial. It can be a good idea to find your own experts and then get at least a preliminary letter from them, and ask the CCRC to consult them.
UAI plans to compile a page of advice on finding and using experts. Until this is done, here are a few notes about approaching and briefing experts.
Finding the right expert will require asking others, such as people in UAI member organisations, or searches on the internet.
Once you have found the right expert, contact them and explain that you are looking for someone who can help with the issues you think are in their area of expertise. Outline the case and why the issues are important and how they fit in, and ask them whether they would be able to help. Tell them that you expect to find funds to pay for a report, through legal aid, or by persuading the CCRC to commission a report, or from the Court of Appeal if the case is referred. You aren’t asking them to work for nothing.
Tell them what documents, photographs etc. are available and offer to send copies these. They will probably agree to receive these, and then will go through them before they reply and tell you whether they can help you.
Their answer will then be a well-informed one, and you will be able to see whether they actually will be able to contribute positively to your case.
If you have the opportunity to go further and commission a report, you should brief your expert very thoroughly and carefully. (Often lawyers give short and vague briefs, and the resulting report may miss out on key points as a result.)
You can see a sample brief to an expert on this site (PDF format). This is not a sample to be copied – like any brief, it’s only for a particular case – but it will give you an idea of how detailed and precise your questions should be.
April 2011 Newsletter includes useful advise about making applications to the CCRC