Last week, the Chair of the Criminal Cases Review Commission (CCRC) resigned. She had been under a lot of pressure to do so, especially after the Justice Secretary, Shabana Mahmood, expressed her opinion that Pitcher was not fit to head the CCRC and started the process of sending a recommendation to the King that Ms Pitcher should go. Until now Pitcher had tenaciously clung on to her role.
Even now, her resignation letter cast her in the role of ‘scapegoat’, a position which Andrew Malkinson called “shameless”.
In the end it was the Andrew Malkinson case which was her undoing. Malkinson, you will surely know by now, spent 17 years in prison for a rape it has now been proved he did not commit.
While it’s true that Pitcher was not at the CCRC at the time of the organisation’s first refusal, she was there at the time of the second in 2018 and over the period since when they could and should have been more pro-active in his case than they were.
The failures in the Malkinson case led to a review, led by Chris Henley, KC, which was damning in its condemnation of the CCRC – not only in its failures, but also in seeking to take undue credit which belonged to the charity, Appeal, which did most of the work, and also its failure to apologise for its failings.
In its response to the report, the CCRC claimed it had learned lessons from the Malkinson case and that new procedures had been put into place, but it is difficult to avoid the impression that sticking plasters have been put over some of the serious wounds which make the CCRC unfit for purpose.
Furthermore, they said similar things in response to the Westminster Commission report in 2021, which was also critical of the CCRC, but nothing seems to have changed.
In speaking to the APPG on Miscarriages of Justice which led to the Westminster Commission, Pitcher said that the CCRC were ‘respectful’ of the Court of Appeal but not deferential. This, to any independent observer, is clear hogwash, and the Westminster Commission report said as much.
The CCRC was supposed to be an organisation, independent of the Court and independent of Government , which was there to fight for victims of miscarriages of justice and was given the power to do so.
Instead, for applicants to the CCRC, there has always been a strong impression that the CCRC acts as a pair of vicious guard dogs, barring the way to the Court of Appeal and reluctant to let anyone through. As my late mother would have said, “you practically need a letter from the Holy Ghost” to get past the opening stage.
It is not just the extremely low referral rate to the Court of Appeal which is the problem, it is that lack of communication and downright unfriendliness, which leaves a bad taste in the mouth and gives the CCRC such an overwhelming negative opinion among applicants.
Part of the problem is undoubtedly the ‘real possibility test’, which stipulates that the CCRC should only refer cases to the Court of Appeal when they believe there is a real possibility that it will succeed. This no doubt induces a level of deference as they take the stance that if there is not sufficient fresh evidence, the case will not succeed. However, there are two problems here:
- Whereas you would expect the CCRC to bemoan the constraints of the real possibility test, they have always defended it
- rather than aim to obtain the required evidence with the powers granted to them, the CCRC expects the applicants to furnish all the new evidence, even though many of them are still behind bars.
The attitude of the CCRC is therefore all wrong. It may not have become worse under Helen Pitcher’s stewardship, but it certainly hasn’t got any better.
The CCRC are proud that, of the cases they have referred to the Court of Appeal over the years, there is a relatively high success rate. Although the figures might be slightly skewed by ‘series’ cases like the Post Office Subpostmasters, a high success rate is NOT good and suggests they should be submitting more.
How many more innocent people might have had their convictions quashed if the CCRC had a slightly lower threshold for referral?
What the CCRC needs now, if it is to survive at all and not be replaced by a better system, is a leader who genuinely and passionately wants to fight hard for the rights of the innocent who have been wrongly convicted. Someone with an attitude like, say, Emily Bolton, the head of Appeal – the charity whose feisty and determined investigation led to the eventual release of Andrew Malkinson, with little help from the CCRC.
It needs not a few minor tweaks to procedure but a complete change of mindset. Someone who wants to be genuinely independent of the Court of Appeal; someone who will be, metaphorically, banging on the door of the Treasury demanding more much-needed funds.
And someone who runs a CCRC which looks first to see if an applicant is actually likely to be innocent and, if they decide they probably are, does everything in their power to find the necessary evidence to send it back to the Court of Appeal, without second-guessing what the latter will do.