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Miscarriages of justice body is not fit for purpose, lawyers say

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Ben Livingstone

Dear Criminal Cases Review Commission,

The Guardian (30 May 2018)
https://www.theguardian.com/law/2018/may...

"The lawyers have accused the Criminal Cases Review Commission, which decides whether alleged miscarriages of justice should be referred to the court of appeal, of systemic failures.

....The results suggest lawyers see a common pattern of failings such as not interviewing witnesses, not understanding the significance of non-disclosure, not visiting the scene, and a misunderstanding of key points of law.

...The survey results suggest that in 81% of cases seen by the lawyers who responded, the CCRC failed to obtain the documentation it would need from the police or others to assess whether evidence had been hidden. In 69% of cases it failed to interview potentially significant witnesses, and in 48% of cases it failed to understand relevant law, the lawyers said.

The CCRC declined to comment on the survey’s findings"

However, the article does not refer to out and out dishonesty as is evident in the appeal outcome of 30 May 2018 (00243/2018) where it was stated the following:

"The submissions you have made to the CCRC have been previously raised, and are therefore not new.

The one noted exception to this is your submission that the Crown Prosecution Service (CPS) failed in their duty by not conducting Pre-trial witness interviews on Mr and Mrs Johnson. However, as you point out, such action is not compulsory and the CCRC considers that there is no basis for conducting such interviews in your case. It was ultimately for the court to assess the truthfulness of the witnesses."

There was a substantial volume of new evidence which amounted "to the wholesale breach of the the Criminal Procedure and Investigations Act and associated Codes of Practice" (para 34, see below). That also included the court failing to comply with its obligations regarding effective case management:

(Proposed areas to be Investigated)
https://www.scribd.com/document/37344883...

Q. How was the decision arrived at that there was no new evidence (apart from the CPS' failure to conduct Pre-trial witness interviews) and why, when it was manifestly shown that the court failed to comply with its case management obligations did the CCRC not consider that to be a valid appeal point?

Yours faithfully,

Ben Livingstone

info, Criminal Cases Review Commission

Thank you contacting the Criminal Cases Review Commission.We confirm that we have received your email and will deal with it appropriately.

Please note that we do not respond to correspondence that has been copied to us.

If you would like to find out more about the services we provide,please visit our website at www.ccrc.gov.uk<http://www.ccrc.gov.uk>

yours sincerely

The CCRC

S. Jones left an annotation ()

Another dead horse flogged by Neil "the essence of vexatiousness" Gilliatt.

info, Criminal Cases Review Commission

1 Attachment

Dear Mr Livingstone,

 

Please see the attached correspondence relating to your request for
information under the FOI Act 2000.

 

Regards

 

Information  Team

CCRC

 

 

 

The Criminal Cases Review Commission
5 St Philip's Place
Birmingham
B3 2PW
Telephone: 0121 233 1473
Fax: 0121 232 0899

show quoted sections

Ben Livingstone

Dear info,

Thank you for your response, re

"the content of individual applications to the CCRC represents personal data and it is not possible for the CCRC to discuss individual cases in an open forum and with third parties."

Can you deal with this request on a more general basis please as I am confident that the approach taken to distort the facts in order to dismiss cases will be routine.

Yours sincerely,

Ben Livingstone

Ben Livingstone

Dear info,

May I remind you that my 8 June email has not been answered.

Yours sincerely,

Ben Livingstone

DPO, Criminal Cases Review Commission

Dear Mr Livingstone,

 

We recently wrote to you to tell you that we would not respond with your
questions in relation to a specific case because there are legal
restrictions relating to data protection that mean we cannot lawfully
provide answers to your questions about that individual case.

 

You came back to us to ask for an answer in general terms to the question:

 

Q. How was the decision arrived at that there was no new evidence (apart
from the CPS' failure to conduct Pre-trial witness interviews) and why,
when it was manifestly shown that the court failed to comply with its case
management obligations did the CCRC not consider that to be a valid appeal
point?

 

This is a request for the Commission to provide an opinion or a commentary
on a decision. It does not therefore qualify as a freedom of information
request. In spite of that we have broadly aimed to provide this response
within the timeframe set out in that legislation.

 

However, having considered the matter carefully we cannot see how a
generalised question can be derived from your original enquiry. We can
therefore only refer you to the CCRC website pages at [1]www.ccrc.gov.uk
under Application Guidance where you will find general guidance for CCRC
applicants explaining in broad terms how we approach applications as well
as a set of specific casework policies which offer some more detailed
insight into how we will approach specific casework issues.

 

In relation to the Guardian article from which you quote, it says that we
declined to comment on the findings of a survey referred to the article .
That is not strictly true, we did not and have still not been seen the
survey findings mentioned and quoted. They were apparently submitted to
the Ministry of Justice as part of the ministry's Tailored Review of the
CCRC. We have not seen and would not expect to see, submissions made to
such a review and certainly not before the review findings are published
(we understand the report from the Ministry is still pending).

 

The Guardian story relates to an episode of the BBC Panorama programme.
The CCRC did respond at some length to the allegation made about us in
that programme. You may or may not be interested in those responses which
were published in full on May 30th on the CCRC website here:
[2]https://ccrc.gov.uk/ccrc-answers-to-pano... and for good
measure are pasted below.

Yours sincerely

 

 

Information team

 

 

Here are all of the questions that Panorama put to us and the answers we
supplied. We publish them here because, having seen the Panorama programme
on 30th May, we did not feel that they had been represented clearly or
given sufficient weight.

 

The CCRC has been accused by certain stakeholders of being “moribund and
desk bound” whilst failing to properly investigate some cases. What is
your response to that? 

There is no sense whatsoever in the idea that office based investigations
are, in the context of the type of cases we work with, intrinsically less
valuable than any other types of inquiry. Indeed, it is fatuous to suggest
that somehow so called “boots on the ground” investigations are always to
be preferred and that anything else is lazy or second best..

 

We consider a lot of cases where the offence in question occurred years
earlier. The passage of time will often mean that activities such as
visiting the scene of the crime years or decades later can serve little or
no purpose. Where that is the case, we won’t waste time on such visits for
the sake of presentation or to satisfy some misconceived idea of what an
investigation ought to look like.

 

We do whatever types of investigation we think a case requires.  As we
demonstrate week in week out in numerous cases, we will take whatever
steps we think may be necessary in a case and conduct any kind of
inquiries we believe we need from interviewing applicants and witnesses to
instructing leading experts in whatever discipline is relevant.

 

Probably our greatest strength as an investigative body is our unfettered
access to the paper trail, and increasingly the digital footprint, left by
the investigation, prosecution and trial processes that take place in
criminal cases.

 

The detailed analysis of all that material, and of the products of the
various police databases, and sources of intelligence and other sensitive
material that only we have access to, are intrinsically desk based
activities; we make no apology for doing that skilled and careful work in
an office environment.  The recent discussion of disclosure issues in the
justice system highlights the importance of our legal powers of access to
material whether disclosed or otherwise.

 

 

Internal board minutes passed to BBC Panorama suggest the commission
suffers from poor staff morale, chronic under staffing, high sickness
levels and problems with workload. Do you accept these issues affect
overall CCRC performance?

It is the everyday work of a Board to be involved in discussions about
morale, work load, staff sickness and so on. In fact it would be very odd
if these things were not discussed by the Board; that they are should not
be taken to indicate that there is any kind of crisis.

 

Sickness absence is one of our KPIs. We report on this area each year in
our Annual Report where we discuss the reasons if our KPI target is
missed.

 

Regarding staff morale, we use the very well known independent company OCR
to conduct a staff survey every two years. In recent years we have twice
won OCR awards for our results in the area of employee engagement – which
broadly equates to staff morale.

 

Here are the results on morale for the last two surveys (2014 and 2016).
The figures that they show are, by any standards, at the very top end of
results in this area.

 

 

CCRC staff survey results 2016

 

I am proud to work for the CCRC  92%  

I would recommend the CCRC as a good place to work 81%    

I feel committed to the values of the CCRC 95%  

I am happy to go the ‘extra mile’ at work when required 91%  

I feel a strong sense of loyalty to the CCRC 84%  

I am optimistic about the future of the CCRC 57%  

I am happy working at the CCRC at the present time 83%

 

 

 

Staff  survey results for 2014

 

I am proud to work for the CCRC  95% 

I would recommend the CCRC as a good place to work  91% 

I feel committed to the values of the CCRC 91% 

I am happy to go the ‘extra mile’ at work when required 91% 

I feel a strong sense of loyalty to the CCRC 86%

I am optimistic about the future of the CCRC 57%   

Considering everything, I am happy working at the CCRC at the present time
83%  

  

       

 

 

We would never claim that things are perfect, and we are far from
complacent about our situation and the types of issues you’ve raised . We
are a public sector body, our workload has increased in recent years and
our budgets have not. That undoubtedly puts pressure on the organisation
and its people – we are not alone being in that position.

 

We have taken all the steps we can to make sure that the quality of our
investigations and the correctness of our decision making has not been
adversely affected.

 

The situation is helped enormously by the fact that at the CCRC we are
fortunate to have very able and committed staff.. Our staff surveys have
repeatedly demonstrated that we enjoy very robust good morale.

 

More generally on the points you have sought to extract from the board
minutes, we would say it is part of the Board’s job to scrutinise such
matters. We certainly won’t be dissuaded from having full and frank Board
discussions about these and other issues because someone trawling through
the minutes might misinterpret or overstate their meaning.

 

 

The minutes suggest that at least one commissioner, understood to be
Alexandra Marks, expressed doubts about whether the work required to
uncover certain miscarriages of justice was being done. According to the
minutes of the September 2017 board meeting, she “doubted whether the
enquiries that led to the discovery of the non-disclosure would be made if
the applications had been today.” How do you respond to this?

As the minutes of the Board meeting of September 2017 show, a Commissioner
did question whether current CCRC practises would today uncover the
important information that our inquiries had uncovered in earlier cases.
The question was posed in relation to two specific cases.

 

The same minute also clearly shows that the Director of Casework
Operations undertook to assess the matter with a view to amending any
process or policies if it was needed.

 

The Director of Casework carried that assessment. The process included
undertaking a “blind screening” exercise in which a very experienced
member of staff was asked to consider one of the cases afresh (without
knowing why) in order to test our policy and processes relating to checks
of the relevant kind. That and a number of other steps triggered by the
question raised at the Board satisfied us that the necessary checks would
also be made today as they were when the cases first came to us.

 

 

The board minutes also reveal a culture in which the CCRC is deeply
worried about its reputation with the Court of Appeal. It is suggested
that this factor has made the CCRC timid in the face of criticism from the
Court, impacting on staff confidence and referral potential. How do you
respond to this?

We do not accept that it is a fair characterisation of the minutes to say
the Commission appears to be “deeply worried”. Our relationship with the
Court of Appeal is central to our role. What they have to say in the
judgments they make in the cases we send them (and on other cases)  is
important. The real possibility test that we apply requires us to take
note of what the Court does and says so we are bound to carefully consider
the tone and content of its judgments.

 

 

Lawyers for Eddie Gilfoyle are preparing a fresh submission on the basis
of fresh expert evidence commissioned by BBC Panorama. They say the CCRC
has “completely misunderstood the evidence” in relation to previous
submissions on perinatal mental health; for example, that it was wrong to
describe the undisclosed Gilfoyle diaries as “arguably normal adolescent”
diaries. How do you respond to this? 

We referred Mr Gilfoyle’s murder conviction to the Court of Appeal back in
2001 but his subsequent second appeal failed. We have since looked twice
more at the case but we have not been able to identify any new evidence or
legal argument on which we could refer the case again.

 

Mr Gilfoyle can apply to us again and we will look again at his case and
any new submissions he and his legal team wish to make. They will receive
full professional and unbiased consideration. It would be completely wrong
of us to offer an opinion, or comment in any way on matters that  might
come to us as a submission,  From what you say, it seems that  a new
application is pending.

 

We do however think, in light of the comments that Mr Gilfoyle and his
representatives have repeatedly made about the Commission’s investigation
and decisions on this case, that it would be helpful if Mr Gilfoyle would
make public the full CCRC decision documents in his case so that any one
interested can judge for themselves the extent of the Commissions
investigations and the detailed explanations of why, so far at least, we
have been unable to refer his case a second time.

 

We would argue that our investigations in this case have been painstaking
and thorough. A judicial review of our recent decision not to refer the Mr
Gilfoyle’s murder conviction found no fault in our reasoning. The only way
that people will be able to judge the matter for themselves is for Mr
Gilfoyle to agree to make public the lengthy and detailed document, the
Statement of Reasons, where we explained what we have done in our review
and why we have concluded that there are no grounds on which we can refer
the case for a second time.  It is not within our power to release that
document. However, Mr Gilfoyle can do so; we hope that he will.

 

Gilfoyle’s lawyers also claim the CCRC is conflicted, and unable to make a
fair assessment of the important of the non-disclosed diaries because the
commission may have had access to the diaries during its first assessment
of the case in 1999, but did not assess them. How do you respond to this?

We are a professional investigative body and we will have no difficulty
whatsoever in ensuring that any fresh review of the case is free from
self-interest or any other kind of bias. Any reapplication will be
considered by  investigative staff and decision makers who have had no
previous involvement in the case.

 

In one of the CCRC’s dismissals of Kevin Lane’s applications, and in
subsequent correspondence with him, the CCRC states that there is no
mechanism to transplant a fingerprint from one surface to another. Lane
has maintained that could be an explanation for his print being found on
the binbag. BBC Panorama has commissioned fingerprint experts to test
this, and has established that, using the same technology available in the
90s, that it is possible to transfer a high quality fingerprint from one
surface onto a binbag, meaning the CCRC was wrong in its conclusion. What
is your response to this? 

and

 

The BBC has also commissioned a ballistics expert to analyse a key plank
of evidence in this case: that a gun had been in the car linked to the
shooting which Lane had previously used. A single particle of gunshot
residue (GSR) was found in the boot of the car. The expert has told BBC
Panorama that under today’s standards, this would NOT be considered
evidence that a gun or ammunition had been present.  The Forensic Science
Service issued guidance in 2006 in relation to this. Whilst various CCRC
investigations of the Lane case have been underway, the CCRC has actually
referred other cases to the Court of Appeal based on GSR evidence –
famously, Barry George. Given the knowledge about GSR evidence within the
CCRC, Can you explain why your investigators failed to spot this crucial
piece of new evidence in the Lane case? 

If Mr Lane and his representatives feel that they have some new
information that has a bearing on the safety of his conviction, they will
need to make a new application to the CCRC. They can rest assured that it
will be given professional, impartial consideration. If in the overall
evidential context of the conviction, new information is strong enough to
raise a real possibility that the Court of Appeal would quash his
conviction, we will have no hesitation whatsoever in referring the case
for appeal.

 

 

The Criminal Cases Review Commission
5 St Philip's Place
Birmingham
B3 2PW
Telephone: 0121 233 1473
Fax: 0121 232 0899

show quoted sections

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