Alternative Dispute Resolution and Redress

The Criminal Cases Review Commission was founded on 31 March 1997. It was created by the Criminal supplication Act 1995. The CCRC has the right to refer cases to the appropriate court for an appeal to be heard (Section 321 and Schedule 11 of the Act relating to powers of CCRC). It came into being after some shocking deliveries of justice under the former system of reflection by Home Office ministers. That system was efficiently not working out in the interests of justice, nor was it transparent. “The CCRC was established to reevaluate alleged cases of miscarriages of justice” (Kelly, 2020, p. 432.). The CCRC was a necessary and timely extension to our criminal justice system, and it has done a great deal to correct evils and bring justice where there was none. However, nobody stands still, and everything needs to be reevaluated in light of changing portions and experiences. After the Commission was given the ability to send cases back to court, Parliament introduced a unique “real possibility” test (Criminal Appeal Act 1995, section 13 ( 1 ) ( a ). This test has become the main criterion by which the Commission is guided in deciding whether to redirect the case to the Court of Appeal.

The CCRC’s duty under the 1995 Act is to refer cases directly to the Criminal Division of the Court of Appeal if the panel considers that the case has the potential to succeed. According to information from the Criminal Appeal Act 1995, the Commission’s jurisdiction does not, in practice, include the obligation to establish innocence, and this can only be a by-product of its actions (Nurse, 2020, p. 71.). in the course of the work of the Commission, the test significantly slows down the progress of the verification and directly negatively affects the speed of decision-making and limits the freedom of action of the Commission. In addition, the CCRC has the authority to obtain documents with court assistance from private bodies, such as private sector providers of forensic evidence (Brown et al., 2019, p. 873.). The test recommends that the CCRC conduct a more thorough assessment of the case’s likelihood of success in the Court of Appeal. The case should be referred to the Court of Appeal in cases where the sentence is too harsh or wrong from the point of view of the law. “Another element in this model involves the position of the new evidence within the composition of the prosecution case as a whole” (Knoops, 2021, p. 198.). In theory, this should stimulate more fruitful work of the Commission and ensure the correctness of its decisions. However, the Commission has sent back to the Court of Appeal only 3 percent of its cases (Hoyle and Sato, 2019). These figures are a significant limitation of the Commission’s work. Furthermore, this confirms that the landscape of criminal appeals has gotten worse since the establishment of the CCRC: the Court of Appeal has become more reluctant to quash convictions because the jury reached the wrong decision (Hodgson, 2020, p. 308.).

The main shortcoming of the test is its determination of the relationship between the CCRC and the Court of Appeal. Some scholars argue that the test puts the CCRC in a subordinate position to the Court of Appeal when the Commission should be an independent body. The review completely contradicts the findings of the Commission. It makes CCRC think about what the Court of Appeal would think when receiving the case from the Commission. Lord Bingman criticized the test “The ‘real possibility’ test denotes a contingency which, in the Commission’s judgment, is more than an outside chance or a bare possibility” (3 All ER, 1999).

The problem with this state of affairs is that the CCRC must be completely independent of any other structures. Any machinery established for this purpose must, above all, be independent of all those bodies and agencies which have hitherto been involved in the case lead­ing up to the conviction. “The CCRC’s supposed difficulty in doing so is reflected in the fact that only two cases have ever been referred to the Court of Appeal by the CCRC more than once” (Eady D. Greenwood H. (2018). This state of affairs leaves the Commission entirely subject to the control of the Court of Appeal. Thus, due to the influence of the test, the commissions’ investigations become focused not on whether a miscarriage of justice has been committed but on whether the case has a chance of success in the Court of Appeal. Researchers in this area argue that “if the Court were more inclined to be receptive to fresh evidence, and less deferential to the jury and the principle of finality, we suspect few would complain about the real possibility test” (Hoyle and Sato, 2019, p. 337.). In the majority of cases, the Commission cannot apply the test correctly.

The appeal may be rejected, or the person may be denied an appeal. In this case, the only option for persons who want to prove their innocence is to apply with the CCRC (Hewitt and McGourlay, 2021, p. 229.). As already indicated earlier, the CCRC can return the case to the Court of Appeal only if it is proved that there is a possibility of appealing it. The success of the case after returning to court should be provided by new evidence that has not previously been presented in court, “the evidence had to be credible and relevant to the issue of guilt, the evidence had to be admissible, and the evidence could not have been put before the jury” (R v. Parks, 1961). It seriously limits the Commission in its work since it limits the adoption of its decisions and calls into question the practicality of its existence. In this regard, there is a risk of not overcoming the possible injustice that has arisen in court but only aggravating it.

The success of the Commission cannot be based on its ability to identify and remedy all those cases in which a person convicted was factually innocent, convicted unfairly, or sentenced to an inappropriate term of imprisonment. These matters are unknowable and can never give rise to statistics against which to compare the work of the Commission. “The CCRC was established because this system was inadequate and had been unable to remedy some serious miscarriages of justice” (Charlton et al., p. 6). Its success in maintaining public confidence is based on trust, or more particularly, on the media’s perception ( and those like MPs who might otherwise raise miscarriage cases with the media ) that it is a body to be trusted with getting these matters right. Indeed, to the extent that the media believes that the Commission is capable, with enough resources, of identifying miscarriages, the Commission can use the threat of future failure to obtain media support to resist cuts to its budget. In terms of the rhetoric of justice, the creation of the Commission represents success, not because such rhetoric can be achieved, but because the Commission can do more and thereby come closer to this rhetoric than what went before. Some researchers, however, consider that SSRS may be an experiment that failed (Wilson et al., 2020). It has managed the gap between this rhetoric and its operations. It has established an equilibrium between the demand for its services and what the Home Office feels able to afford. The creation of the Commission has altered the dynamics of post-appeal practices; reviewing applications is no longer the work of a small department buried in the Home Office. The Commission, a body with its Chairman, Chief Executive, Director of Finance, Commission Members, Case Review Managers, Legal Advisers, and other executive and support staff, has a far more significant stake in presenting itself as a successful body than its predecessors did. While it may not be independent of the Court of Appeal, the creation of a body with a separate corporate existence makes it unlikely that post-appeal processes will ever return to the small, passive operation undertaken by the Home Office.

References

Brown, D. K. Turner, I. J. Weisser, B. (2019). The Oxford handbook of criminal process. Oxford University Press

Charlton, G. E. Gaskell, C. Lee, R. MacNamara, W. Mahon, A. O’Shea, S. & Spiers, B. (2019). This inquiry and report were made possible through the generous support of lawyers from Simpson. Thacher & Bartlett LLP.

Criminal Appeal Act 1995, section 13

Eady D. Greenwood H. (2018). Cardiff University Law School Innocence Project (CCR0029) para 1.3

Hewitt, L., & McGourlay, C. (2021). Still standing: innocence work in England and Wales. Wrongful Conv. L. Rev., 2, 226.

Hodgson, J. (2020). The metamorphosis of criminal justice: a comparative account studies in penal theory and philosophy series. Oxford University Press

Hoyle, C., & Sato, M. (2019). Reasons to doubt: wrongful convictions and the criminal cases review commission. Oxford University Press.

Hoyle, Carolyn & Sato, Mai. (2019). Post-decision, decision-making.

Kelly, D. (2020). Slapper and Kelly’s the English legal system. Routledge.

Knoops, G. (2021). Redressing miscarriages of justice: practice and procedure in national and international criminal law cases. BRILL.

Nurse, A. (2020). Alternative dispute resolution and redress, the citizen and the state. Emerald Publishing Limited, Bingley, pp. 65-78.

R v CCRC ex parte Pearson [1999] 3 All ER 498 per Bingham LCJ

R v. Parks, (1961) 1 W.L.R. 1484

Section 321 and Schedule 11 of the Act (relating to powers of CCRC).

Wilson, S. Rutherford, H. Storey, T. Wortley, N. Kotecha, B. (2020). English Legal System. Oxford University Press