The call by The Bridge of Hope Innocence Initiative (BOHII) to hold off on the development of a Criminal Cases Review Commission “is quite frankly baffling,” comments Dr Bob Moles, “and can, in my opinion, only serve to alienate them from their main client group – those claiming to be wrongly convicted – and the entire academic and professional community working in this area.”
In response to the webinar discussing the issue on August 31, 2023, Dr Moles wrote the following critique of the proposal:
The two key points which are made in the Webinar and written comments on behalf of BOHII are to the effect that proposals for the establishment of a Criminal Cases Review Commission ‘may be premature’. It recommends ‘government funding of innocence projects’ to identify wrongful convictions.
This looks like an appeal to divert funding otherwise earmarked for a CCRC to be re-directed to the Innocence Initiatives available in Australia (of which the BOHII is one). Reference is made to the fact that the CCRC appears to be unconcerned about ‘actual innocence’. This is supported by a reference to a notable UK critic of the CCRC for many years. It was responded to by David Jessel in 2011. He was a former producer of many well known television programs (such as ‘Rough Justice’) which actually succeeded in getting many cases overturned on appeals prior to the advent of the CCRC.
He went on to become a long-standing Commissioner with the CCRC. He agreed, that the CCRC statement that it was not concerned with guilt or innocence was perhaps unfortunate. Not because it was wrong, but because it was liable to misinterpreted by the ill-informed.
The point is, of course, that all people who are tried are entitled to a fair trial and due process of law. The job of any reviewer is to ensure those principles have been strictly adhered to. If they haven’t been, and the trial was unfair, the conviction is likely to be set aside and the person restored to the ‘presumption of innocence’. This is all that any ordinary person ever has. It means that the law regards the person as being innocent without the need for proof.
The distinction between this sort of ‘innocence’ and ‘actual innocence’ is one that the law should eschew. It has shades of getting off ‘on a technicality’, but actually being guilty – or some people being more innocent than others.
Criticisms are also made of the UK CCRC to suggest that it is desk-bound in its review of potential cases. This observation is derived from a comment made by a critic of the UK CCRC in the context of his statement that this is a consequence of the CCRC being deprived of appropriate funding. It is not meant to suggest that this is a preferred strategy of the UK CCRC.
However, the reference is contentious. In the last 3 years referrals from the UK CCRC have led to over 100 wrongful convictions being overturned. This has included 68 convictions arising from what is known as the Post Office scandal. This is only a small sub-set of the anticipated 700 unlawful convictions having been obtained by one of the most trusted institutions in the UK – the Post Office – which was allowed to conduct its own prosecutions.
Anyone familiar with the nature of the issues arising from this massive strategy involving unlawful conduct by the post office and its software suppliers would appreciate that the issue could not have been adequately identified by the CCRC simply by reviewing relevant documentation passed to them.
Whilst BOHII suggests we need to know more about the causes of wrongful conviction, I would suggest that a more profitable area of research would be on the innovative initiatives which the CCRC have been involved in over the last 26 years in identifying wrongful convictions. They referred 4 murder convictions which arose from the longest criminal trial in UK history as a result of a forensic document examiner retained by the CCRC. That enabled them to identify incorrect information supplied by a police officer in respect of an apparently inculpatory statement by one of the accused.
They identified illegal practices by the police at the West Midlands Major Crime Squad which led to the entire unit being disbanded.
Some 40 convictions were overturned as a result of torture and inhumane treatment by police officers – conduct which was approved up to very senior levels in the police force.
CCRC v Innocence Initiative
There are of course numerous other examples amongst the 560 wrongful convictions which have been overturned as a result of CCRC references to date including the convictions of three people who had been hanged (another occurred from a reference by the AttorneyGeneral). They include cases arising from a range of false confessions, unreliable forensic 3 evidence, mental impairments not properly addressed, eye witnesses and informants being unreliable.
A range of such examples is available here. In order to consider the BOHII proposal we should compare what is on offer by the two models being referred to – the CCRC and the Innocence Initiative (II).
The CCRC is staffed at the senior level by a number of Commissioners who are appointed by Royal Warrant (the King) to emphasise their responsibility and their independence of both govt and the legal system. The IIs are usually staffed / supervised by academic university staff at varying levels of seniority who also have additional responsibilities for teaching, research, administration, obtaining grants and publishing amongst other issues.
The case reviews by the CCRC are conducted by full-time professional case managers experienced in the understanding of police, forensic and legal procedures and usually working in small teams. They come from a diverse range of professional backgrounds to ensure a diversity of skills. The IIs depend for their review of cases upon unpaid and inexperienced students working part-time whilst studying for their other university subjects and exams, and often to support themselves doing part-time or full-time jobs whilst going through university.
The powers available to the CCRC are considerable. They have a statutory right to access any materials held by any public or private body. This includes all materials held by police, prosecutors, forensic agencies and telecommunications companies. As the former head of the UK CCRC (Graham Zellick) once stated, they even have the right to access materials held by MI5 or MI6 – the secret government spy agencies. The CCRC has the power to co-opt a senior police officer and thereby exercise police powers of arrest, detention and charge to promote or secure their inquiries. When we visited the UK CCRC offices in Birmingham some years ago, we noticed an office which had a computer terminal designated as an access point to the Police National Computer. The CCRC has online access to all materials and exhibits held by the relevant courts around the country.
By comparison, the IIs have no powers beyond those of any other private individual. The BOHII has in respect of their own work complained of the delays in trying to access transcripts of covert recordings and even to cover the costs of access to court transcripts and other materials which can also contribute to significant delays in their work.
The CCRC procedures are formal and publicly available and set out by us in our book Forensic Investigations. There is an initial assessment stage where non-compliant applications may be rejected. This is followed by a more formal assessment which can lead to a rejection by a commissioner.
The further stage is more formal consideration for referral to the appeal court which is determined by three Commissioners. At each stage, rejections are accompanied by a statement of reasons and may be subjected to judicial review proceedings.
Whilst the BOHII spends time expounding its particular approach to the triaging and assessment of its cases for review, the process is idiosyncratic and based upon the personal preferences and professional judgment of the person who happens to be supervisor at any particular time. It is not subject to formal procedures or external assessment or reviews by the courts.
The BOHII webinar and written comments refer to difficulties which an Australian CCRC will face in the context of the new right of appeal provisions now available in some states in Australia. Much of this is based upon a confusion and misunderstanding of the CCRC powers of referral.
When the UK CCRC determines to refer a matter to the Court of Criminal Appeal (CCA) the court is then obliged to hear the matter as an appeal. There is no further hearing for leave by the CCA. In effect, the CCRC has the power to grant leave to appeal.
BOHII states that an Australian CCRC would have to comply with the requirements for leave which currently exist for second or further appeals. This is not so. Those provisions were put in place in the context of convicted private citizens determining to make applications for further appeals to the CCA.
In order to deter vexatious or frivolous applications the legislatures determined to put in place a ‘higher hurdle’ as part of the leave to appeal procedure. We have explained (in our submission published by the ACT parliament) why this is based upon a misunderstanding by the respective legislatures and should be subject to further adjustment.
However, to suggest that a similar obstacle would have to be placed in the way of a CCRC when considering referrals to the appeal court would be to suggest that the CCRC would also need to be deterred from making vexatious or frivolous applications which clearly would be inappropriate.
The test to be applied by the CCA upon the hearing of an appeal is to determine if there has been a ‘substantial miscarriage of justice’. If there has been the appeal is allowed and the conviction is set aside. If not, the appeal is denied.
When the CCRC is considering a referral to the CCA there should be no reason why it should be any different to the standard test which the Australian courts would apply on a normal leave to appeal application. That test is whether it is ‘reasonably arguable’ that there has been a ‘substantial miscarriage of justice’. If so, the matter should be referred, and if not so, the matter should be rejected.
By suggesting that an Australian CCRC would be hindered in its inquiries or references by the test which has been applied by the new regime for second or further appeals would fail to recognise the errors which have occurred in instituting the new test for such cases.
An appropriate role for the BOHII would be to join us in advocating for the amendment of this appeal right to bring it into compliance with both domestic and international human rights provisions and with the equality provisions which are part of the rule of law in Australia.
In any event, by highlighting these restrictions and asserting that they would limit the role and scope of an Australian CCRC does nothing to advance the case for BOHII. Any provisions that would apply to the CCRC in such a case would apply equally to BOHII and any other similar programs. Indeed, the BOHII could be assisted by a CCRC in obtaining access to the courts for cases they view to be wrongful convictions.
If they were unable to progress wrongful conviction cases because of the lack of ‘fresh evidence’, they could refer the matter to the CCRC and then obtain a referral in that way as otherwise satisfying the test for it being ‘reasonably arguable’ that there had been a miscarriage of justice. In our submission to the Canadian Commission inquiring into the need for a CCRC there, we suggested that the conflict between innocence projects and the CCRC in the UK had been unedifying and counter-productive for both groups. We suggested that there should be a partnership between them instead. The IPs could assist in the triage phase to help identify those most likely to be of interest to a CCRC. The CCRC could assist the IPs by assisting them to obtain access to materials which ought to have been disclosed by relevant parties and, we suggested, inviting the government to provide funding to the IPs to support the CCRC in its important work.
The CCRC could make referrals to the CCA where it found IP cases to satisfy the relevant tests for admissibility by the CCA. If the IP thought the CCRC was being insufficiently supportive they could then make their own submission under the further right of appeal provisions. 6 However, couched in the way it has been by BOHII, with the suggestion that the CCRC proposal be stayed and funding be directed to IPs instead, it runs the risk of placing BOHII in a conflict-of-interest situation. Whilst its avowed objective is to assist those wrongly convicted, the means by which it is proposing to that will advance the interests of BOHII (by obtaining additional funding) yet diminish the chances of success of those wrongly convicted.
If that were to be in doubt it could be tested this way: Ask those who wish to have their cases reviewed which model they would prefer
a) The CCRC with statutory powers to access information and automatic access to all transcripts, with full time professional staff to conduct reviews, with Commissioners with the status of ‘Royal Commissioners’ to determine issues of referral; or
b) An Innocence Initiative staffed by part-time inexperienced students, doing their best amongst their busy schedules, with academic supervisors who have to compete for grants, teach, research and publish along with their review objectives.
Since this issue was raised I have yet to find a single person amongst the cohort of those claiming to be wrongly convicted, or supporting them, or even those working for IPs who would support the proposal to fund IPs in place of a full time CCRC.
Andrew L. Urban writes: Applications for a review by a CCRC would be restricted to cases rejected by appeal courts. In this blog we have reported on cases where the failed appeals are themselves flawed, often for the simple reason that the argued grounds were insufficient. Better grounds could well have succeeded.
One of the key attractions of a CCRC network around Australia, would be the opportunity for such cases to finally secure a correction to the verdict by virtue of the investigation undertaken by the professionals working for the CCRC.
The Bridge of Hope Innocence Initiative is a joint venture between RMIT University and The Bridge of Hope Foundation that aims to investigate claims of wrongful conviction.