The Westminster Commission on Miscarriages of Justice made 30 recommendations in its report In the interests of justice, published last week. The Westminster Commission was set up two years ago to investigate concerns about the low, and recently declining, number of cases referred to the Court of Appeal.
MPs heard evidence that the CCRC received less than £6m in funding in 2019–20, compared to more than £9m in 2004. The organisation was short-staffed, with only 31 of the 45 case review managers it needed.
The report calls for an end to the ‘real possibility’ test, where referrals take place only where the CCRC considers there is a ‘real possibility’ the conviction or sentence will be overturned.
The report considers that the predictive nature of this test has encouraged the CCRC to be ‘too deferential’ to the Court of Appeal, and that the test ‘acts as a brake on the CCRC’s freedom of decision’. Instead, it wants a more objective test—for example, that a case is to be referred if the CCRC considers the conviction unsafe, that the sentence may be manifestly excessive or wrong in law, or that a referral is in the interests of justice. It suggests this would ‘encourage a different and more independent mindset in the CCRC’.
The MPs call for more funding, publicly funded representation and reforms that will allow the CCRC to get evidence from public bodies more quickly.
Lord Garnier QC, the Westminster Commission’s co-chair, said: ‘We believe our recommendations would lead to an improvement in the CCRC’s investigatory work, prevent it from being too wary of the Court of Appeal, and allow it to maintain its independence.’
A CCRC statement said there was ‘a strong culture of independence in the organisation’. It pointed out the number of case referrals has ‘risen significantly’ in the past two years, and this business year more cases than ever before have been referred (69 cases). It supported an independent review of the statutory test for referral.
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