The CCRC (Criminal Case Review Commission) which covers England, Wales and Northern Ireland receive almost 1000 new applications each year and in Scotland the SCCRC receive over 100 more. This means that every year in Britain 1100 convicted people are seeking to have their convictions overturned and are maintaining innocence. Meanwhile the parole board rarely approve release of a person who won’t show remorse and an innocent person cannot be expected to do so for a crime they haven’t committed so as a result of this action these people are generally destined to spend longer in prison.

While obviously there are genuinely guilty people who will try to beat the system, the undeniable risk of longer behind bars will deter most of these from trying anything more than a single appeal, the risk is too great. Therefore it is only the genuinely innocent who stand to benefit from even submitting an application to the (S)CCRC because to give up hope of proving they are not guilty ensures that they will always be seen as being so.

The (S)CCRC has often been criticised for not searching for innocence rather than referring on legal technicalities however I don’t think this is particularly fair. There certainly continues to be the stigma of guilt associated with being released on legal grounds and no one can argue that this isn’t the best possible outcome for all but those whose convictions are later found to be attributable to someone else however we must take into account the legal framework in which the (S)CCRC operates. For any case to be referred back to the court of appeal, the (S)CCRC must be satisfied that there is a “real possibility” that the court of appeal would overturn the conviction. To do that, it must consider each case in terms of how the court of appeal operates and what it will or will not rule favourably on. This leaves the commission in many cases with their hands tied even when there is glaring doubt over the safety of a conviction or the reliability of the evidence presented if all the information they possess was available at the original trial or has previously been submitted for a prior appeal.

At the very least we should be grateful that the (S)CCRC exists, only in Norway does any other similar body exist meaning that in all other countries options after appeal are significantly more restricted. Originally set up in 1999 as a response to growing lack of trust in the justice system, its purpose is “to review possible miscarriages of justice in criminal courts”. I do however feel that if the commission is to be more effective in overturning miscarriages of justice so that it becomes a proper safety net against wrongful convictions the real possibility test must assess the safety of conviction rather than the prospects of the appeal court. Obviously the appeal legislation would also need modified to accommodate such referrals and must exist to protect the right to justice rather than the integrity of a system which has in many cases obviously failed to deliver just that which in turn undermines the most basic principles of what the public perceive that system to be.

One of the most insightful statistics to come from the (S)CCRC’s first decade of operation is not therefore so much the referral rate which I believe for procedural reasons is unrealistically low but instead the reasons for referring the hundreds of cases which have been successful. One would imagine that in a properly functioning justice system, with accurate forensic science and thorough and impartial police investigations, the main reason that wrongful convictions are discovered would be new evidence, the confession of an actual perpetrator or the discovery of a new forensic technique. Sadly this is not the case and only 27% of the cases referred back to the court of appeal are the result of new evidence or that which was not known at the original trial. This leaves an array of systematic failures as the cause of over two thirds of the successful cases. These more common reasons for referral relate to things such as misdirection by judges, concealment of evidence from the defence, inaccurate or misleading forensic evidence etc. and are part of what most people believe is a strict and effective justice system. But this begs the question, if over 70% of cases referred back to the court of appeal relate to failings in the system itself is that not evidence of how badly flawed the justice system actually is? From police misconduct to bogus “expert witnesses” through to judges misdirecting juries and ineffective trial lawyers everything at the very heart of justice is more commonly the cause of miscarriages of justice than the reason that most would accept – new evidence or advances in forensic science.

The (S)CCRC may not have been overly effective in addressing the issue of miscarriages of justice, but it certainly has been very enlightening in terms of showing the justice system for what it is, badly flawed and in need of reform. Sadly, operating within the constraints of the system which has already failed their applicants, the commission is rendered largely powerless to do what it was set up to achieve.