Restrictive rules surrounding CCRC review are preventing the efficient identification of some miscarriages of justice, study says

Restrictive rules surrounding review by the Criminal Cases Review Commission are preventing the efficient identification of some miscarriages of justice, a new study of the body’s work says.

A review of hundreds of cases brought before the CCRC, focusing on assessments of memory and honesty, highlights significant barriers to referring cases that were initially based on weak evidence back to the Court of Appeal.

Researchers have warned that currently those who have the least evidence demonstrating their guilt at trial can find it most difficult to appeal successfully.

Researchers found a number of applications involved initial trial evidence that was clearly weak. The CCRC effectively identified these cases and acknowledged them as weak cases but referrals were limited by the existing statutory framework generally requiring new evidence for a case to be appealed successfully. CCRC personnel agreed that these types of case could be particularly challenging and convictions that had been based on the weakest cases at trial could be the hardest to refer.

These findings help to contextualise recent recognised wrongful convictions in which people convicted on the basis of evidence with clear weaknesses, including Andrew Malkinson, have struggled for years to have their innocence recognised. 

The study says that it is essential to facilitate more effective referral of cases that can be recognised as clearly weak. This could be done through changes to underlying statutory provisions, but also potentially through some changes in CCRC review, including greater willingness to refer on the basis of “lurking doubt,” and greater utilisation of new scientific evidence.

The report says CCRC staff often adopt a sensible approach to reviewing of witness testimony. However, it also found (in line with practice in the criminal justice system more broadly) that some CCRC reviews relied on inaccurate assumptions about indications of accurate memory and honesty, relied on potentially biasing general impressions, were guided by legal precedent rather than scientific evidence, and demonstrated a reluctance to use experts in cases involving the credibility of witness evidence.

Researchers identified clear examples of reliance on questionable assumptions. These included assumptions about the impact of time lapse on memory, the importance of level of (and accuracy of) detail, the impact of familiarity on identifications, and the interpretation of inconsistencies. In each of these areas there is a relatively robust scientific literature with the potential to provide important insight.

The report was prepared for the Criminal Cases Review Commission by Professor Rebecca Helm, Director of the Evidence-Based Justice Lab at the University of Exeter Law School, and Dr Emily R Spearing, now at the University of Western Australia. Their work included a review of more than 400 CCRC case evaluations, a roundtable discussion with CCRC personnel, and consultation with memory and deception experts.

Professor Helm said: “Our review demonstrates that convictions that were based on evidence that we can now see was weak or misleading are often not referred by the CCRC due to the lack of new evidence. This is likely to be preventing the recognition of miscarriages of justice and prolonging the suffering of those impacted by them. There is a need for the justice system to incorporate modern scientific knowledge, and to recognise convictions that are no longer sound in light of that knowledge despite the lack of what is typically considered new evidence.

“More broadly, incorporating scientific knowledge into case assessments can help to limit the potential impact of incorrect assumptions and biases on those assessments, and to improve the ability of the CCRC to effectively refer miscarriages of justice.”