Managing Efficiency and Thoroughness in Case Review

This chapter examines the Criminal Cases Review Commission's decision-making process through the lens of efficiency and thoroughness. It first considers the ‘sense-making’ process of gathering and interpreting information within the Commission and how the Commission prioritises cases before discussing the Commission's formal ‘knowledge-building’ based on expert evidence and complainant credibility, along with its cultural knowledge. It then analyses the Commission's field that sets the boundaries of the scope of organisational enquiry, the decision frames that help individual decision-makers to operationalise the concepts of thoroughness and efficiency, and the key performance indicators used to measure the Commission's success. It also explores the amount of ‘empirical’ investigation beyond ‘desktop’ reviews carried out by case review managers (CRMs) and the use of section 17 powers to obtain information from external bodies and experts. Finally, it explains how the Commission secures compliance without resorting to legal coercion.

The Nature of Applications to the Commission

This chapter examines the nature of applications for wrongful convictions that the Criminal Cases Review Commission receives and the kinds of issues raised by applicants. It highlights the potential flaws of applications presented to the Commission, such as those relating to investigations conducted by police and prosecutors. It also reviews the extant literature on the sources of wrongful conviction to explain the range of possible misconduct and legal, scientific, or human error that might lead to an applicant being wrongfully convicted, or to believing themselves to be so. A number of sex cases and ‘expert evidence’ cases are discussed to illustrate the fallibility of witnesses, vulnerable suspects, the fallibility of science and expert testimony, due process failures, and the pervasive influence of prejudice and fear. The chapter concludes with some reflections on the changing nature of wrongful convictions over the past decade or two.

Last Chance for Justice

This concluding chapter summarises the book's key findings and examines the main cultural and structural influences on the Criminal Cases Review Commission's decision-making. It begins with a discussion of three significant changes to the Commission's ‘surround’: reductions in legal aid for defendants and appellants; growing evidence of non-disclosure of potentially exculpatory evidence by police and prosecution; and the declining reliability of forensic science evidence. The chapter then considers the critics' claim that the Commission's referral rate is too low and how this raises concerns about access to justice, along with developments in the surround in relation to the ‘field’ and the ‘frame’. It also analyses variability in the Commission's response to cases and its relationship with various ‘stakeholders’. Finally, it looks at the notion that the Commission is too ‘deferential’ to the Court of Appeal when it comes to making decisions about which cases meet the ‘real possibility test’.

Working Cooperatively with Other Criminal Justice Institutions

This chapter examines how the Criminal Cases Review Commission works with two members of the criminal justice system in conducting investigations: the police and the Court of Appeal. It analyses a variety of cases, including those rare cases where the Commission uses its powers — under section 19 of the Criminal Appeal Act 1995 — to appoint an investigating officer to carry out enquiries to assist in the exercise of any of its functions. The chapter shows how the Commission deals with the investigating officer in section 19 cases and how it incorporates the results of the investigation into its decision on whether or not to refer a case back to the Court. It also explores the Commission's decision frames when it manages a section 19 investigation and when it works for the Court on section 15 investigations. Finally, it looks at section 15 investigations that involved alleged jury bias or misconduct.

‘Post-decision Decision-making’

This chapter examines the Criminal Cases Review Commission's policy on post-decision decision-making, focusing on what happens in cases when the Commission has decided there are no grounds for referral but where the applicant comes back with further information or a new application to try to persuade the Commission that its decision was wrong. The chapter first describes the legitimacy of the Commission's post-decision decision-making before discussing its instrumental decision-making based on referrals, judicial review, and procedural justice. It then shows how the Commission responds to ‘further submissions’ or ‘reapplications’, and how they provide applicants with an opportunity to have their cases reconsidered. It also analyses the empirical and theoretical drivers that underpin the Commission's decision field, the new ‘frames’ that make it possible to redefine cases in further submissions and reapplications, and how developments in the surround affects the Commission's decision frame.

Complainant Credibility in Sexual Offence Cases

This chapter examines the Criminal Cases Review Commission's approach to sexual offence cases that tend to present evidence pertaining to the credibility of the complainant. Drawing on forty-six cases reviewed by the Commission during the period 1998–2011, the chapter considers how the Commission establishes complainant credibility by discussing its decision ‘field’ in relation to the changing environment of the ‘surround’. It also explores developments in the field before and after 2006, the Court of Appeal's stance on the type of credibility that might persuade it to quash convictions, and the wider politics and media contribution to the growing concerns about victims of historical sexual abuse. Finally, it analyses the Commission's response to changes in the surround — driven by real experience of victim bashing and evidence of wrongful convictions — and identifies contrasting decision frames: a frame that is sensitive to the changing surround versus a frame concerned with wrongful convictions.

A Commission under Scrutiny

This chapter examines the nature of criticisms about the Criminal Cases Review Commission, especially with regards to its application of the ‘real possibility test’ in investigating and referring potential wrongful conviction cases. It begins with a discussion of the Commission's structural failings as perceived by critics external to the institution, with particular emphasis on the argument that focusing on safety and the real possibility test prevents the Commission from referring cases to the Court of Appeal in the interests of ‘justice’, or ‘innocence’. Critics also claim that the Commission does not strike a proper balance between thoroughness and efficiency in the allocation of its finite resources; that it is inconsistent in its response; and that it sometimes does not communicate adequately with applicants and their legal representatives. The chapter concludes with an overview of the book's key research goals as well as the methods employed to realise them.

Decision-making from Application to Outcome

This chapter examines how law, policy, and culture shape organisational decision-making at the Criminal Cases Review Commission. Drawing on Chun Wei Choo's concept of a ‘knowing organisation’, it considers how the organisation aims to influence the work of commissioners and case review managers. Choo's sociology of an organisation is used to analyse those institutional forms of knowledge that seek to direct decision-making at the Commission: primarily, the Formal Memoranda and the Casework Guidance Notes. The chapter goes on to describe the various stages in the progress of an application to show the many points at which discretion might be exercised, namely: screening and reviewing cases. It explains how the Commission decides when it comes to conducting an investigation, collecting evidence, and appointing an investigating officer to the case. It also discusses the Commission's ‘post-decision’ decision-making and concludes by returning to Choo's notion of sense making and knowledge creation.

Making Sense of Decision-making

This chapter examines decision-making and the use of discretion within the Criminal Cases Review Commission using socio-legal analysis, with particular emphasis on the application of the real possibility test at screening, investigation, and referral back to the Court of Appeal. It also describes the theoretical framework used in the review of the Commission's discretion and decision-making. The chapter begins with a discussion of how the Commission decides whether there is new evidence and whether that evidence gives rise to a real possibility that the Court of Appeal will find the conviction to be unsafe. It then considers the legal and socio-legal literature on discretion, highlighting the key features of discretionary behaviour and how it is facilitated and constrained in practice. Finally, it explores three concepts proposed by Keith Hawkins in the context of legal decision-making: ‘surround’, ‘field’, and ‘frame’.

Responding to Applicants’ Claims of Inadequate Defence

This chapter examines the Criminal Cases Review Commission's response to applicants' claims of inadequate defence or breaches of procedural rules by their legal representative at trial. It first considers the Commission's response to ‘typical’ applications, where the applicant accuses his/her defence solicitor or counsel of procedural irregularities or incompetence, before presenting a case study that illustrates how the Commission handles a particular category of wrongful conviction cases: refugees and asylum seekers who entered the UK illegally. These cases highlight the potential for a more reciprocal relationship between the Commission and its ‘decision field’ and ‘surround’, and most adopted a clear legal decision frame. The chapter also discusses the challenges in responding to claims of legal incompetence and concludes with an analysis of the Commission's proactive responses to inadequate defence and legal representation.