Carolyn, who I presume everybody in the room knows, is professor of criminology here in Oxford.
And in addition to working on wrongful conviction, she has also for a long time worked on the death penalty and also on domestic violence.
Carolyn, the fact that she wrote this book,
I'm particularly impressed with because she actually did all of the research for it while she was director of the Centre for Criminology.
And as I'm currently director of Central Criminology, I cannot imagine doing enough research while doing that to produce a book like this.
But anyway, Carolyn Will, we'll talk for 40 minutes about about the study and about its main findings.
And then she will be taken to task by Hannah Snow, who is reader in criminal law at King's College London,
and who was previously some time ago now a case manager at the Criminal Case Review Commission.
So has particular insights, I think, on some of the sorts of things that Carolyn has written about.
And Hannah has also worked on Innocent Innocence Project in New Orleans.
So count for about 20 minutes, 45 minutes panel, talk for about 15, and then we'll have about 30 minutes to request her some questions.
And then after the talk, we are having a wine reception, I believe in the room next door.
But as a chief, thank you.
Just writing down. What time is this? So I know what time I should shut up. So thank you for coming.
I promise one thing. This is a Brexit free environment. I will not be talking about that for the next 90 minutes.
So that's a nice break for us all. So this book is very beautiful.
Looking book is the product of four years of empirical research on decision making and discretion at the Criminal Cases Review Commission.
And it was done with a full cooperation and with very generous support from the Commission.
And it was also done with some research assistance from my SAT who you can see up there.
She is not with me today because she's emigrated to Australia.
I don't think that's a reflection on working with me, but who knows?
Now the book reveals what happens to those people who applied to the Commission for
post-conviction review when they believe themselves to be wrongfully convicted,
either in the courts of England, Wales or in Northern Ireland.
And so the book explores how the commission staff employ those discretionary powers to decide whether or
not to investigate how to investigate a case and then whether or not to refer it to the Court of Appeal.
So how did the commission come about?
Well, in the late 1980s, British criminal justice was shaken to its core by a series of cataclysmic wrongful convictions,
many of them, though not all IRA terrorist offences.
And in 1991, on the very same day that the Court of Appeal quashed the convictions of the Birmingham Six, who you see here on the slide,
the government issued or announced a Royal Commission on criminal justice that reported some
two years later making some 350 recommendations for improving criminal justice in England.
Wales of interest was his recommendations 331, which is to establish a new authority to crack possible miscarriages of justice.
And sure enough, the Criminal Appeal Act of 1995 escalates thought about the Criminal Cases Review Commission,
which started business in April of 1997.
Very fittingly, I think, in Birmingham now, making decisions about how to respond to applications,
the commission draws on the range of powers given to it by legislation and also various different resources.
So it has about 30 to 40 caseworkers, what they call case review managers.
It has commissioners who make the ultimate decisions about how to investigate the case and whether or not to refer it.
And there are about 12 commissioners at the moment to the equivalent of eight full time commissioners,
legal adviser, investigations advisor and the whole team of administrative and executive support.
Now it has limits to its independence. The Commission can't quash convictions.
It has the power only to refer those convictions back to the Court of Appeal.
And the Court is obliged to hear any case that the Commission refers to it.
But the Commission can only refer if they believe a case has a real possibility of success,
a real possibility that the court will find it to be unsafe.
Now, the real possibility test, as it's called, was defined by the Criminal Appeal Act.
But as you can see on the left hand side of the slide, it's not a terribly helpful definition to help the commission in deciding what those cases are.
And so case law and both the Court of Appeal, but also from the administrative court, has tried to.
Tease out what it means. And I think Lord Bingham's comment in the Pearson case here is perhaps one of the more helpful explanations,
and it makes clear that the real possibility is more than an outside chance or a better possibility, but which may be less than the probability.
It's not even then terribly helpful, but that's what they have now.
The Commission's decision making is inextricably tied to the Court of Appeals decision on whether whether or not a conviction is unsafe.
The court, of course, does not have to be satisfied that somebody is innocent.
That's irrelevant, really. And so to decide a case is unsafe, the court must be convinced that the evidence is capable of belief,
capable of forming a ground for allowing an appeal. The evidence must be fresh.
By that I mean it can't already have been presented to the trial court or to the Court of Appeal.
And if it is fresh, there must be a reasonable explanation for the failure of the defence to use that evidence at trial.
Now, how does the Commission know when they have evidence that could persuade the Court?
How do they know when it's fresh? And importantly, how do they know when the explanation of a failure to reduce it to trial is reasonable?
These are among the many questions we decided to ask in a very long, empirical study, which, from my point of view,
started back in 2010 and continued for years afterwards, much to the tolerance of the Commission.
Now the commission receives at the moment about 1400 applications a year.
It refers only between one and 4% of those.
The referral rate has been declining in recent years.
This, of course, is a significant attrition rate, and this has led to its critics calling it not fit for purpose.
And you can see on the right hand side of the slide that the different criticisms that have been aimed at the commission now,
there has been some small studies on the commission and a very good study by Warrick on the role of legal representative at the commission.
But this is the first study, the one that we did, that really looked thoroughly discretion at decision making and discretion at the commission.
And that's why I'm quite well placed to answer these criticisms.
And I think first, before we go into any detail from this study, I think it's important to say the Commission is fit for purpose.
To say otherwise is just wrong. It started work, as I said, in 1997, and since then it's referred back to the Court of Appeals 657 cases.
The court has allowed the appeals in 437 of those 437 people's lives have been changed around by the commission.
Many people who would otherwise be in prison are out, and those people are left to rebuild their lives.
That's not easy, as research by one of my doctoral students has shown, but nonetheless, they have the opportunity to do so now.
It is also, as you say, a more impressive rate than the commission's predecessor,
which was a small unit in the Home Office known as C3 and really didn't do a particularly good job.
So are too few cases referred?
Probably, but not by a long way. Is it too slow?
Is it too thorough? Is it too unfair? I should say? Well, it can be a little bit slow, but it is usually thorough.
Is there huge variability in responses? There is some variability and yet much consistency across the board.
Is it too deferential to the court? Yes, inevitably so.
The legislation has made it so. Could it be a little less deferential in practice at the margins?
Probably. So what I bases conclusions on, we took a stratified sampling approach to collecting our cases.
We had cases that represented the bulk of the commission's work.
The one type of work that they do that is not represented in our sample is the Northern Ireland cases, and I can talk about that.
In fact, Hannah could talk even more eloquently on that matter because she's written on the topic later on.
I won't go into that during this presentation, but these cases, each of those 146 cases that we reviewed in great detail,
if you were to print out all the paperwork in any one of those cases, you'd have many box files lined up on this table just for case.
So it's very thorough, in-depth research, and we subjected it to analysis, both qualitative and quantitative.
And while the bulk of the book focuses on these cases over a series of different chapters,
other chapters in the book look at the relationship of the Commission to other institutions in the criminal justice system,
to the practice of screening cases in or out at the Commission, to its dealing of of replications, etc.
So there are other chapters dealing with more organisational systemic issues.
I'm going to focus primarily on the cases. But before I do so, I want to just say a few things about screening,
because I mentioned this high attrition rate of it's approximately 1400 applications a year.
The commission reviews in depth, conducts long reviews that can last months and even years.
Just over half of these cases screening out the others with a very superficial review of the case.
So what you have here on the slide is the of every hundred cases,
I think you have about 50 to go through to that thorough review system and a handful being referred back to the court.
And this causes people at the commission responsible for screening considerable anxiety,
as it would, I think, any of us, because screening is based on minimal information.
It's an inexact science, as one of our interviewees said here,
and the commissioners get alarmed by what they perceive to be some inconsistency in how people approach the screening process
and therefore inconsistency in outcomes of that process and a fear that innocent people are slipping through the net.
Now, some applications contain very little more than an assertion that the applicant is innocent, with very little to go on.
And in an ideal world, the Commission would go out and interview each and every one of those applicants, especially the young,
especially those that don't have English as the first language, especially those with learning difficulties.
But it does not have the resources, nowhere near the resources.
And so it has to screen out cases based on the information it has coming in.
So the question then arises, in my view, if you were to apply to the commission,
would it make a difference as to whether or not your case was screened in for a thorough review?
If you've got one commissioner rather than another, that's one of the questions we asked.
So while some commissioners were very confident that they could screen in accurately, others said that it kept them awake at night.
They found a great deal to make them anxious in the task.
And perhaps not surprisingly, we found some inconsistency in the screening process.
Now, in all cases that apply to the criminal cases,
review commission appeals should have been determined or leave to appeal, being refused before an applicant applies.
So they should have exhausted their direct appeal rights. And yet about 40%, four zero of applications for commission are no appeal cases.
So we looked at how decision makers dealt with these no appeal cases.
And what we found was that if you take the the book has the full table.
I've just chosen a few examples here.
But if you take Commissioner two who had screened over a thousand of such cases, he or she had sent only 4% of those to be thoroughly reviewed.
The other 96% were dismissed, whereas Commissioner 11 had sent nearly a third and Commissioner 15 50%.
So if you were applying to the commission and you hadn't gone through the direct appeals process,
my guess is you would rather have your application land on the desk of Commissioner 15 than Commissioner too.
There is no reason to believe these cases were any different because commissioners received these applications on a pretty random basis,
with a few exceptions. But the exceptions did not tell this story.
So there is some variability in the early screening process, but what about in the other cases?
Now, when I said my scoping study of the commission back in 2010,
I interviewed lots of commissioners, pretty much all of them, and quite a few caseworkers.
And one answer to my question about how do you make decisions in these cases,
both how to investigate a case and whether or not to refer the kind of answers I got at the time.
But would you just refer a case by deciding it on its merits that each case is distinguished by its spots?
Now, this is not a wrong answer by any means, but it is an incomplete answer.
It suggests a somewhat positivist approach to casework decision making, which could only ever provide a partial explanation for decisions.
And there is a large body of literature which I won't bore you with, because you're probably very familiar with ancestry legal studies.
That makes clear that criminal justice institutions rarely base their decisions solely on the facts of the case.
And if such a positive understanding would not really allow for the kind of sense making
and interpretation that informed decision making in all criminal justice institutions,
it would permit no role for for normative or organisational or economic or political factors, economic factors to do with,
for example, the very high rate of applications coming to the commission at a time when they've got a declining budget.
So instead, this research considered that discretion and decision making both at the individual and also at the organised.
Social level, allowing for the latter to impose certain objectives and constraints on individual decision makers in their day to day decision making.
And that's, of course, not to say that we ignored the law.
The law is crucial to our understanding of why so few applications end up before the Court of Appeal.
Given that the Commission is constrained both by legislation and, as other explained, as we move on by jurisprudence from the courts.
And so we drew on this body of such a legal studies literature, but particularly on Keith Hawkins,
work on discretion to pursue a naturalistic approach to decision making,
understanding it as a as an interpretive practice,
and understanding how we could identify those conditions that could lead to certain legally consequential outcomes rather than others.
And Hawkins typology off of a surround decision field and a decision frame was was particularly useful for our understanding of this.
And so if we think surround is is the the economic, the political of another sort of environmental factors,
which condition discretionary decision making and surrounds are rarely unchanging.
And what happens is as the surrounds change, the commission has to make certain consequential changes to that internal decision making.
And at the time we did the research, the surround of the commission was characterised by very severe, really drastic cuts to legal aid.
So for applicants for appellants and for defendants in court,
it was also characterised by rising evidence of a very significant non-disclosure of potentially exculpatory evidence in the courts,
which has been in the press so much.
Most of you will have seen two threats to the reliability of forensic science that started really to come to the fore when the government,
rather stupidly, in my view,
closed down the National Forensic Science Service and set up private services or private services evolved around the country,
but also evolving forensic science. Science moves on, and the evolving forensic science has influenced the commission's work considerably.
New court jurisprudence, the cases that come out of the court that influence how the commission then has to go back and look at its own cases.
And as I mentioned before, arising applications, the commission, which again we can talk about later,
why that has been and a consequent relative reduction in the Commission's budget.
Now the Commission has to respond to all of these changes in the surround.
They can't ignore them. They have to shape the way it deals with its cases and it can.
These changes in this round can bring about consequent paradigm shifts in its own dealing with cases within the Commission.
And so the decision field of the Commission really comprises those organisational
imperatives found within what are called in the Commission of casework guidance notes,
very important documents not publicly available that tell the Commission how to respond to each of its cases.
Also that formal memoranda and and these documents really show the commission will
tell individual commissioners and caseworkers how to respond to certain cases,
how to respond to certain evidence, what to see is important, what to discard as less relevant.
And they show how decision making happens at that institutional, organisational level.
In addition to this, you have the typical working rules, expectations, assumptions that the Commission has that come through these formal documents,
but also are developed through networks, informal networks in the Commission, through mentoring,
through supervision, through just general socialisation, socialisation process.
And what happens is this field shapes decision making in the Commission such that most responses to most cases are fairly consistent.
They also, because people follow the casebook guidance notes.
Now a changing surround is perhaps best understood by considering paradigm shifts in forensic science or in expert evidence around science.
So evolutions in science could be better evidence that can come from low copy DNA, for example,
or changing ideas about material fibres found at the scene or firearms discharge residue.
The science has moved on in all of these scientific areas, and that influences the decision making at the commission and many of our cases.
As you can see from this quotation, concerns were raised about how scientific data had been interpreted at trial,
leading to the commissioning of new fresh evidence from expert witnesses that the Commission would then use
to present in its statement of reasons for why a case should or should not be referred back to the court.
Now, following investigations and investigation doesn't just inevitably lead to a.
Going back to the court.
The commission has to decide whether the new evidence really does present a whole new view of things such that the case will be referred to the court,
or just an equally plausible account of what might happen. Now, in 31 of our cases, expert evidence was commissioned to draw on evidence,
on scientific knowledge, to test the evidence already presented at trial.
And I want to share just one example of this and that scientific understanding of what is normal in children's genitals,
which brought about significant change to the surround in convictions for child sexual abuse.
So seven of all cases involving convictions for rape or sexual abuse of children were referred back to the court and the convictions were quashed
on the basis of new expert witness evidence concerning the publication of this report from the Royal College of Paediatrics and Child Health.
Now, the trials had taken place in the late 1990s and the early 2000,
and at the time there was a consensus really about how to interpret certain differences or possible injuries to children's genitals.
And what this report showed was that evidence that had previously been considered to be properties of sexual abuse was no longer inevitably so.
So research was showing that these differences or what could have been seen as injuries were in fact conserved,
but were in fact observed with comparative frequency in children who had not been abused as they were in children who had been abused.
And so this report provided some scope for the commission to make some interesting referrals.
And you see on the on the quotations from two different cases here, what had been considered to be conclusive was no longer conclusive.
And so and because the report had been published after these trials,
it meant the Commission could use that expert evidence to refer the case back to court, not stumbling across the Section 23 obstacle to referral.
If you've not got fresh evidence that this is fresh because it was a new report that the defence could not have relied upon in court.
So the report also made clear what was necessary by way of investigative evidence on on
actually examining children to make sure that the evidence that presented the court is,
is thorough and some of the cases went through on that process.
So in light of this, the commission enthusiastically pushed through a number of cases with the decision fields
on these types of cases shifting as soon as the court started to accept these cases.
So it created a sort of referral momentum, but the court hates to feel that the floodgates are open.
And so here, as it often does, it started to shut them down again.
It started to reject cases and show that the report was not inevitably fatal to the safety of a child abuse conviction.
And here what you see is while the report this is the case about guidance on the on
this field change and why the court had undermined the safety of the convictions.
The Commission soon realised that the Court was going to scrutinise the complainants credibility, consider all the other evidence,
including other possible explanations for variations in children's genitals before concluding that the convictions were unsafe.
So again, the court changes its my the court starts to narrow the focussed.
The Commission has to respond to that and follow suit.
And so following the first few unsuccessful referrals,
this is what the Commission published by way of new guidance to tell people how done this is not inevitably going to to change things around.
Now, another change in the surround that the commission has had to respond to is the
court's increasing reluctance to quash convictions in cases where the police
or prosecution have acted without integrity or whether defence is incompetent
unless the failures in policing or prosecution are determinative in themselves.
So there must, in other words, be a nexus between the due process failure and the safety of the conviction.
So again, the relevant case, what guidance notes changed in the light of the Court's rather more stringent interpretation of this issue?
Making clear, as you can see by the first two comments on the slides in the case guidance notes,
the evidence of misconduct should be considered in the light of overriding question of how it impacts on the safety of the conviction.
And as the quotation at the bottom from one of the caseworkers that we spoke to said,
it's not non-disclosure per say that makes something meritorious.
It's always the significance of the material rather than the mechanics of how why it didn't come out.
That says exception to this. The most egregious cases do go through, but they have to be pretty egregious unless you can.
Nexus between the safety and the poor practice.
So while the field guides, decision makers and shapes approaches to investigations and thereby produces some consistency,
quite a bit of consistency in approaches,
it also leaves some room for discretion, some room for deciding when material significant when a case is sufficiently strong.
And Tolkien's notion of decision framing helps us really to understand this,
helps us to understand how different commissioners or different caseworkers might come to different conclusions on the merits of a case.
So a decision frame is a structure of knowledge.
It's a structure of experiences, values, meanings that the Commission employ in deciding when there are reasons to doubt
the safety of conviction and how to proceed in the analysis of the case.
So it kind of answers that question what's going on here? And the facts of the case are not synonymous with the frame.
The facts the frame helps the commissioner to decide which facts are relevant,
which will help them with their investigation, which can be dismissed as not relevant.
And frames, of course, are all shaped partly by the culture of the organisation.
So the Commission is a risk averse, slightly diffident, anxious organisation,
very thorough, but it's also shaped by individual decision makers, personal biographies.
And so what you might in the literature refer to as operational ideologies or frames of reference, and these are what create variability.
And if you look at any one case report,
you see this often lots of equivocation on a case about whether or not to refer disagreement between caseworkers and commissioners,
even though the facts of the case might remain the same during those deliberations.
Suggesting that the facts do not, of course, speak for themselves or do not only speak for themselves.
Now, in decision framing, because of the real possibility test, the Commission always employs to some extent a legal frame.
They have to decide which facts are legally relevant, which have authoritative consequences.
But at the same time, because the process of sense making is driven not only by legal factors,
by by a sense of plausibility and by persuasiveness of the information.
This a narrative frame can sometimes develop alongside the legal frames.
So what you see here on the slide in case E1 this was a case where the Commission could
not refer on the erroneous statistical evidence on cop death because it was not fresh.
It's already been revealed at trial and the Court of Appeal.
And so the Commission kept searching, kept doing tests, kept investigating to try to find something else.
And eventually tests revealed, a microbiological test revealed something that would help the application go to the Court of Appeal.
It did go to the Court of Appeal and the case was quashed.
Now, when you dig in to the case, what you see, not just the discovery of some science that helps this case,
but a tenacity on the part of the case worker that was driven partly by a sense of the credibility of the applicants very early on.
And I can't give you the examples because I will breach anonymity and get in trouble with my lawyers as well as with the commission's lawyers.
But just take it from me. There is evidence in that case that shows that the credibility of the applicant was really driving
the casework because they wanted desperately to find something to get that case back in court,
and they were right to do so. The other case, which was another case, is whether it's injuries to a child's genitals.
The applicant had tried to explain these by way of a sporting accident.
In fact, the commission decided the sporting accident was too minor to really justify a referral back to the court.
And again, when you look at the case records, you find evidence that the narrative of the applicant was not so credible.
Indeed, the quote that we're puzzled by, the applicant's silence meant of use not relevant to the to the scientific investigation,
and yet clearly shaped to some extent that decision about how far to take with that or whether to take a chance and refer it back.
So clearly, the narrative frame doesn't compete with the legal frame.
So a good story can't compensate for a lack of forensic evidence that won't satisfy the real possibility test.
But the evidence is often contested, suggestive of various different conceivable outcomes.
And so what happens is that the narrative framework helps them to make sense and choose certain cases, perhaps instead of others.
So the internal guidelines shape practice, such that there was much consistency in the approach across the Commission.
That said, our analysis revealed some variability in decision making,
suggesting that the variables beyond these case base based factors can influence a review of whether or not to refer a case.
This is not at all surprising. Then we write about submission making decisions.
In fact,
decisions to refer are made by three commissioners and the caseworkers and decisions not to refer are made by one commissioner and the caseworker.
So their individual biographies are bound to influence to some extent.
And factors such as whether a caseworker is relatively new in post can make a difference,
whether they have a background in law, whether or not they are just naturally tenacious and dogged or not.
So these variations mean that different commissioners, as these quotations from commissioners themselves have told us, have different styles,
and different styles can produce different decision making and these different styles and different models in which information is selected.
This process is utilised really can I think.
Tell us a little bit about the Commission's response to re applications.
Now, there's no limit to the number of times you can apply to the commission.
So if your case is rejected, you can come back with another application. You can keep coming back.
About 14% of applications to the Commission are, in fact, re applications.
They're slightly less likely to be screened in for a full review, partly because they often just come back and say exactly the same thing.
But if they're screened and they're slightly more likely to be successful, to be referred back to the court,
and that's partly because something might have changed in the science,
some shift that happened between the applications that the commission can then refer again.
So the whole thing about cop deaths after the Angela Cannings case on cot death and then the subsequent Attorney-General's
review allows the Commission to go back to cases that they previously turned down and look at them again to say,
now we have the chance to put this back before a court so you can see how replications might be more successful.
Occasionally every application is successful without any such change.
And this is a quote from one of the commissioners who is looking at a case that he or she had previously screened out and now is deciding,
and maybe we'll screen that in. So this is the same decision maker changing his or her mind.
One case came in in 1998, was not restored.
After an investigation came back in 2002,
it was decided not to review it thoroughly because the commissioner decided that it largely raised the same matters and therefore it was rejected.
Came back in 2010 with a particularly good and very tenacious lawyer and come back
to maybe talk about this and questions why it matters to have a good lawyer there.
We have the commission saying, yeah, we'll look at this again.
Not completely impressed at that screening process, but worthy of a look.
It was then passed onto casework who is particularly tenacious, very smart, worked incredibly hard commission,
threw lots of resources at the case and it went back to the Court of Appeal and the convictions quashed.
The person is now out. It shouldn't be of any surprise to us.
This happens across all criminal justice institutions. But the Commission is criticised for this.
It's criticised for missing some things. It's not often praised for getting it in the end, but it's precise a mishap.
So to conclude, the court's evolving jurisprudence that we've talked about,
which is a key feature of the Commission's around directly impacts on its decision field,
which thereafter of course influences its decision frames and the legislative predictive
nexus really between with the real possibility test and how it's tied to the court,
looks the commission into this very close relationship with the Court of Appeal,
leading its friends as well as its critics, to worry that it's overly deferential to the Court of Appeal.
Now, we've seen examples in our research where the Commission pauses on making a decision about the referral
of a case while it's waiting for what the court does with a previous case that's very similar to it.
Now, that means that when the court ships its interpretation of safety,
the commission follows suit because it follows the results of the court and decides to resolve not according to past judgements.
So if the Court gets it wrong because it's too restrictive in its interpretation of its own legislation,
if it affords no opportunities for the Commission to push back to correct the Court's jurisprudence,
if the Commission was prepared to push it the boundaries of the real possibility test and make bolder, perhaps contrarian referrals.
And if the Court was persuaded by these bolder referrals to be more receptive to fresh evidence
and the certainly evidence that the court is becoming less receptive to fresh evidence.
Then you could perhaps have a less deferential commission, a somewhat less deferential commission.
And I think in that case, there would be fewer critics of the real possibility test.
Now, given the currently decreasing referral rate, which people are getting concerned about serving commissioners,
this might be a good time for the Commission to make a bolder approach to its referrals to try to shift the court's jurisprudence.
Though the obvious risk, of course, would be an overall lower success rate if it's pushing more borderline cases through.
And some commission staff worried that to put borderline cases through would risk reputational damage to the commission and also raise
applicants expectations only to then dashed than other commissioners thought that they could push through on these great cases.
And that's what you see on the quotation there from one of the members of staff that we talked to.
Now, even if the commission was prepared to try to push the boundaries of the Court of Appeal and make it more receptive to fresh evidence in cases,
it's unlikely that the court would uphold all such borderline cases.
But even if it did, the process of referring the case back to the court having aired in court,
would at the very least expose systemic failings in the criminal justice system.
And at a time of rising concern about non-disclosure, for example, or incompetent defence,
because there's not enough money pumped into the system at an age in a time of austerity,
this could, in and of itself, regardless of the outcome for each and every applicant, be potentially quite beneficial.
All of us. Okay.
It's a huge privilege to be here this afternoon to been asked to comment on Karen's book.
It's a great piece of work.
It's been a painful process writing it at times, but it's a really serious piece of scholarship, and I would definitely commend it to all of you.
I remember when I was starting my Ph.D. research, I was interviewing a solicitor and he said to me that he was leaving private practice to
go and start work at this new organisation called the Criminal Cases Review Commission.
And I remember talking to him and saying, what an exciting, amazing job that sounded and how I'd love to do something like that.
And a few years later ended up as a case review manager at the CCRC.
And I'm it was a wonderful job to have.
It was an incredibly inspiring organisation to work in it.
So it is the first organisation in the world that was set up to investigate miscarriages of justice.
I remember watching the news the day the Guildford Forward and the Birmingham Six were released from custody,
and at that time the young people in the audience, there was a real sense that criminal justice was in crisis,
that the system here was fundamentally broken, that there was police corruption,
that the courts were highly resistant to acknowledging mistakes and something needed to be done.
The Royal Commission on Criminal Justice that was set up in the wake of those cases was fairly disappointing in most of its recommendations.
But the one thing that most people agreed was a good thing to come out of it was the commission.
Since then, it's had a more mixed press, and that's one of the really important things about this book,
is it actually allows us to engage seriously with that debate.
There's a lovely moment in the introduction when Caroline talks about how she got interested in working in this organisation,
and it involved an unnamed British academic being somewhat abusive to our American colleagues in the Innocence Network.
And this sort of peaks a curiosity in the topic using hearsay and bad character
type evidence we probably wouldn't be allowed to use in court these days.
I think I had a similar introduction to the topic and became very interested in working in this area as an academic,
moving away from being a practitioner. And I'm going to talk about two aspects of the book that I think almost interest me is the role of
academic researchers in engaging with important public bodies and the criminal justice system,
and also the influence of scholarship in practice from the United States and the effect that's had on the work in this jurisdiction.
I would say the divisions of early career academics being able to write about something you're passionate about is a wonderful privilege.
In this job, we were an innocence.
What conference in 2005, I think.
And I was very, very fired up by some of the conversations that happened that day.
And that led me to writing an article a couple of years later.
That is probably the piece of work I'm very proud of. So it's important to believe in what you're writing about and to have that commitment.
But there's a difference, I think, between scholarship and practice, and I think this book illustrates some of that quite nicely.
So I left the commission in 2004, which is the point where Carolyn's research notes that the efficiency of the commission improved.
I'm not sure if the two things are related or not.
And I went to work at the Innocence Project in New Orleans for six months,
and I had this wonderful idea about compare and contrast with how the UK and the US deal with miscarriages of justice.
That lasted for about 20 minutes.
As I'd gone from a very nice office in Birmingham with a government funded body with statutory powers to gay materials,
with a budget that could fund forensic testing powers to ask the police to conduct investigations.
And there's chapters on all of these things in the book to a small office in New Orleans that was literally being eaten by termites.
We weren't allowed to use the front desk because it was collapsing a forensic labs that was named after the sheriff.
There was just no pretence of any kind of impartiality.
And the office was run by students. And two weeks after I left, most of it was very badly affected by Hurricane Katrina.
Um, so that these two very,
very different models and this sort of bureaucratic idea of safety and testing procedurally whether or not the conviction was properly obtained,
and then the much more sort of visceral campaigning, absolute innocence type work that was undertaken in the States.
Now, a number of academics in this country decided that the commission was not working.
It was not fit for purpose, although the criticisms that you heard, because there was this belief in innocence,
that this should be a black and white issue, that we should be out there campaigning.
There's a nice line in the book about how there'd been several years of criticism of the commission,
but none of which was founded on empirical research. It's really important we know what we're talking about.
You can't just look at somebody and know if they're guilty or innocent.
It's a much more complex matter.
Um, and one of the things I really like about this book is how Caroline Carolyn Metabolises it is not just a legal body, but a cultural institution.
And that's interesting. It's not just the paper. It's not the Criminal Appeal Act of 1995.
There's something much more complex going on, and it's a unique organisation.
It's one of the few areas of the criminal justice system that is inquisitorial.
We have the prosecution and the defence make a different sides.
The Commission is supposed to be disinterested and I think that's one of the things that some of its critics have struggled with,
that it's not the campaigning body. Previously, there were groups who would campaign for people who said they were wrongly convicted.
The commission fulfilled that role of investigating those cases, but took a very culturally different approach.
There's some very nice, complex theory in the book, which is very, very deftly handled.
That makes sense of a lot of these issues. It's a very engagingly, written book, even if this isn't your particular area of obsession as mine is.
It's a very engaged, well-written book that deals very nicely with some very complex theoretical ideas,
but it uses that to move beyond just throwing brickbats or being counted.
How many cases have been referred to actually look at a more complex, subtle institution?
And it's quite difficult to research an organisation such as the Commission.
If you look at something like the police, almost everybody has been through police training college.
If you look at the Crown Prosecution Service, they're all prosecutor.
They have a legal background.
So there's almost a similarity of culture, whereas the commission quite deliberately drew people from a variety of backgrounds.
They didn't just want an organisation full of lawyers. They wanted people who had other skills, different ways of working.
So academics, probation officers, we had journalists.
You know, there's a whole different array of perspectives that were brought to bear on that, which makes it quite tricky to.
Their eyes and conceptualise and say, this is how a case review manager works because they are all very different.
It also makes it quite tricky to write up your research in some ways.
I'm a long time gone from the commission. I don't know that many people I know, but I imagine those who are there will be thinking, who was this?
The commissioner who had the be electrically short temperature was about to erupt at any moment.
It can be quite tricky, not not personalising some of this.
Now, a small organisation or an institution in a sort of a vulnerable position, perhaps it shouldn't get a free pass.
I think it was a remarkable institution. Michael Howard was the home secretary who set up the CCRC.
He was possibly the most right wing home secretary we've had.
But it was an extraordinary legacy that he left.
It should be monitored. It should be subject to criticism.
But there is a risk of jeopardising it with with careless criticism and unsubstantiated
criticism and the loudest voices being able to throw these allegations around.
So I think it's really important that we've got this kind of body of research that can test some of the wildest allegations that have been made.
Much of the literature around miscarriages of justice that Karen Andrews put in the book is American.
And I have some concerns about about that because I think because of the
differences between the systems that haven't made as much written in this country,
obviously. And there's been a real paucity of empirical work in criminal justice since release of the kind of glory days of the early nineties.
It was like glory days for research, probably not for the actual criminal justice system.
So we tend to use data from the states.
But I think the real very fundamental difference is that not all of which we can transfer quite as easily.
And also the idea around setting up innocence projects in this country as a counter
balance to the Commission again is something I've written about saying I really don't.
That's an idea that works terribly well. But I thought about it more in the last couple of weeks.
I've done a couple of talks with attorneys from the states who've been over here doing talks about cases I've worked on.
So the lawyers for making a murderer, the boy from the staircase.
And we've been to four or five different cities selling out venues, 400, 500 people a night.
And I thought, why are we doing this with the English legal system?
The commission is chartered sort of. It starts off at probably the lowest points in confidence in the criminal justice system.
The ground has shifted enormously, as I think this book charts very cleverly, sort of the different types of cases that we've moved from,
cases where the police beat confessions out of suspects or put shotguns under their beds.
It's much more likely nowadays to be false testimony in in sex cases or problematic forensic evidence.
So the nature of the casework has changed the nature of the criminal justice system failure, then it has have changed, too.
And there is so much going on in this country. But it's not glamorised.
It's not televised. I'm not trying to think what? Why aren't we doing this with cases here?
We have far fewer cases of demonstrable, factual innocence, which I think is a problem.
That's a story that you can tell the public. Yes, this person spent 16 years in prison for a crime he didn't commit.
Here's a DNA test to show that. That's the campaigning to our system is in many ways progressed from that.
But it becomes a much harder narrative to make to the public to persuade them why this is important.
And we've seen attacks on the criminal justice system that have made it much harder for defendants to get the fair trials and
cuts in legal aid at the police station and the representation at trial if they have to make contributions about themselves,
the ability to get material disclosed to them. These are all causes or potential causes of miscarriages of justice that are much harder to uncover,
which may be another factor behind the Commission's declining success rate.
For want of a better word, part of the issue and the book keeps focussed on the commission itself, but obviously the Court of Appeal is nothing more.
And maybe that could be on the. Project, the attitude of the Court of Appeal and the fact that I just made a note when you were talking about
its tendency to shut cases down once it seems too many cases are getting through of a certain type.
L'oreal's, who was a former commissioner, wrote about the court having the Duke of York type approach to cases.
As we get halfway up the hill saying, yes, we'll quote all these cases and then, oh, we don't want that many.
And and going back from months, the court have never addressed its role in miscarriages of justice.
Its comments surrounding the Birmingham Six and the Guildford Four were reprehensible and there was an
outcry at the time which kind of went away and its role in perpetuating these miscarriages of justice.
They've already been knocked back once by the Court of Appeals. Most of these cases, that role hasn't been addressed.
And that is such a strong what's the word I'm looking for, if you like, a planet, this sort of putting something else out of alignment.
Its role is is is a fundamental importance here.
And the idea of perhaps the commission being able to challenge more is an important conversation to keep having.
It's very easy to become complacent or to have a conversation mentality in these kind of jobs.
And as you said, much of the coverage is negative.
But the point I want to finish on is why we need to defend organisations such as the Commission.
Now we can disagree on how well it's doing or what the appropriate referral rate is or how it should conduct its investigations.
But it was the first body in the world where the government committed to funding an institution
that would investigate the potential that potential miscarriages of justice had occurred.
It's not been followed in that many countries. It's a very difficult thing to happen and it probably only happened here because we just
had a litany of cases where confidence in the criminal justice system was being destroyed,
that there were calls in Parliament for the Lord Chief Justice to resign and editorials in newspapers.
It was a very almost an existential crisis around the criminal justice system.
So the commission came out of that freakish alignment of events, and it would be very easy to destroy that.
I think one of the most shocking findings in the book was it's the organisation that has been hit hardest by budget cuts.
Austerity has taken its toll across the entire criminal justice system,
which is bound to have had an impact if the police officers court investigate cases fully enough.
If they're not looking at disclosure, if the CPS are picking things up at the last minute,
if there's a change of defence counsel who are being resource to do their jobs properly, that is how mistakes occur.
But the Commission has been hit hardest by those budget cuts and the lack of commissioner time.
Now when I work for the Commission, I think they were 13 almost full time commissioners.
Now they are employed on a daily rate and it's less than you said, what,
fewer than eight full time equivalent that has to make a difference based on the amount of work that can get done and the culture of the place.
But in terms of our responsibilities to actually defend institutions of the rule of law, they are under attack at the moment.
We've seen headlines around the enemies of people. We've seen a solicitor receiving death threats this week for doing making age at work.
We need to defend civil society institutions, and this is a very good example of one of them,
is that possibly if I if I actually had a criticism, it would be you'll sometimes you gentle on the critics.
It's towards the end that the commission may have failed in communication with interested
parties who are still not persuaded that it's doing its job or doing anything.
There are some people who don't want to listen,
and I think there is a danger of the loudest voices or the most vociferous people on Twitter guessing to shape the debate.
I didn't give evidence the last time. The first select committee that was looking at the commission because I didn't really have anything to say.
I thought it was working okay. That meant all the submissions it received were from people with a very different perspective to mine.
Now they're entitled to hold that view, but I think we have a responsibility to actually balance that debate.
Sometimes it's not a great campaigning slogan.
Things are working fine, but it's important we have a responsibility to actually defend bureaucratic institutions.
Doing an important job sometimes. That's a great tendency at the moment to say We're all sick of experts until we actually need one.
And if I was wrongly convicted,
I would much rather have a properly resourced body with statutory powers to do that than I've called before the sort of Scooby Doo model.
It's important, and I think we have a responsibility as a citizens, but particularly as scholars, to actively engage in these kind of debates.
And whatever happens, whichever way the debate goes, whichever side you fall on,
this book has given us some really important facts and figures and information and concepts that we can use,
whether we use them to train books of commission or to actually build something more constructive.
It makes a really substantial contribution to the debate around not just the commission,
but to the entire administration of the rule of law in this country.
It's beautifully written. It's a really substantial piece of work.
And I would recommend it to all of you.