1 00:00:00,300 --> 00:00:05,880 Carolyn, who I presume everybody in the room knows, is professor of criminology here in Oxford. 2 00:00:06,600 --> 00:00:15,630 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. 3 00:00:16,830 --> 00:00:20,639 Carolyn, the fact that she wrote this book, 4 00:00:20,640 --> 00:00:27,840 I'm particularly impressed with because she actually did all of the research for it while she was director of the Centre for Criminology. 5 00:00:27,840 --> 00:00:36,150 And as I'm currently director of Central Criminology, I cannot imagine doing enough research while doing that to produce a book like this. 6 00:00:36,720 --> 00:00:42,150 But anyway, Carolyn Will, we'll talk for 40 minutes about about the study and about its main findings. 7 00:00:42,150 --> 00:00:53,790 And then she will be taken to task by Hannah Snow, who is reader in criminal law at King's College London, 8 00:00:54,030 --> 00:01:00,059 and who was previously some time ago now a case manager at the Criminal Case Review Commission. 9 00:01:00,060 --> 00:01:06,690 So has particular insights, I think, on some of the sorts of things that Carolyn has written about. 10 00:01:06,870 --> 00:01:11,820 And Hannah has also worked on Innocent Innocence Project in New Orleans. 11 00:01:12,360 --> 00:01:21,210 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. 12 00:01:21,480 --> 00:01:26,430 And then after the talk, we are having a wine reception, I believe in the room next door. 13 00:01:26,610 --> 00:01:30,330 But as a chief, thank you. 14 00:01:30,450 --> 00:01:35,160 Just writing down. What time is this? So I know what time I should shut up. So thank you for coming. 15 00:01:35,730 --> 00:01:41,040 I promise one thing. This is a Brexit free environment. I will not be talking about that for the next 90 minutes. 16 00:01:41,040 --> 00:01:45,809 So that's a nice break for us all. So this book is very beautiful. 17 00:01:45,810 --> 00:01:53,880 Looking book is the product of four years of empirical research on decision making and discretion at the Criminal Cases Review Commission. 18 00:01:54,300 --> 00:01:58,320 And it was done with a full cooperation and with very generous support from the Commission. 19 00:01:59,190 --> 00:02:05,070 And it was also done with some research assistance from my SAT who you can see up there. 20 00:02:05,520 --> 00:02:08,970 She is not with me today because she's emigrated to Australia. 21 00:02:11,010 --> 00:02:15,210 I don't think that's a reflection on working with me, but who knows? 22 00:02:16,200 --> 00:02:21,029 Now the book reveals what happens to those people who applied to the Commission for 23 00:02:21,030 --> 00:02:25,620 post-conviction review when they believe themselves to be wrongfully convicted, 24 00:02:25,620 --> 00:02:28,500 either in the courts of England, Wales or in Northern Ireland. 25 00:02:29,130 --> 00:02:36,540 And so the book explores how the commission staff employ those discretionary powers to decide whether or 26 00:02:36,540 --> 00:02:42,060 not to investigate how to investigate a case and then whether or not to refer it to the Court of Appeal. 27 00:02:43,860 --> 00:02:45,930 So how did the commission come about? 28 00:02:47,040 --> 00:02:54,810 Well, in the late 1980s, British criminal justice was shaken to its core by a series of cataclysmic wrongful convictions, 29 00:02:55,740 --> 00:02:58,920 many of them, though not all IRA terrorist offences. 30 00:02:59,280 --> 00:03:06,660 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, 31 00:03:07,140 --> 00:03:13,950 the government issued or announced a Royal Commission on criminal justice that reported some 32 00:03:13,950 --> 00:03:20,219 two years later making some 350 recommendations for improving criminal justice in England. 33 00:03:20,220 --> 00:03:29,430 Wales of interest was his recommendations 331, which is to establish a new authority to crack possible miscarriages of justice. 34 00:03:29,760 --> 00:03:35,940 And sure enough, the Criminal Appeal Act of 1995 escalates thought about the Criminal Cases Review Commission, 35 00:03:36,210 --> 00:03:39,600 which started business in April of 1997. 36 00:03:39,900 --> 00:03:48,209 Very fittingly, I think, in Birmingham now, making decisions about how to respond to applications, 37 00:03:48,210 --> 00:03:54,930 the commission draws on the range of powers given to it by legislation and also various different resources. 38 00:03:54,930 --> 00:04:00,330 So it has about 30 to 40 caseworkers, what they call case review managers. 39 00:04:00,720 --> 00:04:06,090 It has commissioners who make the ultimate decisions about how to investigate the case and whether or not to refer it. 40 00:04:06,090 --> 00:04:11,640 And there are about 12 commissioners at the moment to the equivalent of eight full time commissioners, 41 00:04:12,120 --> 00:04:17,610 legal adviser, investigations advisor and the whole team of administrative and executive support. 42 00:04:18,870 --> 00:04:22,920 Now it has limits to its independence. The Commission can't quash convictions. 43 00:04:23,250 --> 00:04:27,060 It has the power only to refer those convictions back to the Court of Appeal. 44 00:04:27,660 --> 00:04:31,649 And the Court is obliged to hear any case that the Commission refers to it. 45 00:04:31,650 --> 00:04:37,920 But the Commission can only refer if they believe a case has a real possibility of success, 46 00:04:37,920 --> 00:04:41,280 a real possibility that the court will find it to be unsafe. 47 00:04:41,970 --> 00:04:47,010 Now, the real possibility test, as it's called, was defined by the Criminal Appeal Act. 48 00:04:47,010 --> 00:04:54,990 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. 49 00:04:55,440 --> 00:04:59,940 And so case law and both the Court of Appeal, but also from the administrative court, has tried to. 50 00:05:00,010 --> 00:05:07,809 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, 51 00:05:07,810 --> 00:05:15,880 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. 52 00:05:16,690 --> 00:05:23,050 It's not even then terribly helpful, but that's what they have now. 53 00:05:23,830 --> 00:05:31,720 The Commission's decision making is inextricably tied to the Court of Appeals decision on whether whether or not a conviction is unsafe. 54 00:05:32,050 --> 00:05:35,070 The court, of course, does not have to be satisfied that somebody is innocent. 55 00:05:35,080 --> 00:05:44,889 That's irrelevant, really. And so to decide a case is unsafe, the court must be convinced that the evidence is capable of belief, 56 00:05:44,890 --> 00:05:50,290 capable of forming a ground for allowing an appeal. The evidence must be fresh. 57 00:05:50,320 --> 00:05:55,000 By that I mean it can't already have been presented to the trial court or to the Court of Appeal. 58 00:05:55,390 --> 00:06:02,830 And if it is fresh, there must be a reasonable explanation for the failure of the defence to use that evidence at trial. 59 00:06:03,700 --> 00:06:09,340 Now, how does the Commission know when they have evidence that could persuade the Court? 60 00:06:09,370 --> 00:06:16,690 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? 61 00:06:17,410 --> 00:06:23,950 These are among the many questions we decided to ask in a very long, empirical study, which, from my point of view, 62 00:06:23,950 --> 00:06:31,750 started back in 2010 and continued for years afterwards, much to the tolerance of the Commission. 63 00:06:32,440 --> 00:06:37,630 Now the commission receives at the moment about 1400 applications a year. 64 00:06:38,080 --> 00:06:41,200 It refers only between one and 4% of those. 65 00:06:41,440 --> 00:06:43,990 The referral rate has been declining in recent years. 66 00:06:44,410 --> 00:06:52,360 This, of course, is a significant attrition rate, and this has led to its critics calling it not fit for purpose. 67 00:06:52,370 --> 00:06:58,989 And you can see on the right hand side of the slide that the different criticisms that have been aimed at the commission now, 68 00:06:58,990 --> 00:07:06,969 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. 69 00:07:06,970 --> 00:07:14,200 But this is the first study, the one that we did, that really looked thoroughly discretion at decision making and discretion at the commission. 70 00:07:14,200 --> 00:07:17,140 And that's why I'm quite well placed to answer these criticisms. 71 00:07:17,860 --> 00:07:24,490 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. 72 00:07:24,940 --> 00:07:35,020 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. 73 00:07:35,470 --> 00:07:44,530 The court has allowed the appeals in 437 of those 437 people's lives have been changed around by the commission. 74 00:07:44,800 --> 00:07:50,000 Many people who would otherwise be in prison are out, and those people are left to rebuild their lives. 75 00:07:50,020 --> 00:07:58,480 That's not easy, as research by one of my doctoral students has shown, but nonetheless, they have the opportunity to do so now. 76 00:07:58,720 --> 00:08:02,590 It is also, as you say, a more impressive rate than the commission's predecessor, 77 00:08:02,590 --> 00:08:07,960 which was a small unit in the Home Office known as C3 and really didn't do a particularly good job. 78 00:08:08,830 --> 00:08:11,890 So are too few cases referred? 79 00:08:13,960 --> 00:08:18,310 Probably, but not by a long way. Is it too slow? 80 00:08:18,550 --> 00:08:26,200 Is it too thorough? Is it too unfair? I should say? Well, it can be a little bit slow, but it is usually thorough. 81 00:08:27,430 --> 00:08:34,090 Is there huge variability in responses? There is some variability and yet much consistency across the board. 82 00:08:36,310 --> 00:08:40,299 Is it too deferential to the court? Yes, inevitably so. 83 00:08:40,300 --> 00:08:46,320 The legislation has made it so. Could it be a little less deferential in practice at the margins? 84 00:08:46,330 --> 00:08:56,650 Probably. So what I bases conclusions on, we took a stratified sampling approach to collecting our cases. 85 00:08:56,830 --> 00:09:00,940 We had cases that represented the bulk of the commission's work. 86 00:09:01,270 --> 00:09:07,120 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. 87 00:09:07,120 --> 00:09:11,679 In fact, Hannah could talk even more eloquently on that matter because she's written on the topic later on. 88 00:09:11,680 --> 00:09:19,900 I won't go into that during this presentation, but these cases, each of those 146 cases that we reviewed in great detail, 89 00:09:20,230 --> 00:09:26,770 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. 90 00:09:27,220 --> 00:09:33,610 So it's very thorough, in-depth research, and we subjected it to analysis, both qualitative and quantitative. 91 00:09:33,910 --> 00:09:38,229 And while the bulk of the book focuses on these cases over a series of different chapters, 92 00:09:38,230 --> 00:09:44,890 other chapters in the book look at the relationship of the Commission to other institutions in the criminal justice system, 93 00:09:45,220 --> 00:09:52,900 to the practice of screening cases in or out at the Commission, to its dealing of of replications, etc. 94 00:09:53,080 --> 00:09:56,500 So there are other chapters dealing with more organisational systemic issues. 95 00:09:56,500 --> 00:10:05,270 I'm going to focus primarily on the cases. But before I do so, I want to just say a few things about screening, 96 00:10:05,570 --> 00:10:12,410 because I mentioned this high attrition rate of it's approximately 1400 applications a year. 97 00:10:13,010 --> 00:10:19,040 The commission reviews in depth, conducts long reviews that can last months and even years. 98 00:10:19,340 --> 00:10:25,490 Just over half of these cases screening out the others with a very superficial review of the case. 99 00:10:27,710 --> 00:10:31,010 So what you have here on the slide is the of every hundred cases, 100 00:10:31,010 --> 00:10:36,950 I think you have about 50 to go through to that thorough review system and a handful being referred back to the court. 101 00:10:37,250 --> 00:10:42,380 And this causes people at the commission responsible for screening considerable anxiety, 102 00:10:42,410 --> 00:10:46,860 as it would, I think, any of us, because screening is based on minimal information. 103 00:10:46,880 --> 00:10:50,720 It's an inexact science, as one of our interviewees said here, 104 00:10:51,170 --> 00:10:58,670 and the commissioners get alarmed by what they perceive to be some inconsistency in how people approach the screening process 105 00:10:58,670 --> 00:11:06,320 and therefore inconsistency in outcomes of that process and a fear that innocent people are slipping through the net. 106 00:11:07,820 --> 00:11:14,959 Now, some applications contain very little more than an assertion that the applicant is innocent, with very little to go on. 107 00:11:14,960 --> 00:11:21,350 And in an ideal world, the Commission would go out and interview each and every one of those applicants, especially the young, 108 00:11:21,350 --> 00:11:25,790 especially those that don't have English as the first language, especially those with learning difficulties. 109 00:11:26,150 --> 00:11:29,510 But it does not have the resources, nowhere near the resources. 110 00:11:29,510 --> 00:11:34,070 And so it has to screen out cases based on the information it has coming in. 111 00:11:35,390 --> 00:11:40,610 So the question then arises, in my view, if you were to apply to the commission, 112 00:11:41,120 --> 00:11:45,770 would it make a difference as to whether or not your case was screened in for a thorough review? 113 00:11:45,800 --> 00:11:50,450 If you've got one commissioner rather than another, that's one of the questions we asked. 114 00:11:51,860 --> 00:12:00,500 So while some commissioners were very confident that they could screen in accurately, others said that it kept them awake at night. 115 00:12:00,650 --> 00:12:04,340 They found a great deal to make them anxious in the task. 116 00:12:04,910 --> 00:12:09,890 And perhaps not surprisingly, we found some inconsistency in the screening process. 117 00:12:10,820 --> 00:12:14,750 Now, in all cases that apply to the criminal cases, 118 00:12:14,750 --> 00:12:22,520 review commission appeals should have been determined or leave to appeal, being refused before an applicant applies. 119 00:12:22,610 --> 00:12:31,070 So they should have exhausted their direct appeal rights. And yet about 40%, four zero of applications for commission are no appeal cases. 120 00:12:31,940 --> 00:12:36,650 So we looked at how decision makers dealt with these no appeal cases. 121 00:12:37,550 --> 00:12:43,129 And what we found was that if you take the the book has the full table. 122 00:12:43,130 --> 00:12:45,590 I've just chosen a few examples here. 123 00:12:45,590 --> 00:12:55,290 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. 124 00:12:55,310 --> 00:13:03,920 The other 96% were dismissed, whereas Commissioner 11 had sent nearly a third and Commissioner 15 50%. 125 00:13:04,790 --> 00:13:08,509 So if you were applying to the commission and you hadn't gone through the direct appeals process, 126 00:13:08,510 --> 00:13:14,400 my guess is you would rather have your application land on the desk of Commissioner 15 than Commissioner too. 127 00:13:15,830 --> 00:13:22,670 There is no reason to believe these cases were any different because commissioners received these applications on a pretty random basis, 128 00:13:22,670 --> 00:13:26,330 with a few exceptions. But the exceptions did not tell this story. 129 00:13:26,780 --> 00:13:35,210 So there is some variability in the early screening process, but what about in the other cases? 130 00:13:35,630 --> 00:13:39,050 Now, when I said my scoping study of the commission back in 2010, 131 00:13:39,050 --> 00:13:43,970 I interviewed lots of commissioners, pretty much all of them, and quite a few caseworkers. 132 00:13:44,330 --> 00:13:48,440 And one answer to my question about how do you make decisions in these cases, 133 00:13:48,440 --> 00:13:53,549 both how to investigate a case and whether or not to refer the kind of answers I got at the time. 134 00:13:53,550 --> 00:14:01,700 But would you just refer a case by deciding it on its merits that each case is distinguished by its spots? 135 00:14:02,270 --> 00:14:06,830 Now, this is not a wrong answer by any means, but it is an incomplete answer. 136 00:14:07,940 --> 00:14:16,310 It suggests a somewhat positivist approach to casework decision making, which could only ever provide a partial explanation for decisions. 137 00:14:16,580 --> 00:14:22,640 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. 138 00:14:23,060 --> 00:14:28,460 That makes clear that criminal justice institutions rarely base their decisions solely on the facts of the case. 139 00:14:28,850 --> 00:14:33,589 And if such a positive understanding would not really allow for the kind of sense making 140 00:14:33,590 --> 00:14:37,970 and interpretation that informed decision making in all criminal justice institutions, 141 00:14:38,300 --> 00:14:46,250 it would permit no role for for normative or organisational or economic or political factors, economic factors to do with, 142 00:14:46,250 --> 00:14:52,880 for example, the very high rate of applications coming to the commission at a time when they've got a declining budget. 143 00:14:53,900 --> 00:14:59,300 So instead, this research considered that discretion and decision making both at the individual and also at the organised. 144 00:14:59,360 --> 00:15:08,340 Social level, allowing for the latter to impose certain objectives and constraints on individual decision makers in their day to day decision making. 145 00:15:08,640 --> 00:15:10,720 And that's, of course, not to say that we ignored the law. 146 00:15:10,740 --> 00:15:16,140 The law is crucial to our understanding of why so few applications end up before the Court of Appeal. 147 00:15:16,470 --> 00:15:23,280 Given that the Commission is constrained both by legislation and, as other explained, as we move on by jurisprudence from the courts. 148 00:15:23,730 --> 00:15:28,770 And so we drew on this body of such a legal studies literature, but particularly on Keith Hawkins, 149 00:15:28,770 --> 00:15:33,719 work on discretion to pursue a naturalistic approach to decision making, 150 00:15:33,720 --> 00:15:36,600 understanding it as a as an interpretive practice, 151 00:15:36,600 --> 00:15:44,550 and understanding how we could identify those conditions that could lead to certain legally consequential outcomes rather than others. 152 00:15:44,940 --> 00:15:53,130 And Hawkins typology off of a surround decision field and a decision frame was was particularly useful for our understanding of this. 153 00:15:54,270 --> 00:16:02,700 And so if we think surround is is the the economic, the political of another sort of environmental factors, 154 00:16:02,700 --> 00:16:07,860 which condition discretionary decision making and surrounds are rarely unchanging. 155 00:16:08,130 --> 00:16:16,950 And what happens is as the surrounds change, the commission has to make certain consequential changes to that internal decision making. 156 00:16:17,430 --> 00:16:26,960 And at the time we did the research, the surround of the commission was characterised by very severe, really drastic cuts to legal aid. 157 00:16:26,970 --> 00:16:31,260 So for applicants for appellants and for defendants in court, 158 00:16:31,890 --> 00:16:42,030 it was also characterised by rising evidence of a very significant non-disclosure of potentially exculpatory evidence in the courts, 159 00:16:42,780 --> 00:16:44,339 which has been in the press so much. 160 00:16:44,340 --> 00:16:51,960 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, 161 00:16:52,320 --> 00:16:53,910 rather stupidly, in my view, 162 00:16:54,150 --> 00:17:02,250 closed down the National Forensic Science Service and set up private services or private services evolved around the country, 163 00:17:02,670 --> 00:17:10,020 but also evolving forensic science. Science moves on, and the evolving forensic science has influenced the commission's work considerably. 164 00:17:10,590 --> 00:17:17,250 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. 165 00:17:17,730 --> 00:17:22,680 And as I mentioned before, arising applications, the commission, which again we can talk about later, 166 00:17:22,680 --> 00:17:28,830 why that has been and a consequent relative reduction in the Commission's budget. 167 00:17:30,210 --> 00:17:34,890 Now the Commission has to respond to all of these changes in the surround. 168 00:17:34,890 --> 00:17:40,070 They can't ignore them. They have to shape the way it deals with its cases and it can. 169 00:17:40,230 --> 00:17:46,620 These changes in this round can bring about consequent paradigm shifts in its own dealing with cases within the Commission. 170 00:17:47,190 --> 00:17:52,829 And so the decision field of the Commission really comprises those organisational 171 00:17:52,830 --> 00:17:57,510 imperatives found within what are called in the Commission of casework guidance notes, 172 00:17:57,510 --> 00:18:03,660 very important documents not publicly available that tell the Commission how to respond to each of its cases. 173 00:18:03,990 --> 00:18:09,240 Also that formal memoranda and and these documents really show the commission will 174 00:18:09,240 --> 00:18:13,889 tell individual commissioners and caseworkers how to respond to certain cases, 175 00:18:13,890 --> 00:18:19,200 how to respond to certain evidence, what to see is important, what to discard as less relevant. 176 00:18:20,280 --> 00:18:25,770 And they show how decision making happens at that institutional, organisational level. 177 00:18:26,220 --> 00:18:34,170 In addition to this, you have the typical working rules, expectations, assumptions that the Commission has that come through these formal documents, 178 00:18:34,170 --> 00:18:40,770 but also are developed through networks, informal networks in the Commission, through mentoring, 179 00:18:40,770 --> 00:18:46,110 through supervision, through just general socialisation, socialisation process. 180 00:18:46,650 --> 00:18:54,990 And what happens is this field shapes decision making in the Commission such that most responses to most cases are fairly consistent. 181 00:18:55,320 --> 00:18:58,530 They also, because people follow the casebook guidance notes. 182 00:19:00,660 --> 00:19:11,370 Now a changing surround is perhaps best understood by considering paradigm shifts in forensic science or in expert evidence around science. 183 00:19:11,790 --> 00:19:18,569 So evolutions in science could be better evidence that can come from low copy DNA, for example, 184 00:19:18,570 --> 00:19:24,600 or changing ideas about material fibres found at the scene or firearms discharge residue. 185 00:19:24,600 --> 00:19:32,969 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. 186 00:19:32,970 --> 00:19:39,300 As you can see from this quotation, concerns were raised about how scientific data had been interpreted at trial, 187 00:19:39,960 --> 00:19:46,560 leading to the commissioning of new fresh evidence from expert witnesses that the Commission would then use 188 00:19:46,560 --> 00:19:51,930 to present in its statement of reasons for why a case should or should not be referred back to the court. 189 00:19:52,650 --> 00:19:58,470 Now, following investigations and investigation doesn't just inevitably lead to a. 190 00:19:58,780 --> 00:19:59,560 Going back to the court. 191 00:19:59,710 --> 00:20:08,680 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, 192 00:20:08,890 --> 00:20:17,950 or just an equally plausible account of what might happen. Now, in 31 of our cases, expert evidence was commissioned to draw on evidence, 193 00:20:17,950 --> 00:20:22,479 on scientific knowledge, to test the evidence already presented at trial. 194 00:20:22,480 --> 00:20:29,020 And I want to share just one example of this and that scientific understanding of what is normal in children's genitals, 195 00:20:29,020 --> 00:20:34,630 which brought about significant change to the surround in convictions for child sexual abuse. 196 00:20:36,340 --> 00:20:45,579 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 197 00:20:45,580 --> 00:20:52,900 on the basis of new expert witness evidence concerning the publication of this report from the Royal College of Paediatrics and Child Health. 198 00:20:53,650 --> 00:20:57,660 Now, the trials had taken place in the late 1990s and the early 2000, 199 00:20:57,670 --> 00:21:06,610 and at the time there was a consensus really about how to interpret certain differences or possible injuries to children's genitals. 200 00:21:07,180 --> 00:21:17,560 And what this report showed was that evidence that had previously been considered to be properties of sexual abuse was no longer inevitably so. 201 00:21:18,070 --> 00:21:25,930 So research was showing that these differences or what could have been seen as injuries were in fact conserved, 202 00:21:25,960 --> 00:21:32,950 but were in fact observed with comparative frequency in children who had not been abused as they were in children who had been abused. 203 00:21:33,520 --> 00:21:38,590 And so this report provided some scope for the commission to make some interesting referrals. 204 00:21:40,360 --> 00:21:47,140 And you see on the on the quotations from two different cases here, what had been considered to be conclusive was no longer conclusive. 205 00:21:48,490 --> 00:21:53,440 And so and because the report had been published after these trials, 206 00:21:53,710 --> 00:22:02,040 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. 207 00:22:02,050 --> 00:22:08,200 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. 208 00:22:10,030 --> 00:22:16,030 So the report also made clear what was necessary by way of investigative evidence on on 209 00:22:16,870 --> 00:22:21,770 actually examining children to make sure that the evidence that presented the court is, 210 00:22:21,790 --> 00:22:25,090 is thorough and some of the cases went through on that process. 211 00:22:26,230 --> 00:22:33,250 So in light of this, the commission enthusiastically pushed through a number of cases with the decision fields 212 00:22:33,250 --> 00:22:38,200 on these types of cases shifting as soon as the court started to accept these cases. 213 00:22:38,710 --> 00:22:46,390 So it created a sort of referral momentum, but the court hates to feel that the floodgates are open. 214 00:22:46,840 --> 00:22:50,520 And so here, as it often does, it started to shut them down again. 215 00:22:50,530 --> 00:22:58,600 It started to reject cases and show that the report was not inevitably fatal to the safety of a child abuse conviction. 216 00:22:59,500 --> 00:23:06,969 And here what you see is while the report this is the case about guidance on the on 217 00:23:06,970 --> 00:23:11,980 this field change and why the court had undermined the safety of the convictions. 218 00:23:12,220 --> 00:23:19,270 The Commission soon realised that the Court was going to scrutinise the complainants credibility, consider all the other evidence, 219 00:23:19,270 --> 00:23:26,080 including other possible explanations for variations in children's genitals before concluding that the convictions were unsafe. 220 00:23:26,320 --> 00:23:30,030 So again, the court changes its my the court starts to narrow the focussed. 221 00:23:30,310 --> 00:23:33,459 The Commission has to respond to that and follow suit. 222 00:23:33,460 --> 00:23:36,400 And so following the first few unsuccessful referrals, 223 00:23:36,640 --> 00:23:45,340 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. 224 00:23:47,050 --> 00:23:51,850 Now, another change in the surround that the commission has had to respond to is the 225 00:23:51,850 --> 00:23:56,379 court's increasing reluctance to quash convictions in cases where the police 226 00:23:56,380 --> 00:24:01,870 or prosecution have acted without integrity or whether defence is incompetent 227 00:24:02,230 --> 00:24:07,550 unless the failures in policing or prosecution are determinative in themselves. 228 00:24:07,600 --> 00:24:13,780 So there must, in other words, be a nexus between the due process failure and the safety of the conviction. 229 00:24:14,200 --> 00:24:21,940 So again, the relevant case, what guidance notes changed in the light of the Court's rather more stringent interpretation of this issue? 230 00:24:22,930 --> 00:24:29,290 Making clear, as you can see by the first two comments on the slides in the case guidance notes, 231 00:24:29,530 --> 00:24:36,910 the evidence of misconduct should be considered in the light of overriding question of how it impacts on the safety of the conviction. 232 00:24:37,630 --> 00:24:42,700 And as the quotation at the bottom from one of the caseworkers that we spoke to said, 233 00:24:42,700 --> 00:24:46,120 it's not non-disclosure per say that makes something meritorious. 234 00:24:46,440 --> 00:24:51,550 It's always the significance of the material rather than the mechanics of how why it didn't come out. 235 00:24:51,760 --> 00:24:57,800 That says exception to this. The most egregious cases do go through, but they have to be pretty egregious unless you can. 236 00:24:58,480 --> 00:25:01,300 Nexus between the safety and the poor practice. 237 00:25:02,920 --> 00:25:11,139 So while the field guides, decision makers and shapes approaches to investigations and thereby produces some consistency, 238 00:25:11,140 --> 00:25:13,630 quite a bit of consistency in approaches, 239 00:25:13,870 --> 00:25:21,820 it also leaves some room for discretion, some room for deciding when material significant when a case is sufficiently strong. 240 00:25:22,570 --> 00:25:27,309 And Tolkien's notion of decision framing helps us really to understand this, 241 00:25:27,310 --> 00:25:35,350 helps us to understand how different commissioners or different caseworkers might come to different conclusions on the merits of a case. 242 00:25:38,350 --> 00:25:42,129 So a decision frame is a structure of knowledge. 243 00:25:42,130 --> 00:25:49,480 It's a structure of experiences, values, meanings that the Commission employ in deciding when there are reasons to doubt 244 00:25:49,480 --> 00:25:52,629 the safety of conviction and how to proceed in the analysis of the case. 245 00:25:52,630 --> 00:25:58,780 So it kind of answers that question what's going on here? And the facts of the case are not synonymous with the frame. 246 00:25:58,780 --> 00:26:03,880 The facts the frame helps the commissioner to decide which facts are relevant, 247 00:26:04,000 --> 00:26:07,480 which will help them with their investigation, which can be dismissed as not relevant. 248 00:26:08,590 --> 00:26:13,540 And frames, of course, are all shaped partly by the culture of the organisation. 249 00:26:13,540 --> 00:26:19,820 So the Commission is a risk averse, slightly diffident, anxious organisation, 250 00:26:19,840 --> 00:26:27,129 very thorough, but it's also shaped by individual decision makers, personal biographies. 251 00:26:27,130 --> 00:26:36,220 And so what you might in the literature refer to as operational ideologies or frames of reference, and these are what create variability. 252 00:26:37,390 --> 00:26:39,490 And if you look at any one case report, 253 00:26:39,490 --> 00:26:46,870 you see this often lots of equivocation on a case about whether or not to refer disagreement between caseworkers and commissioners, 254 00:26:46,870 --> 00:26:50,110 even though the facts of the case might remain the same during those deliberations. 255 00:26:50,350 --> 00:26:55,030 Suggesting that the facts do not, of course, speak for themselves or do not only speak for themselves. 256 00:26:57,310 --> 00:27:04,030 Now, in decision framing, because of the real possibility test, the Commission always employs to some extent a legal frame. 257 00:27:04,030 --> 00:27:10,840 They have to decide which facts are legally relevant, which have authoritative consequences. 258 00:27:11,440 --> 00:27:16,959 But at the same time, because the process of sense making is driven not only by legal factors, 259 00:27:16,960 --> 00:27:21,520 by by a sense of plausibility and by persuasiveness of the information. 260 00:27:22,120 --> 00:27:27,399 This a narrative frame can sometimes develop alongside the legal frames. 261 00:27:27,400 --> 00:27:34,090 So what you see here on the slide in case E1 this was a case where the Commission could 262 00:27:34,090 --> 00:27:39,049 not refer on the erroneous statistical evidence on cop death because it was not fresh. 263 00:27:39,050 --> 00:27:42,220 It's already been revealed at trial and the Court of Appeal. 264 00:27:42,520 --> 00:27:48,100 And so the Commission kept searching, kept doing tests, kept investigating to try to find something else. 265 00:27:48,370 --> 00:27:56,910 And eventually tests revealed, a microbiological test revealed something that would help the application go to the Court of Appeal. 266 00:27:56,920 --> 00:27:59,410 It did go to the Court of Appeal and the case was quashed. 267 00:28:00,250 --> 00:28:07,600 Now, when you dig in to the case, what you see, not just the discovery of some science that helps this case, 268 00:28:08,170 --> 00:28:15,280 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. 269 00:28:15,280 --> 00:28:21,669 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. 270 00:28:21,670 --> 00:28:29,590 But just take it from me. There is evidence in that case that shows that the credibility of the applicant was really driving 271 00:28:29,950 --> 00:28:33,850 the casework because they wanted desperately to find something to get that case back in court, 272 00:28:34,030 --> 00:28:41,140 and they were right to do so. The other case, which was another case, is whether it's injuries to a child's genitals. 273 00:28:41,530 --> 00:28:46,450 The applicant had tried to explain these by way of a sporting accident. 274 00:28:47,200 --> 00:28:52,540 In fact, the commission decided the sporting accident was too minor to really justify a referral back to the court. 275 00:28:52,590 --> 00:28:59,470 And again, when you look at the case records, you find evidence that the narrative of the applicant was not so credible. 276 00:28:59,710 --> 00:29:07,090 Indeed, the quote that we're puzzled by, the applicant's silence meant of use not relevant to the to the scientific investigation, 277 00:29:07,210 --> 00:29:14,170 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. 278 00:29:14,500 --> 00:29:17,770 So clearly, the narrative frame doesn't compete with the legal frame. 279 00:29:18,490 --> 00:29:23,680 So a good story can't compensate for a lack of forensic evidence that won't satisfy the real possibility test. 280 00:29:24,100 --> 00:29:29,110 But the evidence is often contested, suggestive of various different conceivable outcomes. 281 00:29:29,110 --> 00:29:36,730 And so what happens is that the narrative framework helps them to make sense and choose certain cases, perhaps instead of others. 282 00:29:39,100 --> 00:29:45,430 So the internal guidelines shape practice, such that there was much consistency in the approach across the Commission. 283 00:29:45,790 --> 00:29:49,479 That said, our analysis revealed some variability in decision making, 284 00:29:49,480 --> 00:29:56,230 suggesting that the variables beyond these case base based factors can influence a review of whether or not to refer a case. 285 00:29:56,530 --> 00:30:00,809 This is not at all surprising. Then we write about submission making decisions. 286 00:30:00,810 --> 00:30:01,200 In fact, 287 00:30:01,200 --> 00:30:08,489 decisions to refer are made by three commissioners and the caseworkers and decisions not to refer are made by one commissioner and the caseworker. 288 00:30:08,490 --> 00:30:12,330 So their individual biographies are bound to influence to some extent. 289 00:30:15,150 --> 00:30:19,740 And factors such as whether a caseworker is relatively new in post can make a difference, 290 00:30:19,740 --> 00:30:24,990 whether they have a background in law, whether or not they are just naturally tenacious and dogged or not. 291 00:30:26,220 --> 00:30:33,780 So these variations mean that different commissioners, as these quotations from commissioners themselves have told us, have different styles, 292 00:30:34,110 --> 00:30:42,780 and different styles can produce different decision making and these different styles and different models in which information is selected. 293 00:30:42,780 --> 00:30:46,889 This process is utilised really can I think. 294 00:30:46,890 --> 00:30:51,330 Tell us a little bit about the Commission's response to re applications. 295 00:30:52,160 --> 00:30:56,580 Now, there's no limit to the number of times you can apply to the commission. 296 00:30:56,580 --> 00:31:00,750 So if your case is rejected, you can come back with another application. You can keep coming back. 297 00:31:02,160 --> 00:31:07,080 About 14% of applications to the Commission are, in fact, re applications. 298 00:31:07,080 --> 00:31:13,800 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. 299 00:31:14,460 --> 00:31:19,920 But if they're screened and they're slightly more likely to be successful, to be referred back to the court, 300 00:31:20,280 --> 00:31:23,850 and that's partly because something might have changed in the science, 301 00:31:24,120 --> 00:31:28,710 some shift that happened between the applications that the commission can then refer again. 302 00:31:28,950 --> 00:31:35,489 So the whole thing about cop deaths after the Angela Cannings case on cot death and then the subsequent Attorney-General's 303 00:31:35,490 --> 00:31:40,350 review allows the Commission to go back to cases that they previously turned down and look at them again to say, 304 00:31:40,350 --> 00:31:46,680 now we have the chance to put this back before a court so you can see how replications might be more successful. 305 00:31:47,790 --> 00:31:51,780 Occasionally every application is successful without any such change. 306 00:31:52,200 --> 00:32:02,970 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, 307 00:32:03,210 --> 00:32:10,290 and maybe we'll screen that in. So this is the same decision maker changing his or her mind. 308 00:32:16,920 --> 00:32:20,550 One case came in in 1998, was not restored. 309 00:32:21,510 --> 00:32:24,690 After an investigation came back in 2002, 310 00:32:25,800 --> 00:32:33,990 it was decided not to review it thoroughly because the commissioner decided that it largely raised the same matters and therefore it was rejected. 311 00:32:33,990 --> 00:32:40,319 Came back in 2010 with a particularly good and very tenacious lawyer and come back 312 00:32:40,320 --> 00:32:44,940 to maybe talk about this and questions why it matters to have a good lawyer there. 313 00:32:44,940 --> 00:32:48,960 We have the commission saying, yeah, we'll look at this again. 314 00:32:49,080 --> 00:32:52,350 Not completely impressed at that screening process, but worthy of a look. 315 00:32:52,710 --> 00:32:58,880 It was then passed onto casework who is particularly tenacious, very smart, worked incredibly hard commission, 316 00:32:58,890 --> 00:33:04,290 threw lots of resources at the case and it went back to the Court of Appeal and the convictions quashed. 317 00:33:04,320 --> 00:33:08,459 The person is now out. It shouldn't be of any surprise to us. 318 00:33:08,460 --> 00:33:12,900 This happens across all criminal justice institutions. But the Commission is criticised for this. 319 00:33:12,900 --> 00:33:18,810 It's criticised for missing some things. It's not often praised for getting it in the end, but it's precise a mishap. 320 00:33:20,790 --> 00:33:27,119 So to conclude, the court's evolving jurisprudence that we've talked about, 321 00:33:27,120 --> 00:33:32,549 which is a key feature of the Commission's around directly impacts on its decision field, 322 00:33:32,550 --> 00:33:38,070 which thereafter of course influences its decision frames and the legislative predictive 323 00:33:38,070 --> 00:33:43,350 nexus really between with the real possibility test and how it's tied to the court, 324 00:33:43,740 --> 00:33:47,880 looks the commission into this very close relationship with the Court of Appeal, 325 00:33:49,260 --> 00:33:54,690 leading its friends as well as its critics, to worry that it's overly deferential to the Court of Appeal. 326 00:33:56,010 --> 00:34:02,639 Now, we've seen examples in our research where the Commission pauses on making a decision about the referral 327 00:34:02,640 --> 00:34:08,220 of a case while it's waiting for what the court does with a previous case that's very similar to it. 328 00:34:09,990 --> 00:34:16,110 Now, that means that when the court ships its interpretation of safety, 329 00:34:16,380 --> 00:34:23,820 the commission follows suit because it follows the results of the court and decides to resolve not according to past judgements. 330 00:34:24,720 --> 00:34:32,040 So if the Court gets it wrong because it's too restrictive in its interpretation of its own legislation, 331 00:34:32,040 --> 00:34:38,310 if it affords no opportunities for the Commission to push back to correct the Court's jurisprudence, 332 00:34:39,180 --> 00:34:46,410 if the Commission was prepared to push it the boundaries of the real possibility test and make bolder, perhaps contrarian referrals. 333 00:34:46,980 --> 00:34:52,379 And if the Court was persuaded by these bolder referrals to be more receptive to fresh evidence 334 00:34:52,380 --> 00:34:55,980 and the certainly evidence that the court is becoming less receptive to fresh evidence. 335 00:34:58,950 --> 00:35:06,420 Then you could perhaps have a less deferential commission, a somewhat less deferential commission. 336 00:35:07,920 --> 00:35:11,760 And I think in that case, there would be fewer critics of the real possibility test. 337 00:35:12,540 --> 00:35:18,330 Now, given the currently decreasing referral rate, which people are getting concerned about serving commissioners, 338 00:35:18,720 --> 00:35:25,770 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. 339 00:35:26,190 --> 00:35:32,670 Though the obvious risk, of course, would be an overall lower success rate if it's pushing more borderline cases through. 340 00:35:33,210 --> 00:35:42,480 And some commission staff worried that to put borderline cases through would risk reputational damage to the commission and also raise 341 00:35:42,480 --> 00:35:49,350 applicants expectations only to then dashed than other commissioners thought that they could push through on these great cases. 342 00:35:49,350 --> 00:35:54,300 And that's what you see on the quotation there from one of the members of staff that we talked to. 343 00:35:55,380 --> 00:36:03,540 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, 344 00:36:03,810 --> 00:36:08,850 it's unlikely that the court would uphold all such borderline cases. 345 00:36:08,850 --> 00:36:15,329 But even if it did, the process of referring the case back to the court having aired in court, 346 00:36:15,330 --> 00:36:19,260 would at the very least expose systemic failings in the criminal justice system. 347 00:36:19,560 --> 00:36:25,410 And at a time of rising concern about non-disclosure, for example, or incompetent defence, 348 00:36:25,410 --> 00:36:29,700 because there's not enough money pumped into the system at an age in a time of austerity, 349 00:36:31,530 --> 00:36:39,000 this could, in and of itself, regardless of the outcome for each and every applicant, be potentially quite beneficial. 350 00:36:39,950 --> 00:36:49,380 All of us. Okay. 351 00:36:50,280 --> 00:36:54,870 It's a huge privilege to be here this afternoon to been asked to comment on Karen's book. 352 00:36:55,950 --> 00:36:57,600 It's a great piece of work. 353 00:36:58,590 --> 00:37:07,350 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. 354 00:37:08,640 --> 00:37:15,420 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 355 00:37:15,420 --> 00:37:19,980 go and start work at this new organisation called the Criminal Cases Review Commission. 356 00:37:21,120 --> 00:37:27,240 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. 357 00:37:27,330 --> 00:37:32,820 And a few years later ended up as a case review manager at the CCRC. 358 00:37:32,940 --> 00:37:36,840 And I'm it was a wonderful job to have. 359 00:37:36,870 --> 00:37:40,440 It was an incredibly inspiring organisation to work in it. 360 00:37:40,890 --> 00:37:46,770 So it is the first organisation in the world that was set up to investigate miscarriages of justice. 361 00:37:47,430 --> 00:37:53,370 I remember watching the news the day the Guildford Forward and the Birmingham Six were released from custody, 362 00:37:53,370 --> 00:38:00,239 and at that time the young people in the audience, there was a real sense that criminal justice was in crisis, 363 00:38:00,240 --> 00:38:04,799 that the system here was fundamentally broken, that there was police corruption, 364 00:38:04,800 --> 00:38:10,680 that the courts were highly resistant to acknowledging mistakes and something needed to be done. 365 00:38:11,880 --> 00:38:20,370 The Royal Commission on Criminal Justice that was set up in the wake of those cases was fairly disappointing in most of its recommendations. 366 00:38:20,370 --> 00:38:24,990 But the one thing that most people agreed was a good thing to come out of it was the commission. 367 00:38:27,090 --> 00:38:32,130 Since then, it's had a more mixed press, and that's one of the really important things about this book, 368 00:38:32,280 --> 00:38:35,400 is it actually allows us to engage seriously with that debate. 369 00:38:36,720 --> 00:38:44,130 There's a lovely moment in the introduction when Caroline talks about how she got interested in working in this organisation, 370 00:38:44,280 --> 00:38:54,270 and it involved an unnamed British academic being somewhat abusive to our American colleagues in the Innocence Network. 371 00:38:55,590 --> 00:39:03,329 And this sort of peaks a curiosity in the topic using hearsay and bad character 372 00:39:03,330 --> 00:39:06,120 type evidence we probably wouldn't be allowed to use in court these days. 373 00:39:06,960 --> 00:39:17,280 I think I had a similar introduction to the topic and became very interested in working in this area as an academic, 374 00:39:17,280 --> 00:39:25,379 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 375 00:39:25,380 --> 00:39:33,270 academic researchers in engaging with important public bodies and the criminal justice system, 376 00:39:33,840 --> 00:39:42,420 and also the influence of scholarship in practice from the United States and the effect that's had on the work in this jurisdiction. 377 00:39:44,640 --> 00:39:52,500 I would say the divisions of early career academics being able to write about something you're passionate about is a wonderful privilege. 378 00:39:52,740 --> 00:39:57,070 In this job, we were an innocence. 379 00:39:57,320 --> 00:40:01,040 What conference in 2005, I think. 380 00:40:01,160 --> 00:40:06,460 And I was very, very fired up by some of the conversations that happened that day. 381 00:40:07,760 --> 00:40:10,879 And that led me to writing an article a couple of years later. 382 00:40:10,880 --> 00:40:19,880 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. 383 00:40:20,360 --> 00:40:27,560 But there's a difference, I think, between scholarship and practice, and I think this book illustrates some of that quite nicely. 384 00:40:29,930 --> 00:40:38,840 So I left the commission in 2004, which is the point where Carolyn's research notes that the efficiency of the commission improved. 385 00:40:39,980 --> 00:40:43,130 I'm not sure if the two things are related or not. 386 00:40:44,300 --> 00:40:47,300 And I went to work at the Innocence Project in New Orleans for six months, 387 00:40:47,690 --> 00:40:57,410 and I had this wonderful idea about compare and contrast with how the UK and the US deal with miscarriages of justice. 388 00:40:58,970 --> 00:41:00,800 That lasted for about 20 minutes. 389 00:41:01,910 --> 00:41:09,830 As I'd gone from a very nice office in Birmingham with a government funded body with statutory powers to gay materials, 390 00:41:10,670 --> 00:41:17,150 with a budget that could fund forensic testing powers to ask the police to conduct investigations. 391 00:41:17,510 --> 00:41:26,479 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. 392 00:41:26,480 --> 00:41:32,780 We weren't allowed to use the front desk because it was collapsing a forensic labs that was named after the sheriff. 393 00:41:33,710 --> 00:41:36,800 There was just no pretence of any kind of impartiality. 394 00:41:37,250 --> 00:41:44,750 And the office was run by students. And two weeks after I left, most of it was very badly affected by Hurricane Katrina. 395 00:41:45,460 --> 00:41:47,780 Um, so that these two very, 396 00:41:47,780 --> 00:41:57,440 very different models and this sort of bureaucratic idea of safety and testing procedurally whether or not the conviction was properly obtained, 397 00:41:57,800 --> 00:42:05,900 and then the much more sort of visceral campaigning, absolute innocence type work that was undertaken in the States. 398 00:42:07,190 --> 00:42:12,950 Now, a number of academics in this country decided that the commission was not working. 399 00:42:12,950 --> 00:42:18,290 It was not fit for purpose, although the criticisms that you heard, because there was this belief in innocence, 400 00:42:18,710 --> 00:42:22,370 that this should be a black and white issue, that we should be out there campaigning. 401 00:42:23,900 --> 00:42:28,490 There's a nice line in the book about how there'd been several years of criticism of the commission, 402 00:42:28,490 --> 00:42:35,200 but none of which was founded on empirical research. It's really important we know what we're talking about. 403 00:42:35,240 --> 00:42:38,450 You can't just look at somebody and know if they're guilty or innocent. 404 00:42:38,570 --> 00:42:40,880 It's a much more complex matter. 405 00:42:41,390 --> 00:42:53,240 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. 406 00:42:54,350 --> 00:42:58,730 And that's interesting. It's not just the paper. It's not the Criminal Appeal Act of 1995. 407 00:42:59,090 --> 00:43:03,350 There's something much more complex going on, and it's a unique organisation. 408 00:43:03,560 --> 00:43:07,550 It's one of the few areas of the criminal justice system that is inquisitorial. 409 00:43:08,360 --> 00:43:12,140 We have the prosecution and the defence make a different sides. 410 00:43:12,710 --> 00:43:18,620 The Commission is supposed to be disinterested and I think that's one of the things that some of its critics have struggled with, 411 00:43:18,860 --> 00:43:25,970 that it's not the campaigning body. Previously, there were groups who would campaign for people who said they were wrongly convicted. 412 00:43:26,420 --> 00:43:32,960 The commission fulfilled that role of investigating those cases, but took a very culturally different approach. 413 00:43:35,450 --> 00:43:41,920 There's some very nice, complex theory in the book, which is very, very deftly handled. 414 00:43:43,340 --> 00:43:53,540 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. 415 00:43:54,380 --> 00:43:59,630 It's a very engaged, well-written book that deals very nicely with some very complex theoretical ideas, 416 00:44:00,740 --> 00:44:06,290 but it uses that to move beyond just throwing brickbats or being counted. 417 00:44:06,290 --> 00:44:11,360 How many cases have been referred to actually look at a more complex, subtle institution? 418 00:44:13,040 --> 00:44:17,240 And it's quite difficult to research an organisation such as the Commission. 419 00:44:17,420 --> 00:44:22,820 If you look at something like the police, almost everybody has been through police training college. 420 00:44:23,570 --> 00:44:26,810 If you look at the Crown Prosecution Service, they're all prosecutor. 421 00:44:27,140 --> 00:44:28,310 They have a legal background. 422 00:44:28,610 --> 00:44:37,300 So there's almost a similarity of culture, whereas the commission quite deliberately drew people from a variety of backgrounds. 423 00:44:37,310 --> 00:44:43,610 They didn't just want an organisation full of lawyers. They wanted people who had other skills, different ways of working. 424 00:44:43,880 --> 00:44:49,560 So academics, probation officers, we had journalists. 425 00:44:49,690 --> 00:44:57,200 You know, there's a whole different array of perspectives that were brought to bear on that, which makes it quite tricky to. 426 00:44:58,010 --> 00:45:03,800 Their eyes and conceptualise and say, this is how a case review manager works because they are all very different. 427 00:45:07,340 --> 00:45:12,620 It also makes it quite tricky to write up your research in some ways. 428 00:45:12,650 --> 00:45:21,470 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? 429 00:45:21,710 --> 00:45:28,100 The commissioner who had the be electrically short temperature was about to erupt at any moment. 430 00:45:29,120 --> 00:45:32,960 It can be quite tricky, not not personalising some of this. 431 00:45:35,460 --> 00:45:43,220 Now, a small organisation or an institution in a sort of a vulnerable position, perhaps it shouldn't get a free pass. 432 00:45:44,180 --> 00:45:50,130 I think it was a remarkable institution. Michael Howard was the home secretary who set up the CCRC. 433 00:45:50,240 --> 00:45:53,900 He was possibly the most right wing home secretary we've had. 434 00:45:55,490 --> 00:45:58,850 But it was an extraordinary legacy that he left. 435 00:46:00,080 --> 00:46:03,559 It should be monitored. It should be subject to criticism. 436 00:46:03,560 --> 00:46:09,320 But there is a risk of jeopardising it with with careless criticism and unsubstantiated 437 00:46:09,320 --> 00:46:14,270 criticism and the loudest voices being able to throw these allegations around. 438 00:46:14,690 --> 00:46:23,210 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. 439 00:46:26,570 --> 00:46:33,230 Much of the literature around miscarriages of justice that Karen Andrews put in the book is American. 440 00:46:33,740 --> 00:46:39,469 And I have some concerns about about that because I think because of the 441 00:46:39,470 --> 00:46:43,430 differences between the systems that haven't made as much written in this country, 442 00:46:43,430 --> 00:46:53,560 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. 443 00:46:53,570 --> 00:46:57,590 It was like glory days for research, probably not for the actual criminal justice system. 444 00:46:59,090 --> 00:47:02,239 So we tend to use data from the states. 445 00:47:02,240 --> 00:47:08,870 But I think the real very fundamental difference is that not all of which we can transfer quite as easily. 446 00:47:10,880 --> 00:47:14,750 And also the idea around setting up innocence projects in this country as a counter 447 00:47:15,350 --> 00:47:20,330 balance to the Commission again is something I've written about saying I really don't. 448 00:47:20,340 --> 00:47:26,030 That's an idea that works terribly well. But I thought about it more in the last couple of weeks. 449 00:47:26,030 --> 00:47:32,940 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. 450 00:47:33,260 --> 00:47:37,640 So the lawyers for making a murderer, the boy from the staircase. 451 00:47:38,600 --> 00:47:44,570 And we've been to four or five different cities selling out venues, 400, 500 people a night. 452 00:47:45,620 --> 00:47:49,430 And I thought, why are we doing this with the English legal system? 453 00:47:51,770 --> 00:47:57,710 The commission is chartered sort of. It starts off at probably the lowest points in confidence in the criminal justice system. 454 00:47:58,340 --> 00:48:06,889 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, 455 00:48:06,890 --> 00:48:11,210 cases where the police beat confessions out of suspects or put shotguns under their beds. 456 00:48:12,450 --> 00:48:21,410 It's much more likely nowadays to be false testimony in in sex cases or problematic forensic evidence. 457 00:48:21,740 --> 00:48:28,220 So the nature of the casework has changed the nature of the criminal justice system failure, then it has have changed, too. 458 00:48:29,870 --> 00:48:34,669 And there is so much going on in this country. But it's not glamorised. 459 00:48:34,670 --> 00:48:39,260 It's not televised. I'm not trying to think what? Why aren't we doing this with cases here? 460 00:48:41,090 --> 00:48:47,240 We have far fewer cases of demonstrable, factual innocence, which I think is a problem. 461 00:48:47,790 --> 00:48:53,780 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. 462 00:48:54,020 --> 00:49:02,419 Here's a DNA test to show that. That's the campaigning to our system is in many ways progressed from that. 463 00:49:02,420 --> 00:49:08,150 But it becomes a much harder narrative to make to the public to persuade them why this is important. 464 00:49:08,720 --> 00:49:16,880 And we've seen attacks on the criminal justice system that have made it much harder for defendants to get the fair trials and 465 00:49:17,130 --> 00:49:23,990 cuts in legal aid at the police station and the representation at trial if they have to make contributions about themselves, 466 00:49:24,260 --> 00:49:34,220 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, 467 00:49:35,150 --> 00:49:40,460 which may be another factor behind the Commission's declining success rate. 468 00:49:41,900 --> 00:49:54,440 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. 469 00:49:54,560 --> 00:50:03,540 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 470 00:50:03,540 --> 00:50:08,940 its tendency to shut cases down once it seems too many cases are getting through of a certain type. 471 00:50:09,640 --> 00:50:16,250 L'oreal's, who was a former commissioner, wrote about the court having the Duke of York type approach to cases. 472 00:50:16,270 --> 00:50:20,940 As we get halfway up the hill saying, yes, we'll quote all these cases and then, oh, we don't want that many. 473 00:50:21,360 --> 00:50:27,569 And and going back from months, the court have never addressed its role in miscarriages of justice. 474 00:50:27,570 --> 00:50:36,570 Its comments surrounding the Birmingham Six and the Guildford Four were reprehensible and there was an 475 00:50:36,570 --> 00:50:43,560 outcry at the time which kind of went away and its role in perpetuating these miscarriages of justice. 476 00:50:44,220 --> 00:50:49,440 They've already been knocked back once by the Court of Appeals. Most of these cases, that role hasn't been addressed. 477 00:50:49,440 --> 00:50:56,070 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. 478 00:50:56,860 --> 00:51:01,650 Its role is is is a fundamental importance here. 479 00:51:03,450 --> 00:51:09,630 And the idea of perhaps the commission being able to challenge more is an important conversation to keep having. 480 00:51:10,200 --> 00:51:16,109 It's very easy to become complacent or to have a conversation mentality in these kind of jobs. 481 00:51:16,110 --> 00:51:19,620 And as you said, much of the coverage is negative. 482 00:51:21,900 --> 00:51:30,720 But the point I want to finish on is why we need to defend organisations such as the Commission. 483 00:51:31,320 --> 00:51:40,530 Now we can disagree on how well it's doing or what the appropriate referral rate is or how it should conduct its investigations. 484 00:51:40,710 --> 00:51:46,830 But it was the first body in the world where the government committed to funding an institution 485 00:51:47,040 --> 00:51:51,930 that would investigate the potential that potential miscarriages of justice had occurred. 486 00:51:52,590 --> 00:52:00,090 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 487 00:52:00,090 --> 00:52:07,140 had a litany of cases where confidence in the criminal justice system was being destroyed, 488 00:52:07,350 --> 00:52:12,989 that there were calls in Parliament for the Lord Chief Justice to resign and editorials in newspapers. 489 00:52:12,990 --> 00:52:19,950 It was a very almost an existential crisis around the criminal justice system. 490 00:52:21,030 --> 00:52:29,160 So the commission came out of that freakish alignment of events, and it would be very easy to destroy that. 491 00:52:29,580 --> 00:52:37,080 I think one of the most shocking findings in the book was it's the organisation that has been hit hardest by budget cuts. 492 00:52:38,400 --> 00:52:42,480 Austerity has taken its toll across the entire criminal justice system, 493 00:52:42,630 --> 00:52:48,090 which is bound to have had an impact if the police officers court investigate cases fully enough. 494 00:52:48,090 --> 00:52:52,050 If they're not looking at disclosure, if the CPS are picking things up at the last minute, 495 00:52:52,440 --> 00:52:58,770 if there's a change of defence counsel who are being resource to do their jobs properly, that is how mistakes occur. 496 00:52:59,160 --> 00:53:06,030 But the Commission has been hit hardest by those budget cuts and the lack of commissioner time. 497 00:53:06,030 --> 00:53:11,310 Now when I work for the Commission, I think they were 13 almost full time commissioners. 498 00:53:11,670 --> 00:53:16,979 Now they are employed on a daily rate and it's less than you said, what, 499 00:53:16,980 --> 00:53:25,170 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. 500 00:53:27,240 --> 00:53:35,490 But in terms of our responsibilities to actually defend institutions of the rule of law, they are under attack at the moment. 501 00:53:35,490 --> 00:53:43,890 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. 502 00:53:45,810 --> 00:53:50,760 We need to defend civil society institutions, and this is a very good example of one of them, 503 00:53:53,610 --> 00:53:59,520 is that possibly if I if I actually had a criticism, it would be you'll sometimes you gentle on the critics. 504 00:54:01,830 --> 00:54:06,569 It's towards the end that the commission may have failed in communication with interested 505 00:54:06,570 --> 00:54:10,290 parties who are still not persuaded that it's doing its job or doing anything. 506 00:54:11,250 --> 00:54:12,870 There are some people who don't want to listen, 507 00:54:13,770 --> 00:54:21,420 and I think there is a danger of the loudest voices or the most vociferous people on Twitter guessing to shape the debate. 508 00:54:22,350 --> 00:54:27,780 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. 509 00:54:27,780 --> 00:54:35,320 I thought it was working okay. That meant all the submissions it received were from people with a very different perspective to mine. 510 00:54:35,370 --> 00:54:42,299 Now they're entitled to hold that view, but I think we have a responsibility to actually balance that debate. 511 00:54:42,300 --> 00:54:44,910 Sometimes it's not a great campaigning slogan. 512 00:54:46,080 --> 00:54:55,530 Things are working fine, but it's important we have a responsibility to actually defend bureaucratic institutions. 513 00:54:55,930 --> 00:55:03,850 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. 514 00:55:03,970 --> 00:55:05,530 And if I was wrongly convicted, 515 00:55:05,890 --> 00:55:15,340 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. 516 00:55:17,140 --> 00:55:25,030 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. 517 00:55:26,500 --> 00:55:35,050 And whatever happens, whichever way the debate goes, whichever side you fall on, 518 00:55:35,860 --> 00:55:42,460 this book has given us some really important facts and figures and information and concepts that we can use, 519 00:55:43,120 --> 00:55:48,760 whether we use them to train books of commission or to actually build something more constructive. 520 00:55:48,790 --> 00:55:54,280 It makes a really substantial contribution to the debate around not just the commission, 521 00:55:54,520 --> 00:55:59,200 but to the entire administration of the rule of law in this country. 522 00:55:59,590 --> 00:56:03,550 It's beautifully written. It's a really substantial piece of work. 523 00:56:03,580 --> 00:56:05,680 And I would recommend it to all of you.