An Overview of the Criminal Cases Review Commission

Johanna Higgins, Commissioner for Northern Ireland, Criminal Cases Review Commission

This article presents an overview of the organisation set up as a “first of its kind” to investigate and return wrongful convictions to the Court of Appeal. The Commission is the only way a case can be returned to an appellate court once the usual appeal route is exhausted. We will take a look at what it is and how it works, with a particular emphasis on some cases from Northern Ireland.

How was it set up?

The Criminal Cases Review Commission, (CCRC), is a body which was set up by the Criminal Appeal Act 1995 (‘the Act’). Setting up the CCRC was a recommendation of the Royal Commission on Criminal Justice, which was created on the same day that the Birmingham Six convictions were famously overturned in the Court of Appeal, London. Prior to this the Home Office formerly had responsibility for addressing alleged miscarriages of justice and sending them back to the Court of Appeal if the Home Secretary ‘saw fit’, as per the Criminal Appeal Act 1968, s 17(1)(a). The group JUSTICE in England had, since its inception in 1957, been highlighting the need for a practical and effective form of redress for those who sought to put right their wrongful convictions. The Guilford Four had already had their convictions quashed in 1989 and a raft of other high-profile cases were in the news, among them, the Maguire Seven, Tottenham Three, Judith Ward, Cardiff Three, Stephan Kizsko and others.

At the time the CCRC opened its doors in 1997 there was a backlog of some 261 cases which were transferred from the Home Office (HC Debate 6 June 1997 vol 295).

Why was it set up in this way?

It was considered preferable to have a body which was not susceptible to breaching the separation of powers principle; the principle ‘famously championed by Baron de Montesquieu in France, whose book published in 1748, De L’esprit des Lois, argued that legislative, executive and judicial powers should not be exercised by the same people.’ (Brice Dickson, Law in Northern Ireland 2022). It was seen as a difficult position to have the Home Secretary challenge the courts (and, by inference, the judiciary) and the assertion was that the Home Office was somewhat reluctant to do this, according to Laurie Elks (former Commissioner), who writing in his book Righting Miscarriages of Justice? argued there was a ‘systemic constitutional difficulty in entrusting the review of miscarriages to the executive branch of the government.’

The CCRC was, therefore, set up as an independent body corporate. It exists independently of Parliament, the Executive and the Courts; an inquisitorial body operating in an adversarial system. Occupying this singular position, the demands upon the CCRC are multifold, bearing as it does the responsibility to address the wrongs alleged against the whole system. It has a Departmental body (the MoJ) to fund it and deal with practicalities at ‘arm’s length.’

The members of the CCRC, who are the 11 commissioners, are appointed by the King, on the recommendation of the Prime Minister (who is advised by the MoJ). Each Commissioner, including the chair, has been traditionally granted a Royal Warrant under the Act. The powers detailed in the Act are vested in the CCRC itself. The independence of the CCRC has been seen as crucial to the exercise of its duties.

There is a statutory requirement for one of the Commissioners to have experience of the legal system in Northern Ireland. As that Commissioner, I also undertake English cases and so have a broad spectrum of work. We now also have three legally qualified case review managers based in Northern Ireland. The whole organisation has around 110 staff, of whom 35 are Case Review Managers, working directly on cases with Commissioners, investigators and administration staff.

What are its powers?

The Act details several important powers available to the CCRC in the exercise of its work. The most used of these is the Section 17 power, to ‘obtain documents etc from those serving in public bodies.’ This power is used by the CCRC thousands of times a year. In practically every case that goes to review it is used to put public bodies on notice that documents or materials relating to a case must not be destroyed. When the CCRC requires production of material, it is backed by a power to enforce by judicial review. Section 17 is a very wide power and is not fettered ‘by any obligation of secrecy or other limitation on disclosure…’

Section 18A is a similar power to obtain documents from private persons and can be enforced through an order of the Crown Court. We have only had to use the enforcement route in this regard in one recent case.

Section 19 of the Act gives the CCRC the ‘power to require the appointment of investigating officers.’

The most important powers, which makes the CCRC a unique body, are detailed from sections 9 to 14. In summary, the CCRC may refer any conviction on indictment back to the Court of Appeal (in England and Northern Ireland) and any summary conviction back to the Crown Court in England and the County Court in Northern Ireland. The CCRC also deals with Court Martial cases. Section 13, which outlines the conditions for the making of references, is worth reproducing in full:

‘(1) A reference of a conviction, verdict, finding or sentence shall not be made […] unless—

(a) the Commission consider that there is a real possibility that the conviction, verdict, finding or sentence would not be upheld were the reference to be made,

(b) the Commission so consider— (i) in the case of a conviction, verdict or finding, because of an argument, or evidence, not raised in the proceedings which led to it or on any appeal or application for leave to appeal against it, or (ii)in the case of a sentence, because of an argument on a point of law, or information, not so raised, and (c) an appeal against the conviction, verdict, finding or sentence has been determined or leave to appeal against it has been refused.

(2) Nothing in subsection (1)(b)(i) or (c) shall prevent the making of a reference if it appears to the Commission that there are exceptional circumstances which justify making it.’

Cases from Northern Ireland

It is important to note here that application to the CCRC is completely free. There is no fee and many of the applicants are not represented and use the Easy Read form. Legal Aid is, however, available to representatives preparing cases in Northern Ireland, although it is not available in England. The CCRC will undertake any necessary legal, forensic work or other expert work deemed necessary in a review. What is perhaps most beneficial for a legal representative to undertake, which can really assist the process, is some detail made out as to where a real possibility may lie, be it in legal argument or new evidence. The new evidence may have to be sought by the CCRC, it does not have to be available to the applicant before applying.

Recent cases have included the King v Patrick Joseph Thompson [2024] NICA 30 in which the convictions of Mr Thompson for four counts of murder and membership of a proscribed organisation in 1976 were overturned. The court noted in its judgment:

‘A striking feature of this case is that the main ground on which this appeal is advanced – the Latimer point encompassed at (iv) above was not known to the appellant when he applied to the CCRC. Rather, it was in the course of their own review that the CCRC became aware that the decision in Latimer was of relevance to this appeal.’

And, later in the judgment, ‘We also commend the CCRC for drawing the Latimer issue to the attention of the court.’

The Latimer point arises from the case of R v Latimer, Hegan, Bell and Allen [1992] 1 NIJB 89 in which an officer, Detective Inspector Mitchell, was discredited and therefore rendered unreliable. The court agreed with the assertion of the CCRC that:

‘If the trial judge had been aware of serious concerns regarding Mitchell’s integrity, the CCRC considers that this would have been likely to cause him to doubt the reliability of DI Mitchell’s account that Mr Thompson had made voluntary admissions to the offences in question …’

Mr Thompson served his full sentence for this wrongful conviction and had protested his innocence for many years.

The CCRC is currently undertaking a trawl of previous cases which might also involve unreliable confession evidence where officers have been discredited. We would also be happy to look at new applications on this point. It must, however, be noted that in another recent case, the Court of Appeal, in declining to quash other convictions referred by the CCRC, stated:

‘Finally, lest this point be unclear to appellants or the CCRC, the fact that issues arise from Latimer as to the conduct of certain police officers, is not a freestanding ground of appeal. Although a valid question is raised, it is not a given that a historic conviction is unsafe because some discredited police officers may have been involved. The outcome of appeals will depend on a close and careful analysis of the facts of a particular case and consideration of the overarching consideration of whether a conviction is unsafe’ King v George Kirkpatrick, Cyril Cullen and Erin Cullen [2025] NICA 5.

This then may require some consideration to be given to distinguishing cases from Kirkpatrick.

From the Magistrates Court, a case in which a conviction was recently overturned in the County Court was that of Stefan Stefanov. Mr Stefanov was convicted of driving without a licence after he was stopped by police on the Dungannon Road, Moy and produced his Bulgarian driving licence. Mr Stefanov was prosecuted on the basis that his Bulgarian licence only allowed him to drive for a year after becoming resident in Northern Ireland. He was advised by his counsel to plead guilty.

Mr Stefanov was duly convicted of driving without a licence, contrary to Article 3(1) of the Road Traffic (Northern Ireland) Order 1981 and disqualified from driving until he passed an appropriate test. As Mr Stefanov had no right of appeal, given his guilty plea, he applied directly to us, unrepresented, after he had checked with the Driver and Vehicle Agency and been told he should have been able to drive on his EU licence. The CCRC referred the case for an appeal on the basis that Article 55(1) of the Motor Vehicle (Driving Licences) Regulations (Northern Ireland) 1996 (regarding the one year limit) had been wrongly applied to Mr Stefanov and that, in fact, as a holder of a Bulgarian licence he had a Community licence which fell within the scope of Article 15A of the 1981 Order. This meant he could drive until he was 70, or until his licence expired, whichever was sooner. Therefore, he had not been driving without a licence.

This case, whilst at the less serious end of the spectrum, still had consequences for Mr Stefanov, and, in terms of the public interest, it was wasteful of police and court time. A trawl has also been undertaken to identify any other similar cases and, again, applications on this point are welcome.

I have highlighted two quite different cases. I would also like to draw attention to the modern slavery cases that we have been undertaking in England and Wales where the appropriate defence was not advised. The equivalent in Northern Ireland would be the statutory defence at s.22 Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (NI) 2015. Practitioners can look at the CCRC website where there is a case library which might well be of assistance in getting an idea of the types of cases we have dealt with and referred.

Currently, there are 10 referred Northern Ireland cases awaiting an appeal hearing and we currently have 32 applications from Northern Ireland to consider. This is against a backdrop of approximately 970 cases under review from all jurisdictions.

I hope that this overview has been of assistance. Please get in touch for any further information.

Contact details for more information on the CCRC: www.ccrc.gov.uk

Email: info@ccrc.gov.uk

Tel: 01212320914