Law: Justice will be done

"THEY ACTUALLY talk to us. They ring us up and discuss details of cases we have sent them. They even come to meet us." A year after the Criminal Cases Review Commission began work investigating potential miscarriages of justice, the note of disbelief in the voices of defence solicitors and other campaigners is still marked.

The commission got off to a flying start, referring the cases of Danny MacNamee, jailed in 1987 for conspiracy to cause the Hyde Park bombings, Mahmood Mattan, the Somali sailor hanged in 1952 for murdering a Cardiff shopkeeper, and Derek Bentley, hanged in 1953, back to the Court of Appeal within eight months of starting work. In February, the first of the commission's referrals to come before the Court of Appeal led to the quashing of Mr Mattan's conviction.

After years of struggling with the Home Office's C3 department, which was responsible for reviewing suspected miscarriages until March last year, it is the contrast in style between the two that prompts most comment from solicitors.

Jim Nichol, who represented the Bridgewater Three, is dealing with the commission over the M25 case, where three men were jailed for life in 1990 for murder and other crimes in and around Surrey. He says it is too early to judge whether the commission will produce the right results. However, he believes it is open to ideas and, on that level, is "incomparably better" than the Home Office.

Razia Karim, legal officer for campaign group Justice agrees. "In the past, you sent a case to the Home Office and it was like a black hole. You heard nothing for years and were then told yes or no. The commission will tell you the name of the person reviewing the case. They are very willing to discuss ideas and to come down to London to meet us."

One of Justice's cases dealt with by the Commission involved Mary Druhan, who was sentenced to life in 1989 for a double murder. Justice petitioned the Home Office for an appeal in 1993, which was considering rejecting the case when, last year, it was transferred to the commission. After a nine-month investigation, the commission decided to refer Ms Druhan's case to the Court of Appeal. "I was pleased with their approach. It was very different to the Home Office, given that nothing substantially new had happened," says Ms Karim.

However, Justice was concerned about a backlog of cases building up - new cases are still waiting to be allocated a caseworker six months after being submitted. Apart from the 272 cases that were transferred from the Home Office - which arrived in the "most dreadful state", according to one of the commissioners - the commission took on 12 from the Northern Ireland Office. Of these 284 cases, 193 are still open.

New cases come in at the rate of four a day, with only one in 10 applicants legally represented. Of the 1,330 applications received by the end of March, 218 were being worked on, leaving 807 still open. The commission has completed 305 cases - referring 12 to the Court of Appeal, refusing 38 and rejecting 255 cases because they did not come within the commission's jurisdiction or were without merit.

The commission's brief, set out in the Criminal Appeal Act 1995, requires it to consider whether there is a "real possibility" that a conviction will be quashed if the case is given a further hearing in the Court of Appeal. For a case to be referred, there has to be an argument or evidence which has not been raised during the trial or at appeal, or exceptional circumstances.

The commission, based in Birmingham, is made up of 14 commissioners and 24 caseworkers. Its budget of nearly pounds 6m has been increased to allow it to recruit another 16 caseworkers. The commissioners are keen to talk about their role within a criminal justice system that is still trying to rebuild public confidence after a series of devastating miscarriages of justice, including the Birmingham Six and the Guildford Four.

Former crown prosecutor Fiona King, who also spent 10 years as a defence solicitor, is a part-time commissioner. She says the commission was the first organisation within the criminal justice system to bring European- style inquisitorial powers to bear on cases.

"A lot of miscarriages stem from our adversarial procedures, where it isn't so much a search for the truth of who committed the crime but a search for the most likely candidate," she says. "The cases that have come to us fall into groups almost by age. In the 1970s, there were problems over identification. In the 1970s and early 1980s, it was false confessions. After the Police and Criminal Evidence Act 1984, it was disclosure. However, we will need more cases under our belt before we can say this or that needs changing."

The question of what information discovered during its investigation the commission chooses to disclose to an applicant and when it discloses it is something that worries defence lawyers. Section 17 of the 1995 Act gives the commission wide powers to obtain material held by public bodies. It is considering asking the Government to extend that power to cover private organisations.

Commissioner Professor Leonard Leigh, a former law lecturer, is responsible for 11 of the more complicated cases and is overseeing another 15. He says the commission tends to wait until it has completed its investigations before disclosing material to avoid a "running guerrilla war" with applicants' solicitors.

If the commission decides to refer a case, it will disclose as much information as possible to the defence and the Crown Prosecution Service. If it decides not to, first it will send a letter to the applicant setting out the preliminary reasons for the decision and any documents, allowing 28 days for comments. Any reasonable representations will then be followed up.

But many solicitors worry that the Commission is setting too hard a test for cases to win referral to the Court of Appeal. Jane Winter, of campaign group British Irish Rights Watch, met with the commission this month and raised concerns of Northern Ireland lawyers that commissioners will only refer "dead certs" and that they are not sufficiently aware of the background of the Diplock regime.

She says the commission is "very open" to the idea of undertaking more training in this field and intends visiting Northern Ireland to meet with people in the legal profession. It has also offered reassurance about the criteria for referrals. "They told us about a number of cases they are intending to refer, which nobody could say are dead certainties."

Another concern is the commission's use of police investigators. So far, it has instigated police inquiries into six cases. Professor Leigh says: "Realistically, there isn't anything else we can do. We have an investigations adviser and some of the caseworkers have police or legal experience. But in some of the major inquiries, you need a team of seven or eight officers. If we had our own investigators, we'd need about 70 people and no government is going to give you those sorts of resources."

Criminal Cases Review Commission, Alpha Tower, 21-22 Suffolk Street, Queensway, Birmingham B1 1TT (0121 633 1800).