Appeals - Criminal Cases Review Commission

• Introduction
• Principles
• Powers of the CCRC
• Procedure
• Powers to Obtain Documents
• Preservation of documents held by the CPS
• Confidentiality
• Role of the CPS when a case is referred to the Court of Appeal
• Role of the CPS where there may be doubt about the safety of the conviction
• Conclusion of CCRC investigations
• Maintaining records

Introduction

The Criminal Cases Review Commission was established by the Criminal Appeal Act 1995. It was set up to investigate suspected miscarriages of justice.

The role of the CCRC and the criteria governing its investigative powers can be found in sections 8 to 25 of the 1995 Act. This guidance outlines only those aspects of the work of the CCRC in which the CPS is involved.

Principles

On an appeal against conviction, the Court of Appeal may direct the Commission to investigate and report on any matter relevant to the determination of the case in accordance with section 23A(1) Criminal Appeal Act 1968.

The Court of Appeal may dismiss an appeal referred to it after 14 July 2008 by the CCRC if:

• the only ground for allowing the appeal is a development in the law since conviction verdict or finding; and
• if the reference had not been made, the court would not have thought it appropriate to grant an application for extension of time to seek leave on the basis of a development in the law. (s16c Criminal Appeal Act 1968 - as amended by section 42 Criminal Justice and Immigration Act 2008).

CPS staff are under a public duty to assist the CCRC in carrying out its statutory role. In particular, the CPS must ensure that any direction received from the CCRC to preserve or disclose material held by the CPS is attended to in full and without delay.

Powers of the CCRC ​

Under section 17 of the Criminal Appeal Act 1995, the CCRC may, where it is reasonable to do so, require the CPS to produce any document or other material in its possession which may assist the CCRC in the exercise of any of its functions. The CCRC may also direct that any such document or material must not be destroyed, damaged or altered until such time as the direction is withdrawn. Such a direction under section 17 of the 1995 Act is known as a 'Section 17 Preservation Order'. They are sent to the Departmental Records Officer (DRO) - who receives them on behalf of the Director of Public Prosecutions (DPP). The Records Management Unit (RMU) check all requests to ensure the material is not preserved centrally. The RMU then write to the relevant CCP/DCCP to action. The CCP has overall responsibility for liaison with the RMU who subsequently reply to the CCRC.

Procedure

Powers to Obtain Documents

The CCRC has the power under section 17 of the Criminal Appeal Act 1995 to require the appropriate person from the CPS to produce the document, have access, and make copies or request that the papers are sent to their offices in Birmingham.

The obligations under section 17 are absolute and override public interest immunity, legal professional privilege and any other rule or obligation of confidentiality which would other wise be attached to this material.

Where the CCRC requires the production of documents or other material the items must be dispatched with appropriate security measures to ensure safe delivery. Receipts must be obtained.

It is also essential that accurate schedules be maintained of all documents etc produced to the CCRC. Those schedules must not only describe documents fully, stating if copies or originals, but also specify whether they have been inspected by, or taken into the possession of, the CCRC.

Preservation of documents held by the CPS

The CCRC will direct the DPP that material must not be altered, damaged or destroyed until further notice from the CCRC. This provision should be read subject to section 1(7) of the Prosecution of Offences Act 1985. The preservation order will be sent directly to the DRO in HQ on behalf of the DPP.

When a preservation order is received it is essential for the CCP/DCCP to take proper steps to prevent inadvertent destruction by staff who are unaware of the order e.g. clearly mark material, place in a locked cupboard or place back into storage with an extended destruction date and a prominent note that the file is subject to a CCRC preservation order.

The preservation order must clearly identify the material to which it applies. Seek clarification from the RMU if it does not.

Proper arrangements must be in place to fulfil the directions to preserve material under section 17. Where the CPS destroys or damages material contrary to such an order, even inadvertently, the consequences for justice and the CPS could be very serious.

Confidentiality

Under the provisions of section 25 of the Criminal Appeal Act 1995 the CPS may notify the CCRC that information contained in a document or other material which is the subject of a section 17 Preservation Order must not be disclosed by the CCRC to a third party without the prior consent of the CPS. Such consent may only be withheld by the CPS:

• If, had a section 17 Preservation Order not been made, the CPS would have been prevented by any obligation of secrecy or other limitation on disclosure from producing the document etc containing that information to the CCRC; and
• It is reasonable for the CPS to withhold consent to disclosure of information by the CCRC.

Where the CPS is under an obligation of secrecy which arises because a third party has not authorised disclosure, that obligation shall not be taken for the purposes of section 25 of the 1995 Act as preventing disclosure by the CPS of information to the Commission unless:

• Reasonable steps have been taken to obtain the authorisation of the other person,

Or:

• Such authorisation could not reasonably be expected to be obtained.

It is likely that the CPS will need to make a notification to the CCRC under section 25 when required under section 17 to produce material which had been the subject of a successful PII application during the original proceedings, or which might currently attract PII or some other obligation of confidentiality, such as legal or medical professional privilege.

When the CCRC is notified under section 25 that information may not be disclosed without consent it is essential that the information is clearly identified and that the nature of sensitivity and consequences of disclosure are clearly explained.

Other bodies, such as the police or Social Services, retain a legitimate interest in sensitive material which they have passed to the CPS. They must be notified by the Area when a section 17 Preservation Order is received and consulted if any grounds exist for a section 25 notification.

Under section 23 of the 1995 Act it is an offence for any person working or acting for the CCRC to disclose material provided to the CCRC other than for the purposes listed at section 24.

The principles and procedures which apply to PII applications should be drawn upon when considering issues arising from both Section 17 Preservation Orders and notifications under section 25.

Role of the CPS when a case is referred to the Court of Appeal

When referring a case to the Court of Appeal the CCRC will make a statement under section 14 - Statement of Reasons - and will supply a copy to all those likely to be a party to proceedings in the Court of Appeal or Crown Court. Prosecutors may be consulted about the content of the statement.

Once the Statement of Reasons is received by the RMU it will be forwarded to the Appeals and Review Unit, Special Crime and Counter Terrorism Division, which will take responsibility for dealing with the case. The case is then treated the same as any criminal appeal under the 1968 Criminal Appeal Act. The material gathered by the CCRC and on which they have made their decision to refer will be forwarded to the CPS to enable us to conduct the appeal. The CPS will then be under the usual duties to make disclosure in the proceedings.

Role of the CPS where there may be doubt about the safety of the conviction

The CPS must write to the CCRC at the earliest opportunity about any case in which there is doubt about the safety of the conviction namely:

• where information comes to light suggesting that a conviction may be unsafe;
• where a wrongful conviction may have occurred;
• where an illegal sentence has or may have been passed; or
• where possible fresh evidence is received by the CPS, regardless of whether it is thought to cast doubt on the safety of the conviction.

A copy should be sent to the DRO to ensure that any subsequent S.17 Preservation Order is properly tracked.

Conclusion of CCRC investigations

Upon conclusion of their investigation the CCRC will inform the DRO that the preservation order has been withdrawn. The RMU will inform the Area concerned and the papers should then be retained in line with the original destruction date.

Maintaining records

It is essential for the business needs of the Service and its requirement to provide records to the CCRC that the CPS follow good records management practice.

Staff who are involved in casework should ensure that the CPS case file contains a full and true record of that case. Procedures must be in place to ensure that they are able to identify, trace and control all case files and that these are properly stored.

Staff must ensure:

• documents are arranged on the case file in an orderly way;
• key information is recorded clearly on the file including any decision taken by, or undertaking given on behalf of the CPS;
• the status of a case file and details of any action taken can easily be established by other members of the CPS.

CPS staff must maintain full and detailed records of all dealings with the CCRC. For further information please contact: Departmental Records Officer, 102 Petty France, London SW1H 9EA Tel: 020 3357 0210.