The Criminal Cases Review Commission

17 November 2015

Read the presentation given by Charlene Graham to the joint Northern Ireland Young Solicitors' Association/Young Bar Association in conjunction with the Criminal Cases Review Commission on the 26th of February 2015:

As a criminal law practitioner I have always been most interested or perhaps better described as fascinated by the work of the Court Appeal. The discussion and debates on legal principles, the legal arguments on the admissibility of evidence - all with one overriding objective - to ascertain whether the conviction is safe.

It is only natural then that my interest extended to the work of the Criminal Cases Review Commission.

THE CLIENT

More often than not client's seeking assistance with applications to the CCRC will be new to the firm. This will be after an unsuccessful application to the Court of Criminal Appeal. They are likely to have parted ways with their previous solicitor and this can be either on good terms or bad.

This approach can be made after considerable time has lapsed from the decision of the Court of Appeal. Some clients have retained excellent files in respect of their cases and some literally have nothing. My advice is to commit to nothing until all material in respect of the case is obtained and you are in a position to advise on the merits of an application to the CCRC.

Remember, some clients will feel they have been let down by the Justice system and in some cases let down by their own lawyers. Managing expectations is an important part of the solicitor's job at this very early stage.

Where to begin ?

With a new client papers are usually forthcoming from the previous solicitor. I have always found the PPS helpful when making a request for papers for consideration of a CCRC.

You may also require trans of the original trial or the Court f Appeal hearing. If so, that application must be made in writing to the office of the LCJ providing full reasons as to why the information is required. If your application is granted you will be provided with an audio disc of the relevant portion of evidence subject to signing an undertaking that the information will be used for the purpose it has been applied for. It will be up to you to have this transcribed either in house or out sourcing to a reputable company bearing in mind the undertaking you will have signed.

For counsel, you may be asked to assist solicitors with this request to the LCJ's office as this will undoubtedly support the application.

When dealing with particularly historic cases this information will not be so readily available. Albeit the PPS do keep material for a considerable period of time and enquires should also be made to the Court Service. Consideration can also be given to obtaining information from the Public Records Office.


MANAGING EXPECTATIONS

Once you have ascertained your client's eligibility to apply to the CCRC and have considered that there might be merit in making the application it is important to advise the client what the CCRC can do and more importantly what it cannot do.

The most common misapprehension on the part of applicants to the CCRC - indeed the most frustrating thing for lawyers is - clients who want to re run their trial.

As indicated, it is likely you will not have been involved in the original trial due to the fact the conviction is historic or the client has parted ways with his/her previous legal team. The client will have many many views on what he/she considers went wrong at the original trial.

The CCRC process is NOT a re-trial on paper. There must be new evidence or legal argument not covered at the original trial. For example, developments in forensic science, a new and indeed crucial witness.

The CCRC provide a simple and reader friendly guide on its website which I will refer to when consulting with clients. I will also provide them with a copy with the relevant parts highlighted.

LEGAL AID

Applications to the CCRC will involve consultations with the client and consideration of a wealth of material in order to ascertain the merits of the application and to fully brief counsel. That is before you begin to draft the actual application.

Legal Aid is limited to say the least. Eligibility for applicants falls under the GF scheme. Clients in custody will normally be entitled to green form advice and assistance. Those not in custody must meet the current GF financial eligibility for GF scheme - legal aid practitioners will be familiar with the GF key card in order to work this out. Applicants in receipt of a passport benefit will also be entitled to GF advice and assistance.

You must apply to the LSC for prior authority to cover the number of hours of anticipated work. This should be in a piecemeal approach.

For example - request for 3 hrs to consider file received and advise on eligibility and merit of the application.

1 hour request to brief counsel etc etc.

1 hour to assist client with CCRC application form.

The hours permitted by LSC will be limited. You will likely spend more hours arguing with LSC to obtain the hours required for the actual work.

This system is both cumbersome and slow. You very soon realise you have exhausted your hours when the client needs to speak to you urgently about an important development or a witness needs to meet. Do you say can you give me 7 days until LA process my request for one hours work and then I will speak to you. No you do not.

For those of you not previously involved in this type of work. Be under no illusions, you will COST your firm money in terms of the number of hours authorised and the number of hours worked.

Photocopying bundles of papers, sending numerous items of correspondence will all be done free of charge.

In my own firm we commenced a scheme three years ago to do one such case per year.

Solicitors present who practice legal aid work might be aware that the DOJ are likely to reconsider the scope of green form as part of the on-going budgetary reforms.

There is currently no legal aid available for counsel in these cases.

In all of the cases I have been involved in, counsel have offered their time and knowledge on a pro bono basis.

This is an opportunity for both strands of the profession to work together. It is an opportunity for young lawyers in particular to showcase their skills together. For young solicitors, it provides an opportunity to introduce a new area of work to a firm and provides an excellent opportunity to enhance skills in Court of Appeal work.

If your client's case is referred back to the Court of Appeal by the CCRC it is likely you will have an extremely strong application for legal aid to make to the Court. As with all Court of Appeal work - legal aid is granted retrospectively once the case has concluded.

REWARDS

CCRC work whilst challenging for the reasons outlined above is by far the most rewarding work a lawyer can be involved in. When my client's conviction for rape was referred back to the Court of Appeal by the CCRC and subsequently quashed it was by far the most rewarding moment of my career.

Our criminal justice system is not perfect. Despite all its safeguards there remains to this day a risk that an innocent person will be wrongly convicted.

Even in the current state of public finances, we must continue to recognise and confront that risk. It is only through challenging miscarriages of justice that we keep the system we are committed to safe.

 

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