The United Kingdom can take some pride in the fact that it has bespoke machinery to deal with miscarriages of justice. Almost no other country has such machinery and accordingly must either place total reliance on the ordinary criminal justice processes or leave the correction of errors discovered subsequently to executive action.

This was the case here until the Criminal Appeal Act 1995 established the Criminal Cases Review Commission which began work in 1997 and which covers England, Wales and Northern Ireland. A Scottish Commission, with slightly different powers but broadly undertaking the same task, was established later.

The CCRC reviews convictions and/or sentences on the application of the individuals concerned with a view to referring the case to the appropriate appeal court if there is a “real possibility” that that court will overturn the conviction or sentence. Applicants should normally have appealed against the conviction or sentence and there should normally be something new to justify a possible referral by the Commission. If there are “exceptional circumstances”, review and referral are nevertheless possible even if these conditions are not met.

The Commission is an independent statutory body. Its Chairman and members are appointed by the Queen on the recommendation of the Prime Minister. There are 14 members, some full-time and some part-time: one-third have to be lawyers and two-thirds must have some knowledge or experience of the criminal justice system, one of them in connection with Northern Ireland. The Commission’s staff number around 100, about half of whom work on reviewing cases, many of them legally qualified. The Commission is located in Birmingham. Its budget is some £8 million a year.

In its brief life the Commission has reviewed nearly 6,000 cases and referred 222 to the Court of Appeal. Of the cases referred, around two-thirds result in the quashing of the conviction or sentence.

Some criticisms are made on the basis of these figures. It is said, for example, that a 96% rejection rate is impossibly high and cannot possibly be correct: we must therefore be missing significant numbers of improper convictions. The Commission’s reply to that is quite simply that we investigate cases as thoroughly as we can and then reach conclusions based on our findings, applying the statutory “real possibility” test. We do not know on what possible basis our critics are able to say that a figure of 96% is somehow wrong. There is no right or wrong figure of referrals: it must depend on the results of case review and a proper application of the statutory criterion.

Another formulation of the same criticism is that a “success” rate in the Court of Appeal of two-thirds is evidence that we are not applying the statutory test appropriately and that we are far too cautious. It is, of course, a difficult task for one body to predict the decision-making of another, which is what the Commission must do when it judges whether in a particular case there is a real possibility that the Court of Appeal would find the conviction unsafe, but we would maintain that we apply that test in an appropriate and consistent manner and that a “success” rate of around two-thirds confirms rather than repudiates that belief. The appellate judges themselves are broadly of the view that the test is being appropriately applied.

There have been a number of attempts to challenge rejections of applications by way of judicial review. Very few of these obtain leave and in only one case has an application been successful.

It has sometimes been suggested, particularly by those who represent applicants, that the statutory test should be changed and in particular it should not involve any element of second-guessing the Court of Appeal. One suggestion is that the test should be based on whether there has been a miscarriage of justice, as in Scotland. This view is surely misconceived. In the first place, the notion of a miscarriage of justice is inherently vague and it is just as possible to construe it narrowly. Certainly to the man in the street, a miscarriage of justice has occurred only where there is a clear view that a person is innocent. Our task is to identify possible wrongful convictions, which may come about even where a person may actually be responsible for the crime. We operate within the context of the rule of law, the principle of legality and the importance of due process in the criminal justice system. The Court of Appeal likewise is not so much concerned with guilt or innocence but whether a conviction is “safe”. Our Scottish counterpart applies a miscarriage of justice test because that is the basis for quashing convictions in the High Court of Justiciary. It is a term of art in Scots criminal law little different from the safety test applied in England.

In the second place, a test which was posited on some wholly different basis from that used by the Court itself would be quite absurd and would involve the Commission sending cases forward on one basis to be decided by the Court on a quite different basis. The asymmetry between the two tests could lead only to tension, confusion, raised expectations and in many cases a waste of court time and public money.

At the present time, relatively straightforward cases – the overwhelming majority – begin their review almost immediately, but more complex cases are held in a queue of about a year where the applicant is in custody and two years if at liberty. Only 83 applicants in custody are waiting a year before allocation. We do however regret these delays. It is our hope that by early 2006 we shall have reached the point where we are able to allocate all cases for review on receipt.

It is also true that once reviewed a case may take some time to complete. It depends very much on what has to be investigated. The majority of cases are completed within six months and 80% within a year. Delays are sometimes experienced because of the failure of third parties to respond to enquiries. The Commission has formidable powers of investigation: it can require all public bodies to preserve and disclose documents and accordingly has access to material not available to the defence. We are also able to appoint the police to carry out investigations on our behalf, though this is not a common occurrence. It has been done in 24 cases.

Applicants not infrequently explain their alleged wrongful conviction on the basis of inadequate legal representation and this will require us to make enquiries of solicitors and counsel. We much appreciate prompt co-operation, but enquiries are not always dealt with ex

The Court of Appeal is also empowered to ask the Commission to conduct investigations on its behalf, which it has sometimes done, and under another provision in the 2003 Act, it will also be able to require the Commission to do this on an application for leave to appeal.

In my short time at the Commission – I joined in November last year – I have been stuck above all by two things: first, by the impressive quality and commitment of our staff; and secondly by the robust independence of my colleagues in discharging our challenging and vital statutory responsibilities.

I hope we shall do all we can to eliminate delays and expedite the review process. I want us to be as open as possible with those with whom we work and in particular to improve our working relationships with applicants’ lawyers. We encourage applicants to have legal representation and obviously benefit from good representation, although it has to be realised that we are an independent body and we are not the applicants’ representative or agent and it is not therefore appropriate to agree our investigation plan or disclose every document as and when it is received. I should like us to put greater emphasis on the lessons for the criminal justice system we can learn from our casework. And I want to promote our public profile so that our role and work are better known and understood.

The Commission has a unique and important role in helping to secure justice, promote confidence in the criminal justice system and contribute to minimising miscarriages of justice in the future. We welcome the contribution of members of the Bar to these ends.