Empowering the Innocent (ETI) is a research and pro bono clinical legal education project for the urgent reform of the Criminal Cases Review Commission (CCRC) or for it to be replaced with a new body that is fit for the purpose of assisting innocent victims to overturn their wrongful convictions.
It was established in September 2019 by Dr Michael Naughton, a leading academic exert on miscarriages of justice and the wrongful conviction and imprisonment of the innocent, who has considered the limitations of the CCRC in a number of academic books, peer-reviewed academic articles and other publications.
It also builds on previous innovative projects that were established by Dr Naughton, namely Innocence Network UK (INUK) and the University of Bristol Innocence Project, reflecting on both the successes and achievements of those projects as well as the lessons learnt.
This time, however, rather than providing casework assistance to alleged innocent victims of wrongful convictions in terms of applications to the CCRC as under the innocence project model, Empowering the Innocent (ETI) is, instead, premised, on the inherent failures of the CCRC to assist innocent victims of wrongful convictions.
Set up in the wake of notorious cases such as the Guildford Four and the Birmingham Six, the CCRC is the last resort for alleged innocent victims of wrongful convictions who have exhausted the normal appeal system.
Despite this, it is structured in a way that means it can, and does, fail innocent applicants in ways which were not intended or envisaged when it was established.
The nub of the problem is that the CCRC must abide by s.13 of the 1995 Criminal Appeal Act and s.23 of the Criminal Appeal Act 1968.
Firstly, s.13 of the Criminal Appeal Act 1995 dictates that the CCRC can only refer cases to the Court of Appeal where it feels there is a ‘real possibility’ that the conviction will be overturned.
Then, in deciding whether the ‘real possibility’ test has been met, the CCRC must also consider s.23 of the Criminal Appeal Act 1968, which requires that evidence admissible in the Court of Appeal must be ‘fresh’, understood generally as evidence or argument that was not or could not have been available at the time of the original trial.
In consequence, CCRC reviews are for the most part mere desktop considerations of whether such ‘fresh’ evidence may now exist that was not or could not be available at the time of the original trial or previous failed appeal that has a good chance of overturning the conviction.
Such an approach sees the CCRC reject alleged innocent victims of wrongful convictions if it is not felt that they have ‘fresh’ evidence or that they will fulfil the ‘real possibility’ test.
It means that CCRC reviews can, and do, overlook and positively exclude lines of inquiry that may prove an applicant’s claim of innocence if it is not felt that such investigations would discover material that would meet the ‘fresh’ evidence and/or ‘real possibility’ criteria.
It is against this background, that Empowering the Innocent (ETI) was established as a research and pro bono clinical legal education project for the urgent reform of the CCRC or for it to be replaced with a new body that is fit for the purpose of assisting innocent victims to overturn their wrongful convictions.
Twenty years on from the establishment of the CCRC, there is a growing body of evidence that shows its failings in dealing with claims of innocence by applicants.
This includes the dossier of 44 cases of alleged innocent victims of wrongful convictions that Dr Naughton compiled with Innocence Network UK (INUK), comprised mainly of prisoners serving life or long-term sentences for serious offences, ranging from gangland murders and armed robbery to rape and other sexual offences.
All of them maintained that they were not involved in the offences despite having failed in their appeal and having been refused a referral by the CCRC on at least one occasion because they are not felt to satisfy the requirements for ‘fresh’ evidence and the ‘real possibility’ test.
They asserted that they were wrongly convicted for reasons including fabricated confessions, eyewitness misidentification, police misconduct, flawed expert evidence, false allegations and false witness testimonies, perennial and well-established causes of the wrongful conviction of the innocent as evidenced by successful appeal cases.
To further strengthen the campaign, Empowering the Innocent (ETI) will work with alleged innocent victims of wrongful convictions who have had applications to the CCRC rejected to add more cases to the dossier of CCRC rejections where there are plausible claims of innocence.
It will empower them to voice their claims of innocence in a variety of ways in the public domain (articles in Empowering the Innocent publication and interviews on ETI TV, for instance) to raise public awareness of the failures of the CCRC in dealing with their applications.
Empowering the Innocent (ETI) will also conduct research on the limitations and/or outright failings of the CCRC in dealing with claims of factual innocence from alleged victims of wrongful convictions and/or imprisonment, which it will also make publicly available.
This will add to the growing evidence of the failures of the CCRC in dealing with alleged innocent applicants and gain public support for the campaign for the CCRC to be reformed or replaced so that innocent victims can overturn their wrongful convictions.
A current rejection rate of over 99% of applications by the CCRC (October 2019) is not simply an unreasonable and unrealistic assessment of wrongful convictions in England and Wales, it serves to further diminish the hopes of innocent victims that they will ever overturn their wrongful convictions.
Yet, it is through an analysis of the rejection of plausible claims of innocence by the CCRC that its failures to assist the innocent are best revealed and the public campaign for its reform or replacement is strengthened.
Ultimately, then, Empowering the Innocent (ETI) calls for:
- the urgent repeal of the ‘real possibility test’;
- this would uncouple the CCRC from the Court of Appeal so that it is free to conduct truly independent and impartial investigations into claims of factual innocence by alleged victims of wrongful convictions in the interests of truth and justice;
- in these investigations, any evidence not presented to the jury at trial is to be considered as fresh or new, as it should be as it has not been heard by a jury, and if it undermines the reliability of the evidence that led to the conviction or validates a claim of innocence then the conviction must be quashed by the CCRC;
- this requires the CCRC to also have its own authority to overturn wrongful convictions and not have to send cases that it finds are wrongful convictions backwards to the Court of Appeal which previously refused to overturn the alleged wrongful conviction.
If it is not possible to reform the CCRC in these ways, Empowering the Innocent (ETI) calls for the replacement of the CCRC with a new body with these functions that is fit for the purpose of assisting the innocent to overturn their convictions.
It is simply unjust to have a criminal justice system in which innocent victims can be, and are, routinely wrongly convicted and imprisoned and do nothing to rectify the failures of the CCRC in dealing with applicants claiming factual innocence.
It is not acceptable for the CCRC and its defenders to argue that the CCRC is merely working within its governing statutes and there is nothing that can be done about it.
Finally, when thinking about alleged wrongful convictions, it must always be remembered that when innocent victims are wrongly convicted that the guilty perpetrators of those crimes remain at liberty with the potential and reality (as shown in research) to commit further crimes. This adds an important public protection dimension to the work of Empowering the Innocent (ETI).