Criminal Cases Review Commission: Legal Aid and Legal Representatives

Lead Research Organisation: University of Sussex
Department Name: Sch of Law, Politics and Sociology

Abstract

Since 1997 the CCRC has been the only independent reviewer of potential miscarriages of justice. It is an institution of crucial importance in the criminal justice process, as it acts to scrutinise the decisions, and decision making processes, of our criminal courts. Its ability to independently scrutinise such decisions increases legitimacy, accuracy and public confidence in the criminal justice system. However, the data held by the CCRC is difficult to access, requiring the consent and co-operation of the department, and the Ministry of Justice. Data held by the CCRC, coupled with data available from lawyers who prepare applications for review and cases on behalf of clients, offers a unique insight into how the CCRC has been affected by austerity measures initiated by recent governments. The CCRC reports directly to the Justice Select Committee, and raised concerns about the impact of legal aid cuts as part of those reports. In 2016, the Justice Select Committee agreed that such matters should be investigated, and tasked the CCRC with commissioning independent research on this subject. The CCRC released an unfunded call for suitably qualified researchers to examine the impact of funding cuts in early 2016, and the project team successfully secured access to the CCRC's unique data set as a result of that competitive tender. The full research proposal was agreed in spring 2017. This is particularly timely in light of the government's announcement (in early 2017) to conduct a review of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. Welsh has been involved in early discussions with Ministry of Justice policy advisers about that review. The reports produced by this study will provide the government, the CCRC and lawyers with access to important though rarely accessible material.
Recent changes to legal aid policy have affected the levels of representation available to defendants who seek case review with the CCRC. The policy changes that the Justice Select Committee is most interested in are changes in the funding scheme brought about by the Legal Aid Sentencing and Punishment of Offenders Act 2012, the coming into force of reduced expert fees under the Criminal Legal Aid (Remuneration) Regulations 2013 and the 8.75% fee cut introduced in March 2014. The overarching theme of the project is, therefore, the impact of legal aid cuts on applications made to the CCRC, which influences the way that the institutions of criminal justice operate and, therefore, influences the interests of civil society. We will use both qualitative and quantitative methods to examine pre-existing data held by the CCRC, and we will create data about how the changes detailed above have influenced lawyer behaviour. We will use that data to examine fluctuations in the volume of applications received by the CCRC, and on the quality of applications that are being received. We will examine whether it is possible to identify trends in the number of applications being submitted; whether such trends reflect changes in legal aid provision; and whether it is possible to detect a change in the quality of the preparation of applications which are submitted.The research will inform policy developments in access to justice, and will provide the CCRC with guidance about their processes so that they are able to operate in the most effective and efficient way for applicants. It will also add to a growing body of literature on access to justice, will provide lawyers with information that will enable them to ensure they are operating as effectively as possible for their clients and will inform applicants and their families about the way that legal aid operates when making applications to the CCRC.

Planned Impact

The findings of this research will contribute to understanding the influence of legal aid cuts and will therefore enable policy makers, lawyers and applicants to better informed about and, therefore, shape public policy. Ultimately, the research contributes to shaping wider society by informing and enabling a range of stakeholders about access to justice, which is of contemporary concern across several different sectors of society. Specific beneficiaries/benefits include (ordered according to group of beneficiaries):

In the short- to medium term:
1. The government (specifically the Legal Aid Agency, a department of the Ministry of Justice) will be able to use the work to inform legal aid policy decisions. We will provide evidence which would mean that one of three changes could occur: changes to the law which governs eligibility for legal aid, or changes to the legal aid contracts (produced by the Legal Aid Agency) which would give lawyers more discretion/control over the process, or loosening the criteria upon which applicants would be eligible for legal aid in such proceedings.
2. The CCRC will obtain a realistic understanding of the impact of legal aid cuts on their work, and what that means for their working practices. The CCRC is a reactive body (for example, they designed and introduced a simplified application document in 2013 in response to requests for change), and is keen to examine whether processes can be changed in such a way that both applicants and the department benefit.
3. Lawyers (both those directly involved in CCRC work and criminal defence lawyers more broadly via organisations such as the Law Society and Criminal Law Solicitors' Association) will be able to use the findings to present an informed case about why they need resources in this context. Further, lawyers will be better able to understand ways in which they can balance competing interests (of their business, their clients (in whose best interests they must act), and the funding agency (which pushes for ever more efficiency)) which will have an influence on their professional identity and enable them to act with increased confidence about the benefits that clients receive. This impact is particularly important in the context of literature which suggests that the organisational culture of publicly funded defence lawyers shapes the quality of service that defendants receive (Newman, 2013; Welsh, forthcoming).

In the longer-term:
4. Applicant defendants may be better informed about available legal assistance, and the ease of obtaining/quality of representation they receive may improve. If CCRC processes are simplified, they may find the department easier to access.
5. Campaign groups/NGOs (Legal Action Group, Justice and the Centre for Criminal Appeals) might benefit from increased availability of data and information in relation to the impact of legal aid cuts, which may help with lobbying/campaigning. We will establish links via the project and share information as the basis of ongoing engagement. Welsh is in contact with Jon Robins, editor of The Justice Gap, which is an online magazine about the law and justice aimed at the public. The Justice Gap is a member of the Guardian Legal Network.
6. Families of prisoners and the general public may benefit in terms of increased transparency in the criminal appeal process, increased trust in the criminal justice system and, for defendants' families, decreased stress and associated physical/mental health and economic difficulties.
 
Description The main target of the research is the impact of legal aid cuts on applications made to the Criminal Cases Review Commission (CCRC), most notably whether fluctuations in the volume or quality of applications received by them reflected changes in legal aid provision. Building on the findings of the scoping stage of our research, which consisted of a statistical analysis of CCRC data held from 1997-2017, we have examined 280 separate applications selected randomly around the dates of significant legal aid changes (160 were examined in 2019 and a further 120 in 2020). Using a specially designed template data collection form, we recorded our assessments about the nature of the application, the extent and quality of legal representation, the use of expert evidence, the enquiries made by the CCRC and other agencies and the outcomes. In 2020 we obtained survey responses from 16 lawyers involved in CCRC cases, interviewed 45 legal professionals and conducted focus groups with a total of 11 CCRC staff. In 2020-21 we completed the detailed analysis of the data and our findings from this stage of the research were as follows:
1. The number of applications received by the CCRC increased significantly around the time of the introduction of the "Easy Read" form, which was intended to simplify the application process for unrepresented applicants. The form is widely used but nevertheless applicants (and their lawyers) still seem to interpret the central statutory criteria of 'exceptional circumstances' and grounds to find a 'real possibility' of the conviction being overturned, differently from the CCRC.
2. Previous research indicated that about a third of applicants to the CCRC were legally represented. Our data suggests that this has now dropped to only one quarter of applicants. We identified a significant drop in levels of legal representation around late 2013/early 2014 at a time of significant reductions in legal aid provision.
3. Lawyer-led applications tended to be apposite, well-structured and to provide a point of liaison with clients.
4. Applications to the CCRC by applicants who were legally represented appear to be less likely to be deemed ineligible for review, and more likely to be sent for review than applications that do not have the benefit or support of legal advice. This is even allowing for the possibility that the more meritorious applications are more likely to attract legal representation.
5. In comparison with research data from previous periods, lawyers appear to be less likely to commission expert reports than they were in 2007.
6 Lawyers were unanimous that legal aid rates for work on CCRC applications are "too low", making the work unprofitable at best or loss-making at worst.
7 Several participants raised specific concern about the payment rate given the complexity of potential CCRC applications.
8 Many respondents indicated that the 2014 cut to legal aid reduced their capacity to conduct CCRC casework, and that the rate at which they conduct pro bono work has been negatively affected by legal aid cuts.
9 Lawyers reported that funding cuts have had an impact on lawyers' ability to instruct expert witnesses but that they would still instruct an expert if needed.
10 Respondents felt that the 'real possibility' and exceptional circumstances tests lacked clarity and wanted the CCRC to be more transparent, open, and engage more with lawyers.
Exploitation Route We have made the following recommendations regarding practice at the CCRC and legal representation, which we have explored with stakeholders through surveys, focus groups, consultations and further interviews:
1. In order to limit the possibility of misunderstanding of the standards and tests applied by the CCRC, it is suggested that further education or guidance on the application of the tests be made available in prisons and to lawyers. The CCRC has expressed their support for this suggestion.
2. The further stages of the research in 2020 confirmed that the current 'sufficient benefit' test appears to operate as a barrier to effective early legal advice, and it might be beneficial to review the blanket application of that test.
3. We recommend that the Legal Aid Agency consider revisiting its policy in relation to interim payments in CCRC cases, making it easier for lawyers to meet cashflow demands.
4. Payment rates need to be reviewed and revised.
We are currently working on the final report. Once all this data has been assembled and analysed, we hope to make the findings more widely available by way of publications, conference papers and briefings
Sectors Government

Democracy and Justice

 
Description At February 2023, our final report has been downloaded from our project website (https://legalaidandrepresentatives.wordpress.com/) approximately 270 times across 21 countries. We have disseminated our findings at several public facing, practitioner, and international events including • 2019: UCL, Oxford, Cambridge and Criminal Bar Association's Assize Seminars: Cutting Edge Criminal Law (https://www.law.ox.ac.uk/research-and-subject-groups/assize-seminars-cutting-edge-criminal-law) • 2021: 'Post appeal decision-making. Reforming the powers of the Criminal Cases Review Commission' Criminal Law Reform Now Conference • 2021: 'The impact of legal aid cuts on suspected miscarriages of justice' Manchester Innocence Project Webinar Series • 2022: 'Beyond the Westminster Commission' Criminal Appeal Lawyers' Association Annual Conference Welsh's presentation to the Criminal Law Reform Now network has not only led to the development of a forthcoming book chapter titled Reforming the Powers of the CCRC, but has also helped influence the work of the Law Commission, which - in 2023 - is consulting for its review of the criminal appeals system and the powers of the CCRC. We have prepared five detailed interim Reports for the CCRC dated May 2018, May 2019, April 2020, December 2020 and January 2021 respectively and Welsh and Vogler have briefed the CCRC Advisory Board which consisted of CCRC staff, academics and practitioners to discuss the progress and findings of the work at Board Meetings in London on 6th May 2018 and 4th November 2019. The project is referenced in the CCRC's 2021/2022 Annual Report and Accounts (HC 634), 2020/2021 Annual Report and Accounts (HC 404), 2019/2020 Annual Report and Accounts (HC521), and in the CCRC's 2018/2019 Annual Report and Accounts (HC 2438). In its response to our final report in 2021, the CCRC agreed with the majority of our recommendations, and committed to reviewing issues such as clarity of communications and guidance on its website (https://s3-eu-west-2.amazonaws.com/jotwpublic-prod-storage-1cxo1dnrmkg14/uploads/sites/5/2022/04/CCRC-Response-to-Sussex-University-June-2021-07-06-2021.pdf). In August 2019 we made a submission, based on the research, to the Westminster Commission on Miscarriages of Justice established by the All-Party Parliamentary Group on Miscarriages of Justice (APPGMJ) with a brief to investigate the ability of the criminal justice system to identify and rectify miscarriages of justice. Those submissions were cited in the final report, In the Interests of Justice, helping to shape the Commission's recommendations. Welsh submitted written evidence to the Justice Committee inquiry, The Future of Legal Aid. She also used the research to feed into and shape the inquiry's Terms of Reference. Her written evidence to the inquiry was published, and Welsh was invited to participate in a roundtable discussion, chaired by Justice Committee Chair, Sir Bob Neill, on 8 February 2021. Drawing on the findings of this project, Welsh also submitted written evidence to the Independent Criminal legal Aid Review (ICLAR), which was extensively cited in the inquiry's report, helping shape the findings. Welsh additionally submitted a written response to the Ministry of Justice further consultation on the recommendations made by ICLAR, which was again cited with reference to the government's commitment to review public funding in relation to CCRC casework. The project findings were also cited extensively in the CCRC's response to the same Ministry of Justice consultation. In 2021, Welsh was invited to participate in a roundtable decision as part of a consultation for the establishment of a Canadian Criminal Cases Review organisation. The consultation report recommended the establishment of a Miscarriages of Justice Commission for Canada, and was influenced by our findings in relation to its own recommendations about how cases should be funded. Furthermore, Welsh and Clarke identified an area of the work that needed further exploration: the impact of funding cuts on the work of expert witnesses. Welsh secured further funding from Research England's Strategic Priority Fund to conduct focus groups with expert witnesses so that their views can be fed into the final report. That report has been provided to the APPGMJ as part of their latest round of work, which includes the Westminster Commission on Forensic Science. Welsh and Clarke are also seeking to develop the project by conducting further research on the experience of CCRC applicants from the user perspective. At February 2023, a funding application to conduct that work had progressed to Stage 2 review with the Nuffield Foundation. Project findings have been included in latest edition of a leading textbook on criminal justice: Sanders and Young's Criminal Justice. We have thus far published parts of our work in the Journal of Law and Society, and Amicus Curiae.
First Year Of Impact 2019
Sector Government, Democracy and Justice
Impact Types Policy & public services

 
Description Consultation: Response to Independent Review of Criminal Legal Aid (Ministry of Justice)
Geographic Reach National 
Policy Influence Type Contribution to a national consultation/review
URL https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1121...
 
Description Updates to CCRC policies
Geographic Reach National 
Policy Influence Type Implementation circular/rapid advice/letter to e.g. Ministry of Health
URL https://legalaidandrepresentatives.files.wordpress.com/2021/06/response-to-sussex-university-june-20...
 
Description Applicants' experience of the Criminal Cases Review Commission (CCRC)
Amount £122,900 (GBP)
Organisation Nuffield Foundation 
Sector Charity/Non Profit
Country United Kingdom
Start 09/2023 
End 05/2025
 
Description Strategic Priorities Fund: Evidence Based Policy Making
Amount £1,877 (GBP)
Organisation University of Sussex 
Sector Academic/University
Country United Kingdom
Start 01/2021 
End 03/2021
 
Description Participation in Criminal Law Reform Now Network activities 
Organisation University of Birmingham
Country United Kingdom 
Sector Academic/University 
PI Contribution Presented a paper at the Criminal Law Reform Now conference, to be fed into the Law Commission plans as part of the network's link with that organization. Book chapter to follow.
Collaborator Contribution Hosted a workshop to discuss proposals for reform and give feedback. Submitted proposals to the Law Commission. Editing a collection of proposals
Impact Book chapter forthcoming
Start Year 2021
 
Description Academic roundtable 
Form Of Engagement Activity A formal working group, expert panel or dialogue
Part Of Official Scheme? No
Geographic Reach National
Primary Audience Policymakers/politicians
Results and Impact This was a roundtable discussion in the early stages of the Law Commission consultation for their review of criminal appeals
Year(s) Of Engagement Activity 2023
 
Description All Party Parliamentary Group on Miscarriages of Justice - Evidence Session 
Form Of Engagement Activity A formal working group, expert panel or dialogue
Part Of Official Scheme? No
Geographic Reach National
Primary Audience Policymakers/politicians
Results and Impact Three lawyers with CCRC experience gave evidence to the Westminster Commission on Miscarriages of Justice, and the session was attended by approx..20 people, including academics, practitioners and interested members of the public. The primary aim of attending the session was to raise awareness about the research and assist with alerting practitioner groups to the work. We spoke with the members of the Westminster Commission to publicise the research, and spoke with the thee lawyers who gave evidence to the Commission, which led to offers to assist with dissemination about the project.
Year(s) Of Engagement Activity 2019
 
Description Assize Seminar, Birmingham 
Form Of Engagement Activity A formal working group, expert panel or dialogue
Part Of Official Scheme? No
Geographic Reach National
Primary Audience Professional Practitioners
Results and Impact Dr. Welsh gave a presentation of the research at the Assize Seminar in Birmingham "Cutting Edge Criminal Law", entitled "Criminal Cases Review Commission; Legal Aid and Legal Representatives" which resulted in questions and answers afterwards and increased awareness of the research outcomes amongst legal professionals as well as academics.
Year(s) Of Engagement Activity 2019
URL https://www.law.ox.ac.uk/research-and-subject-groups/assize-seminars-cutting-edge-criminal-law
 
Description Conference presentation 
Form Of Engagement Activity A talk or presentation
Part Of Official Scheme? No
Geographic Reach National
Primary Audience Other audiences
Results and Impact Presentation of a proposal on reforming the Criminal Appeal Act 1995 to the Criminal Law Reform Now Network
Year(s) Of Engagement Activity 2021
 
Description Conference presentation 
Form Of Engagement Activity A talk or presentation
Part Of Official Scheme? No
Geographic Reach National
Primary Audience Other audiences
Results and Impact Presentation of research findings at Socio-Legal Studies Association Annual Conference, Cardiff [online]
Year(s) Of Engagement Activity 2021
 
Description Conference presentation - invited panel speaker 
Form Of Engagement Activity A talk or presentation
Part Of Official Scheme? No
Geographic Reach National
Primary Audience Professional Practitioners
Results and Impact Panel discussion titled 'Beyond the Westminster Commisison' at the Criminal Appeal Lawyers' Association Annual Conference, 19 November 2022
Year(s) Of Engagement Activity 2022
 
Description Criminal Appeal Lawyers' Association Conference in Westminster 
Form Of Engagement Activity Participation in an activity, workshop or similar
Part Of Official Scheme? No
Geographic Reach National
Primary Audience Professional Practitioners
Results and Impact Dr Welsh and Professor Vogler spoke about the research at the Criminal Appeal Lawyers' Association Conference in Westminster on 19th November 2019. The intervention resulted in questions and responses and offers of further assistance with the project.
Year(s) Of Engagement Activity 2019
 
Description Criminal Law Solicitors Conference in Bath 
Form Of Engagement Activity A talk or presentation
Part Of Official Scheme? No
Geographic Reach National
Primary Audience Professional Practitioners
Results and Impact Dr. Welsh gave a presentation on the research to the Criminal Law Solicitors Association at their Conference in Bath on 9th November 2019 which sparked questions and answers and increased interest from practitioners.
Year(s) Of Engagement Activity 2019
 
Description Interim Reports to the Advisory Board of the Criminal Cases Review Commission 
Form Of Engagement Activity A formal working group, expert panel or dialogue
Part Of Official Scheme? No
Geographic Reach National
Primary Audience Professional Practitioners
Results and Impact We have prepared five detailed interim Reports for the Criminal Cases Review Commission dated May 2018, May 2019, April 2020, December 2020 and January 2021 respectively and briefed the CCRC Advisory Board on the research at a Board Meeting in London on 6th May 2018 and 4th November 2019. The project is referenced in the CCRC's 2019/2020 Annual Report and Accounts (HC521), and in the CCRC's 2018/2019 Annual Report and Accounts (HC 2438).
Year(s) Of Engagement Activity 2019,2020,2021
 
Description Invited lecture 
Form Of Engagement Activity A talk or presentation
Part Of Official Scheme? No
Geographic Reach National
Primary Audience Public/other audiences
Results and Impact Gave a guest lecture (open to the public) at University of Manchester [online]
Year(s) Of Engagement Activity 2021
 
Description Invited participation in practitioner organisation AGM 
Form Of Engagement Activity Participation in an activity, workshop or similar
Part Of Official Scheme? No
Geographic Reach National
Primary Audience Professional Practitioners
Results and Impact Invited to explain research findings at AGM of the Criminal Appeal Lawyers' Association
Year(s) Of Engagement Activity 2021
 
Description Justice Committee Inquiry - Roundtable Discussion 
Form Of Engagement Activity A formal working group, expert panel or dialogue
Part Of Official Scheme? No
Geographic Reach National
Primary Audience Policymakers/politicians
Results and Impact Having previously spoken with Assistant Counsel to the Justice Committee, Welsh was invited to a) submit written evidence to the inquiry. This evidence was published on the Committee's inquiry webpage; and b) attend a roundtable discussion with 4 parliamentarians and 5 practitioners. We made three suggestions arising from the findings of the current research project. After the roundtable, Assistant Counsel fed back that "your contributions were excellent". Informal consultation with Assistant Counsel prior to launch of the inquiry also helped to shape its terms of reference, particularly in relation to questions about the Legal Aid Agency, and market contraction and sustainability.
Year(s) Of Engagement Activity 2021
 
Description Meeting with Ministry of Justice Policy Advisers 
Form Of Engagement Activity A formal working group, expert panel or dialogue
Part Of Official Scheme? No
Geographic Reach National
Primary Audience Policymakers/politicians
Results and Impact Meeting with two policy advisers at the Ministry of Justice to discuss the scope of the Independent Criminal Legal Aid Review.
Year(s) Of Engagement Activity 2021
 
Description Podcast 
Form Of Engagement Activity A broadcast e.g. TV/radio/film/podcast (other than news/press)
Part Of Official Scheme? No
Geographic Reach National
Primary Audience Public/other audiences
Results and Impact Participated in a podcast on miscarriages of justice for Criminal Law Stories
Year(s) Of Engagement Activity 2021
URL https://shows.acast.com/criminal-law-stories
 
Description Research seminar 
Form Of Engagement Activity Participation in an activity, workshop or similar
Part Of Official Scheme? No
Geographic Reach International
Primary Audience Undergraduate students
Results and Impact Discussing paper given by Prof Kent Roach (Toronto) on comparative studies of miscarriages of justice and review commissions.
Year(s) Of Engagement Activity 2023
 
Description Roundtable discussion 
Form Of Engagement Activity Participation in an activity, workshop or similar
Part Of Official Scheme? No
Geographic Reach National
Primary Audience Policymakers/politicians
Results and Impact Law Commission discussion on retention and disclosure of evidence and records of proceedings with academics and practitioners
Year(s) Of Engagement Activity 2023
 
Description Roundtable discussion as part of Independent Criminal Legal Aid Review 
Form Of Engagement Activity A formal working group, expert panel or dialogue
Part Of Official Scheme? No
Geographic Reach National
Primary Audience Policymakers/politicians
Results and Impact Participation in academic roundtable to discuss impact of legal aid cuts in criminal defence work
Year(s) Of Engagement Activity 2021
 
Description Roundtable discussion with consultation on Canadian Miscarriages of Justice Commission 
Form Of Engagement Activity A formal working group, expert panel or dialogue
Part Of Official Scheme? No
Geographic Reach International
Primary Audience Policymakers/politicians
Results and Impact Invited to participate in a roundtable discussion about the parameters and remit of the proposed Canadian Miscarriages of Justice Commission
Year(s) Of Engagement Activity 2021
 
Description Roundtable event 
Form Of Engagement Activity A talk or presentation
Part Of Official Scheme? No
Geographic Reach National
Primary Audience Policymakers/politicians
Results and Impact Roundtable event on Reforming Criminal Appeals at University of Birmingham. Discussion and q&a, with an expert panel including Professor Penney Lewis (Criminal Law Commissioner ); Mr John Curtis (In-House Counsel at the Criminal Cases Review Commission); Dr Lucy Welsh (University of Sussex); Professor Carole McCartney (University of Leicester); and Mr Paul Jarvis (Barrister, 6KBW
Year(s) Of Engagement Activity 2023
 
Description Roundtable to discuss research findings 
Form Of Engagement Activity Participation in an activity, workshop or similar
Part Of Official Scheme? No
Geographic Reach National
Primary Audience Professional Practitioners
Results and Impact We hosted a roundtable to discuss our findings with stakeholders, including practitioners, third sector organizations, and academics.
Year(s) Of Engagement Activity 2021
 
Description Syposium 
Form Of Engagement Activity Participation in an activity, workshop or similar
Part Of Official Scheme? No
Geographic Reach National
Primary Audience Policymakers/politicians
Results and Impact Sheffield symposium on criminal appeals, University of Sheffield. This symposium engaged academics with the Law Commission
Year(s) Of Engagement Activity 2023
 
Description Westminster Commission on Miscarriages of Justice established by the All-Party Parliamentary Group on Miscarriages of Justice 
Form Of Engagement Activity A formal working group, expert panel or dialogue
Part Of Official Scheme? No
Geographic Reach National
Primary Audience Policymakers/politicians
Results and Impact We made a submission, based on the research, to the Westminster Commission on Miscarriages of Justice established by the All-Party Parliamentary Group on Miscarriages of Justice (APPGMJ) with a brief to investigate the ability of the criminal justice system to identify and rectify miscarriages of justice. It will not be clear for some time the extent to which the submission was impactful.
Year(s) Of Engagement Activity 2019