CCRC’s independence challenged

25 July 2020

In R (Warner) v Secretary of State for Justice [2020] EWHC 1894 (Admin), the Divisional Court considered a challenge to the independence of the Criminal Cases Review Commission (‘CCRC’), amidst allegations of political interference by the Ministry of Justice (‘MoJ’). Rejecting the challenge, the Court made the following comments [paragraph 80]:

‘…this judicial review has brought to light some unsatisfactory aspects of the relationship between the CCRC (by its Chair and Commissioners) and the [Arm’s Length Bodies Centre of Expertise] (for MoJ), at least in the period immediately prior to Ms Pitcher taking up the chair of the CCRC. From 2016 onwards, the Chair and a number of Commissioners had expressed concerns about the nature and extent of the changes being proposed by MoJ and their potential impact on the ability of the CCRC to perform its statutory functions. Those were genuine concerns which should have been taken seriously by MoJ. We have not been shown evidence of the ALB CoE or MoJ seeking to engage in a constructive dialogue about these changes. The Tailored Review may have been the intended vehicle for this discussion to take place, but it was a very long time in its completion. It was not discussed in draft with the Commission until after Ms Pitcher came into post at the end of 2018; it was not published until February of 2019 (although it had been due for publication a year earlier). Meanwhile, MoJ pressed ahead with changes to the terms of newly recruited Commissioners in mid-2018, advising the Minister that these changes were justified by recommendations which officials anticipated would appear in the Tailored Review in due course. In February 2018, a Commissioner asked Ms Wedge what would happen if implementation of the recommendations was resisted and she told him (wrongly) that Commissioners could in those circumstances lose their jobs. The Chair, Mr Foster, wrote to MoJ in June 2018 expressing concerns about the recruitment exercise, but MoJ pressed ahead on the new basis anyway. Then, in around July 2018, Commissioner X was not reappointed, even temporarily, against the Chair’s recommendation that he should be and on the basis of advice from officials which we now know to have been flawed, which referred to his resistance to these changes. The Chair’s attempts to explain the Board’s concerns to the Minister on 25 September 2018 fell on stony ground.

81. The relationship between the CCRC and MoJ (whether the ALB CoE or more widely) was very poor during this period, even dysfunctional. The poverty of this relationship undoubtedly tested the CCRC’s ability to remain independent of MoJ, and to be seen to be so. It is no surprise that a judicial review was issued in 2018, seeking the Court’s review of these and related matters…’

Mr Warner was represented by GCN’s Matt Stanbury, instructed by Dean Kingham of Swain & Co Solicitors, who was recently awarded the prestigious Public Law Award at the Legal Aid Lawyer of the Year Awards.

Speaking on the case, Dean said, ‘It is a concern that neither before, during or after the case has the CCRC acknowledged the seriousness of the recent political interference, preferring instead to join with the MoJ in defending the claim and its actions over the relevant period. This gives real concern as to whether lessons really have been learned, but we can only hope that they have, as it is vital that the Commission is able to function free from such interference when doing its vital work.’

Media reports of the judgment include coverage by The Law Society Gazette, The Times and The Justice Gap.

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