Law: Still no answer to the riddle of appeals

Six months after the Criminal Cases Review Commission was set up, doubts remain over how it decides which ones should go to the Court of Appeal, says Paul Donovan.

The problems started for John Jenkins on a June day in 1990 when a sheep got lost on his land. The animal, which belonged to Peter Maylam, had got caught under a wartime weapons carrier in the field behind the the Jenkins's house. In freeing the sheep, Mr Maylam found a partially clothed skeleton under the carrier.

Once the police had established that the body was that of Pauline Reed, the former lover of John Jenkins, it seemed that they need look no further than the 100 yards between the weapons carrier and the farm for the murderer.

In 1991 John Jenkins was convicted of the murder at Lewes Crown Court in Sussex. A decisive moment came when a fellow prisoner came forward and claimed that Jenkins had confessed the whole murder to him in the cells during the trial. Jenkins has always vehemently denied the claim, which was made in court, and steadfastly maintains his innocence.

The family were devastated. John Jenkins's wife, Violet, said: "I just couldn't take it in for a long time. We as a family didn't know where to turn."

In 1992, they turned in desperation to a private investigator, Ron Smith. An ex-policeman, he claimed to have found some discrepancies in the police investigation but left after writing two reports and receiving pounds 5,000.

The family's hopes were raised again when their local Conservative MP, Sir Keith Speed, took an interest, visiting the farm and Jenkins in prison. He informally raised the case with the Home Secretary, but was unable to take the matter further because of the lack of new information.

The frustrations of the Jenkins family were added to by a solicitor, who no doubt restricted by the lack of legal aid, could find little fresh evidence.

Since then the one glimmer of hope has been an investigation now being carried out by BBC's Rough Justice.

Unfortunately, the woes that have befallen the Jenkins family are not untypical. For prisoners asserting their innocence alone inside without the support of campaigns, self-sacrificing solicitors and sympathetic journalists, the path to the Court of Appeal has always been difficult. It was in order to remove some of the obstacles that the Criminal Cases Review Commission was created earlier this year.

The terms of reference for the body set up in April under Glenys Stacey, chief executive, state that there has to be "a real possibility of winning an appeal" before it can refer a case to the Court of Appeal. That possibility has to be based on "an argument or evidence which has not already been raised during the trial or any appeal" or due to other "exceptional circumstances". Those grounds would appear to offer the potential to go beyond the previous rigidly-adhered-to criteria of the Home Office, whereby there had to be new evidence before a case could be referred.

The commission has powers far beyond anything available to the department of the Home Office that previously dealt with miscarriages of justice, called C3. Razia Karim of the civil liberties organisation Justice refers to the new organisation as having "the wide powers of access to material held by public bodies like the police, central and local government and the Crown Prosecution Service". The commission can demand to see all the undisclosed material that the police hold in any one case. The power will prove invaluable in examining possible miscarriages of justice and will enable the commission to monitor whether the police are abusing changes in disclosure rules brought about by the Criminal Procedure and Investigation Act.

One big problem with the new body is a lack of policy on how it will operate. The admissibility of cases is an area that remains particularly vague. Nick Brown, a barrister, differentiates between cases where new evidence was available to the commission and there was a quick referral, and those like Jenkins's where an investigation is required to find out if further evidence is available. "In cases like John Jenkins's it is far from clear what threshold the commission will expect the prospective appellant to get over in order to persuade them to do any worthwhile investigation," he says.

Justice hopes that the commission will resolve the admissibility dilemma soon. "It is confusing that at the moment they have not set out an admissibility criterion which is lower than the test for referral," Ms Karim says. She hopes that the policy when decided will mean that the commission "would take up a case where there were new lines of inquiry available that would be likely to lead to new evidence being uncovered". Justice hopes the commission will take that approach with a number of the cases it has sent to it. "We don't have the resources to investigate or the access right to a lot of police material that the commission has," Ms Karim says.

The commission has not clarified the policy on admissibility and is simply distributing thousands of application forms and hoping not to get swamped by the response. Some 210 cases have been handed over by C3 and new applications have been coming in at a rate of 10 per day.

Given that the commission has already complained of under-resourcing, the fear must be that it will take the narrower interpretation of its powers and seek only to refer cases where new evidence is made available to it. If cases like John Jenkins's were precluded because they required a costly investigation to decide whether the truth had been heard it would mean in reality that little had changed from the previous position that existed under the Home Office prior to 1 April.

Mr Brown is also concerned that the commission could go too far and become inquisitorial in its approach to investigations. "The prime question is whether there is new evidence or a new argument that would justify sending a case back to the Court of Appeal," he says. He is worried that in some cases, having found certain grounds for referral, the commission will then go on with the investigation until a full picture is established. Such an approach would delay referral and amount to the commission setting itself up as a quasi court.

There are also, as has been acknowledged by the commission itself, problems with prioritisation. Should it, for instance, concentrate on old cases or on those involving living people still in prison?

After taking a long time to become established, the organisation has shown admirable openness and enthusiasm as it sets about its Herculean task of sifting through miscarriage of justice cases. Some 3,000 information packs including application form for prisoners who wish to make a representation to the commission, were dispersed in the early weeks of operation. A dialogue has been established with organisations like Justice and Liberty and programmes like the BBC's Rough Justice.

So - six months on - the early signs are good. But the resourcing of the commission and what the operational policy is to be on issues like admissibility of cases, the nature of the investigatory function and priorities need to be clarified quickly, before confidence is eroded.