27 March 2024
Miscarriages of justice have hit the headlines over the past year with the case of Andrew Malkinson and the Post Office Scandal highlighting the importance of a healthy and functioning system of criminal appeals.
There can be no doubt of the need for criminal appeals work to be properly funded.
In both cases senior ministers acknowledged that such miscarriages of justice are unacceptable and took unprecedented measures to change the law in reaction to them. The case of Malkinson prompted a long overdue reform of the law requiring the cost of bed and board in prison to be deducted from compensation payouts. In the case of the Post Office convictions, payouts are to be awared en masse in view of widespread failings.
Meanwhile, the Ministry of Justice is refusing to even consider further changes to legal aid fee schemes to make the system for criminal appeal work more sustainable.
The Lower Crime Consultation, responses to which are due on Thursday 28 March 2024, shows that the government is planning to do nothing further at this time to make legal aid for criminal appeals more accessible or sustainable.
In researching to respond to this consultation, I looked at the rise in the numbers of litigants in person in criminal appeal cases. Even though I practice in this area and know there is a problem with many people being unable to find lawyers and, in desperation, representing themselves, I was shocked at the latest figures.
In the Court of Appeal
In successive annual reports, the Court of Appeal (Criminal Division) has highlighted the increase in the number of applications by litigants in person. The most recent annual report, published in April 2023 found that
“Over the past year, Litigants in Person accounted for a third of all conviction applications lodged.”
This figure suggests a significant recent increase in the number of unrepresented litigants in person. Although not directly comparable, five years ago, in 2017, approximately 9.80% of all applications for leave to appeal were lodged by applicants acting in person and in 2012, that figure was just 2.53% (see the report from 2016-2017).
Before the CCRC
The lack of legal representation for CCRC (Criminal Cases Review Commission) applicants is even worse. The CCRC is the body set up in response to major miscarriages of justice such as the cases of the Guildford Four and the Birmingham Six. The latest annual report for 2022/23 confirms that the majority (95%) of applicatants have no legal representation. The same report explains that this represents a significant and problematic decline:
“In recent years, we have seen a decline in the number and proportion of applications with the assistance of a legally qualified representative, such as a solicitor, barrister or legal executive. Historically around 70% of our applicants receive such assistance, but in 2022/23 only around 5% of applicants were legally represented.
The CCRC sees considerable benefit in applications supported by good quality legal representation. The submissions are often better organised, focussed and candid. While we are confident we identify all salient issues in all applications, the process is faster with well presented applications. Legally aided applicants also have the benefit of a representative who can liaise with the CCRC, help to explain a decision to an applicant and where appropriate challenge outcomes.” (CCRC, Annual report 2022/3, page 27).
It is obvious that there is a dire lack of legal representation for potential criminal appeals.
Correcting miscarriages of justice is impossible without a properly funded system of criminal appeals.