A despair born of delay

The criminal appeal process is now so overworked and under-resourced that some victims of miscarriages of justice are being forced to wait years for a hearing, says Robert Verkaik

Josephine Smith shot her husband dead as he lay in his bed asleep. Later she told police that during their marriage she had suffered years of emotional and physical abuse. At her trial in 1993 at Norwich Crown Court the jury also heard how her husband used to monitor his wife's car mileage and telephone calls, as well as forcing her to carry out sexual acts depicted in pornographic videos. There were, of course, occasions when she wanted to leave, but he had threatened to track her down and kill the children rather than set her free.

Despite the evidence of Josephine Smith's disturbed state of mind, the court rejected her guilty plea to manslaughter on the grounds of diminished responsibility. Instead, she was convicted of murder and sentenced to life imprisonment.

Almost immediately, lawyers and women's rights groups began campaigning for her release. They have consistently argued that the significance of her abusive relationship and the issue of provocation were not properly explored by the courts. Since Josephine's case the law has changed, so that it now recognises "battered women's syndrome" as a defence to murder. But the wheels of justice have turned very slowly and Smith, whose case is due to be heard by the Court of Appeal next month, has had to wait nine years to have a fair chance to clear her name. As far back as 1998 her lawyers submitted her file to the Criminal Cases Review Commission. Because the review involved no new facts, the commission fast-tracked the case. But it still took three years for the commission to refer her case back to the Courts, and another year before a panel of judges could hear her appeal. The massive case loads facing both the Criminal Cases Review Commission (CCRC) and the Court of Appeal mean Smith's hearing has been held up by an increasingly creaky process. She is not alone.

Stephen Downing was finally cleared of the so-called "Bakewell tart" murder in January this year, after spending 28 years protesting his innocence. Although he was released and given a strong indication that his conviction would be quashed, he still had to wait a year for the Court of Appeal to hear his challenge. He was originally sentenced to life in prison for the 1973 murder of office worker Wendy Sewell in Bakewell, Derbyshire. In the last year outstanding appeals before the court increased overall from 3,218 to 3,783. The average waiting time between being granted leave to appeal and an appeal hearing taking place has increased by almost three months in as many years. These figures partly reflect a growing appeals culture, but they also tell a story of courts failing to meet the demands of a modern criminal justice system. The long-accepted principle of "justice delayed is justice denied" especially applies to prisoners who are the victims of miscarriages of justice.

Lord Woolf, the Lord Chief Justice, warned last year in the Court of Appeal's annual report that "if pressures continue to impact upon the efficient and timely preparation of cases and their earliest consideration by the court, there may be a need to review resources available to both the criminal appeal office and the court". Criminal lawyers put it much more strongly than that. Louis Charalambous, Josephine Smith's solicitor, talks about a crisis facing the criminal appeal courts. "Josephine Smith perfectly illustrates the crisis in the system. Trying to get a case listed for hearing is almost as difficult as trying to get a referral back to the Court of Appeal by the CCRC."

After he had visited Josephine in prison, she told him she wanted to "send a message" to others waiting for their cases to be heard. "She talked about the despair and the suicide attempts that many prisoners, particularly women, have to go through. She wanted them to know," he says, "that they should not despair, despite the lengthy wait that is now inherent in the system."

Mr Charalambous, a partner at the London firm CCL Solicitors, and his colleagues working on the Smith case have had to do much of the research and the investigations on a pro bono basis. "Criminal appeal cases," says Mr Charalambous, "are paid so badly that there are fewer and fewer lawyers willing to do them. Many of them are complicated cases that require many hours of expertise by an experienced criminal lawyer."

The legal-aid rate for preparatory work in criminal appeal cases is just under £50 an hour. But the hours are capped so that days of painstaking research may earn the lawyer around £250, a little more if the case is submitted to the CCRC. This means that the work is simply not profitable. Steve Bird, a criminal law specialist in London, has around 15 to 20 appeal cases on his books. But after losing a solicitor to a year's sabbatical he says he is now considering closing down this side of his practice. "It's paid so badly that I am barely clearing his salary. Delays seem to be getting worse, and they seem to be worse still with the listing department at the Court of Appeal."

On Saturday criminal appeal lawyers are meeting with representatives of the Criminal Cases Review Commission and the Criminal Appeal Office at a conference in London to thrash out some of these issues. Among them will be leading lights at the Bar Michael Mansfield QC, Keir Starmer QC, as well as Campbell Malone, the chairman of the Criminal Appeal Lawyers Association (CALA). The aim of the meeting is to identify where the system has fallen down and to find better ways of working together to end delays.

Mr Malone admits that some solicitors are guilty of dragging their heels in appeal cases, but it is clear where he feels most of the blame lies. "The courts are having to deal with more and more cases that are taking years to be heard. But we know things are also going wrong in the administration of justice, which the courts would rather not reveal, because it would damage public confidence in the justice system."

After a honeymoon period, the CCRC is finding that more and more of the cases it refers to the Court of Appeal are being turned down. Last year it referred just 30 cases, compared to 44 the year before. But Mr Malone does not believe that this reduction reflects a lessening in the numbers of potential miscarriages of justice. "For credibility reasons I don't think they like having cases rejected, and this might affect the numbers they recommend for referral."

Lord Woolf, in the Court of Appeal's annual report, says that court officials have found that many of these cases are becoming "complex and time-consuming for the court, especially in the preparatory stage". The Government's own plans to overhaul the criminal justice system are not expected to improve matters. While some of the administrative changes may help to speed up the appeal process, reform of the justice system and rules of evidence will store up trouble for the future. Mr Charalambous says the end of the defendant's protection from double jeopardy, the right not to be tried twice for the same offence, along with plans to allow juries to hear about past convictions, will lengthen the trial process and lead to more appeals.

In the present political climate there are few votes to be won by succumbing to lawyers' demands to pay them more to help prisoners appeal against their convictions. But the requirement of a fair criminal justice system does not end when the jury returns its verdict. Without an effective right of appeal, how can the public continue to have confidence in the criminal courts?

The Criminal Appeal Lawyers Association is holding a conference on criminal appeals at the Methodist International Centre, London NW1 on Saturday, to be chaired by Vera Baird QC, MP and Stephen Solley QC, chair of the Bar Human Rights Committee. For further details, telephone 020-7700 2211