On 15 July 2020 the Vice-President, Lord Justice Fulford, and Mrs Justice Whipple dismissed a judicial review brought against the Secretary of State claiming interference with, or the appearance of interference with, the independence of the Criminal Cases Review Commission (“CCRC”) (R (Warner) v SSJ [2020] EWHC 1894 (Admin)).

No5’s Philip Rule was instructed on behalf of the CCRC, named as an interested party in the proceedings brought against the Secretary of State for Justice.

The claimant alleged that the actions of the Ministry of Justice undermined the CCRC’s independence, so that its decisions were tainted by bias, or the appearance of bias. It was alleged that the Commissioners lacked sufficient security of tenure, and that the Secretary of State had misused his role as its sponsor, pursuant to the Criminal Appeal Act 1995 provisions.

The test established by Lord Hope’s dicta in Porter v Magill [2002] 2 AC 357 was considered, namely whether a fair minded and informed observer would conclude that there was a real possibility of bias. Particular consideration was given to the judgments of the Divisional Court and Court of Appeal in R (Brooke and others) v Parole Board, the Lord Chancellor and Secretary of State for Justice [2007] EWHC 2036 (Admin) and [2008] EWCA Civ 29. These were highly relevant although the Court also accepted the distinction that the CCRC does not exercise a judicial function in the same way that the Parole Board does [41].

The claimant had originally complained that the Secretary of State’s “Tailored Review” of the CCRC, as a non-departmental public body, had issued directives rather than recommendations to the Commission. However, the CCRC had in fact robustly rejected recommendations it had not agreed with, and the Court held that the CCRC had demonstrated is independence [22]-[24]; [78].

The Court held that 3-year fee paid roles, subject to re-appointment based on satisfactory performance appraisals by the CCRC and through proper public appointments processes, provided sufficient security of tenure [56]; [61]. The Court had regard to the evidence provided by the Chair of the CCRC [55]. The current tenure arrangements, albeit reduced in length, were not tainted by bias nor do they give rise to the appearance of bias [67].

With regards to the alleged misuse of the Secretary of State’s sponsorship role, the principal argument was focused upon the reshaping of the CCRC’s Board since the Tailored Review. That change was found to be “a proper endeavour, undertaken for good governance reasons and consistent with best practice. The resulting reduction in the size of the Board, accompanied by the re-establishment of the Body Corporate, does not give rise to concerns that the CCRC lacks independence from the MoJ.” [73]. It was significant that the present Chair of the CCRC had broadly supported the recasting and reshaping of the Board and Commissioner roles. It was a matter for the CCRC through the Body Corporate to delegate to the Board as it wished, and had done. It was also evident that two particular elements of the changes made to the Board structure were in disagreement to the Tailored Review recommendations [70]. The Divisional Court ‘concluded that those changes amount to legitimate policy choices about how the CCRC should be constituted.  We do not consider them to represent an unlawful diminution of the CCRC’s independence or integrity’ [77].

In its concluding remarks, the Court highlighted the importance of a functional relationship being maintained, and the importance in particular that Ministers and officials at the MoJ should properly understand and implement the process for reappointments, and be quite clear about what is appropriate to take into account in that process, and what is not.

The Court found that ‘The fair-minded and informed observer, knowing the facts as they currently stand, would not conclude that there was a real possibility that the CCRC was biased by its association with MoJ’ [83].