Turning a blind eye

David Jessell investigated wrongful convictions for Rough Justice. Now he's on the official body that refers cases back to the appeal court. Why, he asks, has TV lost interest in uncovering injustice?

Stung by the scandals of the Birmingham Six and the Guildford Four, in 1993 the royal commission on criminal justice recommended the creation of an independent body to investigate alleged miscarriages of justice. The criminal cases review commission (CCRC) finally came into being in 1997.

Many journalists welcomed the move; we had long campaigned for just such an organisation. This involved an uncharacteristic degree of altruism among those of us who spent happy days - and the broadcasters' money - exploring miscarriages of justice. We knew that the CCRC would inevitably spell the end of television's role as the self-appointed long stop of the criminal justice system. Channel 4 would soon abandon the genre (miscarriages of justice were "a bit 1980s"), while the BBC's Rough Justice, always an "occasional series", became occasional to the verge of near-extinction.

I decided to apply to become a commissioner at the new body. My application went straight into the bin, as I was subsequently told by the man who put it there. But three years later, after a series of interviews and psychometric tests (in itself an alien experience for a freelance journalist whose last job interview had been in 1967), the Home Office indicated that it was prepared to put my name forward to Her Majesty as a part-time member of the commission.

It was not going to be easy to wave goodbye to the best job in television. I knew I would miss the subversive mischief of taking television's money to smuggle something socially worthwhile on to the screen. I would also miss the luxury of restricting my cases to three or four tantalising human stories a year, and the selfish satisfaction of knowing that a close, tiny team had made a mighty difference to the life of an innocent person.

Work at the CCRC - or so it certainly seemed at first - could hardly be more different. There were the little things - health and safety advising me on the use of the chair in my office, when for 30 years I hadn't ever really noticed what I was sitting on, let alone had an office. (In fact, the CCRC is wonderfully unstuffy, and a lot more fun than some of the self- important corridors of television.) But instead of my cherry-picked prisoners, I was now confronted with a relentless and dismal tide of sexually abusive stepfathers and importers of class-A narcotics. We had campaigned for justice on television, but what had justice to do with a deficient direction to the jury on the adverse inferences that could be drawn from the defendant's silence? The lawyerly notion of an "unsafe" conviction seemed somewhat anaemic compared with red-blooded innocence.

The greatest difference was to do with power. Journalists are journalists because they are fascinated by power, but not fascinated enough actually to want it. Being a commissioner meant that I could do things that existed only in the dreams of journalism - for instance, asking customs and excise or the Home Office to hand over their files on a case, and knowing that section 17 of the 1995 Criminal Appeal Act gave me that authority. Parliament, thanks largely to people such as Chris Mullin MP, who had themselves devoted much of their efforts to remedying miscarriages of justice, endowed the commission with immense powers to preserve and inspect documents such as social services records, crown prosecution service files, police surveillance logs, transcripts of public interest immunity hearings, medical notes, police disciplinary records and applications to the criminal injuries compensation authority.

I had always known, when making programmes, that we were fighting blind - with luck we would have the defence file, if it hadn't been lost, and whatever disclosure it contained. Apart from that, it was a matter of knocking on the doors of witnesses and seeing if they had anything to say - which they almost always did. But that was usually all we had to go on. If we had our doubts about a particular policeman, we had only deduction and inference on our side - and the Police Federation, in association with their solicitors, Russell, Jones & Walker, on the other, willing to throw hundreds of thousands of pounds of the rank and file's subscriptions at the television companies in satisfactorily unsuccessful libel actions.

It now seems astonishing that we were so often right. The Darvell brothers; Mark Cleary; Johnny Kamara; Peter Fell; Gary Mills; Tony Poole; Rab Campbell; Joseph Steel; Sheila Bowler; Mary Druhan and a few others all had their convictions quashed after we uncovered new evidence. Not bad for what Lord Lane, then lord chief justice, testily described as "a mere entertainment".

Armed with its section 17 powers, shouldn't the CCRC have an immeasurably greater success rate than the amateurs of television? With up to 50 skilled case review managers, compared with a couple of TV researchers, shouldn't we be deluging the court of appeal with referrals? Why do we refer only 4% of the cases we receive?

One answer is that the CCRC does, in fact, produce a steady stream of referrals, although many of them (apart from cases such as Sally Clark and Jeremy Bamber) involve less high-profile convictions. Again, a lot of our investigative work goes into confirming the safety of a conviction. A television company could not have exhumed James Hanratty to extract a posthumous DNA sample, and so draw a line under a case which for four decades had rightly nagged the national conscience.

Also - whisper it low - television itself turned down at least 96% of prisoners who wrote to miscarriage of justice prgrammes.

There is a genuine and respectable difference between campaigning journalism and the CCRC. Facts matter to both activities. But journalism deals in opinion, and seeks to hold the system to account. The CCRC deals in judgment, and is held to account by parliament, the court of appeal, and the process of judicial review. Journalism should challenge the judicial system; the CCRC's job is to test it. Under the 1995 act the CCRC can refer a case only where there is a "real possibility" that the court would quash a conviction (or sentence). That definition is elastic. Do we mean a real possibility, or a real possibility ? And a case committee of three commissioners is quite capable of referring a case where the court should, rather than necessarily would, quash a conviction. But we can't refer a case simply because it stinks; if all our efforts have failed to reveal new and admissible evidence, then sending it up to the court of appeal on a "surely shome mishtake" basis defies the statute that brought us into being. It is difficult to turn down a dodgy conviction, but this journalist commissioner has no monopoly on this unease.

There are perfectly good arguments for broadening our referral criteria - for instance, to include the return of our old friend, Lord Devlin's "lurking doubt" - but the court of appeal would need to adopt the same approach. Legislation allows the Scottish CCRC to refer a case simply on grounds that a miscarriage of justice may have occurred.

The CCRC spent its first years in prudent purdah, refining its processes and earning its reputation. That, itself, was a frustration for someone brought up to believe in transparency and public accountability. Our profile will inevitably be heightened by Rose and Maloney, the dramatic casebook of the criminal justice review agency now showing on ITV1. It is not entirely faithful to reality: case worker Rose, for instance, seduces the man from the Home Office, a tactic that would be invoked at the CCRC only in the event of a threat from our sponsor department to cut our grant-in-aid. But it is true to the spirit of the commission; skilled and enthusiastic case review managers really do want to uncover miscarriages of justice and send them to the court of appeal.

The pity is that miscarriage of justice television should now be the stuff of drama. Rough Justice recently sputtered back into life with a case of a death in police custody, constructed around a closed-circuit recording of the fatality taken at the police station. But playing crime videos is surely the job of Crimewatch. Journalism is about finding things out precisely when there isn't a convenient recording of the event.

As for old-fashioned investigative television, the CCRC may have provided commissioning editors with a respectable reason for abandoning these troublesome and expensive programmes. I hope they come back. After all, those of us who care about these things - wherever we work - are on the same side.