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Increased attention paid to wrongful convictions over the last quarter of the century has led to the formation by the state of permanent commissions that have powers to refer convictions back to the courts after ordinary appeals have been exhausted. The best known of these commissions is the Criminal Cases Review Commission (CCRC) of England and Wales. It was created by statute in 1995 and has been operating since 1997. Before its creation, it was necessary to convince an elected official and a member of the executive to refer a conviction back to the courts once appeals had been exhausted. Indeed, such petitions to the executive remain the norm in Europe and North America.

Commissions with powers to refer convictions back to the courts after appeals have been exhausted are sometimes called innocence commissions (Roach 2010a, b) because of their concern about the wrongful conviction of innocent people. At the same time, the criteria that various commissions apply in referring convictions back to courts depend on the precise form of their enabling statute. The CCRC, for example, applies criteria relating to the safety of the conviction that are used by appeal courts in England and Wales, and such criteria may not directly address the question of innocence (Naughton 2010).

The phrase “innocence commission” has been used to describe a wide variety of very different institutions including (1) self-appointed study commissions with an interest in systemic reform of the criminal justice system (Gould 2007), (2) volunteer civil society groups that investigate or advocate on behalf of the wrongfully convicted (Roberts and Weathered 2009), (3) temporary or permanent state-appointed inquiries into specific cases and/or systemic causes of wrongful convictions (Roach 2010a), and (4) permanent stateappointed commissions with a mandate to investigate claims of miscarriages of justices and to refer convictions in individual cases back to the court after ordinary appeals have been exhausted. This research paper will focus only on the fourth category, namely, state-based commissions with a power to refer convictions back to the courts after the exhaustion of ordinary appeals.

This research paper will examine the background of the formation and composition of various commissions. It will then examine the state of the art in the scholarship and identify areas of controversy within that scholarship. Finally, the paper will conclude with an examination of issues for future research.

Background

Most jurisdictions do not have independent commissions with powers to refer convictions back to the courts after appeals have been exhausted. The background of the creation and composition of the few commissions that operate at present will be reviewed in this section.

The Criminal Cases Review Commission

The pioneer of commissions is the Criminal Cases Review Commission (CCRC) created for England, Wales, and Northern Ireland in the Criminal Appeal Act of 1995 c. 35, s. 8. The CCRC was created following recommendations by two Royal Commissions and after successive applications had been made to the Home Secretary as an elected official to refer several suspected wrongful convictions in terrorist cases back to the court. In 1992, Lord May in his second report concerning one of many wrongful convictions in terrorism cases discovered in the late 1980s and early 1990s recommended that new independent machinery be established by statute that would have the power and resources to investigate cases of suspected miscarriages and refer them to the Court of Appeal (May 1992, 92ff). The next year, the Runciman Royal Commission on Criminal Justice made more elaborate recommendations for the creation of what was to become the CCRC. It recommended that the power to refer cases of suspected miscarriages of justice to the courts should be removed from the Home Secretary and be given to a body that was independent from the executive and the courts. The body would be composed of both lawyers and lay people and have the power to appoint police and others individuals such as forensic scientists to investigate cases of suspected miscarriages of justice. It contemplated that decisions made by the body would not be subject to appeal or judicial review, but that applicants whose cases were not referred to the courts could reapply to the commission (Runciman 1993).

Although there was much support for the creation of an independent commission to replace the role of the elected Home Secretary in referring convictions back to the Court of Appeal and this proposal was eventually put into effect by Parliament in the Criminal Appeal Act, 1995, c. 35, some reservations were expressed about the commission from the start. One reservation was a concern that the commission would be too closely tied to the Court of Appeal because the Court of Appeal would have the ultimate power to overturn the conviction. This concern was heightened by the fact that the Court of Appeal had expressed some reluctance to overturn convictions in the terrorism wrongful conviction cases that led to the creation of the CCRC in the first place. Concerns were also expressed that applicants would not have a hearing or even full disclosure before the CCRC and that the CCRC might have to rely on the police for investigations even though police misconduct had been a contributing cause of the wrongful convictions that had led to the creation of the CCRC in the first place. There were also concerns that the new body would not act as an advocate on behalf of the wrongfully convicted (Pattenden 1996: 407–408, 421; Thornton 1993). These concerns have all resurfaced in later scholarship critical of the CCRC (Naughton 2010).

In the Criminal Appeal Act of 1995, the CCRC was created as an independent body appointed by the Queen on the advice of the Prime Minister. It consists of at least 11 commissioners, one third of whom must be lawyers with 10 years of experience and two thirds of whom must have knowledge or experience of the justice system (Criminal Appeal Act 1995, c. 35, s. 8). The CCRC has subpoena powers, but only with respect to public bodies such as the police (Criminal Appeal Act 1995, c. 35, s. 17). It can appoint police officers when necessary to conduct investigations (Criminal Appeal Act 1995, c. 35, s. 19), although this is rarely done. More commonly, the CCRC relies on its own caseworkers as well as its ability to commission reports from experts (Criminal Appeal Act 1995, c. 35, s. 21).

The CCRC has the power to refer a conviction to the Court of Appeal where it considers that there is a “real possibility” that the conviction will not be upheld (Criminal Appeal Act 1995, c. 35, s. 13). The “real possibility” standard has been defined by the courts “as more than an outside chance or a bare possibility but which may be less than a probability or a likelihood or a racing certainty. The Commission must judge that there is at least a reasonable prospect of a conviction, if referred, not being upheld. The threshold test is carefully chosen: if the Commission were almost automatically to refer all but the most obviously threadbare cases, its function would be mechanical rather than judgmental and the Court of Appeal would be burdened with a mass of hopeless appeals; if, on the other hand, the Commission were not to refer any case unless it judged the applicant’s prospect of success on appeal to be assured, the cases of some deserving applicants would not be referred to the Court and the beneficial object which the Commission was established to achieve would be to that extent defeated. The Commission is entrusted with the power and the duty to judge which cases cross the threshold and which do not” (R. v. Criminal Cases Review Commission ex parte Pearson, [1999] EWHC 452 at para 17 (Admin.) (Eng.)).

One commissioner can make a decision to reject an application, but three commissioners must agree to a referral to the Court of Appeal. The CCRC rejects over 95 % of the approximately 1,000 applications it receives each year (Walker and McCartney 2008: 198). The CCRC does not publicly release its decisions on whether or not to refer a case to the Court of Appeal, and it is an offense for the CCRC to disclose information it has collected except in relation to its own statutory functions or for purposes of criminal, civil, or disciplinary proceedings (Criminal Appeal Act 1995, c. 35, }} 23–24).

The basis for a conclusion by the CCRC that a conviction should be referred to the Court of Appeal will generally be “an argument, or evidence,” not raised in the proceedings, but a reference can be made in “exceptional circumstances” in other cases (Criminal Appeal Act 1995, c. 35, } 13). Originally, the accused was able to raise any ground of appeal once a case had been referred back to the courts by the CCRC, but this was amended in 2003 to only allow appeals on grounds certified by the CCRC or on other grounds where the Court of Appeal has granted leave (Criminal Appeal Act 1995, c. 35, } 14). The CCRC’s reasons for making a referral are not released publicly, and it has a discretion not to refer a case even if the statutory requirement of a “real possibility” that the conviction will be not be sustained on appeal is satisfied. In one wellpublicized case, the courts upheld the CCRC’s decision not to refer a case to the Court of Appeal because the applicant had already received a posthumous pardon and compensation (Westlake v. Criminal Cases Review Comm’n, 2004 EWHC (Q.B.) 2779 (Admin)).

Despite having some lay representation, the CCRC ultimately makes its decisions on legal criteria relating to the hearings of appeals. The CCRC does not directly consider factual innocence and has referred cases back to the Court of Appeal on technical legal grounds relating to changes in the law and procedural irregularities (Elks 2008, Chap. 1; Naughton 2010).

As of May 31, 2012, the Court of Appeal had heard 461 referrals from the CCRC, quashing 324 convictions but upholding 137 cases (CCRC 2012). Although the CCRC is not a party in cases that it refers to the Court of Appeal, it has a 70 % success rate in the cases it refers to the Court of Appeal. The courts have generally been receptive to the role of the CCRC, but in some cases have expressed reservations about the CCRC’s decisions to refer historical cases or cases where there was no new evidence to consider (Elks 2008).

Since its inception in 1997, the CCRC has completed a review of over 14,000 applications, but has referred only 503 cases (CCRC 2012). In other words, the CCRC has rejected just over 96 % of the applications it has received. The difference in cases referred by the CCRC and those decided by the Court of Appeal is explained by the delays in preparing and hearing the new appeals ordered by the CCRC. The cases that the CCRC has referred to the Court of Appeal and the convictions that have been quashed cover a wide range of cases, but only two cases in the first 10 years of the commission have been classified as DNA exonerations (Elks 2008: 83) of the type that often characterize exonerations in the United States, which are much more dominated by murder and sexual assault cases (Garrett 2011; Elks 2008).

The Scottish Criminal Cases Review Commission

There is a separate criminal case review commission for Scotland, which has a different legal system than the rest of the United Kingdom. The Scottish commission has nine members. Like the CCRC, they include both lawyers and lay representatives. The Scottish commission may refer a case back to the courts on the basis that a miscarriage of justice may have occurred and that it is in the interests of justice that the case be referred (Crime and Punishment (Scotland) Act 1997, c. 48, } 25). A miscarriage of justice is the sole ground of appeal in Scottish law. Thus, the Scottish commission, like the CCRC, essentially applies the test for a successful appeal when deciding whether to refer a case back to the courts.

The Scottish commission has broader investigative powers than the CCRC, which include the ability to obtain a judicial order to examine any person with relevant information under oath as well as to require production of relevant material from any person, not just public bodies as is the case for the CCRC (Elks 2008). As of July 2012, the commission had referred 111 of 1,489 completed applications since the start of its work in April 1999 (Scottish Criminal Cases Review Commission 2012). This referral rate of 8% is considerably higher than the CCRC’s. The High Court has allowed a successful appeal by the accused against either a conviction or sentence in 59 of these cases.

The Norwegian Criminal Cases Review Commission

In 2004, Norway established its own Criminal Cases Review Commission by an amendment of Chapter 27 of its Criminal Procedure Act. It can refer cases back to the court if new evidence or new circumstances may lead to an acquittal or a more lenient sentence or if an international court has determined that a conviction violates international law. It can also refer cases if a participant in the case such as a judge, prosecutor, juror, or witness has been convicted of a criminal offense in such a way that might affect an applicant’s conviction or sentence. Unlike in the CCRC and the Scottish commission, the Norwegian commission refers cases for new trials as opposed to new appeals.

The commission has five permanent members, three of which must have law degrees. They are appointed by the King in Council and are assisted by investigating officers with legal and police backgrounds. The Norwegian commission may summon witnesses to appear before it and subpoena evidence. It also can, and frequently does, appoint expert witnesses. It can also hold formal hearings, though this has only been done in one case. Although the commission does the investigation, it can and does appoint lawyers to represent the applicant especially in complex cases or in cases where the applicant may not be guilty because of mental disorder. More recently, the commission also has the power to appoint lawyers to represent victims of sexual offenses who may be interviewed as a result of an application to the commission. The most common ground for reopening cases is evidence of mental disorder and that occurs in about 40 % of case where the commission sends the case back for a new trial (Stridbeck and Magnussen 2012). The cases reopened include not only crimes of violence including sexual offenses but also financial, drug, and minor offenses (Stridbeck and Magnussen 2012).

Except in its first years of operation when there were higher numbers, the commission receives about 150 applications each year. Since 2004, the commission has reviewed 1,045 cases and has reopened 120 or 11 % of the applications. The conviction was quashed in 80 % of reopened cases, and the sentence was reduced in another 14 % of cases, suggesting a higher success rate for the Norwegian applicant than is found in the other commissions.

The North Carolina Innocence Inquiry Commission

The first, and at the time of writing only, jurisdiction in North America to create a CCRC-type body was the state of North Carolina. In August 2006, legislation was enacted creating the North Carolina Innocence Inquiry Commission (NCIIC) to determine claims of factual innocence from living persons (N.C. GEN. STAT. }} 15A– 1460–75 (Supp 2006)). This legislation grew out of recommendations made by another body, the North Carolina Actual Innocence Commission, which was a self-appointed body chaired by Chief Justice Lake of the North Carolina Supreme Court. The legislation creating the NCIIC was originally subject to a 4-year sunset provision imposed by the legislature, but this has now been extended indefinitely.

The North Carolina Innocence Inquiry Commission (NCIIC) is composed of eight voting members appointed by the Chief Justices of the North Carolina Supreme Court and Court of Appeals. The membership of the NCIIC must include a superior court judge, a prosecuting attorney, a victim advocate, a defense attorney, a sheriff, a person who is not an attorney or employed by the judiciary, and two others (N.C. GEN. STAT. } 15A–1463).

Unlike the British, Scottish, and Norwegian commissions, the NCIIC is limited to claims of factual innocence, which are defined as “a claim on behalf of a living person convicted of a felony in the General Court of Justice of the State of North Carolina, asserting the complete innocence of any criminal responsibility for the felony for which the person was convicted and for any other reduced level of criminal responsibility relating to the crime, and for which there is some credible, verifiable evidence of innocence that has not previously been presented at trial or considered at a hearing granted through postconviction relief”. (N.C. GEN. STAT. } 15A–1460.) Thus, unlike the other commissions examined above, the NCIIC is also precluded from considering applications on the behalf of deceased persons (N.C. GEN. STAT.} 14–1467(a)).

Like the commissions examined above, the NCIIC screens out most applications made to it, but also has extensive investigative powers that include the power to issue subpoenas and compel the attendance of witnesses (N.C. GEN. STAT.}} 15A 1467(d)–(f)). The NCIIC can refer a case to the courts for review by a majority vote on the basis that there is “sufficient evidence of factual innocence to merit judicial review”; a unanimous decision is required if the convicted person pled guilty (N.C. GEN. STAT. } 15A–1468). This is a narrower standard than that used by the CCRC or the Scottish commission, which as discussed above can refer cases on the basis that they will be overturned on any existing legal standard for appeals, including miscarriages of justice that are not related to factual innocence.

The NCIIC has discretion whether to hold public hearings when it decides whether to refer a conviction back to the courts; however, if it does hold a hearing, the transcript of these hearings must be released in cases that are referred back to the courts. If a case is referred back to the courts, the case will be heard by a three-judge panel with no previous involvement in the case. The judicial panel can dismiss all charges on the basis of a unanimous decision that there is a clear and convincing case of innocence (N.C. GEN. STAT. } 15A–1469(h)). Both the decisions of the NCIIC and the three-judge panel are deemed to be final and not subject to appeal or judicial review (N.C. GEN. STAT. } 15A–1470(a)).

As of January 2012, the NCIIC had closed 953 applications of 1,102 applications since it started operating in 2007, effectively denying relief in all but four of these cases. The commission has held four formal hearings and referred three of those cases to the special three-judge panel. Of those cases, the special three-judge judicial panel concluded that factual innocence had been established in two of the three cases with one of the two successful cases resulting in the exoneration of two previously convicted persons. Thus, the North Carolina process has so far resulted in the judicial exoneration of three previously convicted persons on factual innocence grounds (North Carolina Innocence Inquiry Commission 2012).

State Of The Art And Current Controversies In The Literature

There is a growing amount of scholarship on the commissions, and a number of themes and controversies can be identified.

Commissions are often seen as “inquisitorial” institutions that allow state-financed but independent persons to investigate claims of wrongful convictions. The exact extent to which a commission engages in proactive investigation or relies on the result of investigations by others is not known, but research conducted on the role of legal representatives for applicants before both the CCRC and the Scottish commission engages with some of these issues. A study has found that while about one third of applicants to the CCRC have legal representation, almost two thirds of the small number of applicants who are successful in the sense that the CCRC refers their case to the Court of Appeal have legal representation (Hodgson and Horne 2009). This finding reveals only a correlation between legal representation and success in the form of a referral and might be inconclusive given the fact that applicants with stronger cases might be more likely to attract legal representation. Nevertheless, the qualitative part of this research revealed a number of cases where legal representatives for the applicant were able to change initial decisions made by the CCRC to dismiss the application. This suggests that lawyers can have a determinative effect in some cases, especially those in which the CCRC reverses its initial decision not to refer a case (Hodgson and Horne 2009).

A study of applications made to the Scottish commission from 2007 to 2009 found that the applicant was represented in 155 applications and unrepresented in 99 applications and that applicants with representation fared better at each stage of the proceedings before the commission (Scottish Criminal Cases Review Commission 2010: 19). The problem of whether this measures a simple correlation between strong cases of miscarriages of justice and representation is not resolved in this research (Scottish Criminal Cases Review Commission 2010). The Norwegian commission also encourages representation of applicants in more serious cases, again complicating the idea that commissions are purely inquisitorial institutions (Stridbeck and Magnussen 2012). More research is needed into how the commissions operate and the role that representatives play in determining the strength of applications made to the commissions.

Much of the literature on the CCRC has from the start focused on its relation with the Court of Appeal. From the creation of the CCRC, commentators have raised concerns that it will be too dependent on the relevant tests used by the Court of Appeal to accept new evidence and to quash convictions (Nobles and Schiff 2001, 2005). More recent literature in this regard has argued that the CCRC is not truly independent because of its reliance on the Court of Appeal and that it is not concerned enough about factual innocence (Naughton 2010). These arguments have not gone unchallenged in the literature, and others have argued that the Court of Appeal’s rejection of a significant number of referrals by the CCRC and its occasional criticisms of the CCRC referrals demonstrates that the CCRC is not captive of the Court of Appeal (Zellick 2006). As discussed above, the Court of Appeal quashes convictions in about 70 % of cases referred by the commission. The controversy in the literature over whether commissions are or should be independent from the legal system is likely to continue. Michael Zander, however, had made the important point that “some of these criticisms of the CCRC… could perhaps with more justice be directed at the Court of Appeal” (Zander 2010: xviii). Future research into commissions should not be conducted in isolation but rather should study how commissions interact with other parts of the justice system.

A common feature of all four commissions reviewed above is that they reject the vast majority of applications that they receive. Concerns have been expressed with respect to the CCRC that “many failed applicants are now voicing their dissatisfaction with the paucity of reasons given for the Commission’s refusal to refer their case” (Walker and McCartney 2008: 198). There is a need for more research about why applications are rejected and the response of the rejected applicants. Such research will contribute to better understanding of whether commissions enhance the legitimacy of criminal justice systems by admitting of the possibility of error or whether they may actually increase dissatisfaction with the justice systems among those convicted of offenses and other affected persons including crime victims.

The Runciman commission contemplated that the CCRC would be well placed to make recommendations on the basis of its cases about how to prevent wrongful convictions in the future (Runciman 1993: 185). Other commentators have made similar predictions (Findlay 2009). Some research suggests, however, that the annual reports of the CCRC have failed to address issues such as the regulation of forensic experts and the use of anonymous witnesses that may increase the risk of wrongful convictions and have instead focused on matters that affect the case review process including feedback it has received from the Court of Appeal and budgetary matters (Roach 2010a, b). This research also suggests that there may be a tension between a commission’s quasi-judicial role in deciding whether a conviction merits referral back to the court and less impartial advocacy for systemic reforms. This research found that the CCRC intervened in matters of legislation before Parliament only once and more from the perspective of how a proposed narrowing of the grounds of appeal would affect the commission’s own work and has stayed silent with respect to other legislative initiatives that arguably have increased the risk of wrongful convictions.

Other research has also found a decrease in press coverage of wrongful convictions since the creation of the commission (Mason 2010). This suggests that the CCRC may have bureaucratized and regularized miscarriages of justice. Before the creation of the CCRC, extensive media campaigns had often proven necessary to convince the Home Secretary as an elected official to refer convictions back to the court, whereas this power is now exercised by the independent CCRC. The media campaigns previously designed to persuade the Home Secretary created a sense of crisis that some commentators observed undermined the criminal justice system’s legitimacy (Nobles and Schiff 2001).

Much can be gained by comparing the profiles of cases referred by a commission to the courts to the profile of wrongful convictions addressed without a commission. Britain has opted for a state-financed error correction model which has enjoyed considerable success both in processing large numbers of applications and in referring close to 500 cases back to the Court of Appeal. A striking feature of these cases is that two thirds are non-homicide cases and only two cases in the first 10 years apparently involved DNA (Elks 2008: 184). This profile of cases can be contrasted with those found in the United States where DNA evidence plays a much larger role and most exonerations have involved homicide/sexual assault cases. Much work remains to be done in comparing the profile of reversed convictions generated by publicly subsidized commissions with those produced by the volunteer work of innocence projects and lawyers, who may quite understandably focus on the most serious cases, and those in which it is easiest to find new evidence to overturn a conviction. Such research should examine the interactions and frequent tensions between volunteer innocence projects and commissions that are not limited to work for the factually innocent (Roberts and Weathered 2009; Naughton 2010). Such research also poses questions about the larger purposes of the criminal justice system and the influence that increased concerns about the conviction of the factually innocent have on the traditional law and politics of criminal justice systems normally focused on crime control and due process (Findlay 2009).

Future Directions For Research

The issue of the relationship between commissions and the courts to which they refer cases is likely to continue to command scholarly attention. The present state of the literature has focused on competing viewpoints about whether the CCRC is sufficiently independent of the Court of Appeal. Perhaps a more productive approach would be to identify particular areas where Court of Appeal decisions have presented obstacles to possible referrals. This could expand scholarship beyond the commissions themselves to the courts and their receptivity to the idea that convictions should be quashed after ordinary appeals have been exhausted.

Commissions in all jurisdictions reject the vast majority of applications made to them, and there is a dearth of research on these rejected applications. Relevant questions are whether the applications are frivolous and should be screened out or whether they provide an important safety valve in the system. Qualitative and quantitative research about the attitudes of unsuccessful and successful applicants to the process would be promising. Another question is whether the jurisdiction of the CCRC and the Scottish commission over sentences as well as convictions should be retained or whether the focus should be more squarely placed on wrongful convictions.

There is a continued need to conduct research on the proper definition and approach to wrongful convictions. Arguments have recently been made that the CCRC is not concerned enough with factual innocence (Naughton 2010). The existence of the North Carolina commission that is limited to factual innocence claims provides a fascinating natural experiment; some early comparisons suggest that the North Carolina process may overturn fewer convictions than under the broader approaches used in the England and Scotland (Sangha et al. 2010: 351–356). Although all the commissions decide not to refer the vast majority of applications that they receive back to the courts, the North Carolina commission refers an even smaller percentage of its applicants back to the courts, and this may be related to the difficulties of establishing factual innocence on clear and convincing evidence (Roach 2012). Research comparing North Carolina’s factual innocence commission with other commissions will also engage with broader questions about the purposes of the criminal justice system.

Comparative research between jurisdictions that have commissions and between jurisdictions that do not have commissions is promising. So far, much of this research has compared England and the United States; it demonstrates how most American states (except North Carolina) have been reluctant to create commissions and instead have committed resources to extensive but frequently futile habeas corpus review (Griffin 2001, 2009). Comparative research should not just focus on commissions but take into consideration other aspects of the criminal justice system that may make it easier or more difficult to reverse convictions (Griffin 2009). There is a need to expand the universe of countries that are the subject of comparative review especially to include countries with both adversary common law backgrounds and those from more inquisitorial systems (Roach 2010b).

Other research based on a natural experiment approach could compare the profile of convictions that are overturned as a result of a commission process as opposed to the profile of cases that are overturned in jurisdictions that do not have commissions such as Australia, Canada, most of Europe, and most of the United States. One hypothesis that finds some support in the case profiles of convictions overturned after referral by the CCRC (see Elks 2008) is that commissions are more likely to overturn convictions in non-murder and sexual assault cases than those that occur in jurisdictions without a commission. Jurisdictions that rely on volunteer lawyers and innocence projects and that do not have publicly funded commissions may understandably prioritize murder and DNA cases over less serious cases where the accused is less likely to be subject to long-term imprisonment and where it may be more difficult to find new evidence to undermine the conviction. More research also needs to be done on the subsets of cases referred by commissions. Almost a quarter of the CCRC’s referrals are in sexual cases (Griffin 2009: 123; Elks 2008, Chap. 9), and this high referral rate may in part be related to the CCRC’s powers and practice of reviewing victim compensation and other claims for post-conviction statements that can impeach the complainant’s credibility (Griffin 2009: 124). This raises the question of whether different standards are applied in different types of cases.

The different commissions that now exist should be compared on a number of grounds relating to issues such as the transparency of their processes. The CCRC in particular may be less open than the North Carolina commission. The investigative powers and resources of each commission can be compared with an eye to determining the optimal model for commissions that may be created in new jurisdictions. Similarly, the composition of each commission can be compared as can their engagement with systemic reform that attempts to prevent wrongful convictions in the future.

Another area of future research that should be pursued is whether the existence of a commission bureaucratizes miscarriages of justice. The routine work of those who process and reject the vast amount of applications sent to the commissions needs to be examined. The relation between commissions and civil society groups that advocate on behalf of the factually innocent and also with the media needs to be examined. At the same time, the ability of commissions to act proactively, for example, where the practices of a particular police force or expert witness have come into question, needs to be carefully examined. In such cases, commissions may not necessarily wait for applications but could conduct proactive audits (Roach 2010b).

Conclusion

Commissions with the power to refer convictions back to the courts after appeals have been exhausted have emerged as interesting and innovative new criminal justice institutions in a number of jurisdictions. Much of the first generation of scholarship on these commissions has undertaken the necessary steps of describing the basic composition and operation of each commission. The next generation of scholarship should use the work of commissions as a window into wrongful convictions and into the larger purposes of the criminal justice system.

One research priority should be to compare the profiles of convictions reversed as a part of a state-financed commission process and those that are reversed by the efforts of innocence projects and other volunteers. These cases can be compared with each other and with the systems of petitioning the executive to reopen convictions that are still used in most American and European states. In general, the next generation of research and scholarship on commissions should focus on situating commissions in the larger context of the criminal justice system.

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