Memorandum submitted by the Criminal Cases
Review Commission
CHAIRMAN'S
INTRODUCTION
The Commission was established formally on 1
January 1997, under the Criminal Appeal Act 1995. From 31 March
1997, it assumed the responsibilities previously exercised by
the Home Office and the Northern Ireland Office for reviewing
suspected miscarriages of criminal justice, and has therefore
been carrying out casework for just five years.
During that period, the Commission has developed
from start-up to its current operating mode, in which its basic
processes have been clearly defined and tested. They are now subject
to continuous improvement, to enhance their effectiveness, efficiency
and economy, rather than to radical change.
From the outset, the Commission has communicated
to its stakeholders its openness and accessibility, and its intention
to make its processes transparent. Early stakeholder concerns
regarding the Commission's likely independence, and ability to
investigate miscarriages of justice thoroughly, have been allayed
by experience of its casework.
The Commission's initial scale of operation
was inadequate to cope with the case intake that materialised,
and a very substantial accumulation of cases awaiting review rapidly
built up. The Commission began its casework in April 1997 with
10 Case Review Managers (CRMs) in post. Projections made in February
1998 suggested that 50 would be needed for a few years to minimise
the case accumulation.
The Chairman and Chief Executive of the Commission
appeared before the Home Affairs Committee in October 1997, December
1998 and April 2000. Members of the Committee visited the Commission
in February 1999, and the Committee published a report on the
Commission in March 1999. The Government responded supportively
in June 1999.
During the two years since the Commission's
last appearance before the Committee, its complement of CRMs has
built up to 50 and there has been a dramatic reduction in the
case accumulation. The five-year point reached on 31 March 2002
was a watershed. Between then and 31 March 2005, the Commission
will be engaged in the difficult and delicate managerial process
of reducing its complement of CRMs to about 30 by natural turnover,
while minimising the case accumulation. The Commission will then
finally be in a relatively steady state.
There are areas of the Commission's activities
that will require progressively greater effort: First, the Commission
must allocate more CRM effort to analysing its rapidly growing
case database. That will not only speed up its own casework, by
facilitating reference to legal and investigative issues that
have already been encountered, but also enable it to formulate
sound advice to other stakeholders and agencies within the criminal
justice system that might minimise the incidence of miscarriages
of justice.
Secondly, the Commission must soon undertake
the substantial task of reviewing case files that have been stored
for five years following completion of reviews. CRM time will
be required to examine them, to determine what must be kept and
what must be discarded, to satisfy privacy and Public Records
requirements, and to distil valuable case knowledge and experience.
Thirdly, the recent Auld Report may materially
affect the number of cases that the Commission will be directed
to investigate by the Court of Appeal, if its recommendation that
the Court's power to do so is extended to cases for which leave
to appeal is being considered.
1. CASE INTAKE
1.1 Transfers
Around 31 March 1997, the Commission received
279 cases transferred from the Home Office and the Northern Ireland
Office (see Table 1). These contained many old and difficult cases,
eg Bentley, Mattan and Hanratty, and it is only in the 2001-02
financial year that case reviews of the last of the transfers
have been completed.
1.2 New Cases
As will be seen from Table 1, there was an initial
surge of cases in 1997-98 and 1998-99, but the annual intake is
now roughly 800. Although it is too early to say whether or not
the rise from 777 to 834 over the last three years is a trend,
or simply a statistical fluctuation, two factors may be operating
in favour of a trend: first, growing awareness of the Commission
and its casework, and secondly, some prospective applicants may
previously have been discouraged from applying because of the
very substantial case accumulation and corresponding delays.
Table 1: Case Intake
| Transfers | New Cases
| Cases (cumulative) |
| 31 March 1997 | 279 |
| 279 |
| 1997-98 | | 1,103
| 1,382 |
| 1998-99 | | 1,037
| 2,419 |
| 1999-2000 | | 777
| 3,196 |
| 2000-01 | | 800
| 3,996 |
| 2001-02 | | 834
| 4,830 |
Figure 1 shows that the monthly case intake is erratic, varying
between 49 and 88 over the 1999-2002 period, while the average
over a twelve-month period varies only slowly. The cumulative
case intake (including transfers) is indicated in Figure 2.
2. CASE REVIEW
MANAGERS
The Commission's capacity to review cases depends critically
on its complement of CRMs. During the 1997-98 financial year,
Commission Members had time available to carry out a considerable
number of case reviews. Progressively, however, they became increasingly
occupied with their mentoring roles in relation to the rapidly
growing complement of CRMs, and with decision-making on individual
cases. Today, the vast majority of case reviews are carried out
by CRMs.
The evolution of the Commission's complement of CRMs is indicated
in Table 2 and Figure 3. Although projections made in February
1998 suggested that 50 CRMs would be needed for a few years, to
minimise the case accumulation, that complement was not reached
until the 2001-02 financial year. The hope shared by the Commission
and the Home Office that minimisation of the case accumulation
could be achieved by 31 March 2004 has consequently to be modified
to 31 March 2005.
Table 2: Number of CRMs in Post
| Date | CRMs in Post
| Arrivals during the year | Departures during the year
|
| 31 March 1997 | 9 | 15
| 0 |
| 31 March 1998 | 24 | 8
| 3 |
| 31 March 1999 | 29 | 12
| 5 |
| 31 March 2000 | 36 | 17
| 6 |
| 31 March 2001 | 47 | 9
| 6 |
| 31 March 2002 | 50 |
| |
Home Office funding for 2001-02 would have allowed the Commission
to build up towards a complement of 60 CRMs. In the event, several
considerations contributed to limiting the complement to 50. The
first was that CRM candidates were found to be in too short supply
to increase the number in post rapidly. This led to consideration
of the possibility of extending the period for minimising the
case accumulation to 31 March 2005. The balance was tipped by
a request from the Home Office, in October 2001, for help in mitigating
unexpected financial pressures to which it was subject. The outcome
was that the Commission absorbed a reduction of 8% in its Grant-in-Aid
for 2001-02.
It should be said, however, that there were other persuasive
considerations in limiting the complement to 50 CRMs. The Commission
would have needed additional accommodation temporarily, and that
was unfortunately no longer available in Alpha Tower. Furthermore,
so much of the case accumulation had already been cleared by 31
March 2001 that a complement of CRMs greater than 50 might not
have subsequently diminished by natural turnover in line with
the diminishing case accumulation. We shall return to this point
in Section 5.
3. CASE COMPLETIONS
3.1 The Case Review Process
Case review proceeds by the series of Stages shown schematically
in Figure 4. Stage 0 deals with initial enquiries and communications,
and constitutes case files that are treated as applications. Stage
1 decides whether or not a case is eligible for review. Stage
2 Screen has been in operation since May 1999 and deals
with cases that offer little or no new evidence or argument. Stage
2 deals with cases that require more substantial effort and
extensive investigations. Stage 3 deals with cases for
which an external Investigating Officer is required.
Completions
Case completions in the 2001-02 financial year are shown
for each Stage in Figure 4 and Table 3, and totalled 1,201, including
37 cases referred to the appropriate courts of appeal. Annual
statistics for earlier years are provided in Table 3.
Table 3: Case Completions and Cases in Progress
| Case Intake
| Case Completions | Cases in Trays
| Cases under Review |
| 31 March 1997 | 279 |
| | |
| 1997-98 | 1,103 | 310
| 855 | 217 |
| 1998-99 | 1,037 | 492
| 1,177 | 440 |
| 1999-2000 | 777 | 1,015
| 914 | 465 |
| 2000-01 | 800 | 1,110
| 577 | 492 |
| 2001-02 | 834 | 1,201
| 338 | 364 |
Cumulative monthly case completions are plotted in Figure
1 for comparison with the cumulative monthly case intake. Completions
lagged further and further behind intake until mid-1999, when
the case accumulation reached its maximum. Thereafter, a combination
of the Commission's developing case review processes and experience,
and the growing complement of CRMs began to reduce the total number
of cases in progress. The effect is shown strikingly in Figure
4R, which indicates separately the numbers of cases in Trays and
under review.
3.3 Referrals
One criterion of the effectiveness of the Commission's case
review process is the outcome at the appropriate court of appeal.
Table 4 indicates the number of referrals made by the Commission
each year since its inception, and the outcomes of those appeals
that have been heard.
To 31 March 2002, 161 cases had been referred (out of 4,128
case completions). Of those, 68 were waiting to be heard; 64(69%)
had been successful at appeal, and in 29(31%) the conviction or
sentence had been upheld. In one case, the conviction was quashed
at the Court of Appeal, but subsequently upheld by the House of
Lords. In another, the conviction was upheld by the Court of Appeal,
but quashed by the House of Lords.
Table 4: Case Referrals
Further criteria of the effectiveness of the Commission's
case review process are the success rate of reapplications to
the Commission and the outcomes of judicial reviews of the Commission's
decisions.
Reapplications: Only a few per cent of cases in which
the Commission's decision was not to refer return as reapplications.
Of these, relatively few offer arguments and/or evidence not previously
considered at trial, at appeal or by the Commission. Their success
rate is correspondingly low: only three reapplications have been
referred during 2000-02.
Judicial Reviews: Over the period 1997-2002, there
have been seven judicial reviews of decisions by the Commission:
four have been decided in favour of the Commission by the Administrative
Court; one was withdrawn by the applicant, one was suspended because
the applicant absconded, and one was settled by agreement (the
conviction was subsequently referred, and was upheld at the Court
of Appeal).
4. CASEWORK PROJECTIONS
The five-year point reached on 31 March 2002 was a watershed
in the Commission's development. Between then and 31 March 2005,
the Commission will be engaged in the difficult and delicate managerial
process of reducing its complement of CRMs from a peak of 50 to
a relatively steady state of about 30, by natural turnover, while
minimising the case accumulation.
To manage this transition to the steady state, assumptions
are required concerning the annual case intake, and the numbers
of Cases in Trays and Cases under Review at each Stage when the
case accumulation has been minimised. These assumptions determine
how many CRMs will be required in the steady state, and how much
additional CRM effort will be required between 31 March 2002 and
31 March 2005 to minimise the case accumulation.
4.1 CRMs Required
To avoid presenting unnecessarily complicated details of
our approximate casework projections for 2002-05, we shall simply
say that projections founded on current annual case intake and
CRM productivity suggest that about 30 CRMs will be required to
cope with casework in the steady state. Furthermore, the roughly
linear reduction in the complement of CRMs over the three-year
period shown in Figure 5 should suffice to minimise the case accumulation
by 31 March 2005.
Adjustments to the Commission's complement of CRMs may be
required in the light of experience over the three-year period,
and it should be remembered that additional CRM effort will be
required for the tasks mentioned in the Chairman's Introduction.
4.2 Casework Projections for 2002-03
The way in which casework projections can be made, taking
account of the reduction in CRMs indicated in Figure 5, will be
illustrated for the 2002-03 financial year. Table 5(a) shows the
casework completed at each Stage during the 2001-02 financial
year, and the changes in Cases in Progress. Of particular importance
are the percentages of cases that progress from each Stage to
the next. The final column on the right of Table 5 shows the Group
Caseworker Effort (GCW) expended at each Stage during the year,
taking account of any change in the number of cases under review
by assuming that such cases are, on average, half-completed.
Figure 5(b) assumes the same annual intake, and percentages
of cases progressing from each Stage to the next, and allocates
the GCWs so as to reduce the Cases in Progress optimally. To do
so, it is assumed that the case accumulation at Stage 1 has already
been minimised; that the accumulation at Stage 2 Screen can still
be reduced somewhat, and that six CRMs can be transferred from
Stage 2 Screen to Stages 2-3, effective 31 March 2002.
Table 5: Casework Projections from 31 March 2002 Statistics
(a) 31 March 2001 to 31 March 2002 (actual)
The salient features of Table 5(b) are that the Commission
should complete about 1,000 cases in 2002-03, compared with 1,201
in 2001-02. The reduction is primarily due to the close approach
to minimisation of the case accumulation at Stage 2 Screen that
had been achieved by 31 March 2002: consequently, 516 (= 503+13)
completions at Stage 2 Screen are projected in 2002-03, compared
with 733 (= 714+19) completions in 2001-02.
Case completions at Stages 2-3 are projected to be about
228 in 2002-03, compared with 196 in 2001-02. The GCW is not significantly
greater than in 2001-02, after the transfer of six CRMs from Stage
2 Screen at 31 March 2002 has been offset by eight (projected)
CRM departures during 2002-03, so this completion rate implies
a significant increase in productivity. If achieved, it will halve
the waiting time in Tray 2.
4.3 Casework projections for 2003-05
Figures 5(c) and (d) show analogous projections to 31 March
2005.
(c) 31 March 2003 to 31 March 2004 (projections)
5. PROSPECTS FOR
THE COMMISSION
By 31 March 2002, the Commission had reached the end of its
growth phase, during which it had appointed a maximum complement
of 50 enthusiastic, highly competent CRMs, mainly at early stages
of their careers and correspondingly ambitious. It is now in a
transitional phase, characterised by matched reductions in the
case accumulation and its complement of CRMs. This phase must
be managed so as to approach a steady state in which the case
accumulation is minimised and the complement of CRMs is stabilised
by 31 March 2005. Above all, the Commission must strive to sustain
its dynamism and collegial ethos through this difficult period.
The steady state poses longer-term problems. In particular, a
level of CRM turnover must be sustained that will be sufficient
to preserve enthusiasm and vitality, and to avoid stagnation.
Organisational design: In April 1996, the Chairman
was charged with setting up a new body for the effective review
of suspected miscarriages of justice. The initial design of the
Commission was determined by consideration of the two organisational
dimensions indicated in Figure 6. The vertical dimension describes
the relations of staff of all kinds to each other. The horizontal
dimension describes the relation of individual staff to the organisation.
A collegial organisation is characterised by a high degree
of empowerment of its staff; confidence is placed in them to perform
their allotted tasks; mutual support and trust are fostered; competition
among staff is minimised, and a friendly atmosphere is engendered.
It is particularly suited to organisations such as the Commission,
that consist of specialised professionals whose relative and absolute
productivities are not readily quantified. Correspondingly, personal
development reviews will tend to concentrate on how to perform
better, particularly through advice and training, rather than
on reaching specified productivity levels.
In contrast, a hierarchical organisation is characterised
by a high degree of command and control; fine gradations in power
and authority, related to rank and salaries; competition among
staff to achieve these gradations; close supervision of performance
and productivity, and a more tense atmosphere. It is best suited
to organisations in which there are sharp stratifications of expertise,
experience and education, and where rapid coordination of effort
by command may be necessary.
The Commission is an unusually collegial organisation. It
owes that primarily to its simply defined mission and objectives,
with which its highly professional staff can readily identify,
and its small size. Its essential monitoring, and improvement
of individual performance and productivity, are unobtrusive processes
mediated by such provisions as separation of case decision-making
from case review, continuous advice to CRMs on case review from
Commission Members and others, and periodic personal development
reviews.
CRM appointments: When the Commission's case accumulation
has been minimised, it will be a substantially smaller organisation
than at 31 March 2002. This consideration influenced the initial
organisational design and the Chairman's perspective on CRM appointments.
The Commission simply cannot offer the opportunities for job enrichment,
internal advancement, and transitions to other roles and activities
that would sustain a long-term career. CRMs have therefore been
sought who would value a Commission post as a personal development
opportunity, rather than as a long-term career, and would find
acceptable a time horizon of a three-year contract renewable once.
To such CRMs, the Commission offers the largest concentration
in the UK of professionals working in the specialised area of
miscarriages of criminal justice. Its induction and training programme
should enable them to move speedily up the learning curve, to
reach high productivity after two to three years. Any service
thereafter should widen their casework experience, but should
be viewed primarily as a period of consolidation during which
to manage the transition to similarly stimulating (and probably
more financially rewarding) post-Commission employment.
The dashed line in Figure 1 illustrates the danger of evolution
towards a hierarchical model, if modifications of the organisational
design are made progressively to satisfy the `career' aspirations
of long-service CRMs in an ageing Commission. It is the Chairman's
view, at least, that whether or not the Commission can continue
as the bright star in the north-east quadrant of Figure 6 that
it undoubtedly is today, depends crucially on sustaining a level
of CRM turnover of 15-20% per year, to provide adequate opportunities
for recruitment.
It is tempting to argue that productivity will increase with
length of service, but it is not clear that this increase will
be significant after the first few years in post. There is the
counterbalancing danger that individual enthusiasm will be blunted,
and reluctance to adopt new practices will grow, as the work becomes
progressively more routine, with inevitable deleterious effects
on the Commission's ethos. The percentage of cases referred is
small, and the Home Affairs Committee has questioned whether or
not a `culture of disbelief' might develop.
From the point of view of the wider criminal justice system,
the Commission is a unique source of bright, ambitious recruits,
highly trained in the discipline of reviewing suspected miscarriages
of justice. It is to the benefit of the system that the flow from
the Commission should not diminish to a trickle.
CRM turnover:
Table 2 indicates that the Commission has appointed 70 CRMs,
of whom 50 were in post at 31 March 2002. It is possible to analyse
the lengths of service of those who are in post and those who
have left, and to project forward CRM turnover to 31 March 2005.
The projections are shown in Figure 7, together with the mean
service of those still in post measured in working days (one calendar
year = 250 working days).
It seems likely that the reduction from 50 CRMs at 31 March
2002 (=1,250 working days since 31 March 1997) to about 30 CRMs
at 31 March 2005 (=2,000 working days) will occur by natural turnover,
but with little or no opportunity for recruitment of new CRMs
before that date. Correspondingly, the mean time in service of
those in post will rise from about 600 working days to 1,400.
The contractual arrangements for CRMs mentioned above (of
a three-year contract renewable once) would have ensured about
14 departures during the 2002-05 period. The Employment Relations
Act 1999 would, however, allow any member of staff whose employment
had been terminated by the Commission at the end of a fixed term
contract to bring proceedings for unfair dismissal. The Commission
continues to use fixed-term employment contracts to express its
culture, management objectives and expectations of the individual,
but it will be several years before it is clear how closely CRM
turnover matches these terms.
Commission Members and Other Staff:
The Criminal Appeal Act 1995 provides that no Commission
Member shall serve continuously for more than 10 years. In 1997,
six Members and the Chairman were appointed for five-year terms,
and seven Members were appointed for three-year terms. Those seven
were obliged to compete in open competition for reappointment,
and were all successful, though one left a year later. One other
Member joined the Commission in July 2000. Of those appointed
for five-year terms, two left in 2001 and five were renewed. The
current position is that three new Members are expected to join
the Commission within the next few months; two Members and the
Chairman reach the ends of their terms of appointment in the summer
of 2003.
The founding Chief Executive left in October 2000. Her successor,
Jacky Courtney, joined the Commission in January 2002, and will
be present at the meeting of the Home Affairs Committee on 30
April 2002.
April 2002
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