Examination of Witnesses(Questions 20-39)
TUESDAY 30 APRIL 2002
SIR FREDERICK
CRAWFORD, MS
JACKY COURTNEY,
DR JAMES
MACKEITH AND
MR DAVID
JESSEL
20. Case Review Managers are on the same three-year
contracts as caseworkers, are they?
(Sir Frederick Crawford) We do not have many caseworkers.
There were five at one time (people who were mentioned in the
report of our last visit here) one of whom became a Case Review
Manager. They have, basically, legal qualifications, or aspirations
to legal qualifications, in four of the cases, and the other was
doing a management diploma. There are now only four of those,
and they work only on Screen cases.
21. You say with Case Review Managers you cannot
force them to go after three years, do you find most of them stay
on and are renewed and so, in fact, serve six years?
(Sir Frederick Crawford) We have not tried to remove
anybody after three years. Their performance has been sufficiently
above what we regard as the threshold of adequate performance
for us not to want not to renew anybody. Since we have only been
going five years no one has yet done six years. I can say, however,
we have spent a long time on projections based on the 20 people
who have left. From doing those projections, I can say that for
most people the peak for leaving is in the third year. As a matter
of fact, not one single person has left during their fifth year.
Whether the curve will take us on a downturn, and they will want
to stay longer than six, I cannot speculate. I have said in the
memorandum that it is very hard to say at this point (we have
not actually had six years) how close the actual turnover will
be to what you would get if you could insist on a six-year termination
date. I think that, when they reach six years, many of the younger
ones will be poached from us by law firms. They are very attractive
to other people. That takes you back and closes the loop on salary:
if we offer salaries which are high, and compete with outside
opportunities, there would be no point in their leaving.
22. Can I turn to the appointment of Commission
members. The Commission began the financial year without satisfying
its statutory requirements on membership. Does your membership
now satisfy those requirements?
(Sir Frederick Crawford) It does not but it will.
We have appointed, so far in the short history of the Commission,
only one new member. You will recall that after the seven people
with three-year contracts came to the end of their contracts,
the Secretary of State at the time insisted that they should all
apply for their jobs. They had already succeeded first time round
in being appointed from a field of 858; they succeeded again in
a field of 875 the second time. Only one additional appointment
was made, and that was of Mr Jessel. We have always been at the
statutory limit for lawyers. You have to have a third of the Commission
who are lawyers; two-thirds of the Commission must be experts
on the CJS, for some reason or another; and the rest can be lay.
I am obviously one of the lay members. Two of the Commission members
left on 31 March last year—one of whom was a lawyer member,
the other was a lawyer too but was there primarily as the Northern
Ireland statutory representative, if you like, or expert on the
Criminal Justice System in Northern Ireland. A third lawyer chose
not to seek reappointment on 31 December. I started the process
off in September 2000 to recruit some more. I supplied the information
in February and in April 2001 for their appointments. Interviews
took place on 22 November or thereabouts; and of the three lawyers
who have been appointed, one has Northern Ireland expertise and
will come on 2 September; the second one will also come on 2 September—both
of those are full-time; and the third one will come on 24 June.
We will be back up to strength, but with a gap of more than 18
months in the Northern Ireland representation; and we have been
below strength on lawyers for a similar length of time.
Chairman
23. You are satisfied with the quality of the
commissioners, are you?
(Sir Frederick Crawford) Absolutely. The very fact
that the seven had the same success in the second tranche (and,
incidentally, the Secretary of State did not insist on it a second
time round), and that the five who came up and wanted to be reappointed
this time were reappointed. We are very happy with the three people
who are working their way through. The Queen is busy this morning,
but she is supposed to be signing them off shortly. We have gone
as far as giving them dates.
24. Just remind me, when decisions are made,
how many Commissioners have to endorse them, depending at which
state of the process the case is at?
(Sir Frederick Crawford) The statutes oblige us to
have a committee of at least three Commission members if there
is a reference; but anybody in the Commission can turn a case
down. We have never extended that beyond a single Commission member.
All decisions not to refer can be made by a single Commission
member. In practice, of course, quite a few of them are made by
committees of three when they are borderline for referring or
not referring. If we refer, as we have this year, 37 cases, I
do not know offhand exactly but we probably had at least 60 committees
for those: 37 were sent forward and 23 were turned down. The vast
majority of non-referrals are decided by a single Commission member,
but never a Commission member who has been associated with the
case up to that point. We always separate the decision making
from the review and investigation.
25. One supervises and then the conclusions
are sent out to another one to endorse?
(Sir Frederick Crawford) That is right. We have always
separated that. It is one of the checks and balances. The Case
Review Manager who reviews the case (or occasionally a Commission
member who reviews the case) does that with an assigned Commission
member who is more a guide, mentor and more experienced person,
who talks and discusses the plan, the issues, the contingent issues
that may not be urgent and so on, and then meets the Case Review
Manager regularly to see how progress is going. It is the Case
Review Manager who generally does the job. Then, when a position
is reached where it looks as though a decision can be made, either
another Commission member comes in and turns it down, or it goes
to a committee where it may be turned down or go forward as a
reference.
Bridget Prentice
26. I want to ask you more about the prioritisation.
Since you have changed and modified the system in 2000-01, how
many significant at-liberty cases have been given priority?
(Sir Frederick Crawford) It is a very small number.
In the 2001-02 year we have had 83 applications for priority,
and we accorded priority to 18. I do not know offhand how many
of those 18 were at-liberty cases; but one I can think of immediately
was the Ruth Ellis case where that moved forward. We have
several reasons for giving priority. It may be health of the applicant
or witnesses; it may be age, if they are very young or very old;
it may be because of the significance of the case to the Criminal
Justice System. There are several reasons for that. I do not know
offhand how many were at-liberty cases, but it would be a handful
because the total is only 18.
27. You would presumably not be able to tell
me how many were life sentence cases?
(Sir Frederick Crawford) I do not know offhand. We
could fish it out. I am always very reluctant to keep some of
these statistics on the grounds that they do not necessarily have
a lot of significance. We did get asked a Parliamentary Question
recently on this. If my memory serves me right, I think there
were five.
28. Can I ask in response to something that
the Chairman asked you, you were saying about people who were
at-liberty. If people are released because of the length of time
it takes between a case ever getting to you and you dealing with
it, are you able to say whether they count as at-liberty cases
in the statistics? You said they remained as in-custody cases.
Do they remain as that within the statistics as well?
(Sir Frederick Crawford) If we start the case while
they are in custody they are always in-custody cases, even if
they are at liberty by the time we have finished the case. If
they are-at-liberty when we start the case then they are categorised
as at-liberty all the way through.
29. Given that a large proportion of cases are
rejected at the Stage 2 Screen, how satisfied are you about the
balance between efficiency and thoroughness at that point?
(Sir Frederick Crawford) I have tried to say frequently
here and in other places, and particularly at the last appearance
before this Committee when I said it four times, we are just as
thorough over the Stage 2 Screen cases as we are at Stage 2 or
Stage 3. The point, however, (and we did not know, when we initiated
the Screen, or the pilot that led up to the Screen, what percentage
fell into this class) is that there are a large number of cases
which are simply, when we look at them, reiterations of stuff
that has been dealt with at trial, or dealt with at appeal, and
fanciful notions (not always on the part of the applicant, but
sometimes their lawyers) that the hearts will be melted of the
Court of Appeal judges if we push the case forward. On inspection,
they would not be likely to; there is not the real possibility
that there would be the quashing of a conviction or change of
the sentence. It turns out that about four-fifths of all cases
we receive, that come through and are eligible, take on average
only five days of Case Review Manager time. That does not mean
the case is finished in five days; we may have to get extra information
spread over 50 days; but, nevertheless, the total is five days
for about 80% of the cases that come in. When we send cases forward
to Stage 2—which turn out obviously to require some wider
investigations and quite a lot of additional work, either after
a preliminary look in the Screen, or because you can spot immediately
that there will be a lot of work involved—they average about
40 days of Case Review Manager time. The purpose of the Screen
was to remove, if you like, a large amount of clutter which does
generate secondary work: correspondence from people saying where
is their case; complaints (not always from the applicants, sometimes
from Members of Parliament). We can remove all of that clutter
by getting those cases reviewed. With a little less than one-third
of our total CRM effort we reviewed 733 cases in the last year;
whereas we could only take 196 at Stage 2, with twice as many
CRMs. We are, incidentally, virtually at the end of the accumulation
of cases at the Screen. It will come down slightly over the next
two or three years as we remove the odd bottleneck here or there.
Essentially, we believe in the next year or two the concentration
is very, very strongly on shifting the Stage 2 and Stage 3 cases
out. You should not have any qualms on grounds of thoroughness
in the Screen. If it needs to be a Stage 2 case to be done thoroughly,
it goes through to Stage 2. If it presents no substantial issues,
no arguments that have not previously been raised, no new evidence,
then it is dealt with at the Screen thoroughly.
30. I am pleased to hear and interested in your
comments about some of the lawyers involved. What happens to the
unrepresented applicant? Are you convinced, satisfied and confident
that a meritorious case, particularly where an applicant is unrepresented,
does not slip through the system?
(Sir Frederick Crawford) When we started I think about
10% of our applicants, or a little over, were represented. In
the year that has just finished, 45% of them were represented
at the Screen; and 62% of them were represented when they came
through Stage 2 and Stage 3. There may be reasons why they are
not represented—perhaps no lawyer wants to take on a very
shallow and dubious case; I would not like to speculate too much
on that—but just having some form of legal representation
does not necessarily mean the case is a strong one, or that it
reduces enormously the amount of work that we have to do. We do
not know how many people are deterred by legal representatives
from applying. We do know that when they do apply the legal representatives
very often present, let us say, a selective volume of information
and facts; and when we begin to work on the case we soften the
sharp edges of the facts and maybe uncover some others. Just because
somebody is not represented does not mean that person gets short
shrift. Very often we will find things that they would not have
thought of, looking through Social Service files, medical files
and court records. Once we are looking at the case we examine
those in detail and, in a sense, we are acting as their advocate.
31. That brings me very neatly to my last question
on this. How much contact does the caseworker have with the applicant
directly?
(Sir Frederick Crawford) It varies enormously. If
they are in prison, when they go to visit them in prison. There
was a time when we used to have them transferred to a local prison
if they were remote from us (but usually we go to them in prison),
but we have not done that for some time. We see their lawyers,
of course, who can come and visit us. If they are at liberty they
can come and visit us, and often do. Their representatives can
come. On one or two occasions we have had Members of Parliament
who were representing people who have come and visited us. We
talk to witnesses wherever they are; and we have been as far away
as Bahrain to interview people. We carry out a thorough investigation.
32. Very hands-on?
(Sir Frederick Crawford) Yes.
Mr Watson
33. Can I take you back to the position of unrepresented
cases. 62% were represented at Stage 2?
(Sir Frederick Crawford) Yes.
34. That low number of people who were not represented,
are you satisfied you have done enough to assist people without
legal help to ensure they get a fair review?
(Sir Frederick Crawford) We do encourage people very
strongly right from the very first stirrings of an application,
in Stage 1, to get legal advice. It is possible, of course, for
their legal advisers to get Legal Aid through the Legal Services
Commission. We encourage them very strongly and we do keep a list
of lawyers who have said that they will take on cases of that
sort and we offer it. We hold no brief for those lawyers, but
we give that list of names to the people concerned.
35. Do you monitor feedback from applicants,
or those who are non-referral, to see whether you can improve
the information you give to people?
(Sir Frederick Crawford) I am not sure how well we
monitor the ones we have completed. We do survey applicants every
three months to ask what they think of the Commission; did we
treat them well; was it easy to learn about us; did they have
difficulty in filling in our forms, and all the rest of it. We
do that every three months, and we typically get 75% of them saying
that it was easy to get in touch with us, to find out about us,
and that we treated them well.
36. So you have actually amended the forms and
the advice given on the basis of that feedback?
(Sir Frederick Crawford) Right from the beginning,
we worked very hard on the forms and we got a crystal mark for
clarity at that time. We are constantly updating and modifying
the form in the light of experience, and we have done that on
a number of occasions. There is an oddity about it which I mentioned
at an earlier appearance here and that is, however crystal-clear
our application forms and advice may be (and we have videos, audio
tapes as well as the briefing pack), we still get 30% of the applications
that are not eligible. There are two reasons, I suspect: first,
that people will always try it on, in the hope that it will work;
and, secondly, we always have to say that, if they have not been
to the Court of Appeal, in exceptional circumstances we might
be able to look at their case. Everybody considers themselves
to be an exception. A large number of the ineligible are ineligible
because they have not been to the Court of Appeal, and it is their
belief that they are exceptional, despite the fact we tell them
only a handful of cases are dealt with. I mentioned the Ruth
Ellis case; that was a person who never appealed. It seemed
rather pointless to go to the Court of Appeal, to be told it could
not be looked at out of time and then it would become eligible
for us, so we just went ahead and did it. If only we could close
that loophole then the 30% would decline. It does not require
an enormous amount of work, because the ineligible ones can be
weeded out, as a rule, by the administrative staff and do not
need so much Case Review Manager input. We have only ever had
one case concerning eligibility that has involved a committee,
and that was Iain Hay Gordon; and an Act of Parliament
changed that and made it eligible. If we could only close that
loophole that people pour through, that they consider themselves
exceptional, the 30% would decline overnight. There will always
be a few people left, if the case was in Scotland or the Republic
of Ireland.
37. That is helpful. Thank you. If I could move
you on to the field of police investigations. Have you got any
recent instances where you found police forces uncooperative,
whether on financial grounds or other grounds?
(Sir Frederick Crawford) No. I think when we started
at worst the police (ACPO if you like) were a little apprehensive
as to what the load would be. We do not actually do the appointing;
we can veto an appointment but the Chief Constables make the appointments;
and in the event we have appointed 20 for our own cases; and we
have appointed one to deal with a case that was referred to us
by the Court of Appeal for investigation. We needed for that investigation
someone who could interview under caution. We have only got 21
in five years. Our experiences have been uniformly satisfactory,
and some of our outside critics (because not everyone admires
us) have written in to say they were rather pleased with the police
investigations that we have commissioned and the results that
have come out of them. We achieve that in two ways: one is that
we cannot appoint, or at least have appointed for us, an investigating
officer unless a committee of three Commission members seek that
appointment. Those Commission members will also insist that there
is a very clear brief for the investigating officer but it need
not necessarily be from the police—it could be DTI, Customs
& Excise or from other places, but it always has been the
police, so we insist on that. Also, we like to avoid, in any report
that is produced for us by an investigating officer, any references,
any unnecessary PII, any speculations that are not factual and
germane to the report; so that when we have got the reports they
can generally be (not public information) but given to the applicant,
CPS and all the rest without any sections being hidden under confidentiality
and PII unnecessarily. We have been very satisfied. We use the
police for lots of other things, not always as investigating officers,
but just to check on things and to get information from them.
We are tied into the Police National Computer, of course. The
other way we ensure that we should always get good service, and
good interaction with the investigating officers working for us,
we have a past Detective Chief Superintendent on our staff who
is an investigations adviser, who works with them and modifies
the brief if necessary while an investigation is under way. We
appointed three investigating officers this year and, as I say,
the average is only four a year, but three in the last year.
Chairman
38. How much investigating do you tend to do?
How much is in the paperwork, and how much is getting out and
about and interviewing witnesses?
(Sir Frederick Crawford) I do not have any answer
to that. Obviously at the Screen Stage there is no getting out
and about. They are only brief because there is not any out and
about to be done. When it gets to Stage 2 and Stage 3 they are
immensely variable. If you had a case like the Hanratty
one, which has just finished, that took six Case Review Managers
six months, plus one of the Commission members a similar or slightly
longer period. Equally, there are a few that come through Stage
2 that can be polished off in one extra week. I cannot given an
answer.
39. Have you seen this document—it only
came to me last night—called the Miscarriages of Justice
Organisation?
(Sir Frederick Crawford) No.
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