Examination of Witnesses(Questions 40-59)
TUESDAY 30 APRIL 2002
SIR FREDERICK
CRAWFORD, MS
JACKY COURTNEY,
DR JAMES
MACKEITH AND
MR DAVID
JESSEL
40. They call it a critical analysis and review
of the efficiency of the CCRC. Can I read you one or two of the
points they make and ask you to react briefly to them. "In
many cases we have reviewed the Commission and they made no enquiries
of the trial solicitors or reviewed any defence material that
may lie on those files".
(Sir Frederick Crawford) They would have to say what
cases they were talking about, and we would have to have a look
at it. Do not forget that we have a complaints system. One of
the ways in which we would know whether people are entertaining
those thoughts would be how many complaints we get. In the last
three years we have had 166 complaints for 3,300 cases completed.
We do not get a lot of complaints; and, of those complaints, in
the year that has just finished we had 69 complaints and only
nine of those were upheld.
41. Who upholds them?
(Sir Frederick Crawford) We are not subject to any
ombudsman or person like that, so we have an internal complaints
system. It is a two-stage complaints system. The complaints come
in and we acknowledge them in an average of four working days.
We complete a review of the complaint in an average of 20 days.
We would normally find that they fall into three or four categories:
One category small, half a dozen, where they believe we have not
lived up to what we talk about in our annual report, confidentiality,
integrity of some sort of another; they are complaining about
that; and another bunch will say that we have not looked at things
adequately, and that is by far the biggest thing; in fact it is
not worth talking about the others. 41 of the 69 were in the category
that somehow we had neglected or not looked carefully enough at
various bits of evidence that they provided. We go through those
pretty carefully and tell them why, and most of the answers to
their questions are already contained in the statements of reasons
that we have sent to them. Some of the complaints are on cases
that are in progress, where they feel we have not taken appropriate
action and, of those, a very small number is sustained. Where
we sustain them, then we either apologise or change our processes
or, more likely, do both. MOJO may have some evidence and, if
so, they should present it to us. We have invited them, incidentally,
to visit us.
42. Have they been to see you?
(Sir Frederick Crawford) No, they wrote and said they
would like to see us, and we wrote back and said, "Come along".
43. I think I saw the exchange of correspondence.
You said, "Please provide us with the basis for your complaint".
(Sir Frederick Crawford) That is right. They had made
some complaints in the Big Issue which were particularly
vituperative about our CRMs, so we wanted to be able to check
that out by the time they got there, but they have never got back
to us.
44. I guess this is going to be it.
(Sir Frederick Crawford) We shall learn from it.
45. Another point they make is that the final
statements of reasons very often contain no reasons?
(Sir Frederick Crawford) It sounds like nonsense.
The number of reasons would obviously depend on the number of
issues made by the applicant or discovered by ourselves. Some
may be short statements of reasons and some may be very long.
The statement of reasons does precisely what it says and gives
the reasons why we are turning something down.
46. I quote: "It is common practice for
the Commission when rejecting an application to state quite simply
they are of the view that the issue does not affect the safety
of the conviction without giving detailed reasoning".
(Sir Frederick Crawford) I do not read all of the
statements of reasons that go out; but I read a large selection
and that is not my view of what I have seen. I tend to read a
few dozen per year and, very often, when I get letters from Members
of Parliament I check the statements of reasons and see what they
say, and that is certainly not my impression. I think they have
to give us specific cases and then we would look at them.
47. Another general point they make, although
you have addressed this earlier, is that, "Contact between
the Commission and the applicant is restricted to correspondence
and limited telephone calls. The applicant is disadvantaged by
no personal contact".
(Sir Frederick Crawford) Again, they would have to
give evidence of individual cases, because we do visit people
in prison; we visit witnesses; applicants at-liberty come to see
us; they call us up; even people in prison have phone cards and
call us up, endlessly sometimes. They would have to give a specific
instance; it is much too vague.
48. They may be referring to many of the cases
which are rejected at the outset, rather than those in more detail?
(Sir Frederick Crawford) I think so. It goes back
to the point that was raised earlier: are we being thorough? We
would argue just as thorough with the cases with just a few issues
or new arguments.
49. I have seen it alleged as well, I think
also in this document but it may have been elsewhere, that the
number of cases referred is less than the C3 Department of the
Home Office were referring in their heyday. I think the implication
is that since that organisation is considered to be useless then
you are too. I am not alleging that; I am merely the bearer of
the message.
(Sir Frederick Crawford) I can sense the negative
accolade. My recollection of the last three years before the Commission
was founded was that there was a Parliamentary Question asked
in 1997 which listed the number of cases that had been referred.
My memory is obviously going to be at fault on this but I would
have said that it was less than 10 for a couple of those years
and then it picked up to 15, or something like that. Do not forget
that we have sent 161 in the last five years, so I do not think
that is a fair comparison. Also, of course, the number of cases
we are receiving is rather higher than the Home Office, which
again makes the comparison difficult. You need to know what percentages
you are talking about. In this particular year, as I said earlier
when talking about thoroughness of the Screen, we have actually
referred more cases from the Screen than we referred from Stage
2, because it just happened that way. There were 19 referred from
the Screen and 18 from Stage 2. Comparisons with the Home Office
are very, very difficult to make, but I would have thought that
statistic was wrong.
Chairman: Thank you. Can we turn to grounds
for referral.
Mr Prosser
50. The Act requires you not to refer cases
to the Court of Appeal unless there is a real possibility that
conviction will not be upheld. Now that you have had a fair bit
of experience of the system, some 89 or so cases, what is your
view, what have you learned about the Commission's interpretation
of the test?
(Sir Frederick Crawford) Well, there are two answers
I can give to that. One is just the sorts of percentages that
we are batting on cases that we send, and the other is the causes
for the miscarriages when the issues have persuaded us to send
cases. Now, when we started we were wondering what would be a
reasonable percentage of cases to go to the Court of Appeal and
what would be our success rate there. There was no a priori
method of working that out, but we did think that if we got no
cases being successful at the Court of Appeal, we had it wrong
and if we had 100% of them successful, we were also getting it
wrong and that somewhere, let's say two-thirds, three-quarters,
whatever you like, would be very reasonable, but if it was 50%,
as I said last time I appeared before this Committee, that would
not bother us very much. But 10% would, and 90% certainly would
bother us. In the event, we have been running at about 70%. We
have been as high as 75 and at the moment we have a 68% success
rate. That does not mean we do not send a case unless we are 68%
certain that it is going to succeed. For some it is slight; for
some it seems stone-cold to us. So in the end every committee
that meets decides whether there is a real possibility for the
case. It is reviewing the issues and of course we have to look
at the sorts of decisions that the Court of Appeal makes. Now,
that has attracted in the past quite a lot of criticism of the
"real possibility" criterion itself. Are we in fact
always shadowing the Court of Appeal in the cases we send and
the decisions they make? Could they be progressively tightening
their criteria, for example, for quashing convictions or changing
sentences? You can infer some answers to those questions from
the Table I have given you of the cases quashed in each of the
years, compared to the numbers sent in each of the years.[4]
If, let's say, we take the year 1998-99 and if a smaller number
of them are being quashed when the cases are heard in 1999-2000,
2000-01, 2001-02, then it may be that the Court of Appeal is stiffening
up in its criteria. If you run down the Table and, say, all those
cases heard in the year 2000-01, regardless of when we referred
them, if those statistics are different from the ones across,
then you might begin to argue that something was happening either
in our criteria or in theirs. I can simply say that there is no
persuasive statistical evidence that anything is happening. It
does not mean to say it is not, but nothing stands out from that
Table I have given you here about any change of behaviour on our
side or by the Court of Appeal. I just tell you that. It could
be, but in the fairly small samples of cases you have got for
each year, there is no evidence statistically.
51. In terms of their behaviour and their judgments,
what is your view? Do you think they are being overly cautious
or are they getting it right? Do you have a strong view?
(Sir Frederick Crawford) I think there have been a
very small number of cases, and I am talking about two or three
now, where we have considered that their decision was not necessarily
wrong, but where it was surprisingly harsh, where we really expected
the case to succeed. One of those cases, incidentally, was reversed
at the House of Lords; a Court of Appeal decision was reversed
at the House of Lords—
Chairman
52. Can you remind us which one that was?
(Sir Frederick Crawford) Pendleton, but I will
not remind you what the other one or two are. I think you could
guess which of them would be one where we think that maybe the
Court of Appeal got it wrong. Other than that, they have been
very reasonable in doing two things. One is providing us with
feedback in their judgments about how we might have looked at
the case differently, and it is usually in the ones which are
upheld where they do that, where they will comment. We ran into
one or two problems at the very beginning when we sent sentencing
cases where the sentence, we thought, was wrong. They clarified
in effect that some of our arguments were more concerned with
the severity of the sentence than, as it were, the legality of
the sentence. It was within the margin of discretion of the judges
and maybe they had been harsh, or had been able to uphold it anyway.
So there has been advice and feedback through the cases which
have been upheld. There has also been some quite useful support
for us in cases where the verdict has been quashed or the sentence
reduced because very often they have been through our arguments
where, let's say, there has been inadequate advocacy following
our arguments and they have mentioned these arguments and disposed
of them themselves, and discussed them themselves at the hearing,
so we get feedback from them that way. We get feedback also when
they believe we have been less than logical, let's say, in dealing
with some of the issues, so that has been very helpful too.
Mr Prosser
53. So, on balance, do you feel that they have
become over-cautious recently?
(Sir Frederick Crawford) I have no reason to believe
they are over-cautious, under-cautious or whatever. All I know
is there have been only a couple of cases where we believe that,
in our humble opinion, they have not got it right, and on one
of those we have been justified in the House of Lords and I do
not think the other one is permanently addressed.
Chairman
54. You mean that the other one will be going
back to the Court of Appeal?
(Sir Frederick Crawford) I do not know. It might well
come to us again and then end up there. I do not know. I think
it will run and run.
Mr Prosser
55. The practitioners have suggested that the
Commission is becoming more cautious recently, in recent years.
Is that a fair criticism?
(Sir Frederick Crawford) I have not heard that from
anywhere, but although we do listen to criticism, it is usually
in both directions, that we are too soft, too hard, too quick,
too slow. We just have to do what we think is right and learn
from whatever we consider to be reasonable, valid and thoughtful
criticism.
56. Can I ask you briefly about the criteria
which you are required to apply in terms of the test and the criteria
which the Scottish Criminal Cases Review Commission have to apply,
where they take into account miscarriage of justice and so on?
(Sir Frederick Crawford) Yes, their Act asks them
whether there has been a miscarriage of justice and ours asks
whether there is a real possibility that the verdict or sentence
would be considered unsafe. Scotland is Scotland and maybe that
works well for them, but even if they decide within their Commission
that something is a miscarriage, it may not be enough for the
verdict to be quashed or the sentence varied, so we live with
the Act that Parliament has given us and, in principle, every
five years or so it will be looked at again. It is for Parliament
to decide what it wants in England, Wales and Northern Ireland.
57. What advice would you give Parliament when
that time comes? Would you want your criteria to be widened?
(Sir Frederick Crawford) I do not think so. I think
we are satisfied working within the "real possibility"
criterion. That is a personal statement, and I am not a lawyer
of course, I am a scientist.
58. I want to ask a little about inadmissible
evidence and the way the Commission deals with that. In particular,
can you tell us how you approach the dilemma of a case which perhaps
failed, a case which has gone through and a conviction put in
place because part of the defence evidence fell down on technicalities
and was inadmissible, but then during your own investigation of
the case you came across other evidence which would have shown
perhaps the defendant to be innocent, but that evidence is out
of order and inadmissible? How do you balance that dilemma?
(Sir Frederick Crawford) I suppose if it was absolutely
clear that it was inadmissible, we could not use it.
59. But would it colour your decision overall
about putting the case to the court?
(Sir Frederick Crawford) We could not send a statement
of reasons; we could not send a statement to the Court of Appeal
saying that we believed that there was a real possibility that
a verdict would be quashed or a sentence varied if our arguments
depended critically and crucially on some inadmissible evidence
that we knew would be inadmissible. A different way in which it
comes up is when, for example, there is evidence that strengthens
the prosecution case, where in the past it is believed that that
would not be admissible at the Court of Appeal. Now, that seems
to be part of the folklore because the 1968 Act which incorporates
our 1995 Act as amendments says quite clearly that they can admit
whatever evidence is expedient or in the interests of justice,
and that would allow them to put new evidence in. Of course there
has been, as you will have read in the newspapers, in the Hanratty
case new evidence which helps the prosecution. How the judges
will view that remains to be seen; they are still preparing their
judgment.
4 See page 11 of the memorandum. Back
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