Examination of Witnesses(Questions 60-79)|
TUESDAY 30 APRIL 2002
60. Are you satisfied that your members and
your caseworkers are sufficiently trained to take account of these
very complex cases and difficult elements?
(Sir Frederick Crawford) Well, we have a substantial
training programme for the CRMs and anybody who has come in the
last couple of years has had a training period of about six months
or a year in the screen where the issues are less complicated.
But one of the reasons for having a substantial corps of lawyers
in the Commission is that that sort of advice is available and
forthcoming from the lawyers. We do actually have two legal advisers
whose jobs again are to deal with the legal points which come
up. We are temporarily without one of the two, but we hope to
make an appointment within the next few days of the second one,
so there is quite a lot of legal back-up. More than half of the
case review managers are themselves lawyers of course.
61. Finally, to what extent do the caseworkers
apply their own judgment and to what extent are they bound by
a code of practice or a code of specific rules and criteria set
down by the Commission?
(Sir Frederick Crawford) Well, they are, as I have
said in the last section of the memorandum, "empowered".
We encourage them very strongly to exercise their initiative and
to take advice wherever they can within the Commission, not only
from the assigned Commission member who works with them on a given
case as an adviser, guide and mentor, but to look wherever the
expertise may be within the Commission. If they want forensic
psychiatry, they would go to Jim MacKeith for example, and not
necessarily one of the lawyers. We hope that that will serve to
make the investigations sound both legally and in other aspects,
forensic and other aspects of the case. If they are not and any
recommendation is made to turn the case down or send it to a committee,
then other Commission members come in who will criticise and comment
on whether the investigation, whether the review has been adequate
or not. So there are checks and balances. CRMs have a lot of initiative
and ability in their own right, but also there are other inputs
before any final decision is made.
62. Just going back to the argument about whether
you have got more cautious or not in the light of experience of
the Appeal Court, the Chairman of the Criminal Appeal Lawyers
Association, Mr Campbell Malone, said to us, "After an initial
`honeymoon' period . . . there have been a number of unsuccessful
references and the experience of many practitioners is that the
result has been that the Commission themselves have become more
cautious in referring cases. I personally can think of several
cases where the Commission would have likely to have referred,
say, 2 years ago which have recently been refused". What
do you say to that?
(Sir Frederick Crawford) Well, I think he has to give
us some examples before he makes a lot of sense. As I said a few
moments ago, when I was going through that rather technical description
of the Table, where you have got cases that are sent in a given
year, but are heard in several others, in any given year you are
hearing cases that are sent in three or four different years.
If you cross-correlate those and look to see if there are any
significant changes in the percentages, there are not any, not
at this point, not that would satisfy any statistician. The numbers
of cases are quite small, the statistics are, therefore, quite
broad and it would be quite difficult to say that anything unusual
was happening. Now, underneath that, there could be two trends
and you would not necessarily spot them. One is that the Court
of Appeal is getting slightly less stringent and so are we, and
the other that the Court of Appeal is getting slightly more stringent
and so are we. But there is absolutely nothing that you can go
on from that table of outcomes that would justify a statement.
63. Do you see it being part of your role to
challenge the Court of Appeal? It has been known to get things
wrong, has it not?
(Sir Frederick Crawford) I suppose in a way every
case we refer to them is a challenge because they have previously
reviewed it and upheld what was the original conviction, but things
move on and don't forget that we are talking about a very strange
collection of cases. Until another year or two have gone by, we
will still be dealing with cases from the last 50 years, Bentley,
Hanratty. We have even got one case coming up in a few weeks
that goes back to 1927 where there is an elderly relative in a
murder case still alive, so that is the record by far. But you
are talking about cases which vary enormously over the period
when the Court of Appeal has heard the original cases. If it was
the one of Bentley, for example, it would behave differently
today from the way it behaved then, but it is very hard really
to say. In two or three years from now, when we are dealing with
cases which perhaps, with any luck, have all been convictions
within the last three of four years, then slowly some statistics
64. But I think you do recognise that it may
be necessary occasionally to challenge the Court of Appeal and
take them on?
(Sir Frederick Crawford) Well, there is a practical
question with challenges. Suppose we take a case where we disagree
pretty strongly with their decision, unless we could come up with
some evidence or arguments that have not previously been raised
either at trial, on appeal or in our reference, we would be on
very, very weak ground and it would just be tossed out almost
65. You recall that some of the most celebrated
cases, like Cooper and McMahon, for example, it
took four visits to the Court of Appeal before they could see
what everybody else who was not a lawyer could see. In the Birmingham
case, I think it took three visits. Now, if everyone concerned
just pulled stumps after the third revisit, nothing would have
changed. That is what makes me say that it is sometimes necessary,
not always, and I appreciate things have changed anyway, to put
up a bit of a fight, is it not, and to go back again?
(Sir Frederick Crawford) Well, we are our own worst
enemies in that case because the more thoroughly we deal with
the case the first time around, the less we will have the second
66. Yes, but that is true of anybody seeking
to overturn a miscarriage of justice.
(Sir Frederick Crawford) Well, I have not actually
read through the evidence of the earlier Cooper and McMahon,
but of course we cleared up that too.
67. I was heartened by what you said about one
or two cases where you disagreed that it might end up back in
the Court of Appeal.
(Sir Frederick Crawford) Well, we have to wait and
68. You have to wait and see of course depending
on what you come up with, but I think you are saying to us, are
you not, that that is not necessarily the end in some cases? A
rejection by the Court is not necessarily the end.
(Sir Frederick Crawford) No. At the moment we have
three cases on hand, which have come in in the last year, of people
who were referred to the Court of Appeal: they failed and they
have come back to us as reapplications. Now, sometimes on a reapplication,
and I am not talking about these three cases, I am talking more
generally now, sometimes on a reapplication we will spot something
that perhaps even the applicant had not realised was a vital piece
of evidence and three reapplications have resulted in referrals.
Of those three, one was upheld, one was quashed and the other
is pending. In the one which is pending, the applicantthe
person who reappliedgave us some information which we had
not previously seen, the significance of which he did not realise,
which resulted in the end in our referring the case. So there
are possibilities of us coming back, but the more thoroughly we
do it, the more we delve into the evidence before we make the
referral, the less there is to dig up later.
69. Looking back over the five years since you
have been in business, what lessons have you learnt?
(Sir Frederick Crawford) I think if you look at the
pattern of a review, the first thing is to determine what the
issues are which have been raised. In the light of our knowledge
and experience, which has grown, we have got to see what additional
issues might also be raised. We will come on to this when we talk
about the child abuse cases where our practices are evolving.
So that you are trying to start off with perhaps an augmented
set of issues, those that you have been apprised of (and those
can be sometimes large numbers. I think in one case we got there
were over 200 issues raised by the lawyers), but it may be only
two or three or even one, and we generate some others. Then you
have to decide which require priority and which are contingent
ones: unless this one succeeds, it is not worth looking at that
one. So there is a question of deciding what the issues are, extending
perhaps the issues and then setting a priority list for them.
That cuts down the amount of work and there are lessons in doing
that more and more efficiently which have certainly changed the
way we operate. Many, many cases that we did at the beginning
we would do quite differently now, quite possibly with the same
result, but we would be saving more time. The second is a matter
of phasing and that is if it is absolutely clear that you need
some forensic evidence, something analysed, a DNA test or something
like that, then get on with it so that it does not hold up the
review so that the scheduling of processes emerges. If you need
to commission any sort of expert report it can take up to a year,
so the way in which you do those, when you do them, how you do
them, at what point you make the decision, all that grows and
is improved with experience. Knowing where to look for additional
issues is importantwhere we might find something in social
services, medical files and so onso we learn lessons like
that. Then there has been feedback to us from the judgments we
have got in the Court of Appeal. Sometimes they have been deliberately
directed at us to say, "These are the things that are worth
thinking about in cases like this", so we have absorbed those.
I think those are the main points. They have come with experience;
judgment has improved, sharpened and the process is always getting
better. I cannot quantify it because I cannot take a case and
do it again, but those are the sorts of things. We get all sorts
of feedback from the lawyers we work with, the ways they present
things, the ways in which we present our statements of reasons,
the use that the Court of Appeal makes of our statements of reasons,
which is quite considerable, and very often they will comment
favourably on our statements of reasons.
70. Any regrets?
(Sir Frederick Crawford) Yes. The big one is that
we did not start off with more funding at the beginning so that
the accumulation would not have been given a chance to build up.
As you have seen from that graph
(the number of case review managers that we have got), we did
not get to 50 until the middle of 2001-02. Your Committee was
already listening sympathetically as early as 1998 to the comment
that I had made in February 1998 that we would need 50 for several
years to get the accumulation down and to get to somewhere near
a steady state. So I think, if there is any regret, it is that
we did not start with a bigger budget and a bigger complement
of CRMs. I do not blame the Home Office for that, and I want to
be absolutely clear on that, because no one could have known when
we got started how many cases we would get and that there would
be a deluge in the first two or three years, nor how complex the
279 cases that came to us from the Home Office and the Northern
Ireland Office, just how hard those would be. It has taken us
nearly five years to get the last one of those out. So I think
the regret is that we did not start with a bigger complement and
then we could have got on with it and perhaps we would already
have been in a steady state at the end of the coming year.
71. Have any issues emerged over the now large
volume of work you have looked at? Are there any common themes,
confessions in police custody, non-disclosure, those sorts of
things we know about, and self-confessions? Do they give you cause
(Sir Frederick Crawford) Well, obviously in any case
where it involves cell confessions, we look very, very carefully
at what credence can be given to them, what weight can be given
to them. We have become aware of many of these issues obviously
through reading them in the casework and we try to educate our
case review managers through the training programme in looking
for these elements of cases.
72. If you thought the law needed changing so
as not to admit cell confession or something like that, would
you say so and, if so, to whom?
(Sir Frederick Crawford) There is a section in the
Act which says that we can comment on these things. We do not
need the Act for that, we do it anyway, but I think all our work
has contributed to this. There are four areas: first of all would
be to that of legislation, new legislation or changes to the current
legislation. We have had only one modification to the law which
has resulted from a comment from us to the Home Office and that
was the Iain Hay Gordon case, which you will remember,
where, strictly speaking, it was not an eligible case because
the verdict was "guilty but insane" rather than "not
guilty by reason of insanity", which is a conviction. In
that case the amendment to our Act took care of it. We have made
one or two suggestions to the Home Office about possible changes
to the Act and they are reflecting on those at the moment. So
that is the first thing, changing legislation
73. For example?
(Sir Frederick Crawford) One would be the question
of whether we could compel witnesses to testify for us. That would
be particularly useful when the Court of Appeal refers a case
to us. The second was whether appeals against courts-martial of
civilians should come under our control. A third would be whether
or not we could have the same powers with relation to preserving
evidence in the private sector as we do in the public sector.
We can order government departments to produce documents and materials
for us, but we cannot do it for ITV, though we could do it for
the BBC. So there are anomalies and strange things like that which
could be cleaned up. I think the Scottish Commission has far wider
powers than we do. So much for legislation. The second is that
our references have done quite a bit to clarify the law. The most
recent would be the Human Rights legislation where the very last
line of my annual report last year said that it was about time
they sorted out retroactivity of the Human Rights legislation.
We sent a case, Kansal, which you may know, which was successful
at the Court of Appeal and opened the way to consideration of
other cases on retroactivity of the Human Rights legislation from
2000, or at least, from when it became effective on 2nd October
2000. It went to the House of Lords and they reversed the verdict
of the Court of Appeal and upheld the Kansal conviction
which, by extension, had an effect on Lyons and the Guinness case.
So there are cases like that. Another one is on the sort of "two-strikes-and-out
cases" where we have had a couple of rather quaint cases
where mandatory life sentences did not make a lot of sense and
the Court upheld our view on that. So there was a clarification
of the legislation there, and there have been one or two other
cases like that. The third way in which I think we have an effect
is in the practices of various bodies which must certainly now
be carried out with an eye to what we are likely to do with cases
if they have stepped over the line in the way they have investigated
or carried out their reviews. So that is the third way. I think
the fourth way of course is via the feedback which has come to
us from all constituencies, but mainly the Court of Appeal, which
has modified our practices to improve the way we go about case
reviews. So those are the four I would mention.
74. Could you let us have a note of any changes
to your remit that you have recommended to the Home Office?
(Sir Frederick Crawford) Yes. You would be welcome
to have a copy of what we sent a year or so ago. There are a couple
of suggestions of course in the Auld Report about us and
one of those was that instead of the Court of Appeal being able
to send cases to us only if they were before them on appeal, that
they could send them to us if they were considering them on application
for appeal. I do not think that is going to open any floodgates.
The other one from the Auld Report is that the law applied
to any of our references should be the law that is in force at
the time and, as a non-lawyer, I can only make the point that
that may be inoperable because things are different depending
on whether it is common law or statute law.
75. Thank you, that is very helpful. Before
we move on there is just one final point about your plans of updating
the information technology at your disposal.
(Sir Frederick Crawford) We have been enormously helped
by having a working IT system right from the beginning. It was
perhaps a bit of a struggle to persuade other experts that the
money would be appropriately spent on a working IT system.
76. I think you preside over one of the few
government IT systems that actually works, which I think is of
enormous credit to you.
(Sir Frederick Crawford) Well, I do not bring much
to the Commission, but I would reckon to know something about
putting IT systems together. We avoided many of the standard pitfalls
that people get intolooking for custom software and not
specifying what they want until after they have built it and so
onso we were very precise about our specification. We built
a completely modular system. It is what I call a sort of "zen"
system, which means that all the bits have been put together,
but you can throw bits away and replace them so that after a few
years there will be nothing left of the original system, but it
has never stopped working. With document management, when you
get 10,000 pages a day coming into the Commission, the document
management system is key to that, but we have added other packages
of data-mining, Excalibur, which the Labour Party will remember
well, of course, which played a role in the 1997 Election.
77. It will probably be put to rather better
use in your Commission!
(Sir Frederick Crawford) I could not comment. Those
things were all tried and tested and we have added one or two
packages to it, so we have been enormously helped by that, but
IT moves on and we have added. The only big addition we have made
in the last year or two is to add a case management module which
allows us to track cases, and to keep a lot of information on
them. It starts (or the migration of data was) only from April
1st 2001, and we have not gone back to those first two or three
or four years, but that database is extremely helpful to us and
deals with the more modern cases. We are in the process of "refreshing"that
is a euphemism for replacingmodules in the system with
more powerful ones, up-to-date things, and that will go on progressively
over the next two or three years. We have just renegotiated the
support contract we have with Integris, or whatever they call
themselves now, and that has gone through, so there will be that
refreshment process over the next three or four years. It is an
ongoing thing and I have no reason to believe that at any stage
we will be put off the air because, as I say, of the modular basis
on which the entire system is built.
78. Are you already using Excalibur?
(Sir Frederick Crawford) We have been using Excalibur
for three or four years now.
The Committee proceeded to hear evidence as
part of its inquiry into past cases of abuse in children's homes.
The evidence was published in the Fourth Report from the Home
Affairs Committee, Session 2001-02, "The Conduct of Investigations
into Past Cases of Abuse in Children's Homes", HC836-I,
79. It would be fair to say, would it, that
you do sometimes these days set up thematic studies that look
at the reasons why cases come to you, and perhaps sex abuse cases
is the first of these, is it? If you thought you were getting
a lot of cell confessions or a lot of non-disclosures, might you
set up some sort of internal review to see whether there are any
wider lessons that could be learned?
(Sir Frederick Crawford) We would, but quite a lot
of these things would not necessarily have the status of a working
group. One of the things that we have done in detail in the last
few months, and used as part of our training programme, is to
analyse all of the cases that have been heard by the Court of
Appeal, to analyse all of their judgments, and to compare the
sorts of arguments we have sent, the reception they have got,
the significance of those arguments in whether a case has eventually
been upheld or not. That is part of the law (the lore as well
as the law) that gets handed on through the training programme
continuously. There was no special working group on that; a couple
of Commission Members did that particular analysis and passed
it on in training.
5 See page 7 of the memorandum. Back