Select Committee on Home Affairs Minutes of Evidence


Memorandum submitted by the Criminal Cases Review Commission

CHAIRMAN'S INTRODUCTION

  My predecessor, Sir Frederick Crawford, retired on 31 August 2003. He was the Commission's founding Chairman and not only takes the credit for establishing the organisation, its structures and processes but also imbuing it with its values of integrity, impartiality, professionalism and independence. He is also responsible for building up a staff of unusual quality and commitment.

  I joined the Commission on 1 November 2003 and have chiefly spent these early weeks familiarising myself with the Commission's work and practices. There remains much to learn and understand, but I have been greatly impressed by the thoroughness and dedication of the Commission's staff. My colleagues and I will take the opportunity over the coming months to examine and review many of our practices and policies, which is not to say that I anticipate fundamental changes. It is too early to say what changes may follow, but I can identify the following aims:

    —  To spare no effort in reducing our case accumulation.

    —  To do everything possible to complete case reviews as expeditiously as possible without compromising on thoroughness or quality.

    —  To eliminate as far as possible delays caused to our work by other bodies and persons.

    —  To improve training for our staff.

    —  To learn from our work lessons for the criminal justice system and reform of criminal law, procedure and practice.

    —  To increase the Commission's public profile and to make our decisions as transparent as possible so that our work and role are better understood.

    —  To ensure all case-working posts in the Commission are filled while maintaining the quality of the Commission's staff.

    —  To engage in a continuing dialogue with all relevant stakeholders so that, on their part, they understand our methods of working and our views and we, for our part, understand their opinions and listen and react to their criticisms and suggestions.

  The Commission is an independent body and must continue to discharge its responsibilities in accordance with its statutory remit. That appears sometimes to be imperfectly appreciated, particularly by those who regularly represent applicants. Our critics, however strongly they hold to their views, are not always right and we shall not always be able to accede to their requests or proposals; but we hope that we can work fruitfully with all those who share a commitment to the pursuit of justice.

CASE REVIEW

  1.  Referral by the Commission of a case to a court of appeal requires a person to have been convicted of an offence, either on indictment at the Crown Court or summarily by a magistrates' court, in England, Wales or Northern Ireland. Unless it appears to the Commission that there are exceptional circumstances, reference of a conviction, verdict, finding or sentence can be made only if an appeal against it has been determined or leave to appeal refused.

  2.  The Commission can only refer a conviction, verdict or finding to a court of appeal if it considers that there is a real possibility that the conviction, verdict or finding would not be upheld. The Commission, other than in exceptional circumstances, in accordance with the Criminal Appeal Act 1995, looks for evidence not adduced or arguments not raised in the proceedings that led to the conviction, verdict or finding. The Commission can refer a sentence to a court of appeal only if it considers that it would not be upheld because of an argument on a point of law or information not so raised.

CASE INTAKE

  3.  The Commission received 279 cases transferred from the Home Office and Northern Ireland around 31 March 1997. The intake of cases to date is shown in Table 1 below.

  4.  Over the period 1999-2003 the annual case intake rose 20%, from 777 to 932. The 12-month intake to December 2003 stood at 898. The precise reasons for this increase are not known, but growing awareness of the Commission and its casework, the publicised reduction in case accumulation and growth in the prison population may be factors. A major managerial challenge for the Commission remains continuously matching its complement of CRMs and other staff to its case intake.

Table 1

CASE INTAKE
TransfersNew Cases Cases (cumulative)
31 March 1997279 279
1997-981,103 1,382
1998-991,037 2,419
1999-2000777 3,196
2000-01800 3,996
2001-02834 4,830
2002-03932 5,762
12 months to December 2003 8986,419

CASE COMPLETIONS

The Case Review Process

  5.  Case review proceeds by a series of Stages. Stage 0 deals with initial enquiries and communications with potential applicants together with the creation of case files. Stage 1 determines initial issues around whether the application relates to a criminal conviction in England, Wales or Northern Ireland, whether the appeal process has been exhausted and whether exceptional circumstances may apply. Stage 2 Screen, in operation since May 1999, deals with cases that, on initial consideration, appear to be capable of conclusion with no more than five case-working days of effort. These include cases that appear to offer little or no new evidence or argument. Stage 2 deals with more substantial cases that require more extensive investigations. Stage 3 deals with cases requiring appointment of an external Investigating Officer under Section 19 of the Act.

Completions

  6.  Case completions, with the split between referrals and non-referrals, for the 2002-03 financial year are shown for Stage 1, Stage 2 Screen, Stage 2 and Stage 3 in Table 2.

Table 2

CASE COMPLETIONS BY STAGE, 2002-03
Decisions at Stage ReferNot refer
Stage 1299
Stage 2 Screen10488
Stage 224163
Stage 312
Totals refer/not refer35 952
Total                  987


  7.  Statistics for annual completions and cases under review for all years are provided in Table 3.

Table 3

CASE COMPLETIONS AND CASES UNDER REVIEW
Case
Intake
Case
Completions
Cases in
Trays
Cases under Review
31 March 1997279
1997-981,103310 855217
1998-991,037492 1,177440
1999-20007771,015 914465
2000-018001,110 577492
2001-028341,202 340361
2002-03932987 284362
Twelve months to Dec 03898 917236411


  8.  Case accumulation peaked in May 1999 with 1,208 cases waiting. At the end of December 2003, the number of cases waiting had been reduced to 236. 96 of these cases have been identified for review as a Stage 2 Screen. There is a minimal wait for the review to begin in these cases. 129 cases waiting have been identified as Stage 2 Reviews. 83 cases of the 129 are from applicants who are currently in custody. The remaining 46 cases are from applicants who are at liberty. All of these cases should have started the review process by September 2004.

  9.  The Commission has made 23 Section 19 Investigating Officer appointments since it began casework in 1997. These appointments relate to the cases of 33 applicants. At the current time there are four ongoing Section 19 investigations which relate to the cases of nine applicants.

Referrals

  10.  A significant issue for the Commission is the outcome of the cases that it refers to the 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 determined.

  11.  To 31 December 2003, 222 cases had been referred (out of 5,772 case completions). Of those, 55 were waiting to be heard; 114 (68%) had been successful at appeal and in 53 (32%) the conviction or sentence had been upheld.

Table 4

CASE  REFERRALS


  12.  The Commission studies the decisions of the Court of Appeal on its referrals to inform the review and decision-making processes of the Commission. The Commission acknowledges that the Court may, on occasion, be critical of the Commission's decision to refer a case. Such instances have been rare and, it is hoped, will continue to be so. It is perhaps inevitable that there will occasionally be sharp conflicts of opinion as a consequence of the consideration of cases by two bodies where the test applied by one involves predicting the behaviour of the other. The Commission's remit is to consider whether there is a "real possibility" that the conviction would not be upheld, while the Court determines the safety or otherwise of the conviction.

  13.  The Criminal Appeal Act 1995 gives the Commission discretion on whether or not to refer a case. This discretion must be exercised in accordance with public law principles: it must be lawful, fair and reasonable; each case must be considered on its individual merits; all relevant factors must be considered; the reasoning must be set out fully and the applicant must have an opportunity to comment specifically before the decision is finalised.

  14.  One area that has attracted particular criticism has been the Commission's handling of "old" cases. Such criticism has emanated both from the Court of Appeal and the media.

  15.  It must be emphasised that, in creating the Commission and defining its powers, Parliament did not see fit to exclude old or historic cases as such. It must also be emphasised that such cases, however defined, constitute a very small proportion of the Commission's workload (see paragraph 22).

  16.  "Old" cases fall into two distinct categories: there are those where the convicted individual is still alive but his conviction was some time ago; and there are those cases where the convicted individual is no longer alive. The Commission does not regard the former, where the applicant is still alive, as normally presenting particular difficulties unless, for example, the conviction was extremely minor, as an individual is entitled to clear his name however many years after the event if there is a real possibility that the conviction is unsafe. Thus, although there may be cases where the Commission would judge it right to exercise its discretion not to refer a case which met the statutory criterion, this would be very much an exceptional situation.

  17.  More difficult are those cases where the convicted individual is no longer alive and the application to the Commission is made by some other person, usually a surviving relative. Again, it must be emphasised that Parliament has not seen fit to exclude such cases from the Commission's jurisdiction although it could easily have done so. There is one statutory limitation which effectively limits in practice the extent to which old cases can be referred: that is the requirement that the person bringing any appeal, following a reference by the Commission, must be a person "approved" by the Court and such approval is limited. The Commission will not therefore consider referring a case unless there is a real possibility that the person bringing the application would qualify as an "approved" person in the eyes of the Court. Surviving spouses and children would clearly qualify. Persons more remotely connected may not do so. Both the Commission and the Court must exercise common sense in these cases.

  18.  In not excluding old or historic cases from the possibility of review, Parliament must have supposed that there was some merit or public interest in that possibility. While the Commission would neither support nor oppose any amendment to the law on this point, it is easy to identify considerations of public policy that support the existing situation. In the first place, there is a very real interest on the part of surviving family members, particularly where the relationship is close and the conviction was for a serious offence, in having the record corrected and justice done. Secondly, there may also be a question of confidence in the administration of criminal justice where the correctness of a conviction has long been a matter of public debate and controversy. The fact that a number of such cases has been referred to the Court of Appeal and convictions quashed speaks for itself; and even where a conviction is upheld, following a thorough review by the Commission, public disquiet may be satisfactorily assuaged.

  19.  In the Ruth Ellis case in 2003, the Court of Appeal invited Parliament to clarify or extend the Commission's discretionary powers in relation to cases of this sort, the Court clearly having felt that the reference in that case was a waste of the Court's valuable time, even though the statutory "real possibility" test had been met. The Commission does not support the views expressed by the Court on this matter.

  20.  The Commission already has a discretion not to refer cases even where the statutory test is met and it has a policy on how that discretion will be exercised. This policy has recently been reviewed: the review was not triggered by the Ellis case, but has been able to take advantage of it. The Commission does not believe that any clarification or elaboration of the discretion, along the lines suggested by the Court, would alter our existing powers or lead to any change in practice.

  21.  We have, of course, considered carefully the Court's strictures in the Ellis case. The Court took the view that it was a futile exercise to debate, half a century after the conviction, whether Ellis was rightly convicted of murder rather than manslaughter. To Ruth Ellis's surviving sister, however, it was not an abstract or academic exercise. Ruth Ellis was executed and would have been wrongly executed had the proper conviction been manslaughter rather than murder. There was, in the Commission's judgement, also a real public interest in having determined the fact whether the last woman hanged in Britain was rightly convicted of a capital offence. Thus, even in the exercise of its discretionary powers, the Commission remains of the view that the case was properly referred. We would further observe that one reason why Ellis took up so much of the Court's time was that counsel insisted on pursuing grounds which the Commission had explicitly rejected and which the Court similarly found devoid of merit. This will no longer be possible following the bringing into force of the relevant provisions of the Criminal Justice Act 2003.

  22.  Only 24 of the Commission's total caseload since its inception have been cases where the convicted individual was no longer alive. This represents a tiny proportion of the cases dealt with to date (0.37%). Since a high proportion of these were notorious alleged historic miscarriages of justice cases, it is perhaps not surprising that a significant proportion of the 24 (9) were referred to the Court of Appeal.

  23.  While the Commission is mindful that its first priority must be those who are currently suffering the consequences of any miscarriage of justice, it does not believe that any legislative changes or changes in practice are called for.

Re-applications and Judicial Reviews

  24.  The number of re-applications to the Commission has increased in recent years. During 2002-03 there were 79 re-applications, 8.5% of applications in the same period. In the six months from April 2003 to September 2003, 65 re-applications were received, 13.5% of applications in the same period. Analysis of the 65 re-applications found that in 18 cases this was the second or more re-application made to the Commission. Seventeen of the cases did not appear to raise new issues in their re-application. Two re-applications have been received from applicants whose convictions, referred by the Commission, were upheld by the Court of Appeal. Fourteen applicants had made a complaint at some time during the review process of their earlier application. Only one of these complaints had been upheld and one had been partially upheld.

  25.  The majority of applicants who have re-applied have been convicted of serious offences such as murder and sexual offences. 31% had been sentenced to life imprisonment. Understandably many of these re-applications may owe more to the persistence of the applicant than to persuasive evidence or argument not previously raised and the resulting referral rate is correspondingly low. Of the 65 re-applications analysed, one has been referred following the discovery of new evidence. The Commission will continue to monitor re-applications and analyse the reasons for them but accepts that re-applications are inevitable given its role within the criminal justice system.

  26.  The Commission has welcomed guidance, during judicial review hearings, from the Administrative Court, and from the High Court in Northern Ireland. At each stage of the judicial review process the Commission's Legal Advisers and Chairman consider whether there appears to be an arguable case that the Commission should reconsider the matter. It is not uncommon for entirely fresh submissions to be raised by an applicant during the course of an application for a judicial review.

  27.  Few cases result in contested hearings before the administrative court. Those that do always involve serious factual or legal issues. The Commission instructs counsel to argue the case in a way that will give the court the broadest opportunity to provide helpful advice to the Commission for future cases.

  28.  There have been 71 applications for judicial review of Commission decisions from 31 March 1997 to 31 December 2003. Fifty-five applications have been refused leave and 10 have had leave granted. Of the 10 granted leave, one was withdrawn; one applicant absconded before the hearing; one was settled by consent; one involved a direction by the court to reconsider the case (later referred but not yet listed by the Court of Appeal); four were refused; and two cases, both in Northern Ireland, are pending.

Complaints

  29.  The Commission operates its own complaints procedure; it is not subject to the jurisdiction of the Parliamentary Commissioner for Administration. Complaints which cannot be resolved informally are referred to the Commission's Complaints Manager. In the 2002-03 year the Commission received 76 complaints (69 in 2001-02).

  30.  The majority of complaints follow receipt, by the applicant, of the draft statement of reasons or final statement of reasons and relate to the decision made in the case and the conduct of the review. Allegations relate to the Commission having failed to appreciate the nature of the applicant's argument and/or a failure to investigate the case in sufficient depth.

  31.  13% of the complaints were upheld. The Commission will uphold a complaint if any aspect of it requires an apology or some remedial action by the Commission. The majority of complaints upheld related to administrative issues such as delay or communication difficulties. No case decisions needed to be reconsidered as the consequence of a complaint.

CASE REVIEW MANAGERS

  32.  The Commission's capacity to review cases depends critically on its complement of Commission Members and Case Review Managers (CRMs). Since the Commission's last appearance before the Committee, five Commission Members have joined, including the Chairman. This included three legally-qualified Members to replace the three who left in 2001. One of these Members also meets the statutory requirement for the Commission to have one Member with knowledge or experience of any aspect of the criminal justice system in Northern Ireland. In the same period, three have left, including the founding Chairman. The total complement of Commission Members is currently 14. The Home Office, which has responsibility for Commission Member appointments, is currently recruiting a further two legally-qualified people.

  33.  The principal role for a Commission Member is that of decision-maker. They also play a critical role in mentoring and advising the Commission's CRMs who carry out the vast majority of case reviews. The Commission has 45 CRMs currently in post. The number of CRMs in post over the lifetime of the Commission is shown in Table 5.

  34.  At the time of the last appearance before the Committee, the Commission was planning a reduction in CRM numbers to reflect the pattern of case intake and reduction in case accumulation. The increased case intake has led the Commission to review its recruitment plans and the end of a current recruitment campaign should push CRM numbers towards 50. This should ensure that case accumulation is minimised while providing the flexibility in working required by a diverse organisation.

Table 5

NUMBER OF CRMS IN POST
DateCRMs in
Post
Arrivals during
the year
Departures during
the year
31 March 1997915 0
31 March 1998248 3
31 March 19992912 5
31 March 20003617 6
31 March 2001479 6
31 March 2002501 8
31 March 2003433 1
31 December 200345


  35.  Hitherto, as a matter of policy, CRMs and other staff have been appointed on three-year fixed-term contracts and been given to understand that they would be renewable once. This reflected the position that the Commission can offer little by way of career structure or internal opportunity for advancement. The Commission has for some time, however, recognised that, as a matter of law, such contracts are ineffective to bring about termination of employment at their end. Furthermore, the Commission has moved to a position where it recognises the benefits of retaining experienced staff who are performing well. The Commission nevertheless believes that there is likely to be a sufficient turnover of CRMs and other staff to maintain a dynamic, open-minded and learning organisation.

  36.  The Commission will continue to face the managerial challenge of balancing natural turnover and recruitment against the case-working demands required to minimise case accumulation. Future case-working needs are dependent on case intake and the complexity of the applications received, both difficult to predict. The Commission also faces changes to its statutory function through the Criminal Justice Act 2003, which is considered at paragraphs 44-45. This, together with work the Commission intends to undertake in promoting public understanding of its role and enhancing public confidence in the criminal justice system, also makes it difficult to predict accurately the future case-working resources required. The Commission assumes that the number of CRMs will need to remain around 50 for the immediate future. Bids for the 2004 Spending Review will be based on this number, with actual numbers determined once the resource budget allocation process is complete.

CASEWORK PROJECTIONS

  37.  Whilst it is difficult for the Commission to predict case intake, it does make use of the patterns of cases reviewed to date together with estimates for the case-working effort needed to complete a projected level of cases. The increase in case intake in each of the three years from 1999-2000 to 2002-03 could be taken as indicative of an upward trend. However, the intake for 2003-04 will be monitored, as current indications are that it shows no increase on the previous year.

  38.  The split of cases between stages has remained fairly consistent since the Stage 2 Screen process was introduced in 1999. The Commission is pleased to report that the case accumulation at both Stage 1 and Stage 2 Screen has now been minimised. Work will continue to focus on the accumulation awaiting Stage 2 review.

  39.  The Commission acknowledges the frustrations that result from long delays, both for victims of miscarriages in custody and potential applicants who may be deterred from applying. A key goal remains the minimisation of the case accumulation, which the Commission hopes to achieve by March 2006.

  40.  The Commission is committed to continuous process improvement and works to improve the efficiency and effectiveness of its case-working processes. With Government Invest to Save funding, the Commission now has a secure x.GSI connection to the Court of Appeal to allow the electronic transfer of materials between the Court and the Commission. This had previously required significant manual input. The Commission also hopes to use its x.GSI capability to link with other agencies within the criminal justice system.

  41.  The Commission has also conducted a review of its Stage 2 processes, which made a number of recommendations currently being implemented. The recommendations range from incremental improvements to existing processes through to improvements to the identification of training and development needs and improving the awareness of the Commission in those bodies and agencies whose co-operation is essential to the effective handling of cases.

  42.  The Commission uses IT to promote the effectiveness and efficiency of case review. Electronic reading of scanned documents, datamining and dedicated case-working and reference software are extensively used. The 2003-04 year will see a substantial programme to refresh hardware and software that has been in use for the last six years. The Commission makes significant investment in its IT and, as a result, continues to be viewed as a leader in its use of IT, as evidenced by frequent visits from other public sector case-working bodies, both in the UK and abroad.

  43.  The Commission continues with its project to make the growing database of completed cases, and cases in progress, more readily accessible electronically, as an internal source of information for CRMs investigating similar issues. A proof of concept was carried out on a leading product in the summer of 2003. This demonstrated that, unfortunately, the product did not meet the Commission's needs. The Commission recognises that knowledge management products, already in use by the intelligence services, will become increasingly commercially available and will monitor developments and make enquiries of expert bodies. The acquisition of such a product would help with the distillation of legal and investigative issues arising in Commission cases.

  44.  The Commission will monitor the impact of the provisions of the Criminal Justice Act 2003 that affect the work of the Commission. The provisions address two substantive issues:

    —  the Court of Appeal will have the power to direct the Commission to investigate and report to the Court on any matter at the stage of an application for leave to appeal. This mirrors the existing power which the full Court has on an appeal against conviction (Section 15, Criminal Appeal Act 1995). This provision is expected to take effect in May 2004.

    —  the introduction of a limitation on the grounds of appeal in cases referred to the Court of Appeal by the Commission. Unless the full Court gives leave, this limits appeals to grounds related to the reasons given by the Commission for making the reference. This provision is expected to take effect from May 2005.

  45.  These proposals, which emanated from the senior judiciary, are likely to have some impact on the Commission's workload. The Commission will monitor this once the provisions come into force.

  46.  To date the Commission has received 10 requests from the Court under the current provisions of Section 15 of the Criminal Appeal Act 1995. They have had a limited impact of the handling of other casework. If numbers were to increase significantly, it would impact on the resources required by the Commission.

BUDGET

  47. When established in January 1997 the Commission did not have the resources to cope with the case intake that materialised. Projections were made in February 1998 that indicated that 50 CRMs would be needed for a number of years to minimise the case accumulation. Increased funding from the Home Office in subsequent years enabled the Commission to meet this complement by March 2002. The Commission's resource budget for 2003-04 is £8.18 million.

  48. The Commission takes a zero-based budgeting approach to projecting its financial requirements. Particular attention is paid to the assumptions on which the Commission's financial requirements are based. There are two significant changes to the assumptions made by the Commission for the 2002 Spending Review. Firstly, the Commission, on the recommendation of its auditors, amended its accounting policy on the capitalisation of assets. The Commission now capitalises software and systems development expenditure. Secondly, the Commission, based on its current casework projections, requires a complement of 50 CRMs (see paragraphs 33-36). The Commission is discussing its resource budget for 2004-05 with the Home Office.

THE FUTURE FOR THE COMMISSION

  49.  The Commission has undergone a period of rapid and significant growth since its establishment in 1997. As the Commission moves towards a state of minimal case accumulation, it now enters a transitional phase. The focus will be:

    —  the careful balancing of case-working resource to applications;

    —  to seek changes to the Criminal Appeal Act 1995 to extend the powers of the Commission to improve the effectiveness of case review;

    —  becoming more active in promoting public understanding of its role and enhancing public confidence in the criminal justice system.

  50.  The first of the bullet points will be managed using the processes and procedures established within the Commission and its ongoing commitment to continual process improvement. This includes the Commission's current work to consider the most effective way to review particular groupings or classes of cases, such as historical care home abuse cases or the involvement of a discredited witness across a number of cases. A separate section is included in this note on care home cases.

  51.  The Commission has, based on its experience of working with the Criminal Appeal Act 1995 for nearly seven years, identified a number of problems. These have been brought to the attention of the Home Office. The following summarises the points and the current status of the proposals which relate to them:

    —  The Commission concluded that it should have jurisdiction over convictions by courts martial. The Home Office and Ministry of Defence agreed to this proposal in January 2003. The Commission understands that the necessary statutory changes are awaiting a suitable legislative vehicle.

    —  The Commission concluded that it should have power to obtain documents and information from abroad and to interview witnesses as required. The Commission cannot currently apply for letters rogatory as it is not a competent authority for these purposes. The Home Office agreed with the Commission's proposal but felt unable to include the change required in the Criminal Justice Act 2003.

    —  The Commission has recently highlighted to the Home Office that a consequence of the drafting of Section 33(2) of the Criminal Appeal Act 1995 is that its Section 17 powers to obtain documents extend only to England, Northern Ireland and Wales. The Commission cannot obtain information compulsorily from purely Scottish public bodies. This can be of relevance to cases where, for example, for family reasons, an applicant, convicted in England, is transferred to a prison in Scotland. Documents transferred with the prisoner will no longer be subject to Section 17.

    —  The Commission can obtain information compulsorily under Section 17 of the Criminal Appeal Act 1995 only from public bodies. The move of functions from some public bodies to private entities means that the Commission must rely on the co-operation of the private body concerned. The experience of the Commission to date has been that the vast majority of our requests to private bodies have been supported but such bodies are rightly concerned about issues of disclosure and privacy, particularly in light of the Data Protection Act. The current legislation creates anomalies; for example medical records are subject to Section 17 if held by an NHS hospital but not if held by a private hospital. Section 17 is also silent on the matter of enforcement. The Commission will discuss these matters with the Home Office shortly.

  52.  In recognition of the need for the Commission to promote public understanding of its role, a Head of Communications was appointed in November 2003. The Commission intends to adopt a communications strategy in February 2004. This will directly support the core business of casework by targeting key stakeholders as well as raising the Commission's public profile more generally. All communication forms, from language to leaflets, will be reviewed to ensure that they are appropriate to stakeholder needs.

  53.  This builds on work started by the Commission in July 2003 when it held a Miscarriages of Justice Workshop. This was attended by nearly 30 criminal justice representatives, including members of the senior judiciary, from both England and Wales and Northern Ireland, defence and prosecution lawyers, representative legal groups, police and other agencies such as the Forensic Science Service and HM Customs and Excise. The workshop reflected on the Commission's evolution and stakeholders were encouraged to highlight the Commission's strengths and weaknesses and suggest ways in which its processes might be improved. They were also invited to consider how the Commission could best contribute to minimising the incidence of miscarriages of justice.

  54.  Those attending did not advocate a change to the "real possibility" test and considered that the balance of outcome between convictions being quashed and upheld was satisfactory. Attendees acknowledged the issues faced by the Commission when considering the use of its discretion to refer.

  55.  There was encouragement for the Commission to work with the legal profession to strengthen the professional codes of practice concerning the necessity of responding to requests from the Commission for information. The Commission should also share its experience of best practice with the legal profession to help make the review process more effective.

  56.  Attendees looked forward to the Commission, as it increasingly works on more recent cases, commenting on factors that it considers contribute to potential miscarriages of justice, thus meeting the expectation of Parliament of improving the criminal justice system and enhancing public confidence in it. This commitment will be reflected in the Commission's future Business and Corporate Plans and is a key objective of the new Chairman.

SEXUAL OFFENCES AGAINST CHILDREN

  57.  Sexual offences continue to constitute a significant percentage of applications. Among these cases are sexual offences against children, which can be further sub-divided into categories such as those occurring within a familial environment or in children's care homes. The Commission is aware of the Committee's ongoing interest in this latter class of case.

  58.  These cases often offer little opportunity to discover new evidence or argument that has not already been before the court and have often been decided by the jury choosing between starkly opposing accounts from the complainant and the accused, with little or no corroborative evidence. This absence of evidence is one reason why applicants may look to the Commission with its power to investigate their cases anew. However, the Court of Appeal have regularly made it clear that it remains difficult to reverse a jury's decision and, paradoxically, particularly when that decision is not based on any discernible objective or independent evidence.

  59.  The Commission set up a working group to analyse and refine its approach to child sexual abuse cases generally, to help establish best practice, investigate developments that might discover new evidence in such cases and communicate any lessons obtained internally and to other stakeholders. Additional internal guidance material has been prepared on the common law position relating to delay in bringing prosecutions in sexual abuse cases to take account of recent Court of Appeal decisions which do not simplify the situation. Commission staff will also be trained in awareness of the issues and investigative techniques in sexual abuse cases.

  60.  The Commission will continue to use Social Services Department files in such cases. Use will also continue to be made of Police, CPS files, medical records, new medical expert reports, Criminal Injuries Compensation Authority files and prison files as appropriate to the individual circumstances of the case. A pilot exercise is being undertaken on a sample of cases to explore the impact on the effectiveness of case review of routinely interviewing applicants, and to assess if it yields any qualitative improvement in the information available to the Commission.

  61.  The Commission has requested a report from a leading psychologist to identify research, good practice and guidance on the application of scientific methodology to the investigation of contemporary and historical allegations of abuse. This provides a helpful wider overview of the topic.

  62.  In addition to the working group, the Commission is working with the newly formed Historical Abuse Appeals Panel on a number of applications that involve convictions for child sexual abuse in care homes. Prior to the establishment of the Panel, the Commission had maintained a detailed database of all such applications to help establish links and common factors which could support case review. The Panel has also created a database and the promised sharing of information between the Panel and the Commission is a welcome step. The Commission has received 28 applications. Ten applications have been closed with a decision not to refer, 10 applications are under review and 8 applications are awaiting allocation to a CRM.

  63.  The approach to potentially linked cases is not new to the Commission. It has previously dealt with and is dealing with such cases, for example, cases linked following police investigations such as Rigg Approach and Goldcard. The Commission tries to anticipate the steps necessary should a group of cases be referred for review. Recently the Commission's Legal Adviser met the team established by the Attorney General to review a number of cases following the quashing of the convictions of Sally Clark and Angela Cannings. The Commission will ensure that it remains independent of this group's review of individual cases but will monitor the likely impact for potential applications so that plans can be made to deal expeditiously and effectively with any such applications.

Professor Graham Zellick

January 2004


 
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