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
| Transfers | New Cases
| Cases (cumulative) |
| 31 March 1997 | 279 |
| 279 |
| 1997-98 | | 1,103
| 1,382 |
| 1998-99 | | 1,037
| 2,419 |
| 1999-2000 | | 777
| 3,196 |
| 2000-01 | | 800
| 3,996 |
| 2001-02 | | 834
| 4,830 |
| 2002-03 | | 932
| 5,762 |
| 12 months to December 2003 |
| 898 | 6,419 |
| | |
|
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 1 | | 299
|
| Stage 2 Screen | 10 | 488
|
| Stage 2 | 24 | 163
|
| Stage 3 | 1 | 2
|
| Totals refer/not refer | 35
| 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 1997 | 279 |
| | |
| 1997-98 | 1,103 | 310
| 855 | 217 |
| 1998-99 | 1,037 | 492
| 1,177 | 440 |
| 1999-2000 | 777 | 1,015
| 914 | 465 |
| 2000-01 | 800 | 1,110
| 577 | 492 |
| 2001-02 | 834 | 1,202
| 340 | 361 |
| 2002-03 | 932 | 987
| 284 | 362 |
| Twelve months to Dec 03 | 898
| 917 | 236 | 411
|
| | |
| |
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
| Date | CRMs in
Post |
Arrivals during
the year | Departures during
the year
|
| 31 March 1997 | 9 | 15
| 0 |
| 31 March 1998 | 24 | 8
| 3 |
| 31 March 1999 | 29 | 12
| 5 |
| 31 March 2000 | 36 | 17
| 6 |
| 31 March 2001 | 47 | 9
| 6 |
| 31 March 2002 | 50 | 1
| 8 |
| 31 March 2003 | 43 | 3
| 1 |
| 31 December 2003 | 45 |
| |
| | |
|
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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