Letter to Mrs Claire Curtis-Thomas MP
from the Criminal Cases Review Commission
CCRC POWERS AND JURISDICTION
I regret that I was unable to meet you during
your recent visit to the Commission. I have been asked to advise
you of the Commission's problems with respect to two aspects of
its powers.
The Commission has asked the Home Office to
consider amending the Criminal Appeal Act 1995 in order to enable
the Commission to secure documents from private sector bodies.
Section l7 of the Act enables the Commission to obtain documents
and information from public bodies. This is an overriding power
and it is essential to the working of the Commission.
Unfortunately, the Commission has no such power
over private sector bodies, yet many such bodies perform functions
which are governmental in nature. Even those which do not perform
such functions have documents and records which can be useful
to the Commission in the conduct of its investigations.
Among those bodies performing essentially regulatory
functions may be instanced the bodies which govern the accountancy
profession, the General Medical Council, the Law Society, bodies
which regulate aspects of the investment industry, and sundry
professional bodies, for example those which regulate professions
such as engineering. The Commission has secured the co-operation
of such bodies, but it is apt to be trumped by considerations
of privacy. It is, for example, not possible for the Commission
to obtain telephone records. In respect of purely commercial enterprises
the Commission has been refused access to records in circumstances
which appear bizarre. We were, for example, refused access to
bank records even though the matter under investigation involved
a fraud on the bank concerned and the records concerned related
to the fraudulent customer.
The march of privatisation may well exacerbate
the difficulty. The Forensic Science Service will soon be privatised.
The Commission may need to have provision for access to records.
This is a matter which we have brought to the attention of the
Home Office as a matter of urgency.
The Commission recognises that it would riot
be politically feasible in the light of considerations of privacy
arid confidentiality including commercial confidentiality to ask
for a very wide grant of autonomous power to obtain any and all
records from private bodies whatever their status and functions.
Two alternatives which are not necessarily mutually exclusive
may be suggested. The first is to list certain bodies as those
from which documents and records may be compulsorily obtained
The second is to provide for production by order of a Circuit
Judge on a showing by the Commission that the material sought
is likely to be material to its inquiries.
The second area of difficulty concerns enquiries
conducted abroad. The Commission is not a body recognised for
the purpose of invoking statutory powers to obtain help from governments
and their agencies abroad. The Criminal Justice (International
Co-operation) Act 2003 made no provision to assist the Commission.
The Home Office has agreed in principle to promote legislation
to grant powers to the Commission but it would seem that we may
have to wait for some time until a suitable legislative vehicle
appears. The result of all this is, however, that major investigations
involving a foreign element, now being conducted by the Commission,
will be impeded, it may be fataIly by the lack of powers to obtain
assistance from foreign governments and agencies.
This is not a problem which can be met by informal
co-operation. Foreign governments are often constrained either
by constitutional provisions conferring rights on their citizens
or by statutory privacy provisions. Nor can the problem be met
by appointing a police officer as an investigating officer under
Section 19 of the Criminal Appeal Act 1995 because such an officer
has no autonomous powers and so cannot wield powers greater than
those which the Commission can bestow upon him.
It is fair to say that the Home Office are aware
of these problems and indeed have been so for some time The Commission
will be meeting officials on 4 February to see whether and in
what manner these problems can be addressed.
Professor Leonard Leigh, Commission Member
17 December 2003
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