1. Memorandum submitted by the Criminal
Cases Review Commission
1. INTRODUCTION
1.1 Financial pressures prevented the Commission
from recruiting the number of Case Review Managers that would
have enabled us to clear the backlog of cases awaiting review
by March 2006, as envisaged. As a result, we initiated a far-reaching
and fundamental review of our organisation, processes and practices,
with the assistance of external consultants, with a view to securing
greater efficiency without compromising quality or thoroughness.
Significant changes have been and are being implemented.
1.2 In addition, significant resources have
been transferred to front-line caseworking by reorganising the
senior management, eliminating the post of Chief Executive and
reducing the number of Commissioners from 16 to the statutory
minimum of 11, yielding savings in excess of £½ million
pa.
1.3 It is hoped that all this will promote
greater efficiency and will over time eliminate the backlog. It
is too early to say whether these changes will enable us to function
optimally within projected funding, although it is clear that
additional resource would be needed to erode the backlog speedily,
as we would wish.
1.4 Meanwhile, we have continued to review
cases with care and rigour and have referred some significant
miscarriages of justice to the courts.
2. CASEWORK
Improving our casework processes
2.1 The Commission had for some time considered
that there was a need to address its casework processes in light
of waiting times and had taken steps to address this, primarily
by the introduction of Case Planning Committees (to provide focus
and clarity at the outset of new reviews) and Case Review Committees
(to assess the progress of longer term reviews).
2.2 The Commission also recognised the desirability
of an independent review of its overall casework strategy to identify
further areas of improvement with the aim of achieving its objectives
as cost effectively as possible.
2.3 Consequently, the Commission engaged
consultants to assist the Commission to carry out a comprehensive
review of its casework processes with a specific requirement to:
— assess whether the current casework
processes were still appropriate to achieve the Commission's overall
objectives;
— consider whether the best use
was being made of available resources, and whether these were
allocated appropriately;
— make recommendations regarding process
control and measurement, including the setting of targets;
— assess whether processes could be
adjusted to improve efficiency and effectiveness; and
— identify any areas which would provide
significant improvements in case waiting times.
2.4 The review, which began on 26 September
2005, is complete. The final report was received in December 2005
following a presentation to Commissioners on 15 November. In summary,
11 recommendations were made, with 14 subsidiary recommendations
or suggestions made to help support the main recommendations.
Most of this work will be completed during 2006-07. The central
recommendations were to:
— develop segmentation of cases by
complexity and develop pathways according to segment and case
type as a guide through the caseworking process (including the
introduction of a rhythm of work with target end-dates);
— introduce performance management
with clear targets; and
— establish caseworking groups.
2.5 A great deal of progress has been made
since December 2005. A project board was set up to oversee the
fundamental transformation of the caseworking processes. A number
of work streams were established, comprising staff and Commissioners,
to design the new processes. It is anticipated that the recommendations
regarding segmentation and pathways will be implemented by 1 October
2006.
2.6 One of the most challenging recommendations
was the reorganisation of our current structure of Case Review
Managers. The review identified a need to move from a "flat"
structure to a more accountable management structure. As a result,
the Commission agreed to the introduction of teams of Case Review
Managers, each led by a group leader. The Commission appointed
seven Group Leaders from existing Case Review Managers to support
the Director of Casework in providing more effective management
of casework, deliver clearer accountability and provide support
and leadership to their groups. The next step, now that this structure
is in place, is to introduce an effective performance appraisal
system.
2.7 The other changes, in knowledge management
and key performance indicators together with updates to the case
management software, will be put in place in order to support
them as soon as possible after the implementation of the main
recommendations. We are also reviewing all our casework procedure
documentation to ensure that it fully reflects the new processes.
Applications received
2.8 The Commission received 279 cases transferred
from the Home Office and the Northern Ireland Office when the
Commission was first established in 1997. Applications received
each year since then are shown below.
2.9 The numbers have been adjusted to include
re-applications which are refused because they do not present
any substantive evidence or argument that was not contained in
the original application. [1]New
applications to the end of July in the current year stand at 331,
which suggests that our total for the year could turn out in the
region of 932, somewhat below the projected figure of 1,000 in
our business plan. If this forecast proves correct, there would
now appear to be the beginnings of a levelling off of new applications
following five years of increasing numbers. It is difficult to
know why this may be happening. One reason may be that efforts
at communicating what the Commission can do, and importantly what
it cannot do, especially in its prison awareness campaign, may
be deterring less meritorious applications.
2.10 The Commission monitors case intake
carefully and tries to identify trends so that it can match its
resourcing to the current and future workload.
Case completions and waiting times
2.11 The number of cases waiting to be reviewed
(ie cases which have passed the initial test for eligibility and
have been prepared for review) since the Commission was formed
is shown in the chart below:
2.12 The number of cases waiting for review
at the end of July 2006 was 252, which is close to the lowest
number we have ever achieved. Cases waiting which are classified
as "Screen" cases (i.e. where it is expected that five
days or less of caseworker effort is required to complete the
case) amount to 101, which represents about two months' intake.
This is considered an appropriate number to act as a "buffer"
to assist with case allocation logistics. There are 151 cases
waiting classified as "Stage 2" cases, which are cases
that are more complex or with a greater volume of material. Although
this represents less than 14 months' intake, the actual age of
the next case to be allocated is much greater than this would
suggest. This is because of some cases being prioritised in accordance
with our published policy. The age of the next case to be allocated
is 21 months for in-custody cases and 31 months for at-liberty
cases. These waiting times are acknowledged as undesirably long,
and the Commission's main priority is to reduce these whilst maintaining
the simpler Screen cases up to date.
2.13 The changes to our casework process
described above are designed to have a positive effect on waiting
times, although it is anticipated that it will take at least 12
months from implementation for the benefits to be realised. The
new processes involve streaming cases into three categories. The
most straightforward cases, category A, will be maintained completely
up to date. Waiting times for both category B and category C cases
will be reduced, although it is expected that waiting times for
the most complex cases (category C) will not reduce to an acceptable
level until the end of 2011-12 with our current resourcing levels.
We do not regard this as satisfactory. Estimates of the waiting
times over the next three years are given in the chart below:
Less important cases
2.14 The Commission has been considering
recently whether there are certain cases which do not merit expenditure
of time and effort in review or, if reviewed and a real possibility
that the conviction would be quashed found, should nevertheless
not be referred to the appropriate appeal court because of their
relative lack of importance. The Commission has not so far decided
to alter its policy, which is to treat virtually all cases equally
on their merits.
2.15 The Criminal Appeal Act 1995 gave the
Commission an enormously wide jurisdiction: every conviction and
every sentence in every criminal court in England, Wales and Northern
Ireland without limit of time and even where the defendant is
no longer living. The only limitation is that, where the defendant
has died, there must be a surviving relative with a sufficiently
close interest.
2.16 Our statistics do not record all the
information we need in calculating the number of applications
that could be described as less important cases ("LICs"),
let alone the resource that has been expended on them. External
consultants recently estimated about 25 cases a year in this category.
We know that at least 121 applicants in the five-year period up
to 2005 had not received a custodial sentence, but 2,523 of the
4,068 applications in that period do not have the sentence recorded
on our database. We also know that there have been 207 road traffic
offence applications since 1997.
2.17 Among recent cases have been two concerning
dog-destruction orders, a neighbour dispute years ago culminating
in a conditional discharge (which by statute does not even constitute
a conviction), an old conviction under the Town and Country Planning
Act resulting in a relatively small fine, and a wartime conviction
under the Witchcraft Act 1735 resulting in a short sentence of
imprisonment where the defendant has been dead for 50 years. All
these cases were in fact fully reviewed, three were referred and
two continue to involve complaint and correspondence.
2.18 The Commission has the discretion not
to refer cases, and a fortiori not to review applications,
even where there is a real possibility that the conviction would
be quashed. That discretion has been acknowledged by the courts,
but its limits are uncertain. Current policy is to exercise this
discretion sparingly, essentially only where a successful appeal
would bring no benefit to the applicant, eg because the court
would merely substitute a conviction for an alternative offence
or a pardon has already been granted.
2.19 Should the Commission exclude a range
of LICs that add to our delays, could not be said to be significant
in terms of the public interest, could damage the Commission's
reputation and add to the burden on the Court of Appeal? Of course,
any improper conviction is regrettable and deeply felt by the
individual and his or her family, but common sense and balance
also have a role to play in the expenditure of finite resources.
2.20 In order to comply with the principles
of public law, it would still be necessary to consider each case
individually and have a policy which moderated the discretion
to exclude in the event of special circumstances. For example,
where someone had lost the right to practise a profession or lost
a job and was unable to obtain similar employment or who was on
the Sex Offenders' Register, there would be a case for removing
that case from the excluded category and reviewing it in the normal
way. Similarly, we might wish to deal with an entirely straightforward
case where the applicant provided irrefutable evidence that his
conviction was unsafe and we could proceed to a decision without
further investigation.
2.21 If the Commission were minded to proceed
in this way, careful thought would need to be given to the categories
that would be covered, such as convictions of a particular age
where a non-custodial sentence was passed, convictions spent under
the Rehabilitation of Offenders Act and certain road traffic offences.
We could also be stricter in cases where the individual was dead
or where the sentence was neither imprisonment nor a fine.
2.22 The Commission is not convinced that
it should alter its policy in this regard, but feels it worthwhile
to bring the issue to the attention of the Select Committee, which
may wish to explore the matter further or express a view.
Judicial review
2.23 The Commission has been the subject
of a total of 160 applications for judicial review since 1 April
1997. [2]The
majority arise because the applicant disagrees with the Commission's
decision not to refer and involve no point of substance. Nonetheless,
in order to address the issues raised and prepare a considered
and accurate response for the judge who must decide on the papers
whether to grant permission, a considerable amount of work is
necessary.
2.24 Applications for judicial review of
the Commission's decisions have increased in recent years. 78
applications (39.38% of the total of 160) were received between
1 April 2004 and 28 August 2006. The applications received (and
details of those conceded by the Commission) are set out below:
| Financial year
2004-05
| Financial year
2005-06 | Financial year
2006-07 to date
|
| Received | 41 | 28
| 13 |
| Conceded | 7 | 3
| 1 |
| | |
|
In only one case has the decision of the Commission been
quashed.
2.25 The steady reduction in the number of concessions
suggests that the Commission has become more alert to the need
to ensure that decisions are able to withstand challenge by way
of judicial review. Internal training initiatives have been developed
and implemented. Casework staff and decision-makers all consider
public law principles whenever a decision is made.
2.26 The spread of applications between Stage 2 Screen
and Stage 2 Review seems to be fairly even, as is the percentage
of represented and unrepresented applicants.
2.27 The effort and in-house expenditure incurred in
responding to judicial reviews is considerable. All preparatory
work is undertaken by the Commission's Legal Advisers, but counsel's
fees in contested cases can represent a significant cost and,
in most cases, cannot be recovered. Costs incurred by the Commission
in relation to applications for judicial review are difficult
to forecast and place a strain on our ability to manage our budget
adequately. In 2005-06 we incurred costs of £131,000 in legal
fees alone.
2.28 The Commission currently faces a novel challenge
by the Revenue and Customs Prosecutions Office relating to a decision
to refer four convictions for money laundering to the Court of
Appeal on a point of law. [3]
Lessons learned
2.29 The Commission is conscious that its accumulated
case records represent a substantial body of data which may be
useful for informing the development of law and practice with
regard to miscarriages of justice. Although the Commission is
bound to direct its resources at reviewing applications, steps
have nevertheless been taken to capitalise on this data.
2.30 The Commission has put in place arrangements to
record legal issues meriting attention and possible reform by
the appropriate authorities which have arisen in the review of
cases even though no "real possibility" has been found.
2.31 The Commission has also granted access to two independent
academic researchers who are working on the following topics:
— The role of expert witnesses to see what
can be learned from convictions that have been overturned owing
to flawed scientific or medical evidence.
— The role of the Commission in the adversarial
system, including the relationship with applicants' lawyers and
the impact of legal representation on the process.
3. MISCARRIAGES OF
JUSTICE
Causes of miscarriages of justice
3.1 There will always be witnesses who lie or are mistaken,
and police officers, lawyers and judges who make mistakes, whether
through incompetence, negligence or otherwise, but several areas
of difficulty and causes of potential injustice may be identified.
— Historic sex abuse cases:
These cases pose real challenges for the criminal trial and
for defence teams. Evidence is often limited and by definition
very old. Many jurisdictions have statutes of limitation in criminal
cases. England does not, and the trial judge's power to suppress
such prosecutions on the ground of abuse of process is sparingly
used.
Rape and cognate sexual offences do present difficulties and
features not present in most criminal prosecutions. Our experience,
and that of the courts, does not support the proposition that
complaints of rape or similar assaults are always reliable and
truthful. With understandable public concern about the number
of prosecutions brought and convictions obtained, this is another
area where miscarriages of justice may arise.
The ability of juries to cope in a small proportion of cases
with complex and controversial expert evidence, on which guilt
or innocence may turn, must be questioned.
— Case to answer and abuse of process:
Judges sometimes allow cases go to the jury for decision where
the prosecution evidence can hardly be said to support a conviction
beyond reasonable doubt, yet a jury's verdict of guilt once returned
is difficult to disturb in the absence of fresh exonerating evidence.
This is particularly so in the two areas listed above—historic
sex abuse cases and sexual offences generally. Trial judges should
be more vigorous in ruling that there is no case to answer or
that the prosecution should be stopped as amounting to an abuse
of process.
Reform of the law of homicide, and in particular of the partial
defences to murder, is long overdue and urgent. The current law
gives rise to many difficulties and much work for us and the Court
of Appeal.
Analysis of referrals
3.2 An analysis of the basis of referrals made in the
last 12 months is given below:
| CCRC references for the 12 months from 1 September 2005 to 31 August 2006
|
| Convictions | |
|
| HM Customs and Excise misuse of participating informants
| 12 |
| Prosecution errors: | non-disclosure
| 2 |
| abuse of process | 1
|
| Fresh evidence | | 7
|
| Change in the law (R v Saik)
| 6 |
| Judicial misdirection | |
5 |
| Compound grounds: | inadequate legal representation;
material non-disclosure;
factual errors in summing-up;
fresh evidence.
| 3 |
| Sub-total of convictions |
| 36 |
| Sentences | |
|
| Errors arising from statutory complexity
| 3 |
| Fresh psychiatric evidence | 1
|
| Sentences of co-accused reduced on appeal
| 1 |
| Sub-total of sentences |
5 |
| Total of all references |
41 |
| | |
Historic sex abuse cases
3.3 The Commission has now received applications in some
36 of these cases which resulted from extensive police investigations
during the 1990s into allegations by adults of how they were abused
as children in care homes across the country, typically 15-25
years previously. The investigations and subsequent trials, often
of retired careworkers with impeccable records who were then imprisoned
following conviction, were accorded high-profile treatment by
the press. Similar media interest has been shown in many of those
who have applied to the Commission claiming that they were wrongly
convicted.
3.4 In such cases there is usually little or no corroborative
evidence. The jury is often required to decide between the evidence
of the complainant, who may by the time of his trial have a number
of previous convictions, and the defendant who can do little more
than deny the truth of the allegations. Relevant care home records
are often unavailable, and witnesses who may have been able to
assist the defence may be untraceable or dead. Although the judge
at trial will normally have given appropriate warnings to the
jury as to the dangers of convicting in such circumstances, where
a jury does convict it is particularly difficult to find any new
evidence or argument to provide a real possibility that the Court
of Appeal will quash the conviction.
3.5 Decisions by the Commission have yet to be made in
11 cases. Two cases, which were linked, have been referred to
the Court of Appeal and the remainder have been turned down. The
two cases referred have been heard recently and the appellants'
convictions were quashed.
3.6 The Commission has continued to keep a database of
care home cases with which it deals in order to identify any links
or common factors between cases, some of which relate to the same
homes or police investigation. In addition, the Historic Abuse
Appeal Panel (HAAP) provides a copy of its own, larger, database
for Commission use. The majority of current applications in these
cases are represented by HAAP solicitors. The protocol between
HAAP and the Commission remains in force and there are regular
meetings between the Chairman of HAAP and a Commissioner.
Attorney General's review of infant death cases
3.7 Following the Court of Appeal's decision in January
2004 to quash the conviction of Angela Cannings for the murder
of her infant son, there was widespread concern about the reliability
of expert witnesses in such cases. The Attorney General instituted
a review of all cases of convictions in the last 10 years of a
parent for the unlawful killing of babies and infants under two
years of age. A total of 28 cases which caused concern were identified,
and letters were written to the offenders inviting them either
to apply for leave to appeal out of time if they had not previously
appealed or to apply to the Commission for their cases to be reviewed,
as appropriate. It was not widely understood that the Attorney's
review had no formal legal status and its results had no implications
for either the Court of Appeal or us. Moreover, convicted persons
could still apply to the Commission even if their convictions
had not been identified in the review as of concern.
3.8 The disposition of those cases at present[4]
is shown in the table below:
| Number | CCRC decision
| CoA decision |
| Unable to contact offender | 11
| | |
| Offenders not wishing to proceed | 2
| | |
| Offenders undecided | 5
| | |
| Appealed | 4 |
| 1 quashed; 3 upheld |
| Application to CCRC | 6
| 1 referred
4 not referred
1 decision pending
| 1 quashed |
| Total | 28 |
| |
| | |
|
3.9 The one case referred so far by the Commission was
that of Donna Anthony. This case was already under consideration
by us when the Attorney General conducted his review. In addition,
a further application was received by us but the applicant was
advised to apply for leave to appeal out of time. His appeal was
subsequently not allowed, and is included in the "Appealed"
total above. One offender who went direct to the Court of Appeal,
and whose appeal was not allowed, has since lodged an application
with us. This is in addition to the six cases shown above.
4. AMENDMENTS TO
LEGISLATION
Test for referral
4.1 The Commission remains of the view that the test
for referring a conviction or sentence to the Court of Appeal
must be firmly linked to the test the Court itself applies in
assessing the safety of a conviction or correctness of a sentence.
To sever that link would be to produce major difficulties. It
is possible that an additional limb could be added to the test,
making it clear that not every conviction thought to be unsafe
should be referred but only those where it was in the public interest
or the interests of justice to do so. That would be to limit the
number of cases referred by the Commission, which is the very
opposite of what is intended by those who criticise the present
test and press for a relaxation. There is in any case a discretion
allowing the Commission to refuse to refer a case even where the
real possibility test is met.
4.2 The Commission further believes that the present
wording, based on a "real possibility" that the conviction
will be quashed or sentence altered, is correct and has worked
well in practice over the years.
4.3 The statutory provisions in relation to magistrates'
court convictions and sentences, which parallel those in the Crown
Court, are however inappropriate and should be amended in view
of the fact that appeals in the Crown Court, to which the reference
must be made, take the form of a rehearing of the case, which
is not necessarily an appropriate way to handle a reference by
the Commission. Provision could, for example, be made for the
Crown Court to adopt a different procedure in these cases or for
the references (which are very few in number) to be made to the
Divisional Court of the Queen's Bench Division where based purely
on a question of law.
Changes in the law
4.4 There is an issue in relation to convictions or sentences
affected by a subsequent development in the common law. The Court
of Appeal has held that such later developments are relevant and
must be taken into account: in other words, a conviction will
be assessed against the common law as it is and not as it was
at the time of the trial and conviction. This is therefore the
test that must be employed by the Commission in assessing "real
possibility". But at the same time it is the usual (if not
invariable) practice of the Court of Appeal to refuse extensions
of time for those who apply to the Court for leave to appeal when
they had not done so previously, even though the conviction is
unsafe and would be quashed if the appeal were before the Court.
The Commission has not hitherto adopted this practice of the Court,
but is now giving further consideration to the matter. Meanwhile,
a group of referrals based on such a change in the law is under
challenge by way of judicial review initiated by the Director
of the Revenue and Customs Prosecutions Office, who is asserting
that the Commission must adopt the same approach as the Court
of Appeal. The fundamental point to question, however, is whether
the principle of applying new law to old cases is correct. It
has been much-criticised by academic commentators and was recommended
for abolition by Lord Justice Auld in his Report on the Criminal
Courts in England and Wales.
Court of Appeal's test
4.5 It is not primarily for the Commission to express
a view about the statutory test applied by the Court itself in
appeals against conviction, which the Government has recently
announced should be subject to review. The test of "safety"
is itself broad enough to do justice, although it is perhaps arguable
that there are some cases where undue deference is paid to the
jury's verdict. Experience has shown that it is difficult to affect
the Court's practice through statute. The Commission does not
believe that the Court quashes convictions on purely technical
or legal grounds where it is not in the interests of justice or
the public interest to do so. The Commission hopes to be consulted
in the review of the Court's statutory test.
Obtaining material from private bodies and persons and in Scotland
4.6 The Commission has a very broad power under section
17 of the Criminal Appeal Act 1995 to secure material from public
bodies for the purposes of a review, but there is no corresponding
power (as in Scotland) in respect of private bodies or persons;
nor does section 17 extend to Scotland. While many co-operate
with the Commission, there are cases where the absence of such
a power inhibits the Commission's work.
4.7 Lord Justice Auld in his Report on the Criminal
Courts in England and Wales recommended that the Government
should review third-party disclosure powers.
4.8 An interdepartmental working group, on which the
Commission was represented, recommended in June 2006 that the
Commission:
(i) should be able, on application to the courts, to require
private bodies and individuals to disclose any material it needs
to discharge its statutory functions;
(ii) should have a power to compel witnesses to disclose
any information it needs to discharge its statutory functions;
(iii) should have power, on application to the courts,
to require witnesses to provide explanations and documents in
a way similar to the powers exercised by the Serious Fraud Office
and others; and
(iv) that the Commission's powers to obtain third-party
material should be extended to Scotland.
All these changes would require primary legislation.
Telecommunications data
4.9 After the enactment of the Regulation of Investigatory
Powers Act 2000 (RIPA), the Commission was unable to obtain telephone
records and other communications data from telecommunications
companies. Section 22 of RIPA contains a list of purposes for
which such data may be obtained. A Statutory Instrument sets out
the public authorities which may make use of RIPA, the section
22 purposes for which they may use it, and the prescribed ranks
or posts within each authority who may issue authorisations and
notices under RIPA. As a result of what appears to have been an
oversight, the Commission was not included in the list in the
original Statutory Instrument, and the list of purposes in section
22 did not include one which covered the functions of the Commission.
In effect, the Commission was excluded from the RIPA scheme, causing
us serious difficulties.
4.10 The Commission advised the Home Office of the problem
that had arisen and during 2005 agreement was reached that the
Commission should be added to the RIPA schedule. With effect from
26 July 2006, the Commission was added (by Statutory Instrument)
[5]to the list of public
bodies permitted to obtain telecommunications data.
International co-operation
4.11 The Commission is not included among the agencies
which can make use of the existing mechanisms for international
co-operation and mutual assistance in criminal justice. We are
not, for example, treated as a police or prosecuting authority.
Serious crime is often international in its scope and our work
sometimes involves enquiries in other jurisdictions. In one recent
case, involving Italy and Canada, we estimate that the absence
of such powers delayed completion of the review by almost two
years.
4.12 The Home Office has now agreed to seek amendment
of the Crime (International Co-operation) Act 2003 so as to allow
the Commission to benefit from the mutual legal assistance that
can be afforded by other countries—for example, taking statements
from witnesses or providing copies of criminal records.
4.13 Draft policy instructions were approved by the Commission
and were due to be submitted to Parliamentary Counsel in August
2006 with a view to inclusion in a suitable Bill.
Courts Martial
4.14 The Armed Forces Bill, which is currently proceeding
through Parliament and will shortly enter the Lords committee
stage, will extend the jurisdiction of the Commission to convictions
and sentences imposed at Courts Martial and Service Civilian Courts.
It is understood that commencement will not be until late 2007
and will not be retrospective. We are therefore unlikely to receive
any applications arising from this new jurisdiction until 2009.
The number of cases expected is small.
5. RESOURCES
Staffing
5.1 It goes without saying that the Commission's greatest
asset is its staff and Commissioners. Much effort is expended
in recruiting to ensure that we are able to attract and employ
individuals of the highest calibre.
5.2 Our Commissioners and Case Review Managers undertake
a comprehensive programme of induction and training during their
first months with the Commission as well as ongoing mentoring
and support.
5.3 The number of Case Review Managers in post directly
influences the number of cases that can be reviewed, and hence
the rate at which our waiting times can be eroded. Every effort
is made to maximise the number of Case Review Managers.
Budgets
5.4 In common with virtually all other public bodies
and government departments, there have been budgetary challenges
over the past few years, particularly in reaction to the need
for savings in the wake of the Gershon report. The reality is
that we have needed to maintain our caseworking capability with
diminishing financial resources in real terms. This has been largely
achieved through reductions in the number of Commissioners and
in the size of the senior management team, and keeping our support
staff complement under constant review and making economies wherever
possible. The senior management team has been reduced from four
posts to three, and the reduction in the number of Commissioners
is shown in the following table:
| 31 March 2005 |
31 March 2006 | 31 March 2007
[planned]
|
| Number of Commissioners | 16
| 13 | 11 |
| FTE (Full Time Equivalent) number of Commissioners 12.7
| 10.5 | 9.2 |
| | |
|
5.5 In addition, the Commission has adopted a zero-based
budget methodology to ensure that all spending is directed appropriately
in support of our core function of case review, and budgets are
monitored each month to ensure that spending is contained within
budget.
5.6 Budgets are set each year within the context of our
allocation with the objective of maximising the number of caseworking
staff we can employ whilst still maintaining the essential support
functions. Our recent experience of this, and our projections
for the immediate future, are shown below:
| 2004-05
actual
| 2005-06
actual | 2006-07
budget
| 2007-08
forecast |
| Baseline budget [£000s] | 7,662
| 7,864 * | 7,664 | 7,564
|
| Additional funds [£000s] | 800
| 97 | —
| —
|
| Total budget [£000s] | 8,462
| 7,961 | 7,664 | 7,564
|
| Number of Case Review Managers | 44
| 46 | 46
| 46 |
| | |
| |
* includes £121k re increase in pension costs.
5.7 Until this year we have coped with the annual intake
of new applications, but have struggled to reduce the waiting
times significantly for more complex cases. We recognise that
this is not a desirable situation. The planned changes to our
caseworking procedures will result in efficiencies which will
improve the rate at which our waiting times are reduced. However,
we still forecast that it will take five years or more for waiting
times to reduce to an acceptable level, assuming that the number
of new applications received in each year does not increase and
our funding is maintained at the same level as now in real terms
over that period. Although current funding levels are probably
adequate to maintain the work of the Commission in the long term,
it is certainly the case that in the short term additional funding
would enable the backlogs to be attacked and waiting times reduced
dramatically.
Capital requirements
5.8 The Commission generally has relatively modest requirements
for capital expenditure. However, like most modern organisations,
it is highly dependent on its IT infrastructure. This infrastructure
needs to be maintained, and all equipment and software updated
on a periodic basis. The Commission is not routinely given a capital
budget, and any capital expenditure in-year is funded by sacrificing
resource budget. The effect of this is that the cost of capital
investment is effectively borne twice (once by sacrificing resource
budget for the initial purchase, and then by a charge against
our resource budget for depreciation over the life of the asset).
This is manageable (although unwelcome) for small routine capital
outlays, but will present a major problem for the next IT refresh
programme, probably in 2009. We are pleased that the Home Office
will be considering our request for additional capital budget
to be made available at that time.
Office accommodation
5.9 The Commission occupies three floors of a modern
office block in the centre of Birmingham. Rental values are modest
compared with London, allowing a greater proportion of available
resource to be devoted to our core functions. A new 10-year lease
is in the process of finalisation, and has been obtained on extremely
favourable terms following a rigorous assessment of alternative
options.
IT support
5.10 The Commission's dependence on its IT infrastructure
has already been mentioned. This infrastructure is complex compared
to the size of the organisation because of the need for security
in respect of sensitive material obtained for the purposes of
reviewing cases, and because of the need for disparate systems
necessary for effective review (for example, access to HOLMES
for accessing police databases in large-scale investigations).
We must also comply with government regulations concerning records
management. This means that our IT costs appear higher than would
otherwise be expected in comparison with other organisations of
a similar size.
5.11 From the time the Commission was set up, our IT
support has been outsourced. However, the IT managed service contract
is due for renewal at the start of the next financial year. Following
an extensive procurement exercise, it has been decided to bring
some of the functions in-house, whilst leaving the more technical
aspects of maintaining the network and systems to our outsourcing
partner. This strategy will improve the service and significantly
reduce costs.
6. OTHER ISSUES
Sponsor department
6.1 The Commission has since its inception come under
the sponsorship of the Home Office or, more specifically in recent
years, the Office for Criminal Justice Reform. Although the OCJR
reports to three ministerial heads—the Home Secretary, the
Secretary of State for Constitutional Affairs and the Attorney
General—it remains the Home Office vote which provides funding
for the Commission, it is the Permanent Secretary who appoints
the Accounting Officer and it is the Home Secretary to whom the
Commission makes its annual report.
6.2 Although the Home Office has never made any attempt
to interfere with the caseworking role of the Commission, it is
important to consider public perceptions and constitutional proprieties,
and the Home Office's principal responsibilities raise questions
about whether it should sponsor the Commission. Moreover, if the
Commission and its Chairman are to perform their role in relation
to possible future miscarriages of justice, then criticism of
the policies of Home Office ministers may be inevitable, which
poses difficulties. It must also be questioned whether it is constitutionally
appropriate for the Commission to come under a unit of government
one of whose ministerial heads, the Attorney General, is responsible
for the Crown Prosecution Service.
6.3 There is a strong case for saying that the more appropriate
sponsor department for the Commission would be the Department
for Constitutional Affairs, especially as the Lord Chancellor
and Secretary of State no longer has responsibility for the appointment
of judges and has ceased to be the head of the judiciary.
6.4 The Chairman discussed this proposal informally with
the previous Home Secretary, and the Lord Chancellor is aware
of the Commission's view, which is supported by senior members
of the judiciary.
6.5 The Commission will develop this argument in the
context of the review of all Home Office NDPBs currently under
way.
International interest
6.6 Since the last appearance, international interest
in the work of the Commission has continued and perhaps even increased.
There have been numerous requests for information about the Commission
made by officials, academics and journalists in China, Canada,
New Zealand, Japan, France, Holland and America and the Commission
has hosted a number of visits from international delegations.
Detailed debate about setting up similar bodies has taken place
in Canada and New Zealand.
Stakeholder engagement
6.7 The Commission has also embarked on a programme of
engagement with stakeholders and has had discussions with various
individuals, agencies and organisations ranging from miscarriage
of justice campaign groups to the police service. An awareness
campaign in prisons was launched inn 2005. Plans are currently
being drawn up to host a major conference with the School of Law
at the University of Birmingham in May 2007 to coincide with the
Commission's 10th anniversary.
8 September 2006
1
Such re-applications were excluded from our published statistics
for a period in 2004-05 and for 2005-06. Back
2
This figure includes challenges under the pre-action protocol
and challenges where proceedings are issued, as the work necessary
to resolve either type of challenge is significant. Back
3
This may be concluded by the time of the hearing. Back
4
According to latest information available to us from the Legal
Secretariat to the Law Officers. Back
5
The Regulation of Investigatory Powers (Communications Data)
(Additional Functions and Amendment) Order 2006 No 1878. Back
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