Select Committee on Home Affairs Written Evidence


4.  Memorandum submitted by Liberty

ABOUT LIBERTY

  Liberty (The National Council for Civil Liberties) is one of the UK's leading civil liberties and human rights organisations. Liberty works to promote human rights and protect civil liberties through a combination of test case litigation, lobbying, campaigning and research.

LIBERTY POLICY

  Liberty provides policy responses to Government consultations on all issues which have implications for human rights and civil liberties. We also submit evidence to Select Committees, Inquiries and other policy fora and undertake independent, funded research.

  Liberty policy papers are available at www.liberty-human-rights-org.uk/resources/policy-papers/index.shtml

INTRODUCTION

  1.  The Criminal Cases Review Commission ("CCRC") plays a crucial role in redressing miscarriages of justice and maintaining public confidence in the criminal justice system. For this reason we wholeheartedly support the Home Affairs Select Committee's view that Parliament must "maintain a close interest in the development of the (CCRC)" [6]and welcome the announcement that the Committee will take evidence from the current Chair of the CCRC.

  2.  We hope that this single evidence session will be followed up by a wider inquiry by the Committee. Such an inquiry would enable the Committee to follow-up on some of the important conclusions and recommendations made in its 1999 Report, in particular its concerns about the appropriateness of the statutory test for referral. It would also provide an opportunity for those with direct experience of the CCRC to give their views on whether the CCRC is successfully fulfilling its important remit and, if not, to make suggestions about how any shortcomings might be addressed.

  3.  Liberty is unable to comment on how cases are handled in practice as we do not have first-hand experience of making applications to the CCRC. Our comments focus on more generic issues of concern and suggest issues, considered in the Committee's previous work on the CCRC, which we believe should be re-visited.

THE MCKINSEY REVIEW

  4.  In February we wrote to the Home Secretary to stress the need for a review of the working of the CCRC. We welcomed Fiona MacTaggart's announcement that "a high-level review of case working processes and policies to identify areas of improvement is currently under way." [7]In response, the Home Secretary provided us with a summary of the terms of reference for the McKinsey review and explained that "[t]he review has now been completed and the CCRC are drawing up an Action Plan to implement the recommendations".[8] It would be useful for the Committee to explore the conclusions reached by McKinsey and to discuss the Action Plan being drawn up by the CCRC.

  5.  We have not been provided with a full copy of the report and are not, therefore, able to comment on the substance of the recommendations it contains. We would, however, make the following general observations about the review process:

    —    First, as far as we are aware, those with experience of making applications to the CCRC were not consulted. A potentially useful, external perspective on the work of the Commission may, therefore have been overlooked.

    —    Secondly, the review did not consider whether the CCRC was able effectively to perform its statutory function given the level of resources with which it is provided, looking only at how the existing resources were used.

BACKLOGS, WAITING LISTS AND FUNDING

  6.  The CCRC's 2005-06 Annual Report comments:

    "we can report that many more cases have been closed than in the previous year and that the backlog and waiting lists for the majority of cases have been substantially reduced. The position as regards our more complex and time-consuming cases, however, remains far from satisfactory."

  As long ago as 1999, delays in the handling of applications was identified as a problem for the Commission. [9]As the Home Affairs Select Committee explained, such delays are "unacceptable" because "[p]eople who have been wrongly convicted will be serving out their sentence before their case has been dealt with." [10]

  7.  Chairmen of the Commission have consistently explained that reducing the backlog and waiting lists is a priority. In 2001 Sir Frederick Crawford (then Chair of the CCRC) commented that "the waiting list would be almost non-existent in a few years time".[11] In January 2004, Professor Zellick acknowledged before the Committee "as you are well aware, we have a case accumulation and our first and overriding priority is to deal with the case accumulation and to minimise waiting time". Government also commented in January 2005 "the commission's priority is to reduce the remaining case accumulation." [12]Despite being the Commission's "first and overriding priority"[13] the backlog has not been cleared and waiting lists are still unacceptably long.

  8.  We urge the Committee to explore the reasons for this ongoing problem; to ask for more details about how the Commission's plans to address the problem; and to ascertain if the CCRC is working to any target in this respect. We are particularly concerned about the impact which planned funding cuts will have on the CCRC's ability to tackle the delays. [14]

PROCEDURE

  9.  Liberty has been informed of concerns that the CCRC is not sufficiently thorough in its review of applications, that it does not make full use of its wide investigative powers and that its review of cases often focuses primarily on reviewing paperwork. We expect that the Committee will receive evidence about these concerns and hope that it is able to explore some them with Professor Zellick.

  10.  We would also urge the Committee to raise the following generic suggestions/questions in the evidence session:

    —    First, it would be useful if for those who make applications to the CCRC were provided with an explanation of how the Commission investigates applications and what it means by a thorough investigation.

    —  Secondly, applicants should be provided with as much initial and ongoing information as possible about how their individual application will be handled, what investigations are likely to be undertaken and when the Commission hopes to make its final determination.

    —  Thirdly, in 2004, Professor Zellick explained that a pilot scheme was being introduced in certain sexual abuse cases to see if automatically interviewing the applicant yields benefits to the investigative process. [15]The Committee should ask what the pilot scheme has shown about the benefits of interviewing all applicants.

    —  Fourthly, the Committee should ask how new technologies have assisted the CCRC in its investigative work. Remote technology may, for example, make it less time-consuming and expensive to interview prisoners. [16]

    —  The Committee should also look into the use the CCRC makes of evidence. In particular, whether it receives and considers all the evidence that would have been available during the trial including any unused material.

    —  In 2004, Professor Zellick explained that the CCRC are looking at "whether we might be able to attach something a bit more user-friendly" as reasons for refusing to refer a case to the Court of appeal. [17]The Committee should ask whether this has been done and, if so, what extra information has been provided.

ACCESS TO THE CCRC

  11.  The effectiveness of the CCRC requires those who believe themselves to be victims of miscarriages of justice to be aware of the existence of the Commission, to understand what the Commission does and to be able to make an application.

  12.  At the 2004 evidence session, Professor Zellick commented:

    "My colleagues and I take the view that, as a public body with a critically important role to play in the criminal justice system we owe it to the public and the public's representatives to explain what we do, to account for what we do, and to spend some effort on doing that".[18]

  He explained that the Commission had recruited a new Head of Communications and that he had given a number of media interviews about the work of the CCRC. We suggest that the Committee should explore what the CCRC has been doing since 2004 to raise awareness of its work and what impact this has had on the number and quality of applications it receives. It would also be interesting to hear how the Commission educates those in custody about its existence, its role and about how to make applications.

  13.  In 2004, the CCRC told the Committee that around 50% of applicants were professionally represented. While they explained that this did not prevent the CCRC doing a proper investigation, they did accept that representation made their job a lot easier, speeding up the process of review. [19]We would urge the Committee to follow-up on this issue by asking the following questions:

    —    Has the proportion of unrepresented applicants changed?

    —  What impact would better levels and a higher quality of representation have on the Commission's ability to complete their review of cases in a timely fashion?

    —  How does the number of referrals to the Court of Appeal of unrepresented applicants compare with the number of referrals of represented applicants?

    —  What proportion of unrepresented applications are dealt with using the cursory, fast-track five day review procedure and how does this compare with represented cases?

THE CAUSES OF MISCARRIAGES OF JUSTICE

  14.  Identifying generic causes of miscarriages of justice and then tackling them is clearly preferable to waiting for an individual miscarriage to occur and responding after the event. Although it is not realistic to expect all possible causes of miscarriages of justice to be removed, efforts should be taken to identify frequent causes and to address these in a proactive manner. Given the volume of applications the CCRC receives, we believe that it would be well placed to identify these generic problems.

  15.  In its 2001-02 Annual Report the Commission explained:

    "It is a long term objective of the Commission to analyse the causes of miscarriages of justice, and to suggest ways in which the criminal justice system, might be improved to reduce their incidence. It is still too early for the Commission to do so authoritatively".[20]

  In 2004, Professor Zellick suggested that the CCRC's failure to learn generic lessons about the cause of miscarriages as a result of its consideration of individual cases was due to limited resources and/or the fact that it would be more appropriate for some other body to carry out this work. [21]

  16.  We would urge the Committee to explore this issue with the CCRC; to ascertain how, if at all, it is seeking to analyse the causes of miscarriages of justice; and, if not, why not. In 2004, the CCRC explained that it had set up a working group to focus on cases involving historic sexual abuse in care homes. [22]The CCRC should be asked to comment on how successful it considered the work of that group to be and whether it is considering establishing new working groups to focus on other generic issues.

THE TEST FOR REFERRAL

  17.  The Criminal Appeal Act 1995 explains that a case should be referred to the Court of Appeal if "the Commission consider that there is a real possibility that the conviction, verdict or sentence would not be upheld were a reference to be made".[23] In effect this means that referrals will be based not on the likelihood that a miscarriage has occurred but on the CCRC's attempts to second guess the prevailing attitude of the Court of Appeal.

  18.  In 1999 the Home Affairs Select Committee concluded that "there may be problems with the statutory test (for referral of cases to the Court of Appeal) laid down in the Criminal Appeal Act 1995".[24] It recommended that a "formal review of the wording of the test in the Act take place after the Commission has been in operation for five years." [25]Though the Government accepted the Committee's recommendation that there should be a review of the test for referral after March 2002, [26]nearly four years later no such review has, to our knowledge, taken place.

  19.  It would be useful for the Committee to ask the CCRC to update it on the way it applies the test in practice. We would also urge the Committee to consider the wording of the test and/or to press the Government to meet its undertaking to the Committee and to carry out a review of this important statutory provision.

Jago Russell,

Policy Officer, Liberty

5 September 2006


























6   The Work of the Criminal Cases Review Commission, 1998-99, HC106, para 7. Back

7   HC Deb, 1 November 2005, col 926W. Back

8   Letter received 17 March 2006. Back

9   "The Work of the Criminal Cases Review Commission", 1998-99, para 17. Back

10   Ibid, para 36. Back

11   "Backlog Cut" (2001) The Times, 10 July 2001, p 4. Back

12   HL Deb, 19 January 2004, col WA106. Back

13   Q37. Back

14   Cf the CCRC's Annual Report for 2005-06, p 54. Back

15   Q47. Back

16   This is currently being proposed by the Government in relation to appeals before the Court of Appeal (Criminal Division)-Policy and Justice Bill, Clause 51. Back

17   Q56. Back

18   Q98. Back

19   Q51. Back

20   Para 2.4, p 11. Back

21   Cf Qq 37 and 44. Back

22   Cf Q76. Back

23   S 13(1)(a). Back

24   Home Affairs Committee, The Work of the Criminal Cases Review Commission, First Report of Session 1998-99, 30 March 1999, HC 106, para 24. Back

25   IbidBack

26   Home Affairs Committee, Third Special Report of Session 1998-99, 2 July 1999, HC 569. Back


 
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