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