Select Committee on Home Affairs Minutes of Evidence


Examination of Witnesses (Questions 20-39)

PROFESSOR GRAHAM ZELLICK, MR COLIN ALBERT, MS KAREN KNELLER AND MR JOHN WEEDEN CB

10 OCTOBER 2006

  Q20  Ms Buck: One last question, if I may. You have been challenged on the grounds that you have really very much retreated to core functions on casework and abandoned research and development and other activities that may be desirable as providing a context for what you do. Is that true? How would you respond to that allegation?

  Professor Zellick: No, I do not think it is true. We have not abandoned anything that we were previously doing. On the contrary, there are some things that we are now doing that we did not do: communications, external researchers being given facilities of access, and so forth. We have never had an in-house research capacity, which I find odd in an organisation of this kind, but when you are facing the sort of financial pressures and case accumulations that we do, we have not felt it appropriate to divert resources to that sort of thing. So, there are possibly other things we might be doing or might have decided to do had there been additional funds. When I joined the Commission I was told that we had more funding than we needed; indeed there were cash reserves sitting in the bank which were very substantial but which my predecessor and the then Chief Executive chose not to use, and I was always told that we had enough money to do whatever we wanted to do, until we discovered we should never have had those cash reserves, and they were snatched away from us, in accordance with, I am sure, very sensible Treasury rules, and we found ourselves wholly impecunious, and that cushion which we thought we had to protect us in the event of pressures on the budget was no longer there. So, there is nothing we have abandoned; quite the contrary.

  Mr Winnick: The question of economies will be continued in this session of questioning by Mrs Cryer.

  Q21  Mrs Cryer: I would like to ask you three more questions that follow on from Ms Buck's questions on re-organisation of the economies and reductions. You have recently made economies by reducing the number of Commissioners and abolishing completely the post of Chief Executive. Does this suggest that the Commissioners were previously underworked? Will the removal of the Chief Executive post damage the organisation's capacity for strategic leadership?

  Professor Zellick: The answer to the second question is most certainly not. We did not take the step of removing the post of Chief Executive without thinking it through very carefully indeed. We are not a very large organisation, we are not an unduly complicated organisation, but we are a somewhat unusual organisation. We were unusual in having a full-time Chief Executive and a full-time chairman, unusual also in that our Commissioners perform a day to day, I am going to use the word, executive role, although that may not be quite the right term, but an operational role, and are therefore in the Commission on a regular basis. So, the normal model or paradigm for a non-departmental public body does not really apply to us and we are very different. We have reduced the number of Commissioners. The number of bodies is being reduced from 16—it will be 11 (which is the statutory minimum)—from January of next year. It is not quite so dramatic a reduction as those two numbers suggest because the actual FTE reduction is less marked than that, and my colleague is just looking for the number which it might be useful for us to mention. The full-time equivalent has gone from 12.7 to 9.2. So there is a reduction, and it does mean that Commissioners carry a heavy burden, and we simply were willing to shoulder that in an attempt to see resource transferred to what I call frontline case-working capacity, but some of my colleagues are very considerably overworked.

  Q22  Mrs Cryer: So, it does not mean that they were previously underworked?

  Professor Zellick: No, far from it. There is also some scope, of course, for the transfer of work from Commissioners to other people. We used to assign a Commissioner to every "stage two" case. That is something that will not happen under a new system where we have group leaders and case planning committees; so there are some internal re-organisations which we hope will focus the work of Commissioners.

  Q23  Mrs Cryer: You have already partly answered the next question. The recent review has led to the appointment of seven Case Review Managers as group leaders, which you have just mentioned. Presumably they will be paid more. Will this offset the savings achieved by staff reductions elsewhere in the organisation and is part of the intention behind this change to improve staff retention by creating more of a career structure?

  Professor Zellick: It does create more of a career structure. It will, I think, encourage some of our more gifted members of staff and more experienced members of staff to stay when they might otherwise look for an opportunity elsewhere, but neither of those was the impetus, the driving force, behind the change. It simply was to give effect to the recommendation, and many of us had thought it for some time, that the discharge of casework, the review of cases, needed a permanent structure of supervision and support that simply was not there before. There was a financial aspect to your question which the Director of Finance could probably answer more convincingly than I can.

  Mr Albert: Certainly the review that the consultants did included an estimate of the balance between the additional cost of having group leaders and the efficiencies that would result in monetary terms, and they were certainly of the opinion that the efficiencies would far outweigh the additional cost of having group leaders, and certainly that additional cost was more than covered by the savings we have made in other areas by reducing the number of Commissioners and removing the post of Chief Executive. In fact, the savings that were generated from that have enabled us to maintain the number of case reviews managers over the period during which our funding overall was reducing in real terms. That was part of our overall strategy, in fact, to maintain our casework capacity.

  Q24  Mrs Cryer: I understand you have created a new category of "less important cases". Could you tell me what the pros and cons are of this new category? In your memorandum you discuss the matter in some detail but then conclude, "The Commission is not convinced that it should alter its policy." How serious are you about the option of doing this?

  Professor Zellick: This is one my personal kites that I am flying, Mrs Cryer. We have not created any new category at all. What I was doing there was really sharing with you a thought which I have and have had for some time and which is not necessarily shared by my colleagues, but I think it is an important and interesting issue, and that is to say whether the scarce resources of a public body should be applied equally to the most serious potential, possible, arguable miscarriages of justice at one extreme and also some of the more trivial or less important cases at the other. There is a perfectly proper argument that any criminal conviction of any kind, whenever returned, if wrong, should be corrected and, therefore, we should not distinguish between the two kinds of cases. It is a very pure but a very understandable approach and I think perhaps the majority of my colleagues would subscribe to it. Our consultants flagged this particular issue and identified, as I think I say in the memorandum, a small number of cases a year which, in their view, we could quite properly in the exercise of our discretion ignore. It would be interesting for us to know whether you had a view about that in due course. I do not obviously mean this morning. If we were to go down that road it would not be uncontroversial. There would be, I am sure, many who would take exception to it and would argue strenuously against it. We have not done anything other than to try to streamline our processes at the early stages to filter out cases that are unlikely to go anywhere. We think we have made that side of things recently a little more robust and a little more efficient, but that is as far as we have gone so far.

  Q25  Mrs Cryer: At the moment you actually have not got a new category of less important cases. It is not an option you are going for at the moment?

  Professor Zellick: No.

  Q26  Mr Winnick: We have got that on the record, thank you very much Mrs Cryer. There is hardly a single public funded organisation, Professor Zellick, who would not say, giving evidence to us, that they could do with more money. It would be rather strange if they said they had more than is required (the Treasury would soon take note), but what I want to put to you arising from these questions, and you refer to the financial position, is how far is the lack of sufficient funding stopping you from doing the job which you believe could be done better?

  Professor Zellick: If we had not embarked on the re-organisation, which I have described in outline, and if we had not transferred internally some half a million pounds to frontline casework capacity, the situation would be truly disturbing and would cause you, as it would cause us, extraordinary disquiet. We have managed to hold things as they are. Had our funding not been reduced, I would not be saying we needed more money. The truth is we can deal with what comes through the door, assuming that does not show any huge unexpected increase, with the resources we have. If, however, you share my view that the waiting periods we have for the more complex cases are not in the public interest, and I feel that passionately, and I know my colleagues do and I suspect you might, then we would need some additional funds for a period of time, perhaps only two, three years.

  Q27  Mr Winnick: What sort of sums are we talking about?

  Professor Zellick: We are talking about half a million pounds a year. We need something like an extra 10 Case Review Managers to eat into that backlog so that we can do our job in the way that we think Parliament and the public would expect us to do it.

  Q28  Mr Winnick: If you received this extra funding (half a million pounds a year), the backlog would be substantially reduced?

  Professor Zellick: It could be substantially reduced much more quickly than otherwise will happen.

  Q29  Mr Winnick: And the representations you have made to the appropriate people about the extra funding?

  Professor Zellick: Yes. We are in constant, as you can imagine, dialogue with our colleagues in the Home Office. It is only recently that we have come to a clear view about how we stand now that the new arrangements are in place, but that is the conclusion to which we have come.

  Q30  Mr Winnick: Do you have any optimism or otherwise that the Home Office will respond?

  Professor Zellick: Very little optimism, Chairman. I think it has been made fairly plain to us over a period of time that there is no extra money available.

  Q31  Mr Winnick: But you will continue to make representations in so far as you consider any purpose would be served?

  Professor Zellick: Indeed so, sir.

  Mr Winnick: We will take on board what you have said and come to our own conclusions. Mr Salter.

  Q32  Martin Salter: Professor Zellick, I want to start exploring this contentious issue of the statutory test for referral, which was covered when I think you last came before this Committee in 2004. There has been controversy about the statutory requirement, that you only refer a case to the Court of Appeal if you consider that there is a real possibility that the conviction, verdict or finding would not be upheld if the reference were made. This contrasts markedly with the Scottish test, which is much more ethically based, that a miscarriage of justice may have occurred or that it is in the interests of justice that a reference should be made. You will be aware acutely, I am sure, of the criticism that the English system is effectively attempting to second-guess the prevailing attitude of the Court of Appeal. This may not be what Parliament intended when you were set up, and I imagine the controversy will rattle on. I have two questions really. Looking at the difference in performance between the Scottish CCRC and your organisation, how do you account for the fact that the Scottish CCRC has, over the past seven years, referred proportionally twice as many cases as their English counterparts and yet the success rate in quashing convictions is only slightly lower than in England, 64% as opposed to 70%? Does this not suggest that either the English test is too restrictive, or that you are interpreting it too restrictively, or neither?

  Professor Zellick: There is a great deal in what you have asked me and I will do my best to respond. I have to say that we are of the view that the present test is not only correct in principle but actually it has been shown over the last decade to work extremely satisfactorily, but let me go further. First of all, let us look at Scotland. It is always very difficult to look at these statistics, particularly when you are dealing with such small numbers of cases. The Scottish Commission is dealing with a mere handful of references a year. It only has to decide one or two cases differently then the statistics and the percentages look incredibly different. The average rate of referral over their shorter life is 8.1%, but that has varied from year to year from 3.6% in 2003-04 to a high of 11.5% in 2001-02. In 2003-04 they referred only five cases; so I think we do have to be very careful. Secondly, you have to ask yourself whether the Scottish Criminal Appeal Court operates in exactly the same way as the English Court of Appeal Criminal Division. It may or it may not, I simply have no means of knowing, but it is possible that there is, for example, in Scotland a greater readiness to look behind the verdicts of juries. It may be much easier in Scotland to get a conviction overturned than it is in England, in which case you would expect that to be reflected in the approach of the Scottish Commission. Their own test is not an ethical one, if I may say so, whereas ours is legal or legalistic. They have to apply a miscarriage of justice test because "miscarriage of justice" is the test used in the Scottish courts. Whereas we use "safety", they use "miscarriage of justice". They are harnessed to the work of the Scottish Criminal Appeal Court in precisely the same way that we are harnessed to the Court of Appeal Criminal Division, and the public interest test in Scotland is not an alternative, it is an addition. So, not only does there have to be, if you like, the requirement or the likelihood that the conviction will be quashed, in addition, the Scottish Commission has to be satisfied that it is in the public interest to make the referral and for there to be an appeal. I suspect the true explanation lies in the environment in which they operate and the cases that come to them. If you look at our Northern Ireland jurisdiction, for example, which you might say is comparable, the figures that we deal with in respect of Northern Ireland are very different from those for England and Wales. Over the life of the Commission we have had 122 applications from Northern Ireland, we have completed review of 103 of them and have referred 15. That is a referral rate of 14.5%, which is much higher even than Scotland, and of those, 85% (or 11) have been quashed. What does that say about us? It says nothing about us because we apply exactly the same test, we adopt exactly the same approach. It tells you something about the cases that are coming to us from Northern Ireland, just as the Scottish statistics probably tell us more about the cases coming to them than anything else, but, of course, we do not know. We do have discussions with our colleagues in Scotland, but it is very difficult to know precisely how they approach a particular case and the basis upon which they refer. Finally, if I may go on for one moment longer, you say, as many of the critics of the test do, that we second-guess the Court of Appeal. We do not really. I know the words are, "Is there a real possibility that", and the assumption that that gives is that we sit there saying, "What will the Court of Appeal do?", and in a sense it all comes to the same thing; but actually the question we ask ourselves is, "Is there a real possibility that this conviction is unsafe or this sentence should be appealed?", which takes, if you like, some of the emotion out of the accusation.

  Q33  Martin Salter: I want to come back on some of that. I accept that the differences of scale between your workload in England and Northern Ireland and in Scotland means that the argument can be prayed in aid in a number of different directions, but I would suggest to you that perhaps the success rates you were talking about of overturning convictions in Northern Ireland, also say not so much about the way you are operating, or the test you are applying, but the problems of policing a divided society and a very different environment that pertains to the criminal justice system in Northern Ireland. What I want to come on to now is this principle of the basis for the test: the difference between the Scottish test and the English test. You said to this Committee in 2004, in fact, you were rejecting the idea of adopting the Scottish test for referral because, I think you said at the time, "miscarriage of justice" is not a precise term, and yet, ironically, in your own published objectives it actually says that you are there to review and investigate suspected miscarriages of justice. You cannot have it both ways, surely?

  Professor Zellick: I hope so.

  Q34  Mr Winnick: Lawyers always do.

  Professor Zellick: Thank you, Chairman. No, there is a difference between using the term in everyday language, which we do and would not wish to avoid, and writing it into a statute. If you write it into a statute, you then have to accord it a specific meaning. You can do that, of course. The only point that I was endeavouring to make then, and would reiterate now, is that there is no point at all, and considerable dangers, in our applying a test which is different from that which is applied by the courts to which we send the cases, and that would be true in Scotland. They apply the same test as each other; we apply the same test as each other. If you substitute "miscarriage of justice" in the English Court of Appeal for "safety", then you must do that for us; they have to be harnessed.

  Mr Winnick: Thank you very much.

  Q35  Mrs Dean: Professor Zellick, could you give us your view of the alternative wording for a test which was originally put forward by JUSTICE in 1991 which would read "an arguable case that there has been a wrongful conviction"?

  Professor Zellick: Yes, with pleasure. Let us look at the two parts separately, "wrongful conviction" first and then "arguable case". I do not know what "wrongful conviction" means. If it means the same as "safety", then we make no change. If it means something more than what is meant by "safety", then it means, once we had ascertained what it did mean, we would be sending cases to the Court of Appeal that the Court of Appeal did not have the power to quash, and that seems futile; and if it means something less than "safety", which it arguably could, then it would be asked of us to be complicit in sustaining convictions that were unsafe, which is rather unpalatable. So, I am not sure that that change gets us anywhere. As for "arguable", that raises a very significant issue of principle. When the Commission was established it was not established simply to be an investigative body. Parliament could have created a body that was purely investigative, that would have produced (or not produced) evidence (material), sent it back to the lawyers and let them go off to the Court of Appeal to persuade a judge that that justified a further appeal. When a defendant comes before the Court of Appeal now with an application for leave to appeal after his conviction in the Crown Court, he only has to convince the single judge, or, if that is turned down, the full court, that he has an arguable case. It is not a particularly high threshold. It is not the threshold that Parliament has asked us to apply. We are not just an investigative body; we are a group of Commissioners appointed, through an elaborate process, from people of distinction and experience to go beyond that, and themselves, without putting themselves in the seats of the Court of Appeal, without usurping the role of the Court of Appeal, nevertheless charged with the vital duty of deciding whether the new evidence, or the new argument, as the case may be, raises a real possibility that there should be another appeal. So, if you introduced an arguable case test, you are totally emasculating the Commission, you are giving it a completely different role, and I suspect my colleagues and I would not wish to be involved in that in the way that we now are. In fact, you would not need Commissioners. You would, however, be giving a great deal of extra work to the Court of Appeal, in my judgment, for no particular purpose and with considerable disadvantages.

  Q36  Mr Winnick: That was a very frank answer.

  Mr Weeden: Could I just add before we move on, to make it crystal clear on Professor Zellick's behalf, that when we refer a case to the Court of Appeal it does not go through the single judge process again. The point is that when we refer, it goes straight to the full court, who must hear the case. There is no arguable ground test imposed where we have referred a case.

  Professor Zellick: I am glad that Mr Weeden mentioned that, because it is a very significant constitutional and legal point. When we refer a case the court must hear it. They must hear it on the grounds we specify.[2] That gives the Commission a very considerable degree of, I will not call it power but authority. We do not expect the Court of Appeal simply to fall over and say, "Well, the Commission think this is a good case, the conviction must be unsound or unsafe", but we do believe that the fact that it goes through that process gives these cases, if you like, a head start, and they are treated with great respect by the Court of Appeal. I think if one dispensed with that role for us, it would not be in the interests of the applicants whose cases we review.


  Q37 Mrs Dean: Is it the case, as the Miscarriages of Justice Organisation have told us, that if a case such as the Birmingham Six were to be reviewed by the Commission today it would not meet the "real possibility" test criteria and would not be referred?

  Professor Zellick: No. The simple answer is, no, that is a complete misrepresentation of something that was never said, but Mr Weeden could enlighten you, because he is the person who never said it.

  Mr Weeden: Would you like more detail?

  Q38  Mrs Dean: Yes, please.

  Mr Weeden: I was at a seminar with a colleague from the Scottish Criminal Cases Review Commission in Scotland and we were talking about the difficulties of the fresh evidence test, which is just the same for the Scottish Commission as well. The Birmingham Six was mentioned, but there is no way that I said, in such stark terms, that we would never today refer the Birmingham Six. Nothing could be further from the truth. What we may have talked about (and I cannot remember my exact words) was the fact that there were two appeals there where the Appeal Court had indeed rejected the convicted Six's submissions and they were left in prison until other media factors got to work and there was a final appeal and they were eventually released, but I certainly was not meaning to suggest, and I am sure I did not suggest, and my Scottish colleague assures me I did not suggest, that we would never refer the Birmingham Six if we had it today.

  Q39  Mr Winnick: Bearing in mind that the Birmingham Six and the Guildford Four were amongst the most foremost cases which led to the Commission being set up in the first place, to use a term, it would make a mockery of the work which you do. You would agree with that?

  Professor Zellick: I would agree totally. Yes.


2   Note by witness: Assuming the appellant chooses to argue that particular ground. Other grounds may be added with the leave of the court. Back


 
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