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
|
