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UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 1635-i House of COMMONS MINUTES OF EVIDENCE TAKEN BEFORE HOME AFFAIRS COMMITTEE
CRIMINAL CASES REVIEW COMMISSION
Tuesday 10 October 2006 PROFESSOR GRAHAM ZELLICK, MR COLIN ALBERT, MS KAREN KNELLER and MR JOHN WHEEDEN Evidence heard in Public Questions 1 - 79
USE OF THE TRANSCRIPT
Oral Evidence Taken before the Home Affairs Committee on Tuesday 10 October 2006 Members present Mr Jeremy Browne Ms Karen Buck Mr James Clappison Mrs Ann Cryer Mrs Janet Dean Gwyn Prosser Bob Russell Martin Salter Mr David Winnick, In the absence of the Chairman, Mr David Winnick was called to the Chair ________________ Memorandum submitted by Criminal Cases Review Commission
Examination of Witnesses Witnesses: Professor Graham Zellick, Chairman, Mr Colin Albert, Director of Finance and IT, and Accounting Officer, Ms Karen Kneller, Director of Casework, and Mr John Weeden CB, Commissioner, Criminal Cases Review Commission, gave evidence. Q1 Mr Winnick: May I take this opportunity, Professor Zellick, to welcome you and your colleagues. We have a number of questions, which we believe are very important, regarding the work of your organisation. I wonder if you would be good enough in the beginning to introduce your colleagues. Professor Zellick: Thank you very much, Chairman. On my far left is John Weeden, who appeared last time we came before the Committee - John Weeden has been a Commissioner for four years and has taken a lead within the Commission on historic sex abuse cases, which I know you are interested in - and Karen Kneller, who is our Director of Casework, who joined us just over a year ago from the Crown Prosecution Service. On my right is Colin Albert, who is Director of Finance and IT, the Accounting Officer and chairs the senior management team and who has been with us for over two years. That completes the line-up. Q2 Mr Winnick: We have received, of course, your memorandum for the Committee, Professor Zellick. I wonder if there is any need for you to make any opening remarks, but if you wish to do so, of course. Professor Zellick: No, thank you, Chairman. Q3 Mr Winnick: We will go straight to questioning. We are in some difficulty today over time, but we hope to cover the most important questions. When you last appeared before this Committee you had been in the post a very short time, some two months. You have now been Chairman of the Commission for nearly three years. I do not know whether it seems a long three years to you, but you will soon tell us. It is a leading question, as they say in your profession: what do you regard as your greatest achievements and what do you think you have been less successful in doing? Professor Zellick: The Commission has undergone, in recent times, the most fundamental changes to which any organisation could be subjected. That is an indication of what I found after a while, having been Chairman of the Commission. It was not apparent to me when I was last here, as you say, having been in post only six or so weeks, but it did become clearer to me over time that we were not appropriately organised to do the work that we had to do in the way that was most effective and most efficient and that significant change was required, and we have embarked upon that programme of change, which is not only unprecedented within the Commission but, I think, could be regarded as unusual for any organisation, public or private, and that is ongoing. The other factor is that we have throughout this period - and it was very different originally - struggled with severe financial pressures, which added urgency to the changes upon which we have embarked. I will be very happy to elaborate on any of that, but that is my first attempt to respond to your question. Mr Winnick: I am going to ask Jeremy Browne to ask you a number of questions. Q4 Mr Browne: Professor Zellick, they lead on directly from what you were just describing. You used the word "fundamental" to describe the changes that have taken place. Would you tell us whether the initiative, in terms of the review for these changes, came from the Government or internally from the Commission and what the cost was of embarking on the process? Professor Zellick: Entirely and exclusively from within the Commission is the answer to your first question. When you ask about the costs, of course there is very considerable cost within any organisation when you embark upon a process of fundamental change because it consumes considerable capacity and resource, which you have to weigh against the daily work that you have to do, particularly when you have backlogs and when you are dealing with the kind of sensitive and important casework that faces us. I suspect, though, you are thinking in cash terms, are you? Q5 Mr Browne: Yes, rather than emotional, although you could describe that if you wanted to. For example, the pressure on the overall budgets of the Commission, you could give us an indication of how much was spent on external consultants? Professor Zellick: The external consultants concerned are not particularly keen for me to tell you precisely how much it cost. Q6 Mr Winnick: Should we accept that? Professor Zellick: Let me just say a little more and then, Chairman, I am very much in your hands. Let me say to you that what we paid was a fraction of the commercial cost of the consultancy by a factor of five or ten. We paid between a fifth and a tenth of what it would normally have cost for the exercise that was done for us. If you want me to go further, I can either send you a note about the actual cost, if you think it is of particular interest to you. If you want to press me to reveal the figure in public, I will do so. Q7 Mr Winnick: We will not press you today, for the reservations that you have given. However, that should not be taken as a final verdict. The Committee may well in private deliberation ask for the information and, if we receive it, we will decide whether it should go into the public domain or not, but at this stage, for the reasons that you have just given us, we will not press you. Professor Zellick: Let me say, to give you the information would reflect well on the Commission, so if it were left entirely to me I would be only too pleased to let you know how little we paid for a magnificent piece of work. Q8 Mr Browne: I am curious to know why the consultants only charged five to ten per cent of the going rate. Will you negotiate on my behalf next time I have to engage any people? Professor Zellick: Let us talk about that. They made an investment because they found this a particularly interesting, exciting and worthwhile project. They knew that there was no way in which the Commission could afford their normal rates but they felt that it was in their interests (and I cannot really speak for them beyond saying that) for their people to be exposed to this particular exercise. Q9 Mr Browne: Did you find their input useful? Would you be able to give us an indication, for example, of how many of their recommendations you accepted and whether you rejected any of them? Professor Zellick: We have accepted almost everything. I will pass it to colleagues in a moment to go into greater detail, if you wish. We accepted nearly all their recommendations. There were a handful where they said, "We have not been here long enough to investigate fully these particular matters, but we would suggest you think about them further", and there was a handful where they thought that progress could be made and I think we would say that we have done it in a slightly different fashion. Q10 Mr Browne: Would you give us an example maybe of a key recommendation that they made that was useful and positive that you accepted which otherwise the organisation may not have taken on board or decided to go down that path? Professor Zellick: The two fundamental areas were these. First of all, we had a total absence of proper management and supervision within the Commission, it was an almost entirely flat structure, and what we have now done is organised our Case Review Managers into teams, each team headed by a group leader and each group leader reporting to the Director of Casework. So, for the first time, we have, as you would expect to find in any organisation, but the Commission did not previously have, a proper internal structure for supervision and support for the work that staff do. That was absolutely key to everything that followed, and that has been in place now for a few months. The other thing is a much more sensitive and sophisticated method of categorising cases in order to promote greater efficiency and to complete cases more rapidly without compromising quality. Q11 Mr Browne: Do you think the overall effect of the review has been to increase operational efficiency or to reduce costs? They are not necessarily mutually exclusive. You may think you managed to achieve both simultaneously, but you are under financial pressure, but you are also very frank about the limitations, organisationally, that you had before, and so I suppose it is just an assessment of whether the process enabled you to do the same amount of work better or whether it gave you extra organisational capacity. Professor Zellick: The purpose was to give us greater organisational capacity to ensure that cases did not drift off unsupervised and not prosecuted with sufficient vigour and, overall, to increase our capacity in the hope that we would erode backlogs and not keep people waiting for inordinately long periods of time. I do not altogether understand the distinction that you make between the two, but that was its primary purpose. We are reasonably confident that that will be the outcome, but, of course, it is too early to say because these measures have been in place for only a matter of weeks or months. Q12 Ms Buck: You just mentioned the issue of backlogs. I note in your memorandum that you actually give two indications of the length of time it would take to clear the backlog. At one point you mentioned the figure of five years and at another 12 months. I wonder if you could explain for us what the variation is, why there are two estimates, whether you are actually talking about different baseline figures? Professor Zellick: I think we must be, and I think I would need to be directed to the particular passages where we appear to be saying fundamentally different things. Q13 Ms Buck: In paragraph 2.13, the figure of 12 months is mentioned and in paragraph 5.7 it is five years for the changes in casework practice to have an impact on the backlog of cases? Professor Zellick: I think we are saying different things: 2.13 is what I was trying to say a moment ago, that it will take some time, and this says 12 months, for us to be sure that the benefits are materialising and are beginning to eat into the problems and doing what we hope. The other figure is the real figure for eliminating or diminishing waiting times and backlogs on current and projected resources. Q14 Ms Buck: So, you are saying that, despite what appears to be a persistent and hard core block of cases, at the end of five years you would expect there to be no backlog at all? Professor Zellick: We are now closing more cases than we are receiving each year, and the consequence of that is that over time (and we have made a prediction) the backlog will be entirely eroded. I very much hope, and ultimately I am an optimist, that there will be some additional funding to allow us to erode those backlogs more rapidly because my colleagues and I regard those waiting periods as wholly unacceptable. Q15 Ms Buck: Are you basing, therefore, the timescale that you are mentioning on being able to secure additional resources? Professor Zellick: No, we are not, but they are the figures based on what we have and what we expect to receive, what we have been led to believe we will receive, and they do not assume any increase. An increase of half a million or so pounds a year would transform the situation. Mr Winnick: We will take note of that. Q16 Ms Buck: That slightly begs the question why, if the environment that you were in before the present reductions was more generous, there was still a backlog. If you are talking now about a relatively small incremental addition being sufficient, why was it not sufficient before? Professor Zellick: First of all, if you look at the funding trend, it is quite significant, and the figures that you have before you do not take into account inflation. If you factor in the GDP inflator you will see that the reduction in funding is very considerable indeed. Our previous estimates, or predictions, of how long it would take to erode the backlog were based on a level of funding which simply was not borne out in practice. We sustained in-year reductions, it required us at one stage to impose a complete moratorium on any staff recruitment at all, so that, far from moving to our objective of having 50 Case Review Managers in post, we could not even replace those who left, and so the number fell quite dramatically and our ability to close cases was severely compromised. One has to go back much further to find out how the problem arose in the first place, and so forth. I can give you purported explanations for it, but I think at this point it is probably not very fruitful to do that. Mr Weeden: I wonder if I could add one comment on that. When I joined the Commission in September 2002 we then already had a plan where we expected to be down to our minimum level of waiting times by March 2006; so we did have a plan and would have expected to have been in a very good position as regards waiting times several months ago from today. Unfortunately, because of the financial pressures that Professor Zellick has described, that date went out of the window and now it is five years away from 2006 and not March 2006. Professor Zellick: If I may just point out, it is worth emphasising that it is only a small proportion of our cases that are subjected to these unfortunate delays. The vast majority of applications are dealt with much more speedily and within a timeframe that, I think, everyone would regard as entirely appropriate and acceptable. Q17 Ms Buck: I was just about to ask you that, because I think that is exactly the point, and again it is drawn out in the memorandum, that it will be the more complex cases that are subject to the delay. Professor Zellick: Yes. Q18 Ms Buck: In looking forward to having a strategy to deal with the backlog will you make sure that you do not end up reinforcing that trend and actually trying to reduce the backlog by top-slicing the simplest cases and always ending up with a kind of tail of the most complex cases that you do not attempt to deal with? Professor Zellick: I am sure we will not do that. I do not know whether the Director of Casework wants to add anything on that, but that is not a temptation, I think, to which I think we would fall prey. Q19 Ms Buck: How can you avoid it? Professor Zellick: By having in place, as we do have in place, appropriate allocation mechanisms, because otherwise you can get the whole thing out of kilter. There is an argument for saying, and we have debated it many times, that one should not draw any distinctions between the length and complexity of cases and treat everything as it comes in through the door. The consequence of that would be that we would have an even longer backlog of cases: the number of cases in the queue would be very much greater. One struggles with these difficulties all the time, and we are very mindful of them, but I am certain we will not let what you say happen. We simply will not let that happen. 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 review 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 impetuous, 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 ten 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 than 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 2003/4 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. 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. Q40 Mrs Dean: In 1999 the Government accepted a recommendation by this Committee that, at some stage after March 2002, there should be a review of the wording of the test for referral. No such review appears to have taken place. In view of the continuing controversy over the test is it not time that it did? Professor Zellick: I have left you in no doubt that my colleagues and I think the test is perfectly satisfactory, and one could go on debating it. It may be that what really lies at the root of the problem is not the test we apply but the test that the Court of Appeal applies, the test of safety, because, of course, any change to that test would have corresponding implications for us; we would have to adjust our approach accordingly. There is an attempt at the moment to change the test used by the Court of Appeal, but I do not think that is one that would meet with the approval of those who want to see our test subject to review. Quite the contrary; I have no objection to a review. We will simply restate the arguments that I have attempted to state here this morning, and as I did on the last occasion, and alternative formulations can be considered. It is our view, it is certainly the view of the Court of Appeal, that the current test has worked satisfactorily. If you start from the premise that lots more cases than we refer should end up in the Court of Appeal, of course you are going to feel that there is something wrong with the test, or something wrong with the Commission, or something defective and deficient in the Commissioners, but that is a bit of ex post facto rationalisation. It depends where you start from. If you start from a wholly objective standpoint, one would not find the arguments for a new test cogent or compelling unless you simply want to see our role eliminated and far more cases fall on the Court of Appeal itself. Q41 Mrs Dean: Finally, are you satisfied that a referral of one in 20 by the Commission to the Court of Appeal is an accurate reflection of the proportion of genuine miscarriages amongst applicants? Professor Zellick: It is quite impossible to say. All we can do is to apply the test to each individual case, and that we do, I believe, to the best of our ability. There may be many cases out there which never come to us but which ought to, there may be cases among those that do come to us that are miscarriages of justice but no amount of effort on our part can find a basis for impugning the conviction. There has to be a basis for doing so, otherwise every criminal conviction is necessarily open and there are thousands every year and the task would be impossible. There really no way, I think, to answer that point. It is interesting that from year to year there is a certain constancy in the figures, but we do not work to any figures at all, it just works out that way. Q42 Mr Winnick: Of course some of your disappointed customers inevitably and understandably contact their Member of Parliament and complain that their case, which is so obviously one where a miscarriage has taken place, has not been dealt with by the Commission, but that I accept, as I think we all accept round the table, is almost inevitable. Professor Zellick: What is interesting is that quite a number of those who applications we reject come back to us, sometimes many times, and if they have new evidence or a new argument we will look at it again. Indeed, over the years over 30 reapplications have ended up in the Court of Appeal; so we do have an open mind; we never shut the door forever on anybody. Q43 Gwyn Prosser: Professor Zellick, the Government wants to legislate to ensure that what it calls the "plainly guilty" should not have their convictions quashed because of procedural irregularities as long as the Court of Appeal are satisfied that the offence was committed, which seems pretty much commonsense to lay people like me, but what is your view and what is the view of the Commission? Professor Zellick: The Commission is working on its response at the present time and, like a number of others, we have serious doubts about the proposal. We actually have serious doubts about the premises on which the proposal rests. For a start, the Court of Appeal does not quash convictions on technical grounds alone. It simply does not do so, and there is no evidence that it does. It would be a very sad indictment of our Court of Appeal and its judges if they did and, I suspect, if and when the Lord Chief Justice and his colleagues come to respond, that point will be made with some vigour. There is a category of case, on what you might call technical grounds, where the court will quash a conviction even in the face of overwhelming evidence of guilt. It is extremely rare. It happens when there has been conduct by a public authority which constitutes an affront to justice or violates the very integrity and decency of the criminal process. It happens rarely, but it does happen, and when it happens it is our view that the Court of Appeal must have the power, exercised albeit rarely, to denounce on behalf of the public gross abuse of state authority. For our Court of Appeal, probably alone among courts of appeal in the civilised world, to have that power removed from them would constitute a very considerable departure from the principle of legality and the rule of law. Q44 Gwyn Prosser: I get the impression you are not entirely enthusiastic about the proposals. Professor Zellick: I have my reservations! Q45 Gwyn Prosser: But if they are implemented and the changes do take place, what would be the implications for you and the Commission? Professor Zellick: Almost none, for two reasons, and I will probably get into trouble for saying this. In the first place, I very much doubt whether the parliamentary draftsmen will be able to find any form of words that will in practice alter the actual behaviour of the Court of Appeal. I simply cannot envisage Her Majesty's judges in the Court of Appeal upholding convictions in that small minority of cases where there has been gross impropriety. I simply do not believe I will live to see that day and, therefore, I suspect any attempt so to legislate will be nugatory. But in so far as I maintain, I think correctly, that the Court of Appeal does not quash convictions simply on technical grounds simply because there has been some flaw or defect, it is unlikely it is going to make any change, because we know that that is the case and, therefore, there is in those cases no real possibility. There are defects of process, of evidence, of procedure, of directions to the jury which raise a doubt about whether the jury would have convicted if the defect or the misdirection had not taken place. The Court of Appeal is not well placed and, as I understand it, does not wish to be placed in the position where it has to second-guess the jury in those cases. If the evidence against the defendant is overwhelming and the defect is trivial, the conviction will be upheld, but the question the court asks itself is: what would be the effect on the jury? After all, the judges in the Court of Appeal were not there, they did not hear the evidence, and if the jury might plausibly have returned a different verdict, the conviction is unsafe, and I do not believe it is in the public interest to sustain such a conviction and I do not believe, if the matter were properly and carefully explained to the public, they would want those convictions to be upheld. After all, any one of us can be in that position. These are not laws that are exclusively visited upon a subset of our fellow citizens who come before the court; any one of us can be a caught up in the criminal process and, if we are, any one of us wants to have a fair trial and, if we have not had a fair trial, we want the Appeal Court to come to our rescue. That is the system, one that has been honed over centuries. It is one that is disturbed with costs and perils. Q46 Gwyn Prosser: When the Home Secretary made his announcement he talked about consulting on the manner in which the law would be changed rather than whether it should be. Bearing in mind what you have told us this morning, do you think it would have been far wiser to have consulted on whether it needed changes? Professor Zellick: I would have wished the consultation to have been fuller. You cannot constrain public debate in that way. It may well be an earnest expression and a firm indication of the Home Secretary's mind, but we cannot, for example, comment on proposals that we think cannot be properly evaluated because the nature of the problem has been identified; so in our response we cannot possibly limit ourselves to what the Home Secretary has said, and we will not, we will have to comment on whether there is the problem which he thinks he has identified, and that makes it then very difficult to appraise the three proposals that are put forward. We will comment as best we can, but we will not limit ourselves in the way that the Home Secretary has dictated. Q47 Mr Winnick: Professor Zellick, you will be familiar with the criticism that Lord Justice Longmore made about a case which went from the Commission to the Court of Appeal. You smile, but the criticism was very severe. Lord Justice Longmore said he deplored the way in which the documents were presented to the court. The documents were supplied to the court, he said, in two large and unwieldy loose bundles, they were not numbered, or punch-holed, nor were there dividers between the various sections. In many cases it was impossible, at first sight, to work out what the documents were, and he said he wasted a great deal of the hearing; indeed some documents had not been supplied to the court and had to be copied during the course of the hearing. It was clear that none of the three teams of counsel were working from the same bundles or references as the court or even each other. He then went on to say: "But the problem went further than simply wasting time. ... Because of the wholly unsatisfactory way in which the documents were presented to the court, it was often difficult to ascertain what materials had been available at trial and what had emerged subsequently. That confusion could have resulted in an adverse effect on the appellants' chances of successful on appeal." One has to say (and presumably Lord Justice Longmore knew what he was saying), a very sloppy, incompetent manner for a professional body headed by distinguished people, distinguished lawyers, to have taken place. What happened? Has any disciplinary action been taken? Professor Zellick: If it were true it would, indeed, be a serious matter. Let me make a number of points. First of all, this is the first time in ten years that any such comment has ever been made. If it were true, however, that would still make it a serious indictment that we would respond to very fully and very firmly. The fact is it was not our fault and it is not true. Most of the exasperation experienced by the court in this case, as the passage from which you were quoting makes plain, was the result of the sloppiness of the lawyers presenting the appeal. It was only the introductory paragraph there where he referred to the Commission's submission, but in fact the Commission's papers were submitted to the Court of Appeal in perfectly proper order. The moment they reach the Court of Appeal we no longer have a role to play. We are not present in the Court of Appeal, we are not a party to the appeal and how the papers reach the judges is not something over which we have any control. The simple fact is the papers were submitted in proper order, they were then disembodied by officials and the lawyers in the Criminal Appeal Office. It was their responsibility how they were submitted to the court and they were obviously submitted to the court in an entirely unsatisfactory way, and so, in short, the criticism was unfortunately misdirected. The judgment, however, is an important one for two reasons, quite apart from those criticisms of the procedure. First, these were serious miscarriages of justice and the convictions were quashed, and certainly nothing to do with technical grounds, they were serious miscarriages of justice and our work led to their being quashed. The other even more significant aspect of the judgment is that Lord Justice Longmore was most critical of the delay the case had suffered since we had referred it, and this case is now an authority for a new procedure for bringing our references on before the court within six months. For the first time the Court has laid down a detailed timetable for the lawyers on both sides to ensure that the case comes on for hearing within six months, which has not hitherto been the case. In the very last paragraph of his judgment, Lord Justice Longmore says, "CCRC references must be treated with the respect they deserve." Q48 Mr Winnick: You forgot the last sentence, "We regretfully record that these references were not." You missed that out. We cannot judge, Professor Zellick, on the comments that you make. I accept what you say, and there is no reason, of course, why I should not do so as a member of the Committee. Obviously, if that was not the position, you would not be telling a select committee in the House of Commons. Inevitably, I must ask myself the question: if indeed the Commission was not in any way responsible for the sloppy way of handling documents - and it is not in question; presumably it was sloppy but, as you said, it was not the Commission's fault - was Lord Justice Longmore told this at the time or later? Professor Zellick: I have not the faintest idea. Q49 Chairman: Why have you not the slightest idea? If this Committee had been accused, rightly or wrongly, of such behaviour, I would imagine that we would try and make sure that if we were not responsible those who made the criticism against us would be told the facts of life. Professor Zellick: That is indeed what will happen. The director of case work has it on her list of topics to discuss with Master Venn, the registrar of criminal appeals, when she next meets him. I will almost certainly raise it in correspondence with Sir Andrew Longmore in the near future. The fact of the matter is it was an unfortunate criticism. I can sympathise with the difficulties that the court was in. The fact is that over the nine or ten year life of the Commission we could cite you, with notice, umpteen Court of Appeal judgments which pay tribute to the help we have given the court in the statements of reasons that we have provided. There is not a Lord Chief Justice in recent years who has not said that in judgments and who has not said it to me personally. Q50 Chairman: In order to get the matter clear and on the record, as a Committee we have the highest admiration for the work which your organisation is involved in. What I have said should not be taken as a condemnation of your whole work. It would be totally disproportionate for it to be taken as such but we took this to be a very serious criticism of the Commission and hence the reason that it has been raised. Arising from what was said, which you say the Commission is in no way responsible for, the organisation FACT, Falsely Accused Carers and Teachers, say they take that criticism made by Lord Justice Longmore and say: "... the CCRC are finding it difficulty to maintain the excellent standards for which they have previously been known." Clearly, there are those like the organisation I have mentioned who consider that the criticism is such that they criticise. Professor Zellick: They were right to take the view that if they read in a Court of Appeal judgment that the presiding judge had occasion to criticise the papers provided by the Commission his Lordship was correct in making the observations that he did. I have the advantage of knowing that he was not and I have to point that out to you. Once we have submitted the papers to the Criminal Appeal Office we have no further role in the matter. It is most unfortunate that what happened in this case happened. I am pretty sure it will not happen again. Q51 Chairman: Your annual report states that considerable time and resources have to be devoted to the hearing of judicial reviews, even though the great majority of such challenges are ill founded. This has been an increasing problem, I take it? Professor Zellick: It has and I think it is one that is experienced by all public bodies. One only has to look at the figures for judicial review applications over the years and one sees this exponential growth. It has simply become a standard or routine way of challenging any public body whose decisions you do not like. I can understand why it happens in respect of our decisions because if we turn someone down there is nowhere else for them to go, apart from coming back to us with something new. It is the easiest thing in the world to institute and initiate judicial review proceedings. It would be nice to think of a way in which the filter procedure, because leave has to be obtained, could somehow be tightened so that in the completely unmeritorious cases we could be relieved of the burden that falls upon us, because the fact is that a considerable burden falls on us in every such case, however devoid of merit it is. That would involve a stage that does not presently exist in which someone - and I suppose it has to be a judge - would consider on the applicant's papers alone whether there was anything to justify asking the defendant to respond. If that were the case, that might relieve us of a burden in a small proportion of cases, but I do not know how feasible that is and it probably puts a greater burden on the judges. It is probably something we have to live with as other bodies do but it is extremely costly. Chairman: As you know, we have inquired into what is referred to as historic sexual abuse cases. There was a debate which I am sure you are aware of on the floor of the House arising from our report. We have continued to receive a good deal of correspondence, which is not surprising, and I am going to ask Bob Russell to ask questions on this. Q52 Bob Russell: While I have been a Member of this Committee we have conducted numerous inquiries. I have to say the historic sex abuse one was the one that disturbed me the most both in the manner that the evidence was gathered into the serious allegations, the manner in which the judgments were reached and the clear belief of the Members of the Committee at that time that serious miscarriages of justice had occurred. The clock now moves on a few years and in your memorandum you tell us that, of 36 applications relating to cases of historic sexual abuse, only two have been referred to the Court of Appeal, which I believe was in June this year, and the convictions were both quashed. 23 or so have been turned down and decisions are yet to be made in 11 cases. Why were the majority of applications turned down and what is happening with the remaining 11 cases? Mr Weeden: The cases that were turned down were turned down because we found no real possibility that the Court of Appeal would quash them. Of the 11 remaining cases that have not yet been dealt with, two are still awaiting allocation on that waiting list, I am afraid; nine are in the course of being dealt with and are out in the office now being worked on. Several of those are close to being finished but have not yet had a decision taken. Q53 Bob Russell: Is it the case that the reason you find it difficult to find grounds for overturning convictions is because the evidence given at the original court hearing was based on an element of quantity of allegations rather than the quality of each individual allegation and thus the jury were left with one person defending himself against several like minded allegations but without any collaborative evidence to back that up? Mr Weeden: This may be the case of course in cases other than care home cases but you are right. In most of these cases, there were a number of allegations from different complainants and it must be a fact of life that a number of allegations makes a stronger case, at least perhaps in the minds of the jury, than a single allegation from a single person against which the defendant says that he did not do it or he does not even remember this person. There are certainly all sorts of legal principles involved here with similar fact evidence and corroborative evidence. Judges will give certain directions in relation to those matters to the jury to make sure that they do not use one allegation to support another unless certain specific situations apply to that particular case. Q54 Bob Russell: Many people have been trying to find ways in which common sense justice can prevail, if I can use that phrase, and help to shed light on the process of investigations. Bearing in mind that many of the police investigation methods used to get the convictions are no longer allowed - there have been codes of conduct et cetera - is that not sufficient for those cases to be reheard based on current police methods of gathering evidence rather than those somewhat doubtful methods that have happened hitherto? Mr Weeden: That is a very generalist question. We obviously investigate allegations made about the way in which evidence was taken, I think you are suggesting from the witnesses, the complainants rather than from the individual. Obviously, if we found suggestions and particularly any significant evidence that that evidence was taken in an improper way then of course that might well amount to a real possibility of the conviction being unsafe. In the cases we have had, although the magic word "trawling" has often been used by those applying to us, we have found nothing wrong in the way that the police have approached witnesses, even if they perhaps now video or certainly take an audio record of such statements in current cases that they are investigating. Q55 Bob Russell: You must acknowledge that the police methods that were used to obtain evidence which resulted in convictions historically are no longer permitted today. Mr Weeden: I do not think anything is specifically forbidden. I think there are guidelines given by ACPO which suggest that interviews are tape recorded and particular care is taken not to mention the possibility of compensation or what other people have said about an incident. If we find any evidence about compensation or words are put into the mouth of the complainant by the police then we will act on that but we have not found that evidence to date. Q56 Bob Russell: The Committee made recommendations based on the evidence we had which disturbed us. There are now new guidelines. I would suggest that perhaps every case in which a request is made to you should be looked at in that light because, in the light of what you said and what we know historically, it seems surprising surely that only two cases have been referred, especially given that both of these convictions have been overturned. Surely more cases should have been referred? Mr Weeden: Those cases were referred on the basis of new information about the complainants who were shown to have almost certainly lied in other arenas. They were clearly miscarriages of justices and convictions that were unsafe and the Court of Appeal agreed with us. I do not think it follows that just because a way of investigating a case has changed that means all the cases previously investigated by the police in that type of case should then be referred to the Court of Appeal. As you know, the response from the government to your report was something you did not enjoy very much, I suspect, because it did say that there is effectively nothing wrong with dip sampling. Q57 Bob Russell: I think the Committee was somewhat shocked by that complacent response from the Home Office because the Committee was unanimous in its recommendations and we did take a lot of evidence. Finally, are you satisfied that all the applications that are being turned down were unfounded or is it the case that you had insufficient evidence to support a referral? Mr Weeden: It is the latter. Q58 Bob Russell: Are there innocent men in the twilight of their lives still rotting in prisons for crimes they did not commit? Mr Weeden: I cannot answer that. As a matter of statistics generally, I am sure there are lots of people charged with lots of offences who remain in prison, who are innocent. We have to find a real possibility that the Court of Appeal will find the conviction unsafe before we are in a position to refer. That is, I am afraid, a fact. Professor Zellick: If in any case we have a feeling, as one does in this kind of work, that an innocent man or woman has been convicted we will struggle with that case until there is literally nothing else that can be done to correct the errors. There usually is something because there is usually some basis for our supposition that something here has gone wrong. We must not fall into the other trap of assuming that every one of these people convicted is innocent because the fact is they are not. That is what makes it so complicated and that is why we have to follow the proper procedures and rules and apply the proper test to get to the answer. If we really thought, on looking at the thing as a whole, that something ghastly had gone wrong in this case we would really struggle with it until there was nothing else that could be done one way or the other. Q59 Bob Russell: Following up the previous answer you gave, should I be encouraging those who have had their applications turned down to reapply on the basis that common sense may yet prevail? Professor Zellick: I can only restate the formal position which is, if there is new evidence or argument, they are welcome to come back to us. If they come back to us with neither new evidence nor argument, it is unlikely an application will be accepted. Q60 Gwyn Prosser: Mr Weeden, based on the evidence we received during the investigation - and I support the views of Bob Russell about how affected we were by that inquiry - we did feel that something very wrong had taken place during the investigation of cases and in the way those cases were handled. You are giving the Committee, I would suggest today, a feeling if not of complacency a feeling that you are comfortable with the way those cases were investigated and the facts already drawn out with regard to the tiny number of cases taken forward reinforces that. Is the Commission satisfied that everything was in order and, if that is the case, where do we go from here? Mr Weeden: Yes, I think I am satisfied. I am confident that we have looked properly at these cases and we have tried to investigate and investigated things that we have not even been asked to investigate about them. We have unfortunately found no matters that allow us to refer the case. As we all know, these are a particularly difficult kind of case because they occurred a long time ago. Sometimes documents are just unavailable from the time of the offences. People have died who could have given useful evidence and there are all sorts of problems, but the Court of Appeal today is saying that the judge can cure, if that is the right word, all these defects by appropriate warnings and directions to the jury that they must not convict unless they are absolutely sure, bearing in mind that there are these particular difficulties with the evidence. When the jury comes back and convicts, that is a problem. On the number of complainants argument, there are a number of these cases I have seen where evidence has been brought that the various complainants who gave evidence against the same individual had not seen each other for 40 years and had not been in touch. That has often been evidence at the trial, which is quite powerful evidence for the prosecution. As Professor Zellick says, undoubtedly some of these people committed these offences. I am equally sure that some of them did not, but we have to come back to our requirement under the law to find a real possibility that the Court of Appeal will quash the conviction. Q61 Gwyn Prosser: Professor Zellick, when you gave evidence to us in 2004 you told us that we were pushing at an open door - that was the expression you used, I think - in requesting that the Commission to be more proactive in looking at the wider picture of historic sex abuse cases, investigative techniques used and the common factors across the range of cases. I do not know if you remember that conversation. Can you tell us what the Commission has done since January 2004 to pursue these issues? Is the door open? Professor Zellick: I have to confess I do not remember that particular exchange very clearly. Mr Weeden is the person who really engages in the dialogue on these matters on our behalf with outside bodies. I am sure the door is open. It always is open. If it were the case that we had made some fundamental mistake, if for example it were true that we have so to speak white washed an investigative technique underpinning a number of convictions and those techniques were such that those convictions cannot be regarded as safe, that mistake on our part would be correctable by way of judicial review. I am not seeking to stimulate even more judicial reviews but I am saying we recognise that we are not infallible. That is a mechanism that exists to put us right if - and I have to emphasise the "if" - we have erred in that regard. I am not satisfied that we have and it does not follow that in all the cases we have looked at where there have not been references the convictions were indeed based on the sort of evidence that leaves you profoundly unhappy. There is that mechanism and it is right that it should exist. Q62 Gwyn Prosser: In the same evidence session in 2004 you told us about a pilot project in mandatory interviewing of applicants in cases of historic sex abuse convictions. Do you remember that exchange? Professor Zellick: I certainly remember the project. Q63 Gwyn Prosser: What are the results of the project? What progress has been made? Professor Zellick: Because the sample was so small, as a pilot project, it was wholly inconclusive. It has not given us the basis on which to say that we should routinely interview applicants. We do of course interview applicants whenever we think it will be helpful to do so. There are many circumstances when it is. Should we seek to interview applicants routinely in every case in the way they do in Scotland? I admire that feature of the Scottish procedure. It may be that simply as a matter of good process we should. We have not the evidence to say that it will make a difference in the cases in which we now do not, but you might argue that it is something that we should do. However, in present circumstances - I refer back to our earlier discussion this morning about delays and backlogs - it would require an investment of resource and of case working capacity that would undoubtedly impact on our ability to review and conclude cases. Against that and the absence of compelling evidence that it would make a difference, we have decided not to go in that direction at the present time. Q64 Gwyn Prosser: You cannot afford to develop those plans and it is shelved? Professor Zellick: It is something on which we have an open mind and we will definitely come back to it in the future but, at the present time, we will limit our meetings with applicants to those cases where we judge it to be particularly desirable to do so. Q65 Chairman: It goes without saying that any form of sexual abuse of children is a vile crime which can have lasting effects. There is no if or but about that. However, there is an uneasy feeling, justified or otherwise, that some of the people who are in prison, who have been convicted, are not guilty and that feeling lingers. It may not be justified but nevertheless that feeling lingers, perhaps because the people concerned who have been convicted are so determined in proclaiming their evidence. One could say cynically, "That is not unusual about people who have been convicted" but there is an uneasy feeling while accepting of course that such crimes did take place and undoubtedly some involved were guilty. Professor Zellick: I do understand that and I share those misgivings. That is why in our own submission to the Committee this is one of the areas that is listed as a cause of concern in the context of possible miscarriages of justice. Q66 Chairman: What proportion of current applicants have legal representation? In conjunction with that, can you give us any comparative success rates for referral of applicants with and without legal representation? Ms Kneller: We estimate that approximately between 40 and 50% of our applicants are legally represented. Of cases that are referred, 70% of applicants are legally represented. Q67 Chairman: And the success rates for those with and without legal representation? Ms Kneller: Do you mean the quashing of the convictions? Q68 Chairman: Yes. Ms Kneller: I do not think that is data we have. Q69 Chairman: In so far as there is any further information you could send us, that would be useful. Ms Kneller: Certainly. Professor Zellick: It is difficult to know what to deduce from the statistics. We see that if you have legal representation you seem to stand a better chance of being referred. That mirrors the comparable evidence in the courts and in tribunals, particularly tribunals where those who are legally represented stand a better chance of success than those who are not. In a sense, that sounds like common sense. It may or may not reveal the true picture here because the applicants whose cases are referred are applicants whose cases appear to have more merit and, because of that, their lawyers may be hanging in there after the appeal in the way that those applicants whose lawyers have deserted them do not have assistance because their legal advisers did not share their view that the conviction was questionable. You never know what is cause, what is effect, how you account for these figures, but I do think that in a significant proportion of these cases the lawyers are still there because they feel there is something to be fought for on behalf of their clients. Q70 Chairman: In so far as there is any further information on this, it would be useful. There has been a decline - I suppose we should certainly welcome the fact - in allegations of police misconduct which came so much to the fore, which led to the organisation being formed in the first place. Have you noticed a marked decline in these allegations of police misconduct, better behaviour by the police, a lower rate of false accusations or some other factor? Professor Zellick: The great watershed I think was the Police and Criminal Evidence Act 1984 which represented a step change in the approach, conduct, behaviour and supervision of criminal investigations by the police. It may or may not be the only explanation but the fact is that some of the endemic problems that disfigured the criminal justice system in past years where you had widespread dishonesty, impropriety, corruption within whole sections of particular police forces and that cast a real shadow over the quality of policing in this country are - in my view, I think it is true to say - a thing of the past. A good number of these cases with which we are still dealing go back to those old days where convictions are still coming to us, tainted by the corruption and impropriety within particular police forces, but they are historic cases in the main. What we do find and I imagine one will always find is individual police officers who are biased, who are prejudiced, who are dishonest, who believe that the person is guilty or, if he is not guilty of this, he is guilty of something else and he is going to take the rap for this. There is no way that one will eliminate that from the scene, but the kind of institutional impropriety that I think was true in the past does happily seem to have been replaced. Mr Weeden: I would agree with that. We certainly do not get the same sort of allegations that were made in the past and, if anything, I cannot remember ever doing a case with a serious allegation against a policeman for a year or two now. Chairman: That is considerable progress which I am sure we all welcome. Q71 Mr Browne: I have a few loose ends which the Committee wishes to raise before the end of the session. One of them is about international comparisons. As I understand it, the Commission is an unusual body if you look at it across the board. I have in my notes here that other countries, including Canada and New Zealand, have taken an interest in the development of your workings and I wonder if you could briefly expand on what lessons there are to be learned from elsewhere and what lessons we are teaching people in other countries? Professor Zellick: This country took a pioneering step when, as a result of the Runciman Royal Commission, it decided to establish a body of this kind and then Scotland followed suit with something fairly similar shortly thereafter. I think it remains a beacon. It remains an institution of which we should be incredibly proud. The interest that I discover when I go abroad is quite remarkable. Canada struggles still with the old system we had here where the matters are dealt with within the Ministry of Justice, done in a very professional way and with a greater degree of detachment than was true here in the past or even true in Canada in the past, but nevertheless there is considerable interest in Canada. In the United States, they simply do not believe that such a body could be created and could function with the degree of independence and autonomy that we have. Lawyers in other countries simply are astonished that you can have a body like this which in effect sends cases back to the courts and says, "Do it again. You may not have got it right." They are absolutely astonished that we can do that and continue to enjoy the respect and command the confidence of the courts of this country, which we do. There are lawyers and others who work in the miscarriage of justice field around the world who simply marvel with astonishment that we have a legal, constitutional, political and parliamentary culture that permits an organisation like this to function and to flourish. Although they are our critics and many people are a bit jaundiced with how things have gone over ten years, we just need to I think take stock of the situation, compare the experience with the situation almost everywhere else in the world and with how it was here before we came into existence and conclude that, whatever our imperfections, whatever our faults, we have created a remarkable organisation that will and must endure and makes an invaluable contribution to the administration of justice. Q72 Chairman: I do not think you will be able to persuade President Bush to bring about such an organisation in the States. Professor Zellick: I have not had the opportunity. Q73 Mr Browne: There are two other questions about the composition of the Commission and one of them is are you happy that the composition has sufficient numbers of women, people from ethnic minorities, sufficient geographic and social diversity to undertake the work it does to the best of its ability? Professor Zellick: The first thing I have to say is I love all my colleagues dearly and I could not hope for a better group of commissioners. It is true but it does not really answer your question. I do remember saying last time I was here, I think Mr Chairman in answer to some penetrating questions from you, that appointment of commissioners is a matter for the Home Secretary and not for me, but I do not want to dodge the question. The most important thing, more important than anything else, is that we have commissioners who can do the work. This is not the kind of public body where people turn up once a month for a board meeting, have a few words to say about a policy paper prepared by officials, go away and come back a month later. This involves work which is incredibly exacting, challenging and important. Q74 Chairman: Women are quite as capable as men. It is not some exclusive ability that men have as compared to women. Professor Zellick: That is why we have women commissioners. In carrying out the appointment process and in accordance with the law, the only thing that can matter is the quality of the applicants and their ability to do the job. From the moment I arrived when there was not a single woman member of the Commission, I was very anxious indeed that that should be put right, for example. By 1 January we shall have two women members. Should we have more? I assume we should. Q75 Chairman: I will answer the question for you. Yes. Professor Zellick: We need to stimulate the right applications. I was not involved in the most recent round of appointments because I was not at the Commission at the time but I have no doubt that the two men and one woman appointed were the most well qualified and most suitable from among those who submitted applications and therefore I do not think the process can be faulted. Q76 Mr Browne: Do you think the balance between lawyers and non-lawyers is right? I understand that you are required to have a minimum of a third lawyers. Do you think that is the right number? Is it better to have more? Are the non-lawyers given the training or the insight that they need to contribute as usefully as the lawyers on the Commission? Professor Zellick: The answer to the second part is yes, certainly, and it is amazing how effectively and indeed quickly they pick up the necessary tools to do the job. The truth is that we are moving away from the representation, if I can use that word, of non-lawyers. We have lost a number so that by January the vast majority of commissioners will be lawyers. One third would not be enough. We are reaching the point where we are becoming very lawyer dominated and I can understand that there might be reservations about that because we were very much established as a multidisciplinary body. The lay view is important to us. When I think of the contribution made to our deliberations and our work by the non-lawyer members, I know it is very considerable indeed. A lot of the work is very legal, is very technical, is very difficult, but I am conscious that there is a balance to be struck there and I have to admit that we are moving in the lawyerly direction. Q77 Chairman: I am looking at the list of commissioners and I do find it surprising that women are so few. You say two more have been appointed but on the list which I have in front of me there is one named out of all the men. When we question the police, equal opportunities and other bodies, we are always told the same, that we want the most capable people. That is never in doubt. Of course we want the most capable people. We could hardly argue the opposite but we do expect it to be recognised that half the human race is as capable as the other half and act accordingly. Perhaps the House of Commons is not the best place to preach. Professor Zellick: I do not quarrel with that. I can only say that the appointments do not rest with us and that is of course as it should be. The point also that has to be borne in mind is that the reduction in the number of commissioners from 16 to 11 has meant that we have had fewer opportunities to redress the balance. If we had stuck at 16 we might have made much better progress. Q78 Mrs Dean: Even the House of Commons has a better record than one in 16. Professor Zellick: It will be two in 11 as from January. Q79 Chairman: The Commission says it is taking steps to capitalise on the data in its accumulated case records. Can you or one of your colleagues give us a progress report on what is being done and what extra resources have been made available? Professor Zellick: It comes back to what we were saying a little earlier about granting access to independent researchers, which we have done to a limited extent. We have two working in the Commission on a part time basis, not at our expense. We have no funds available for supporting research. We did make inquiries. We approached the Home Office Research and Statistics Unit but they made it plain they did not have funds to support work of this kind. We are also quite keen that it is work that should be carried out independently of us. It will be interesting to see how these two particular researchers fare and what information they come up with. My view on some of this has changed since I last came before the Committee. I had a fairly simplistic view then that somewhere lurking in the 6,000, 7,000 or 8,000 cases that we closed were nuggets of value that could somehow be mined and unearthed and would be of great benefit to the criminal justice system. I very much doubt whether that is the case, first because the fact that those cases were closed and applications rejected means that they did not disclose a problem of a particular conviction in that case and, secondly, because they are all now very dated. Many of them were dated even before they came to us. There have been so many changes in the criminal justice system that the likely problems of which they complained or which they exemplified have long since been attended to. We have made some very considerable strides in criminal justice, criminal procedure and criminal law over recent years. Where I think the database may be useful and where researchers may come across things of value is, for example, in relation to our own internal workings. One of the researchers, Professor Hodgson, is working on a study that includes legal representation, the very issue that was raised with us just a few moments ago. That may well reveal more information about the value to applicants of legal assistance in an objective and supportable way. What we will continue to do is draw on our experience, particularly our recent and contemporary experience, in commenting on problems in the criminal justice system or proposed changes like the proposed revision of the test of safety in the Court of Appeal, Law Commission proposals and so on. We do have a considerable experience and we do therefore take these opportunities to comment whenever we can on the basis of our knowledge and experience. Chairman: Can I thank you in conclusion, Professor Zellick and your colleagues, for coming along today. I think my colleagues would agree with me that it has been very useful to have your views and answers to what we believe to be very important questions on your organisation. You mentioned that other countries are surprised that we have such an organisation but we know the absolute necessity for the Commission and why it came about in the first place. Thank you very much indeed. |