The work of the Criminal Cases Review Commission - Justice Committee Contents

Examination of Witnesses (Questions 1-19)


10 MARCH 2009

  Q1 Chairman: Welcome. I will have to look at my list because there are so many names: Mr Foster, Chairman, Mr MacGregor, the Deputy Chairman, Mr Albert, the Principal Director, Ms Kneller, Director of Casework, all from the Criminal Cases Review Commission. You are not really allowed out very often, are you, into the fresh air, so it is very good to see you today. In 2006 you came within the remit of the Home Affairs Committee and they heard evidence about your internal restructuring. There was certainly very interesting evidence. I noticed, for example, that you were asked about the role of the Chief Executive, and Professor Zellick, the then Chairman, was asked about the decision not to have a chief executive and whether this was a good idea, and he said, "We did not take the step of removing the post of chief executive without thinking it through very carefully indeed." Why have you now got the post again, bearing in mind the financial pressures, which we will come on to?

  Richard Foster: Indeed. I would say the following things about that. First, when my predecessor and the commission took the view that the organisation did not need a chief executive it had a full-time chair who was operating, or intending to operate, both in an executive and in a non-executive capacity. Subsequently, Professor Zellick became a part-time chair and subsequent to that, a couple of months ago, I was recruited as a part-time non-executive chair. So I think the circumstances in which the organisation finds itself are rather different from the ones in which my predecessor took that view. It is not just my view as in-coming chair that the organisation ought to have a chief executive; that is the view of the entire commission which it had reached before I took up post, and it is also the view of our sponsoring department, the Ministry of Justice. I think it would be very strange to have a modern organisation that did not have a single person who was in a position full-time on a day-to-day basis.

  Q2  Chairman: So is Professor Zellick rather old-fashioned in his views or just saving money?

  Richard Foster: I think you would have to ask him why he came to the view he did.

  Q3  Chairman: No, you have got a feeling about it, obviously.

  Richard Foster: My own view is that it is right that we should have a chief executive, and I think the organisation needs the sort of grip that a chief executive working full-time can bring to bear.

  Q4  Chairman: You are in a very difficult position financially over the next few years. You have calculated that your budget has been reduced by £300,000 in real terms, you have got a corporate planned policy of not replacing staff unless absolutely necessary and you have stayed in budget by doing that, and you are looking to natural wastage and some cost savings. What are you going to do in the third year?

  Richard Foster: We have been facing a reducing budget now for several years, and that continues throughout the current SR period to the end. We have calculated that the gap by the end of that period will be of the order of 1.8 million, though that obviously depends on the suppositions about the rate of inflation which may or may not turn out to be entirely correct. The organisation has in fact produced very significant performance and productivity gains over the last couple of years, even though it has faced budgetary reductions during that period, which I think demonstrates that there was a bit of scope for economy, and our view is that there remains scope for further economy for efficient and effective management. Quite when we will get to the end of that process is a very difficult judgment to make and, after two or three months in, I would hesitate to make it. I do not think we are there yet, but we will get there within a year or so, I think.

  Q5  Chairman: It is not that difficult a judgment to make actually because we are in a recession. You are neither the kind of public expenditure which people look for in a recession, nor can you possibly be exempt from the public expenditure tightening which will happen as soon as we show any signs of coming out of recession. You have given us figures about your reduction of the delay in allocating cases to individuals to be dealt with. Can you give me a picture of the scale of the backlog in terms of how many people are waiting for their cases to be decided or have not yet been allocated?

  Richard Foster: If you had asked me, or my predecessor, a couple of years ago, the backlog would have been about 220 or 230 cases not allocated. As of today it is around 78.

  Q6  Chairman: It is not just unallocated; it is also the cases which are going through the system?

  Richard Foster: Indeed. That is unallocated cases. If you look at serious cases for a minute, the generality of cases, the most serious cases would be waiting around three or four months to be allocated, compared with 20 months a couple of years ago.

  Q7  Chairman: What is the average time to resolve cases?

  Richard Foster: The average time to resolve cases is 12 months to resolve about 85% of cases, 18 months to resolve 90%, and that, again, is a reduction on previous times. So we have both reduced the backlogs, allocating cases quicker and processing them more rapidly, while at the same time getting roughly the same number of referrals and the same level of outcomes that we have in the past.

  Q8  Chairman: How significant have historic sex abuse cases, child abuse cases, been in the backlog and how big an element are they in the backlog that you have now?

  Richard Foster: I will need to turn to my colleagues to answer that. Sex abuse cases and care home cases are amongst the most difficult that we deal with, for familiar reasons: it is 20 or 30 years ago; adults are giving evidence about what happened to them, or what they thought happened to them, as children; documents have been destroyed; it is very difficult to locate other witnesses; quite often the person who is accused may struggle even to remember the individuals as children; so they are very difficult cases in their nature to deal with.

  Q9  Chairman: There is a significant number of people, perhaps more than in any other crime, who to this day insist on their innocence.

  Richard Foster: Yes.

  Q10  Chairman: I am just trying to get an idea of how significant it was in your backlog of cases.

  Karen Kneller: I cannot say how many are waiting to be allocated of care home cases. I can say we have had around about 40 applications, which includes those that we have dealt with, those which are currently under review and those which are waiting to be allocated. If the committee wants the precise number of cases waiting to be allocated, then that is something we could furnish to you afterwards.

  Chairman: If you could let us have that, it would be very helpful.

  Q11  Julie Morgan: You have obviously got access to a unique range of data, which nobody else has, really about how trends in applications to you are going and how it is affected by different forms of investigation. Have you got any sort of overall view, or could you give us some idea of what sort of trends you have seen?

  Richard Foster: If I set aside Northern Ireland, which we also cover, I think the situation, for obvious reasons, is rather different. The main trend that you see is that the classic historic miscarriage cases—that would be cases arising from improprieties in police procedures, the sort of things that went on pre PACE—have largely, if not entirely, disappeared now (the sort of verballing of suspects and so on). What you see a lot more of nowadays is cases that become problematic because of issues around scientific evidence. That is quite a pronounced trend. We continue to see a large number of miscarriages that are around non-disclosure of evidence, and then, in domestic violence, sex cases, we see quite a high number of cases which become problematic because of issues about reliability of witnesses. I think those would be the main trends.

  Q12  Julie Morgan: Would you think that police procedures have improved, or is it just that some things are now not acceptable that were acceptable in the past?

  Richard Foster: I think it is a combination of the two. I think PACE was the great watershed in the Police Service. I hesitate to say it, but my previous job was chief executive of the Crown Prosecution Service and I think that some of the changes that have come in around charging and the involvement of lawyers in the front end of the process may also have assisted there as well.

  Q13  Julie Morgan: There is a proposed study of cases being discussed with the Ministry of Justice. Could you tell us about what that is?

  Richard Foster: It is not quite at that stage yet. One of the things I discovered on taking up post is that we do not have a structured database[1] within the organisation. If you ask questions of the kind you are asking me, there is no systematic way that all of that is fully recorded; so the first thing we are doing is working with the Ministry of Justice to establish that. When we do that we want then to move on, hopefully, to look at two areas. One is what does that data tell us about systemic causes of miscarriages, and then, secondly, is there any way that we can use that data, or other procedures, to give ourselves more external assurance than we have got at the moment about the reliability of the decisions that we come to? We know (and this may be an area you want to come on to question us about) what happens in the cases that we refer to the courts, because the courts look at them independently. What we do not have is any process to give us independent assurance as regards the cases that we do not refer, because we are not inspected externally, there is no other external Q and A process. So that is the other area I am hoping, working with the Ministry of Justice, we can do something about.

  Alastair MacGregor: Subject, of course, only to judicial review. Cases are occasionally judicially reviewed if we fail to refer a case; so there is, as it were, a court sanction on the other side as well.

  Q14  Mr Heath: Only if you act unreasonably.

  Alastair MacGregor: Indeed.

  Q15  Dr Whitehead: On your website you state clearly that legal representation is not required to make an application. Does it strike you that that is perhaps rather like saying everyone is equally able to dine at the Ritz? Bearing in mind your major, shall we say, clients for applications, the prison population, have recently been determined, 48% of them, as having a reading age lower than that expected of an 11-year old, it is inherently improbable that that proportion at least of the prison population could perhaps mount an application unaided. Recently I think the Criminal Appeal Lawyers Association suggested that a specialist appeal lawyers list might be produced, which does not appear on your website at the moment. Do you feel that perhaps such a lawyers list might be a way of making the claim on your website more of a reality?

  Richard Foster: Just to take that latter part, yes, that is something I would like to take away and pursue, if I might. I think it is a very good suggestion indeed. One of the areas that does worry us, it worries me as in-coming chair, is precisely that front-end of the process, and we have been doing some work. Justin, who is sitting behind me and who deals with communications specifically, has been doing work to run training programmes in prisons to prepare materials, and so on, precisely to assist prison officers and, therefore, prisoners to make applications in that way a bit better. We have also been looking at whether or not we can modernise the way that people approach us at the moment. To put it honestly, you can approach us in any way that you like providing you send us a letter, as it were, and I think it would be better if we could do more over the Internet, if we could do more face-to-face. So there is a range of things that we would want to do to make it easier for people who are amongst the most helpless people in our society to approach us more readily.

  Q16  Dr Whitehead: Are you monitoring at the moment where applications are assisted by a solicitor or they are not and what relationship perhaps that fact has to the rates of success in referral and, indeed, ultimately whether the case is quashed?

  Richard Foster: I will ask Alastair to say a little more about this. It is certainly the case that applications that are assisted by lawyers are more likely to succeed than those that are not. The causality is a bit more problematic. Is it the case that because they are assisted they do better, or is it case that lawyers tend to have a feeling about particular cases, perhaps cases they have been involved in, and, therefore, tend to support the cases that are likely to be the stronger cases? So which way round the causality goes is a bit more difficult to determine.

  Alastair MacGregor: I think that is right. There is uncertainty as to whether lawyers are more likely to take up a case that they believe has something in it than if they talk about the case and say there is nothing there. So, one would expect them to some extent to be self-selecting, albeit it is certainly to the advantage of the applicant and in our advantage if there is good legal representation. Your point on the website about legal representation is not required: it is not the same as saying it is not helpful. It would be wrong for us to exclude entirely people who did not happen to be able to get access to a lawyer or perhaps did not get legal aid. You also mentioned a little earlier on this idea of a list of lawyers. This was, of course, before Richard's time, but we used to have such a list on the website. Difficulties arose in that connection. Were we recommending these particular lawyers? What happened if it turned out that someone on the list was not very good after all or we had forgotten to put someone on the list? In those circumstances, we felt there was actually some difficulty in having, as it were, a list of recommended lawyers. So it is something we considered, and I am sure we will consider again, but it is not entirely without difficulty.

  Q17  Dr Whitehead: Could I turn to your relationship with the Court of Appeal, particularly the position which you found yourself in relating to where laws had been changed prior to an application being referred to the Court of Appeal and the situation following a judicial review prior to the Criminal Justice and Immigration Act 2008, which did indeed give the Court of Appeal powers to reject a referral by you when that referral was due to a change in the law. Has that change in the law made a particular difference in your approach to referrals to the Court of Appeal, and would you say that the events preceding the change in the law have damaged relations in any way between yourself and the Court of Appeal?

  Richard Foster: Again, I am going to turn to Alastair in just a moment. Section 16, which is the section of the Immigration Act[2] I think you are referring to, is very new. It is what Parliament has legislated and, obviously, we will proceed accordingly. It really is too soon for us to have the experience of how things are going to be. I do not think it would be fair to say that there was tension between us and the Court of Appeal. I think it would be fair to say this was an area where the law was uncertain and inconsistent and almost inconsistently inconsistent; so it is helpful to have at least the degree of certainty that we have now got. Whether going forward it will lead to further problems, I think it is too early to say.

  Alastair MacGregor: I am not sure there is very much I can add to that. As far I know, we have not yet had a case where we have had to take into account the new section. The relationship between ourselves and the Court of Appeal, I think, sometimes is referred to as one of creative friction, and that is the way it should be, the way it has to be, but Parliament has decided how to resolve that particular issue and there clearly was at least arguably a problem. We will see how it works out.

  Q18  Chairman: There are differences between the different parts of the United Kingdom in the extent of referrals of cases to your equivalent bodies and the extent to which cases have been quashed as a result of these proceedings. The proportion of cases quashed in Scotland, where there is a separate commission, a completely separate system, is higher than it is in England and Wales. The number of cases referred from Northern Ireland, where it is you that is doing it, the proportion is higher than for England and Wales. Do these differences concern you?

  Richard Foster: They certainly concern us in the sense that we have looked very hard at them and why it may be the case, and we are still in the process of doing that. There is some evidence which literally came to light within the last 48 hours, which suggests that actually the position between Scotland and ourselves is not different. We get between 800 and 1,000 cases a year, and historically we have referred around 4%, slightly less than 4%, and of the 4% we have referred there has been a 70% "success"—that is to say the court has quashed the conviction or changed the sentence. In Scotland the referral figure is 8% but the success rate is the same, 70%. So that suggests that the Scots, on the face of it, are better at spotting cases and referring them than we are, but they get roughly the same outcome when they do refer. However, these are very small numbers, particularly in Scotland. In Scotland you are talking about 100 cases[3], and an 8% referral level means eight cases. That is the first thing to say. The second thing to say is, if you look historically, of the 4% that we refer, nine out of 10 are referrals on convictions and only one in 10 is a referral relating to sentence, whereas in Scotland the figures over the past few years have been closer to 50:50. When we looked into that, we discovered that the sentencing referral figures are very high because of a particular case, the case of Flynn. I could go into this.

  Q19 Chairman: You could write to us about it, which would be helpful.

  Richard Foster: It is an ECHR case, as a result of which the law in Scotland has been clarified on sentencing and, as a result of that, there were 27 further applications to the Scots. If you take those figures out (and when we spoke to the Scots only today they suggested that that was an exceptional number), our figures look almost exactly the same as the Scots. So it may be that what appears to be a bolder approach on the part of the Scots is nothing more than an anomaly around these particular sentencing referral cases.

1   Note by witness: The database we have does not hold information in a way that lends itself to identifying themes and issues in the cases we have dealt with. Back

2   Note by witness: The legislative change referred to is the insertion of section 16C into the Criminal Appeal Act 1995 by the Criminal Justice and Immigration Act 2008. Back

3   Note by witness: That is, about 100 cases dealt with per annum. Back

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