Examination of Witnesses (Questions 1-19)
RICHARD FOSTER
CBE, ALASTAIR MACGREGOR
QC, COLIN ALBERT
AND KAREN
KNELLER
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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