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

Examination of Witnesses (Questions 20-33)


10 MARCH 2009

  Q20  Chairman: If you could write to us about that, it would be a helpful, because it would update our own evidence.

  Richard Foster: I will do

  Q21  Mr Tyrie: Could I ask a supplementary about the rationale behind your decision on whether or not to refer? If you have got a 70% success rate at the current level of referrals, if you take the next tranche down, we are talking about a spectrum, and presumably you will have a hit rate not of zero success rate, but of somewhere between zero and 70%, probably quite near 70%, and if you took another tranche that rate would fall further, because you are not doing this randomly, you are doing it on the basis of sophisticated casework analysis. Why have you alighted upon 70% being roughly the right figure?

  Richard Foster: This is the subject of some debate and soul-searching within the organisation at the moment. Some would say that it is not the case that what we have is a spectrum of increasingly marginal cases that we are looking at. So if you drew the line in a slightly different place, you would move from the 70% to, say, a 60% rate. They would say what is actually happening is that we have got a number of cases that, when we look at them in depth, we are fairly confident that there is a real possibility that the court will agree with us, and then there is a number that are very, very problematic indeed. So it may not be easy just to move the line a little bit. All I can say, on the basis of just a few months in post, is this. I have walked into an organisation of 80 staff and 11 commissioners, all of whom are absolutely passionate about miscarriages of justice and whose one aim in life is to identify those cases and, having identified them, to submit them. So I do not think there is any institutional reluctance to submit in the marginal case. That said, I remain at least a little worried that we may be erring on the side of caution rather than boldness.

  Q22  Mr Tyrie: I take that last remark, but you are applying a test that is not the balance of probabilities but a test much higher than that in deciding whether to refer, are you not?

  Richard Foster: Yes, it is certainly not the commercial test of balance of probability; it is a real possibility. That is a broadly drawn phrase, and I think deliberately so. The courts have from time to time looked at it and not sought to define it more closely. I think Lord Bingham said it was somewhere between a racing certainty and an outside chance, which I think is fairly broad.

  Q23  Mr Tyrie: That sounds like 50% to me?

  Richard Foster: I am not a racing man. It does give us a fair amount of scope to refer cases. All I can say in the time I have been there is that in the cases I have seen, if there has been a remote chance that the court might overturn, we have referred.

  Q24  Mr Tyrie: You are going to look at this and come back to us with some figures.

  Richard Foster: Yes.

  Q25  Mr Tyrie: A remote chance does not seem compatible with the figures that are in front of us, if I may say so.

  Alastair MacGregor: May I pick up on this one because it is very important. One has to remember that a 70% success rate, for want of a better word, does not mean that we are only referring cases that have a 70% chance of success. If, for example, one assumes that a real possibility means a 25% chance of success, your overall success rate will depend upon the number of cases, as it were the spread above that threshold. So if you were to assume that, out of an average dozen cases, four have a 25% chance of success, four a 50% chance of success and four a 75% chance of success, your average success rate will be 50%, not 25%, and, equally, if you were to assume a slightly different spread, say three have 25%, three have 50%, three have 75% chance of success and three are as near as damn it certainties, your success rate overall is going to be 75%. It is very easy, with respect, Sir, to misunderstand the effect of the overall success rate and say because you are actually having a 70% success rate, therefore you must be saying of each case it must have a 70% chance of success. That is absolutely not the approach that has been taken. The approach that has been taken is: what is a real possibility? A real possibility, we all recognise, does not mean a 70% chance of success; something lower than that will have a real possibility.

  Q26  Chairman: Some of the discussion which takes place between Mr Foster and Mr MacGregor that you were describing earlier, but we would be interested to hear any further outcome from these discussions. You said you walked into an organisation of 70 staff, but you are going to lose another six now, are you not, including case workers?

  Richard Foster: Yes.

  Q27  Chairman: And including at least one compulsory redundancy?

  Richard Foster: Yes.

  Q28  Chairman: Given the relatively small numbers, can you even keep up the improvements that you have been making if you lose staff to that extent?

  Richard Foster: I will have to be, if you will forgive me, slightly reserved in what I say because we are actually in negotiations at the moment; we are in a period of consultation. When McKinsey's came in and did a review of the organisation three years ago, they recommended changes that the organisation implemented, and at that time it became apparent that the case worker job—four case workers concerned—as then configured, simply was not needed any more. That was several years ago. Rather at that stage than do away with those posts, the organisation sought to see if they were ways the job could be changed and expanded so that it would continue to add value to the organisation, and we have tried to do that but unsuccessfully and, as a result of that, the organisation came to the view that it had to do away with the case worker posts in their entirety, and that was for a combination of the financial pressures on us, on the one hand, plus the fact that in business terms these posts simply did not add full value any more. To put it at its starkest, if I were given additional money tomorrow to hire staff, we would be hiring criminal reviewers[4], we might be hiring other investigators—

  Q29 Chairman: You would be hiring?

  Richard Foster: Criminal review staff.

  Q30  Chairman: Are they legally qualified staff?

  Richard Foster: They are a mixture of legally qualified, non-legally qualified, but they are the staff who actually investigate cases.[5]

  Chairman: So you still have a need, but it is one that you would choose to meet in a different way if you had the opportunity to do so?

  Richard Foster: Yes.

  Q31  Chairman: An opportunity you have not got, of course.

  Richard Foster: Yes.

  Q32  Chairman: We have considerable sympathy with your position. I think all of us as Members of Parliament are familiar with cases that we want to see progress through the system, and so I think you have a great deal of sympathy from us, but that leads us also to question some of the decisions, as we have in the course of these proceedings, about chief executives, even chairmen's remuneration and things like that. You might perhaps drop us a note about what happened to the Chairman's remuneration when the post went part-time.

  Richard Foster: Yes. The remuneration was reduced pro rata when the post went part-time.

  Q33  Chairman: This was not simultaneous with an increase, was it?

  Richard Foster: I would need to check on that. This was before I arrived.

  Chairman: That is why I thought I would give you the opportunity to check it. Clearly you are an organisation with particularly severe financial issues on which the public are looking, particularly the families affected, to achieve a lot. Thank you very much for giving to us this afternoon.

4   Note by witness: The post is known internally as "Case Review Manager". Back

5   Note by witness: Case Review Managers review the full range of the Commission's cases; Caseworkers generally review less complex cases. Back

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