Examination of Witnesses (Questions 20-33)
RICHARD FOSTER
CBE, ALASTAIR MACGREGOR
QC, COLIN ALBERT
AND KAREN
KNELLER
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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