House of Commons - Criminal Cases Review Commission

Criminal Cases Review Commission - Justice Contents

3 Resources, investigatory powers and practices

Resources

FINANCES

30. Most written evidence submitted to us supported the notion that the CCRC is an under-funded and under-resourced organisation, facing a sharp increase in its workload at the same time as budget cuts under austerity. This is perceived by many to be one of the CCRC's most pressing problems, with numerous witnesses blaming budgetary pressure for long delays and what they see as poor quality investigations. We were told that "the CCRC are hindered in carrying out effective investigations by limited resources and funding",[62] that it "needs more resources and staff to cope with the significant rise in applications and to reduce the waiting lists",[63] and that it "needs more money, so it can hire more staff to investigate cases more quickly and in greater depth."[64] As well as these issues, when asked about the CCRC playing a wider role in feeding back into the criminal justice system, which we discuss below at paragraphs 52-53, both Richard Foster, Chair of the CCRC, and the Ministry pointed out that this kind of work was constrained by resources as the CCRC is a "casework organisation".[65]

31. As a non-departmental public body the CCRC is funded by the Ministry of Justice through a grant-in-aid. Early in 2014, Richard Foster told us that "austerity came to us rather early."[66] Between 2009/10 and 2014/15 funding to the CCRC fell from £6.511 million to £5.250 million.[67] Adjusted for inflation this amounts to a 30 per cent cut. This means that whereas at the end of 2004/05 the CCRC had 42 Case Review Managers at full time equivalent,[68] as of the end of the 2013/14 financial year this number had fallen to 34,[69] well below the 50 that the Commission targeted in its early years. These budget cuts have come alongside a sharp increase in the CCRC's workload. The successful introduction of an Easy Read application form in 2012, alongside other work to ensure greater access to the CCRC's services, led to a 74 per cent increase in the number of applications to the Commission from 933 in 2010/11 to 1625 in 2012/13.[70] In combination these competing pressures have meant that, according to Richard Foster, in real terms "for every £10 that my predecessor had to spend on a case a decade ago, I have £4 today", which he described as "the biggest cut that has taken place anywhere in the criminal justice system."[71]

32. One result of this has been gradually increasing delays. The average waiting time after application to the start of the CCRC's review of a case is currently 8 months for an applicant in custody and 13 months if the applicant is at liberty.[72] We were told by Paul May that the case of Eddie Gilfoyle was still undergoing investigation, four and a half years after application, which Paul May called a "disgrace".[73] We are aware that the CCRC wants to reduce these queues substantially, although it is of the opinion that without additional funding this will be very challenging. In January 2014 Richard Foster told us that the Commission needed about an extra £1 million in order to clear its queues.[74]

33. When the Ministry was questioned on the rationale for cutting the CCRC's budget while its workload was increasing, it said that the cuts were made due to budgetary pressure on the Ministry as a whole under austerity. It further explained that the "cuts that they have experienced here are not as deep, for want of a better word, as those that have been made in the Ministry of Justice as a whole."[75] The CCRC successfully bid to the Ministry for a £500,000 temporary uplift in its budget in both the 2013/14 and 2014/15 financial years.[76] When we asked what assessment was made by the Ministry of what the effects of the cuts would be we were told that this consisted of "constructive negotiations with the Commission" which was asked "to propose efficiencies and savings, and how it could do better for less", including a self-assessment. While the Ministry's Annual Report 2013/14 contained a projected Resource Departmental Expenditure Limit budget for the CCRC in 2015/16 of £4.156 million, which would constitute a budget cut of over 20 percent on 2014/15, we have been assured that this was "a worst case scenario" and that the budget "will not be cut in line with [these] assumptions."[77] We have not, however, been told whether or not this means that the CCRC's budget is still facing cuts in 2015/16, albeit on a smaller scale.

34. The other aspect of the CCRC's funding that we have been told causes it problems is the lack of certainty in its budget and therefore the lack of ability to plan ahead properly. Richard Foster told us that the fact that the CCRC's budget was only agreed with the Ministry on an annual basis meant that by the time new staff were hired and trained the funds required to keep employing them might no longer be available. Karen Kneller added that this also meant that "core staff are looking to move on […] because we can't give them any certainty."[78]

35. If the CCRC is to function effectively it must be funded properly. We accept that the Ministry has had to find savings across the board and that it could not have predicted the sharp rise in the CCRC's workload. However it is now clear that the CCRC is struggling to cope with these additional applications at its post-austerity resource levels and, with the increased workload, is unable to deliver an improved service for less. The current level of delays is unacceptable and must be brought down, and this will inevitably require further funding. As so many of the CCRC's other issues are also blamed on funding, an increase should also make identifying areas for further improvement an easier task. We recommend that the CCRC should, as a matter of urgency, be granted the additional £1 million of annual funding that it has requested until it has reduced its backlog. Furthermore, the Ministry should engage with the CCRC in longer term budgetary planning so that the Commission can properly plan ahead and recruit efficiently, with a view to restoring it to a level of funding which enables it to eliminate lengthy delays in handling cases.

REMIT

36. A number of submissions have argued that the CCRC's resource constraints could be eased by restricting its remit to allow it to focus on more serious and deserving cases. At present the CCRC is under a statutory duty to consider every application to it that falls within its responsibilities, which includes all convictions and sentences in cases dealt with on indictment, summarily, in the Court Martial, and in the Service Civilian Court. Two areas of this remit account for around a quarter of applications: sentence-only cases and cases which were heard in the magistrates' court. With regard to the former category Professor Hoyle noted that "recently the Court has been fairly reluctant to allow challenges to sentences that seem to be disproportionate".[79] Glyn Maddocks similarly told us, "In fact, the courts have restricted what they feel they want to see in relation to sentencing cases anyway, so I do not think anyone here would disagree with some of the trivial stuff being taken out of their remit."[80] The CCRC has previously "questioned whether it should continue to review less serious offences" and noted, "The matter seems particularly pressing when our resources are so stretched." However it also recognises the "inherent difficulties in deciding what 'less serious' means", and has expressed concerns about cases being removed from its remit at a time when there is uncertainty about the effects the legal aid cuts will have on the number of miscarriages of justice, especially in the magistrates' courts.[81]

37. The latter category is notable for two reasons. First, the Royal Commission predominantly looked at cases in the Crown Court and did not concern itself with the magistrates' court, largely because of the nature and seriousness of the high-profile miscarriages of justice which led to its formation. We have been told that the "Royal Commission did not envisage the CCRC dealing with relatively trivial cases".[82] If it had been suggested at that time that the CCRC should deal with such cases, or sentence-only cases, Professor Zander, a member of the Royal Commission, did not think the Royal Commission would have agreed.[83] Second, the appeal options for a case heard in the magistrates' court are much broader than for a Crown Court case if the defendant pleaded not guilty, including the right to appeal to the Crown Court by way of a full rehearing of the case.[84]

38. It has not been suggested to us that the CCRC should be prevented from considering magistrates' court cases altogether. As the University of Warwick School of Law pointed out, "the magistrates' court deals with the vast majority of criminal convictions and the range of offences now classified as 'either way' offences has increased significantly and many of these are far from trivial in nature".[85] Professor Hoyle has suggested that this should be a matter of discretion for the CCRC, so that they are not under a statutory duty to review magistrates' court cases which they deem to be trivial.[86] Professor Zander proposed that applicants in such cases should be put to the test of "establishing first that it is in the public interest that it should go to the Court of Appeal, and only secondly whether it has merits."[87]

39. We acknowledge the serious consequences of every miscarriage of justice for the person convicted, no matter how minor the offence. Despite this, we also think that the effect of overturning a miscarriage in more serious cases is much greater and that the CCRC was originally envisaged as an organisation to deal with such serious cases. Given the serious funding constraints that we have identified, we are persuaded that the CCRC should have greater control over its caseload in order to better focus its resources where they would have the greatest effect. We recommend that the Ministry make statutory provision to allow the CCRC a discretion to refuse to investigate cases dealt with summarily, if they deem it not to be in the public interest to investigate, and a discretion to refuse to investigate sentence-only cases.

Investigatory powers

ENFORCEMENT OF THE EXISTING SECTION 17 POWERS

40. Under section 17 of the 1995 Act the CCRC has the power to compel a public body to produce documents or other material to it, to assist in its investigations. However, there is no specific mechanism for the CCRC to enforce this duty on public bodies if they are slow to co-operate or fail to do so altogether. We have received some evidence which suggests that there is occasional non-compliance with section 17 requests, as well as excessive delays. Professor Hoyle told us that the success rate for such requests ranged from about 67 per cent for local authorities to 90 per cent for the courts.[88] In his written evidence Paul May referred to a case he was aware of in which there had been a refusal to comply over a two year period.[89] Richard Foster said that "people usually comply in the end", but he also told us that he would welcome the addition of a time limit and a sanction to the power.[90]

41. In order to be effective and to reduce delays the CCRC's existing section 17 powers to require public bodies to disclose materials need to be supplemented by enforcement measures or sanctions for failure to comply in an appropriate amount of time. We recommend that the Government bring forward legislation to add a time limit for public bodies to comply with a section 17 request, unless there are extenuating circumstances, and an appropriate sanction in case of non-compliance.

THE EXTENSION OF SECTION 17 POWERS TO COVER PRIVATE BODIES

42. The CCRC has long asked for its section 17 powers to be extended to allow it to compel similar materials from private bodies by way of a court order. In contrast, such a power has existed for the Scottish CCRC since its inception. We were told by Richard Foster that "you can be confident that there are miscarriages of justice that have gone unremedied because of the lack of that power."[91] It has also been stressed to us that the need for this extension is a growing one, in part because of the privatisation of various criminal justice bodies and services, including the Forensic Science Service.

43. When we asked why the Government had not yet taken steps to introduce such a power, the Ministry told us that they "don't have a primary legislative vehicle at the moment to do so".[92] Richard Foster previously stated that this "is something that well-meaning officials have been telling us since 2006".[93] Professor Zander contended that this argument was "totally ridiculous" as "all it needs is one extra clause in a criminal justice bill. There will always be criminal justice bills, so it does not make any sense."[94] In written evidence the Ministry also pointed to its efforts to introduce this through a Private Members' Bill, specifically as a hand-out bill.[95] In February 2014 we were ensured by the Minister at that time that this was the intended way of enacting the extension. The Bill was not picked up by any MP successful in the Session 2014-15 ballot, although the principal clause in the Bill was included by John Hemming MP in his Transparency and Accountability Bill, which contained a series of other more contested provisions and was talked out at Second Reading.[96] The extension has therefore run out of opportunities to be brought forward this Parliament and it is unclear when the next opportunity to do so will be. Reliance on the Private Members' Bill route for crucial legislation is in any event unsatisfactory, considering the great difficulties which they face in securing passage.

44. The extension of the CCRC's section 17 powers to cover private bodies is urgently necessary and commands universal support. Successive Governments have no excuse for failing to do this and any further continuing failure is not acceptable.

45. It should be a matter of great urgency and priority for the next Government to bring forward legislation to implement the extension of the CCRC's powers so that it can compel material necessary for it to carry out investigations from private bodies through an application to the courts. No new Criminal Justice Bill should be introduced without the inclusion of such a clause. Our successor Committee should monitor the progress of this to ensure that it happens promptly, and should continue to put pressure on the Government if necessary.

Investigatory practices

46. An often repeated, although contested, criticism of the CCRC is that the investigations that it carries out are of a poor quality. Allegations which have been put to us range from claims that the CCRC was not being proactive enough in the way that it deals with applications, to individuals asserting that the Commission was unequipped to investigate and has wholly failed properly to follow all lines of inquiry in their cases, or cases which they have been involved with.[97]

47. A number of submissions to us alleged that the CCRC was a reactive, rather than a proactive, organisation. Mark Newby gave us his viewpoint:

Where this point is perhaps most apparent is in research undertaken by the University of Warwick, funded by the Legal Services Commission, which found a stark disparity in the success of legally represented applicants in having their cases progress past screening, to a full investigation, as opposed to unrepresented applicants. It found that 82 per cent of represented applicants got their cases past Stage 1 screening whereas only 50 per cent of unrepresented applicants managed to do the same.[99] One aspect of proactivity about which concerns have also been expressed to us was the level of engagement between the CCRC and applicants, including the perceived reluctance of Case Review Managers to meet applicants. Paul May told us that this highlighted an issue with variation of approach between Case Review Managers, as some engaged very well while others shared very little information with applicants.[100] He contended that meeting with applicants more often "would enhance confidence in the CCRC and (in the significant number of instances where applicants are unable to express themselves fully in writing) assist the investigative process."[101] He also noted that the variation in the expertise of Case Review Managers is not properly utilised as "there is random allocation of cases, because that does not necessarily play to the strengths of Case Review Managers."[102]

48. Professor Hoyle disputed the allegation that the CCRC were not generally proactive, as a result of her ongoing research on the Commission with the University of Oxford. She argued that many cases were appropriately investigated by going through the bundle, and that "it is important to remember that this desk-based work is investigation [her emphasis]." Her research found that the CCRC carried out investigations 'beyond-the-bundle' in over a third of cases, and that "the CCRC undertakes further investigations - including section 17 requests for data - in an overwhelming majority of cases." She therefore concluded that "there is no evidence that the CCRC typically fails to conduct thorough investigations."[103] In response to this point Dr Dennis Eady, of the Cardiff University Law School Innocence Project, questioned whether it was indeed a positive as "people's expectations with the CCRC […] are that the CCRC will be proactive in some sense in every case, and that they will look beyond what the person is saying and what is in the bundle, so for an organisation to be proactive in only a third of cases is not necessarily a very positive impression."[104]

49. Even when the CCRC does investigate a case, we have been told that it often does so ineffectively. Des Thomas, a retired Detective Superintendent, was highly critical, calling the CCRC "a badly managed inept organization that lacks the knowledge required to conduct high quality and valid reviews."[105] We received a number of pieces of evidence complaining of specific investigative failings in individual cases. In response to all of these allegations we were assured by Richard Foster that, despite assertions made to us that the CCRC's Case Review Managers were untrained,[106] all those who joined the Commission were fully trained in the specifics of their work through an induction training course "which is quite intensive" and they then underwent continuing routine training.[107] Furthermore, in his research on the CCRC Dr Heaton concluded that any deficiencies "are not due to the quality or thoroughness of the investigation" and that any risk that cases might be missed "was not attributable to a lack of either thoroughness or independence."[108]

50. We are concerned with the evidence that we have received on the variation between Case Review Managers, both in approach and in terms of expertise. While this does not suggest that there are serious systemic shortcomings in the CCRC's investigative work, there remains room for improvement even within its resource constraints.

51. We recommend that the Commission take steps to ensure that Case Review Managers consistently engage fully with applicants throughout the investigation in cases which progress past Stage 1 screening. As a matter of course this should include meeting with the applicant in all cases being given a type 3 or type 4 review, unless there are compelling reasons not to. We also recommend that variations in the experience and expertise of Case Review Managers be dealt with by assigning them to investigations more intelligently, so as to utilise fully their differing areas of proficiency and knowledge.

The CCRC's role in the criminal justice system

52. The CCRC's vision statement includes "enhancing public confidence in the criminal justice system" and "contributing to reform and improvements in the law". We have received evidence pointing out that the CCRC is in a unique position to feed back into the criminal justice system on things going wrong and the causes of miscarriages of justice, but that this is not happening in as comprehensive a manner as might be desired. Dr Carole McCartney, of the University of Northumbria, told us that "It is that feedback loop we would like. Let us learn from these cases they are dealing with and feed back to the Judicial Studies Board how bad character is leading to miscarriages of justice and so forth."[109] The CCRC and Ministry both accepted that a lack of resources was forcing the CCRC to focus on its primary purpose, which is casework, and the CCRC has accepted that it could be doing more in terms of feedback.[110] Bob Woffinden told us that he thought that the existence of the CCRC itself displayed a focus on just rectifying miscarriages after the fact rather than preventing them in the first place, which he sees as the wrong priority, "We need to make sure that the system functions properly first time, because it is costing the country millions of pounds and is creating awful distress for families, both the wrongly imprisoned and the victims and bereaved. I believe that more attention should be put on getting it right first time."[111] Commendably, the CCRC does allow academics to perform research about it, much of which we have cited in this Report, and has "created a research committee […] to build upon the growing body of independent qualitative and quantitative research about the CCRC and its work." It also presents to police forces and in prisons and responds to criminal justice consultations, including a submission of illuminating and well-researched evidence to our recent follow-up inquiry into joint enterprise.[112]

53. The Criminal Cases Review Commission, because it is the only body which investigates and refers to the Court of Appeal miscarriages of justice, is in a unique position to identify issues across the criminal justice system which lead to such miscarriages. We welcome the CCRC's willingness to allow academics to perform research alongside it and the steps it is currently taking to build upon that. We acknowledge that the CCRC is in a difficult position with regard to resources, but we think that there is a great benefit in preventing miscarriages of justice from occurring in the first place. Greater understanding within the criminal justice system of the causes of miscarriages of justice would benefit the falsely accused, victims, public safety and the interests of justice, and could produce a saving in time and in money which would otherwise be spent by the courts and the CCRC in subsequently overturning false convictions. We recommend that the CCRC should develop a formal system for regularly feeding back into all areas of the criminal justice system, from the police and Crown Prosecution Service through to the courts and the Ministry of Justice, on its understanding of the issues which are continuing to cause miscarriages of justice.

62 Holly Greenwood (CCR0035) Back

63 Horatio Goodden (CCR0008) Back

64 Centre for Criminal Appeals (CCR0027) Back

65 Q 122 Back

66 Oral evidence taken by the Justice Committee on 14 January 2014, HC (2013-14) 971, Q 1 Back

67 Criminal Cases Review Commission (CCR0055) Back

68 Criminal Cases Review Commission, Annual Report and Accounts 2010/11, HC (2010-12) 1225, p 24 Back

69 Criminal Cases Review Commission, Annual Report and Accounts 2013/14, HC (2014-15) 207, p 26 Back

70 Criminal Cases Review Commission (CCR0041) para 12 Back

71 Q 108 Back

72 Q 109 Back

73 Q 79 Back