Investigatory Powers Bill

Written evidence submitted by the Criminal Cases Review Commission (IPB 28)

Investigatory Powers Bill 2015-16

Summary

i. The Criminal Cases Review Commission ("the Commission") is responsible for the investigation of potential miscarriages of justice in England, Wales and Northern Ireland. The Commission currently has the power to access communications data under the Regulation of Investigatory Powers Act 2000 ("RIPA").

ii. The Commission welcomes the fact that the Investigatory Powers Bill ("the Bill"), as currently drafted, maintains the Commission’s powers to access communications data for the purpose of investigating alleged miscarriages of justice.

iii. The Commission considers that it is vital that it continues to have access to this data when necessary and that these powers are updated to take account of social and technological changes that have seen large amounts of communication move online.

iv. Whilst the Commission notes the concerns about the number of bodies who can access communications data, it considers that its unique and essential role in the Criminal Justice System justifies its continued inclusion in the Bill.

v. The Commission would be concerned by a threshold test which limited its power to access Internet Connection Records ("ICRs") or communications data generally.


Introduction

1. The Commission is grateful for the opportunity to provide evidence to the Committee. Having considered the call for evidence the Commission has concluded that the Committee would be best assisted by the Commission limiting its responses to the areas which directly impact upon the Commission, its powers and functions.

2. The Commission is aware that concern has been expressed about the number of bodies with access to communications data and, in particular, ICRs. The Commission has therefore sought to explain to the Committee why these powers are important to the Commission’s work and overall confidence in the criminal justice system.

Background

3. The Commission is an Executive Non Departmental Public Body established under the Criminal Appeal Act ("CAA") 1995 to review suspected miscarriages of justice in England, Wales and Northern Ireland.

4. Any person convicted of a crime in England, Wales or Northern Ireland may apply to the Commission for a review of their conviction and or sentence. If the Commission considers that there is a "real possibility" that the appropriate appellate court would not uphold the conviction or sentence, it may refer a case back to that court for a further appeal. [1]

5. Furthermore, under s.23A Criminal Appeal Act 1968 the Court of Appeal (Criminal Division) can direct the Commission to carry out investigations on its behalf. The CCRC is obliged to report back to the court under s.15 CAA 1995. These enquiries often relate to concerns regarding the conduct of jurors in criminal trials.

6. When reviewing cases the Commission is often required to carry out a certain amount of investigation. The nature, extent and depth of these investigations vary from case to case. In order to assist the Commission in the exercise of its functions, Parliament provided it with wide ranging statutory powers of investigation, most notably the power to obtain any material from any public body under s.17 CAA 1995. [2]

7. The Commission is currently able to access communications data for the purpose of "assist[ing] investigations into alleged miscarriages of justice" under Chapter 2, Part I of RIPA. [3] Any such request must be authorised by an Investigations Adviser – a role held by very experienced former senior police officers. [4] Clause 53 and Schedule 4 of the Bill replicates the current position, allowing the Commission to access communications data for that same purpose, following authorisation by an Investigations Adviser.

Why the Commission requires these powers

8. The identification, investigation and, ultimately, correction of miscarriages of justice by an independent and effective body is an essential part of the criminal justice system. The Commission considers that the power to access communications data for the purpose of investigating miscarriages of justice is necessary because:

a. Communications data now regularly appears in a large number of criminal trials. As it is capable of amounting to evidence in criminal proceedings, it can also amount to "fresh evidence" which could cast doubt on the safety of a conviction.

b. Applicants to the Commission often raise issues relating to telecommunications evidence as part of their applications. [5]

c. During the course of a review, new lines of enquiry (such as an alternative suspect or person of interest who did not feature in the original police investigation) may come to light and require investigation by the Commission.

d. Where there are reasonable grounds for the Commission to investigate such matters, its facility to do so should be equivalent to that of the original investigators.

e. The Court of Appeal has previously directed the Commission to investigate specific matters relating to the potential misuse of mobile telephones and the internet by jurors in criminal trials.

f. In the absence of an explicit power to obtain communications data, the Commission would be unable to do so. [6] This would, in the Commission’s opinion, lead to miscarriages of justice going unnoticed and uncorrected.

How the Commission uses communications data

9. The Commission has used its current powers to obtain data which have then formed the basis of a referral. For example, in July 2014, the Commission referred the conviction of Mr A to the Court of Appeal. He had been convicted of rape and sentenced to 6 ½ years’ imprisonment. The Commission obtained new mobile phone evidence, including some using its powers under RIPA, which supported Mr A’s version of events and were relevant to the issues of consent and the credibility of the complainant.

10. The Commission acknowledges that the vast majority of cases which it considers do not result in a referral, but this does not undermine the need for these powers. Communications data can assist the Commission in reaching a decision not to refer a case for another Appeal. [7] This is equally as valuable to the Commission and the Criminal Justice System as a whole. [8]

11. The fact that the Commission uses its powers under RIPA relatively sparingly does not mean that these powers are unimportant or unnecessary. As noted above, the loss of these powers would result in miscarriages of justice going unnoticed and uncorrected. In the Commission’s view, even one uncorrected miscarriage is one too many.

Internet Connection Records

12. Communication via the internet and online services has increased rapidly in recent years. The Commission considers that, as a result, it is important that it is able to access data relating to online communication as well as that made by traditional telephony.

13. If the police and other agencies investigating crime have the power to access this data, it is likely that this will lead to submissions being made to the Commission in relation to it. As previously noted the Commission considers that, in this regard, its investigatory powers should therefore be equivalent to those of the original investigators, otherwise the Commission is going to be hampered in fulfilling the role intended for it by Parliament.

14. Furthermore, the Commission observes that these powers may assist in conducting investigations at the behest of the Court of Appeal, especially in relation to illicit communication or "research" by jurors. The Commission recently undertook an investigation under the direction of the Court of Appeal into whether a juror in a criminal trial conducted internet and/or social media research into a defendant. At that time the Commission’s investigation was limited to interviewing the juror in question. The ability to access ICRs may have enabled the Commission to clarify further if such research had taken place.

Threshold test

15. The Commission is aware that there are calls for the access to ICRs to be limited to the investigation of "serious" crime as defined in the Bill. The Commission understands this to be a reference to the "purpose" contained in clause 53(7)(b) of the Bill and that therefore any such amendment would not affect the Commission. [9]

16. The Commission would be concerned by any amendment that that sought to apply such a hierarchy to potential miscarriages of justice. It is extremely difficult to define what might amount to a "serious" miscarriage of justice; the offence or sentence in question may not be determinative of this. When drafting the CAA 1995, Parliament was careful not to make a distinction between the Commission’s investigative powers in relation to the "seriousness" or otherwise of the offences of which an applicant was convicted. If such a distinction was made now, an unintended consequence would be to impede the Commission’s ability to do the job it was set up to do.

17. Furthermore, the Commission observes that the Bill explicitly states that a designated senior officer may only authorise a request for communications data when it is necessary and proportionate to do so. The Commission submits that this provides an appropriate safeguard.

Could another body exercise these powers on behalf the Commission?

18. The Commission does not consider that it would be appropriate for another body to access communications data on its behalf for the following reasons:

a. Independence - The Commission’s independence is crucial to its ability to function. Many of the Commission’s applicants consider themselves to be victims of the State, often due to a perception of misconduct on the part of the police. Whilst this belief is not always justified, in order for it to operate effectively the Commission must be seen as independent from the police and the adversarial trial system wherever possible. Furthermore, many of the cases which the Commission refers are due to failures by the police.

b. Practicality - The Commission is concerned that the need to involve other bodies in the acquisition of communications data would add unnecessary delay and expense investigating these matters. Understandably, such requests would be considered by the police to be a low priority and the Commission cannot impose deadlines and has no power to seek or impose sanctions for delay or failure to comply. The Commission is concerned about the time that reviews can take, noting that "justice delayed is justice denied" and it is therefore undesirable to create a situation where further delay would arise.

c. Principle – The investigation and review of potential miscarriages of justice is the sole preserve of the Commission. In light of that, it would be inappropriate for anybody other than the Commission to have to power to access communications data for such a purpose. By giving the Commission such wide powers to access material under s.17 CAA 1995 it was clearly Parliament’s intention that it should be able to carry out its own investigations. [10]

Independence of Designated Senior Officers

19. The Bill envisages that the designated senior officer will be independent of the investigation or operation for which the data being sought. Whilst the Commission understands and approves of the principle behind this restriction, it does not consider that it would be workable in practice for it to comply with such a requirement. [11] The Commission is therefore pleased to note that clauses 54(2) and (3)(c) of the Bill would allow its Investigations Advisor to grant the authorisation whilst still being able to actively advise on the case. The Commission considers that this exception to the general rule is necessary in order for it to effectively carry out its functions.

Conclusion

20. The Commission acknowledges that this is a complex piece of legislation and supports the Bill as drafted in as far as it applies to the Commission and its powers to access communications data.

21. The Commission would be greatly disappointed if the net result of this Bill would be to weaken the powers of the sole body with the statutory responsibility to investigate miscarriages of justice, whilst retaining (and strengthening) the powers of the police and other such bodies in this area.

22. Whilst the Commission understands the concerns that will no doubt be raised before the Committee, it urges that very careful consideration is given to any amendment which might impact on the Commission and its unique role of investigating miscarriages of justice. The Commission is a small but vital part of our Criminal Justice System and it is important that it has the appropriate powers to carry out its statutory functions.

March 2016


[1] The Commission is a body of last resort and deals primarily with cases where applicants have exhausted the "normal" appeals process. It can, however, refer a case in the absence of a prior appeal in "exceptional circumstances".

[2] A Private Members Bill (the Criminal Cases Review Commission (Information) Bill 2015-16) which would extend these powers to private bodies is, at the time of writing, awaiting its Third Reading in the House of Lords.

[3] As a result of the amendments made by the Regulation of Investigatory Powers (Communications Data) (Additional Functions and Amendment) Order 2006 SI 2006/1878 – since replaced by the Regulation of Investigatory Powers (Communications Data) (Additional Functions and Amendment) Order 2010 (SI 2010/480).

[4] Currently a former Detective Chief Superintendant.

[5] E.g. challenging its accuracy, alleging that it was deliberately withheld or never obtained.

[6] The Commission’s powers under s.17 CAA 1995 do not currently extend to private bodies such as telecommunications providers. Whilst the Private Members Bill referred to previously would extend its powers into the private sector, the Commission considers that there would be an expectation that the powers contained in the Investigatory Powers Bill would be the method by which communications data should be obtained (reflecting the current position under RIPA) and that it would therefore be inappropriate to attempt to obtain it via CAA 1995.

[7] For example by undermining the submissions made by an applicant.

[8] The Commission observes that, as well as identifying actual miscarriages of justice; it fulfils the equally important function of affirming the safety of the convictions it does not refer, thus promoting confidence in the effectiveness of the criminal justice system.

[9] As it is only authorised to access Communications Data for the purpose contained in clause 57(7)(h).

[10] This is no doubt in response to the weaknesses of the previous regime, Home Office Department C3, which was reliant on the police to carry out investigations on its behalf.

[11] Due to its small size, the Commission currently only employs one Investigations Advisor. In any case where the Commission was considering obtaining communications data, the specialist advice of the investigations advisor would almost certainly have been sought prior to an authorisation being sought.

 

Prepared 24th March 2016