Select Committee on Home Affairs Minutes of Evidence

Examination of Witnesses(Questions 40-59)



  40. They call it a critical analysis and review of the efficiency of the CCRC. Can I read you one or two of the points they make and ask you to react briefly to them. "In many cases we have reviewed the Commission and they made no enquiries of the trial solicitors or reviewed any defence material that may lie on those files".
  (Sir Frederick Crawford) They would have to say what cases they were talking about, and we would have to have a look at it. Do not forget that we have a complaints system. One of the ways in which we would know whether people are entertaining those thoughts would be how many complaints we get. In the last three years we have had 166 complaints for 3,300 cases completed. We do not get a lot of complaints; and, of those complaints, in the year that has just finished we had 69 complaints and only nine of those were upheld.

  41. Who upholds them?
  (Sir Frederick Crawford) We are not subject to any ombudsman or person like that, so we have an internal complaints system. It is a two-stage complaints system. The complaints come in and we acknowledge them in an average of four working days. We complete a review of the complaint in an average of 20 days. We would normally find that they fall into three or four categories: One category small, half a dozen, where they believe we have not lived up to what we talk about in our annual report, confidentiality, integrity of some sort of another; they are complaining about that; and another bunch will say that we have not looked at things adequately, and that is by far the biggest thing; in fact it is not worth talking about the others. 41 of the 69 were in the category that somehow we had neglected or not looked carefully enough at various bits of evidence that they provided. We go through those pretty carefully and tell them why, and most of the answers to their questions are already contained in the statements of reasons that we have sent to them. Some of the complaints are on cases that are in progress, where they feel we have not taken appropriate action and, of those, a very small number is sustained. Where we sustain them, then we either apologise or change our processes or, more likely, do both. MOJO may have some evidence and, if so, they should present it to us. We have invited them, incidentally, to visit us.

  42. Have they been to see you?
  (Sir Frederick Crawford) No, they wrote and said they would like to see us, and we wrote back and said, "Come along".

  43. I think I saw the exchange of correspondence. You said, "Please provide us with the basis for your complaint".
  (Sir Frederick Crawford) That is right. They had made some complaints in the Big Issue which were particularly vituperative about our CRMs, so we wanted to be able to check that out by the time they got there, but they have never got back to us.

  44. I guess this is going to be it.
  (Sir Frederick Crawford) We shall learn from it.

  45. Another point they make is that the final statements of reasons very often contain no reasons?
  (Sir Frederick Crawford) It sounds like nonsense. The number of reasons would obviously depend on the number of issues made by the applicant or discovered by ourselves. Some may be short statements of reasons and some may be very long. The statement of reasons does precisely what it says and gives the reasons why we are turning something down.

  46. I quote: "It is common practice for the Commission when rejecting an application to state quite simply they are of the view that the issue does not affect the safety of the conviction without giving detailed reasoning".
  (Sir Frederick Crawford) I do not read all of the statements of reasons that go out; but I read a large selection and that is not my view of what I have seen. I tend to read a few dozen per year and, very often, when I get letters from Members of Parliament I check the statements of reasons and see what they say, and that is certainly not my impression. I think they have to give us specific cases and then we would look at them.

  47. Another general point they make, although you have addressed this earlier, is that, "Contact between the Commission and the applicant is restricted to correspondence and limited telephone calls. The applicant is disadvantaged by no personal contact".
  (Sir Frederick Crawford) Again, they would have to give evidence of individual cases, because we do visit people in prison; we visit witnesses; applicants at-liberty come to see us; they call us up; even people in prison have phone cards and call us up, endlessly sometimes. They would have to give a specific instance; it is much too vague.

  48. They may be referring to many of the cases which are rejected at the outset, rather than those in more detail?
  (Sir Frederick Crawford) I think so. It goes back to the point that was raised earlier: are we being thorough? We would argue just as thorough with the cases with just a few issues or new arguments.

  49. I have seen it alleged as well, I think also in this document but it may have been elsewhere, that the number of cases referred is less than the C3 Department of the Home Office were referring in their heyday. I think the implication is that since that organisation is considered to be useless then you are too. I am not alleging that; I am merely the bearer of the message.
  (Sir Frederick Crawford) I can sense the negative accolade. My recollection of the last three years before the Commission was founded was that there was a Parliamentary Question asked in 1997 which listed the number of cases that had been referred. My memory is obviously going to be at fault on this but I would have said that it was less than 10 for a couple of those years and then it picked up to 15, or something like that. Do not forget that we have sent 161 in the last five years, so I do not think that is a fair comparison. Also, of course, the number of cases we are receiving is rather higher than the Home Office, which again makes the comparison difficult. You need to know what percentages you are talking about. In this particular year, as I said earlier when talking about thoroughness of the Screen, we have actually referred more cases from the Screen than we referred from Stage 2, because it just happened that way. There were 19 referred from the Screen and 18 from Stage 2. Comparisons with the Home Office are very, very difficult to make, but I would have thought that statistic was wrong.

  Chairman: Thank you. Can we turn to grounds for referral.

Mr Prosser

  50. The Act requires you not to refer cases to the Court of Appeal unless there is a real possibility that conviction will not be upheld. Now that you have had a fair bit of experience of the system, some 89 or so cases, what is your view, what have you learned about the Commission's interpretation of the test?
  (Sir Frederick Crawford) Well, there are two answers I can give to that. One is just the sorts of percentages that we are batting on cases that we send, and the other is the causes for the miscarriages when the issues have persuaded us to send cases. Now, when we started we were wondering what would be a reasonable percentage of cases to go to the Court of Appeal and what would be our success rate there. There was no a priori method of working that out, but we did think that if we got no cases being successful at the Court of Appeal, we had it wrong and if we had 100% of them successful, we were also getting it wrong and that somewhere, let's say two-thirds, three-quarters, whatever you like, would be very reasonable, but if it was 50%, as I said last time I appeared before this Committee, that would not bother us very much. But 10% would, and 90% certainly would bother us. In the event, we have been running at about 70%. We have been as high as 75 and at the moment we have a 68% success rate. That does not mean we do not send a case unless we are 68% certain that it is going to succeed. For some it is slight; for some it seems stone-cold to us. So in the end every committee that meets decides whether there is a real possibility for the case. It is reviewing the issues and of course we have to look at the sorts of decisions that the Court of Appeal makes. Now, that has attracted in the past quite a lot of criticism of the "real possibility" criterion itself. Are we in fact always shadowing the Court of Appeal in the cases we send and the decisions they make? Could they be progressively tightening their criteria, for example, for quashing convictions or changing sentences? You can infer some answers to those questions from the Table I have given you of the cases quashed in each of the years, compared to the numbers sent in each of the years.[4] If, let's say, we take the year 1998-99 and if a smaller number of them are being quashed when the cases are heard in 1999-2000, 2000-01, 2001-02, then it may be that the Court of Appeal is stiffening up in its criteria. If you run down the Table and, say, all those cases heard in the year 2000-01, regardless of when we referred them, if those statistics are different from the ones across, then you might begin to argue that something was happening either in our criteria or in theirs. I can simply say that there is no persuasive statistical evidence that anything is happening. It does not mean to say it is not, but nothing stands out from that Table I have given you here about any change of behaviour on our side or by the Court of Appeal. I just tell you that. It could be, but in the fairly small samples of cases you have got for each year, there is no evidence statistically.

  51. In terms of their behaviour and their judgments, what is your view? Do you think they are being overly cautious or are they getting it right? Do you have a strong view?
  (Sir Frederick Crawford) I think there have been a very small number of cases, and I am talking about two or three now, where we have considered that their decision was not necessarily wrong, but where it was surprisingly harsh, where we really expected the case to succeed. One of those cases, incidentally, was reversed at the House of Lords; a Court of Appeal decision was reversed at the House of Lords—


  52. Can you remind us which one that was?
  (Sir Frederick Crawford) Pendleton, but I will not remind you what the other one or two are. I think you could guess which of them would be one where we think that maybe the Court of Appeal got it wrong. Other than that, they have been very reasonable in doing two things. One is providing us with feedback in their judgments about how we might have looked at the case differently, and it is usually in the ones which are upheld where they do that, where they will comment. We ran into one or two problems at the very beginning when we sent sentencing cases where the sentence, we thought, was wrong. They clarified in effect that some of our arguments were more concerned with the severity of the sentence than, as it were, the legality of the sentence. It was within the margin of discretion of the judges and maybe they had been harsh, or had been able to uphold it anyway. So there has been advice and feedback through the cases which have been upheld. There has also been some quite useful support for us in cases where the verdict has been quashed or the sentence reduced because very often they have been through our arguments where, let's say, there has been inadequate advocacy following our arguments and they have mentioned these arguments and disposed of them themselves, and discussed them themselves at the hearing, so we get feedback from them that way. We get feedback also when they believe we have been less than logical, let's say, in dealing with some of the issues, so that has been very helpful too.

Mr Prosser

  53. So, on balance, do you feel that they have become over-cautious recently?
  (Sir Frederick Crawford) I have no reason to believe they are over-cautious, under-cautious or whatever. All I know is there have been only a couple of cases where we believe that, in our humble opinion, they have not got it right, and on one of those we have been justified in the House of Lords and I do not think the other one is permanently addressed.


  54. You mean that the other one will be going back to the Court of Appeal?
  (Sir Frederick Crawford) I do not know. It might well come to us again and then end up there. I do not know. I think it will run and run.

Mr Prosser

  55. The practitioners have suggested that the Commission is becoming more cautious recently, in recent years. Is that a fair criticism?
  (Sir Frederick Crawford) I have not heard that from anywhere, but although we do listen to criticism, it is usually in both directions, that we are too soft, too hard, too quick, too slow. We just have to do what we think is right and learn from whatever we consider to be reasonable, valid and thoughtful criticism.

  56. Can I ask you briefly about the criteria which you are required to apply in terms of the test and the criteria which the Scottish Criminal Cases Review Commission have to apply, where they take into account miscarriage of justice and so on?
  (Sir Frederick Crawford) Yes, their Act asks them whether there has been a miscarriage of justice and ours asks whether there is a real possibility that the verdict or sentence would be considered unsafe. Scotland is Scotland and maybe that works well for them, but even if they decide within their Commission that something is a miscarriage, it may not be enough for the verdict to be quashed or the sentence varied, so we live with the Act that Parliament has given us and, in principle, every five years or so it will be looked at again. It is for Parliament to decide what it wants in England, Wales and Northern Ireland.

  57. What advice would you give Parliament when that time comes? Would you want your criteria to be widened?
  (Sir Frederick Crawford) I do not think so. I think we are satisfied working within the "real possibility" criterion. That is a personal statement, and I am not a lawyer of course, I am a scientist.

  58. I want to ask a little about inadmissible evidence and the way the Commission deals with that. In particular, can you tell us how you approach the dilemma of a case which perhaps failed, a case which has gone through and a conviction put in place because part of the defence evidence fell down on technicalities and was inadmissible, but then during your own investigation of the case you came across other evidence which would have shown perhaps the defendant to be innocent, but that evidence is out of order and inadmissible? How do you balance that dilemma?
  (Sir Frederick Crawford) I suppose if it was absolutely clear that it was inadmissible, we could not use it.

  59. But would it colour your decision overall about putting the case to the court?
  (Sir Frederick Crawford) We could not send a statement of reasons; we could not send a statement to the Court of Appeal saying that we believed that there was a real possibility that a verdict would be quashed or a sentence varied if our arguments depended critically and crucially on some inadmissible evidence that we knew would be inadmissible. A different way in which it comes up is when, for example, there is evidence that strengthens the prosecution case, where in the past it is believed that that would not be admissible at the Court of Appeal. Now, that seems to be part of the folklore because the 1968 Act which incorporates our 1995 Act as amendments says quite clearly that they can admit whatever evidence is expedient or in the interests of justice, and that would allow them to put new evidence in. Of course there has been, as you will have read in the newspapers, in the Hanratty case new evidence which helps the prosecution. How the judges will view that remains to be seen; they are still preparing their judgment.

4   See page 11 of the memorandum. Back

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