Select Committee on Home Affairs Minutes of Evidence

Examination of Witnesses(Questions 60-79)



  60. Are you satisfied that your members and your caseworkers are sufficiently trained to take account of these very complex cases and difficult elements?
  (Sir Frederick Crawford) Well, we have a substantial training programme for the CRMs and anybody who has come in the last couple of years has had a training period of about six months or a year in the screen where the issues are less complicated. But one of the reasons for having a substantial corps of lawyers in the Commission is that that sort of advice is available and forthcoming from the lawyers. We do actually have two legal advisers whose jobs again are to deal with the legal points which come up. We are temporarily without one of the two, but we hope to make an appointment within the next few days of the second one, so there is quite a lot of legal back-up. More than half of the case review managers are themselves lawyers of course.

  61. Finally, to what extent do the caseworkers apply their own judgment and to what extent are they bound by a code of practice or a code of specific rules and criteria set down by the Commission?
  (Sir Frederick Crawford) Well, they are, as I have said in the last section of the memorandum, "empowered". We encourage them very strongly to exercise their initiative and to take advice wherever they can within the Commission, not only from the assigned Commission member who works with them on a given case as an adviser, guide and mentor, but to look wherever the expertise may be within the Commission. If they want forensic psychiatry, they would go to Jim MacKeith for example, and not necessarily one of the lawyers. We hope that that will serve to make the investigations sound both legally and in other aspects, forensic and other aspects of the case. If they are not and any recommendation is made to turn the case down or send it to a committee, then other Commission members come in who will criticise and comment on whether the investigation, whether the review has been adequate or not. So there are checks and balances. CRMs have a lot of initiative and ability in their own right, but also there are other inputs before any final decision is made.


  62. Just going back to the argument about whether you have got more cautious or not in the light of experience of the Appeal Court, the Chairman of the Criminal Appeal Lawyers Association, Mr Campbell Malone, said to us, "After an initial `honeymoon' period . . . there have been a number of unsuccessful references and the experience of many practitioners is that the result has been that the Commission themselves have become more cautious in referring cases. I personally can think of several cases where the Commission would have likely to have referred, say, 2 years ago which have recently been refused". What do you say to that?
  (Sir Frederick Crawford) Well, I think he has to give us some examples before he makes a lot of sense. As I said a few moments ago, when I was going through that rather technical description of the Table, where you have got cases that are sent in a given year, but are heard in several others, in any given year you are hearing cases that are sent in three or four different years. If you cross-correlate those and look to see if there are any significant changes in the percentages, there are not any, not at this point, not that would satisfy any statistician. The numbers of cases are quite small, the statistics are, therefore, quite broad and it would be quite difficult to say that anything unusual was happening. Now, underneath that, there could be two trends and you would not necessarily spot them. One is that the Court of Appeal is getting slightly less stringent and so are we, and the other that the Court of Appeal is getting slightly more stringent and so are we. But there is absolutely nothing that you can go on from that table of outcomes that would justify a statement.

  63. Do you see it being part of your role to challenge the Court of Appeal? It has been known to get things wrong, has it not?
  (Sir Frederick Crawford) I suppose in a way every case we refer to them is a challenge because they have previously reviewed it and upheld what was the original conviction, but things move on and don't forget that we are talking about a very strange collection of cases. Until another year or two have gone by, we will still be dealing with cases from the last 50 years, Bentley, Hanratty. We have even got one case coming up in a few weeks that goes back to 1927 where there is an elderly relative in a murder case still alive, so that is the record by far. But you are talking about cases which vary enormously over the period when the Court of Appeal has heard the original cases. If it was the one of Bentley, for example, it would behave differently today from the way it behaved then, but it is very hard really to say. In two or three years from now, when we are dealing with cases which perhaps, with any luck, have all been convictions within the last three of four years, then slowly some statistics will emerge.

  64. But I think you do recognise that it may be necessary occasionally to challenge the Court of Appeal and take them on?
  (Sir Frederick Crawford) Well, there is a practical question with challenges. Suppose we take a case where we disagree pretty strongly with their decision, unless we could come up with some evidence or arguments that have not previously been raised either at trial, on appeal or in our reference, we would be on very, very weak ground and it would just be tossed out almost immediately.

  65. You recall that some of the most celebrated cases, like Cooper and McMahon, for example, it took four visits to the Court of Appeal before they could see what everybody else who was not a lawyer could see. In the Birmingham case, I think it took three visits. Now, if everyone concerned just pulled stumps after the third revisit, nothing would have changed. That is what makes me say that it is sometimes necessary, not always, and I appreciate things have changed anyway, to put up a bit of a fight, is it not, and to go back again?
  (Sir Frederick Crawford) Well, we are our own worst enemies in that case because the more thoroughly we deal with the case the first time around, the less we will have the second time.

  66. Yes, but that is true of anybody seeking to overturn a miscarriage of justice.
  (Sir Frederick Crawford) Well, I have not actually read through the evidence of the earlier Cooper and McMahon, but of course we cleared up that too.

  67. I was heartened by what you said about one or two cases where you disagreed that it might end up back in the Court of Appeal.
  (Sir Frederick Crawford) Well, we have to wait and see.

  68. You have to wait and see of course depending on what you come up with, but I think you are saying to us, are you not, that that is not necessarily the end in some cases? A rejection by the Court is not necessarily the end.
  (Sir Frederick Crawford) No. At the moment we have three cases on hand, which have come in in the last year, of people who were referred to the Court of Appeal: they failed and they have come back to us as reapplications. Now, sometimes on a reapplication, and I am not talking about these three cases, I am talking more generally now, sometimes on a reapplication we will spot something that perhaps even the applicant had not realised was a vital piece of evidence and three reapplications have resulted in referrals. Of those three, one was upheld, one was quashed and the other is pending. In the one which is pending, the applicant—the person who reapplied—gave us some information which we had not previously seen, the significance of which he did not realise, which resulted in the end in our referring the case. So there are possibilities of us coming back, but the more thoroughly we do it, the more we delve into the evidence before we make the referral, the less there is to dig up later.

  69. Looking back over the five years since you have been in business, what lessons have you learnt?
  (Sir Frederick Crawford) I think if you look at the pattern of a review, the first thing is to determine what the issues are which have been raised. In the light of our knowledge and experience, which has grown, we have got to see what additional issues might also be raised. We will come on to this when we talk about the child abuse cases where our practices are evolving. So that you are trying to start off with perhaps an augmented set of issues, those that you have been apprised of (and those can be sometimes large numbers. I think in one case we got there were over 200 issues raised by the lawyers), but it may be only two or three or even one, and we generate some others. Then you have to decide which require priority and which are contingent ones: unless this one succeeds, it is not worth looking at that one. So there is a question of deciding what the issues are, extending perhaps the issues and then setting a priority list for them. That cuts down the amount of work and there are lessons in doing that more and more efficiently which have certainly changed the way we operate. Many, many cases that we did at the beginning we would do quite differently now, quite possibly with the same result, but we would be saving more time. The second is a matter of phasing and that is if it is absolutely clear that you need some forensic evidence, something analysed, a DNA test or something like that, then get on with it so that it does not hold up the review so that the scheduling of processes emerges. If you need to commission any sort of expert report it can take up to a year, so the way in which you do those, when you do them, how you do them, at what point you make the decision, all that grows and is improved with experience. Knowing where to look for additional issues is important—where we might find something in social services, medical files and so on—so we learn lessons like that. Then there has been feedback to us from the judgments we have got in the Court of Appeal. Sometimes they have been deliberately directed at us to say, "These are the things that are worth thinking about in cases like this", so we have absorbed those. I think those are the main points. They have come with experience; judgment has improved, sharpened and the process is always getting better. I cannot quantify it because I cannot take a case and do it again, but those are the sorts of things. We get all sorts of feedback from the lawyers we work with, the ways they present things, the ways in which we present our statements of reasons, the use that the Court of Appeal makes of our statements of reasons, which is quite considerable, and very often they will comment favourably on our statements of reasons.

  70. Any regrets?
  (Sir Frederick Crawford) Yes. The big one is that we did not start off with more funding at the beginning so that the accumulation would not have been given a chance to build up. As you have seen from that graph[5] (the number of case review managers that we have got), we did not get to 50 until the middle of 2001-02. Your Committee was already listening sympathetically as early as 1998 to the comment that I had made in February 1998 that we would need 50 for several years to get the accumulation down and to get to somewhere near a steady state. So I think, if there is any regret, it is that we did not start with a bigger budget and a bigger complement of CRMs. I do not blame the Home Office for that, and I want to be absolutely clear on that, because no one could have known when we got started how many cases we would get and that there would be a deluge in the first two or three years, nor how complex the 279 cases that came to us from the Home Office and the Northern Ireland Office, just how hard those would be. It has taken us nearly five years to get the last one of those out. So I think the regret is that we did not start with a bigger complement and then we could have got on with it and perhaps we would already have been in a steady state at the end of the coming year.

  71. Have any issues emerged over the now large volume of work you have looked at? Are there any common themes, confessions in police custody, non-disclosure, those sorts of things we know about, and self-confessions? Do they give you cause for alarm?
  (Sir Frederick Crawford) Well, obviously in any case where it involves cell confessions, we look very, very carefully at what credence can be given to them, what weight can be given to them. We have become aware of many of these issues obviously through reading them in the casework and we try to educate our case review managers through the training programme in looking for these elements of cases.

  72. If you thought the law needed changing so as not to admit cell confession or something like that, would you say so and, if so, to whom?
  (Sir Frederick Crawford) There is a section in the Act which says that we can comment on these things. We do not need the Act for that, we do it anyway, but I think all our work has contributed to this. There are four areas: first of all would be to that of legislation, new legislation or changes to the current legislation. We have had only one modification to the law which has resulted from a comment from us to the Home Office and that was the Iain Hay Gordon case, which you will remember, where, strictly speaking, it was not an eligible case because the verdict was "guilty but insane" rather than "not guilty by reason of insanity", which is a conviction. In that case the amendment to our Act took care of it. We have made one or two suggestions to the Home Office about possible changes to the Act and they are reflecting on those at the moment. So that is the first thing, changing legislation

  73. For example?
  (Sir Frederick Crawford) One would be the question of whether we could compel witnesses to testify for us. That would be particularly useful when the Court of Appeal refers a case to us. The second was whether appeals against courts-martial of civilians should come under our control. A third would be whether or not we could have the same powers with relation to preserving evidence in the private sector as we do in the public sector. We can order government departments to produce documents and materials for us, but we cannot do it for ITV, though we could do it for the BBC. So there are anomalies and strange things like that which could be cleaned up. I think the Scottish Commission has far wider powers than we do. So much for legislation. The second is that our references have done quite a bit to clarify the law. The most recent would be the Human Rights legislation where the very last line of my annual report last year said that it was about time they sorted out retroactivity of the Human Rights legislation. We sent a case, Kansal, which you may know, which was successful at the Court of Appeal and opened the way to consideration of other cases on retroactivity of the Human Rights legislation from 2000, or at least, from when it became effective on 2nd October 2000. It went to the House of Lords and they reversed the verdict of the Court of Appeal and upheld the Kansal conviction which, by extension, had an effect on Lyons and the Guinness case. So there are cases like that. Another one is on the sort of "two-strikes-and-out cases" where we have had a couple of rather quaint cases where mandatory life sentences did not make a lot of sense and the Court upheld our view on that. So there was a clarification of the legislation there, and there have been one or two other cases like that. The third way in which I think we have an effect is in the practices of various bodies which must certainly now be carried out with an eye to what we are likely to do with cases if they have stepped over the line in the way they have investigated or carried out their reviews. So that is the third way. I think the fourth way of course is via the feedback which has come to us from all constituencies, but mainly the Court of Appeal, which has modified our practices to improve the way we go about case reviews. So those are the four I would mention.

  74. Could you let us have a note of any changes to your remit that you have recommended to the Home Office?
  (Sir Frederick Crawford) Yes. You would be welcome to have a copy of what we sent a year or so ago. There are a couple of suggestions of course in the Auld Report about us and one of those was that instead of the Court of Appeal being able to send cases to us only if they were before them on appeal, that they could send them to us if they were considering them on application for appeal. I do not think that is going to open any floodgates. The other one from the Auld Report is that the law applied to any of our references should be the law that is in force at the time and, as a non-lawyer, I can only make the point that that may be inoperable because things are different depending on whether it is common law or statute law.

  75. Thank you, that is very helpful. Before we move on there is just one final point about your plans of updating the information technology at your disposal.
  (Sir Frederick Crawford) We have been enormously helped by having a working IT system right from the beginning. It was perhaps a bit of a struggle to persuade other experts that the money would be appropriately spent on a working IT system.

  76. I think you preside over one of the few government IT systems that actually works, which I think is of enormous credit to you.
  (Sir Frederick Crawford) Well, I do not bring much to the Commission, but I would reckon to know something about putting IT systems together. We avoided many of the standard pitfalls that people get into—looking for custom software and not specifying what they want until after they have built it and so on—so we were very precise about our specification. We built a completely modular system. It is what I call a sort of "zen" system, which means that all the bits have been put together, but you can throw bits away and replace them so that after a few years there will be nothing left of the original system, but it has never stopped working. With document management, when you get 10,000 pages a day coming into the Commission, the document management system is key to that, but we have added other packages of data-mining, Excalibur, which the Labour Party will remember well, of course, which played a role in the 1997 Election.

  77. It will probably be put to rather better use in your Commission!
  (Sir Frederick Crawford) I could not comment. Those things were all tried and tested and we have added one or two packages to it, so we have been enormously helped by that, but IT moves on and we have added. The only big addition we have made in the last year or two is to add a case management module which allows us to track cases, and to keep a lot of information on them. It starts (or the migration of data was) only from April 1st 2001, and we have not gone back to those first two or three or four years, but that database is extremely helpful to us and deals with the more modern cases. We are in the process of "refreshing"—that is a euphemism for replacing—modules in the system with more powerful ones, up-to-date things, and that will go on progressively over the next two or three years. We have just renegotiated the support contract we have with Integris, or whatever they call themselves now, and that has gone through, so there will be that refreshment process over the next three or four years. It is an ongoing thing and I have no reason to believe that at any stage we will be put off the air because, as I say, of the modular basis on which the entire system is built.

  78. Are you already using Excalibur?
  (Sir Frederick Crawford) We have been using Excalibur for three or four years now.

  The Committee proceeded to hear evidence as part of its inquiry into past cases of abuse in children's homes. The evidence was published in the Fourth Report from the Home Affairs Committee, Session 2001-02, "The Conduct of Investigations into Past Cases of Abuse in Children's Homes", HC836-I, Ev 6-8.


  79. It would be fair to say, would it, that you do sometimes these days set up thematic studies that look at the reasons why cases come to you, and perhaps sex abuse cases is the first of these, is it? If you thought you were getting a lot of cell confessions or a lot of non-disclosures, might you set up some sort of internal review to see whether there are any wider lessons that could be learned?
  (Sir Frederick Crawford) We would, but quite a lot of these things would not necessarily have the status of a working group. One of the things that we have done in detail in the last few months, and used as part of our training programme, is to analyse all of the cases that have been heard by the Court of Appeal, to analyse all of their judgments, and to compare the sorts of arguments we have sent, the reception they have got, the significance of those arguments in whether a case has eventually been upheld or not. That is part of the law (the lore as well as the law) that gets handed on through the training programme continuously. There was no special working group on that; a couple of Commission Members did that particular analysis and passed it on in training.

5   See page 7 of the memorandum. Back

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