Select Committee on Home Affairs First Report


THE WORK OF THE CRIMINAL CASES REVIEW COMMISSION

C Workload, funding, efficiency and delays

The problem of workload and delays

32. The position at the end of February 1999 was that, of the 2325 applications received, only just over 30% had been disposed of either as ineligible or after substantive review. The detailed position was as follows:
STATE OF CONSIDERATION OF ALL APPLICATIONS: Number %
Awaiting, or in course of, initial assessment for eligibility: 170 7
Awaiting, or in course of, substantive review: 428 62
Consideration completed: 727 31
                             Total applications received: 2325100

Of those examined for eligibility and found eligible, and therefore needing substantive review, fewer than 20% had been completed; and over half of these were cases which it had been possible to deal with under the 'short form of review' procedure rather than following a full review. The detailed position was as follows:
STATE OF CONSIDERATION OF THOSE ELIGIBLE  FOR REVIEW: Number%
Awaiting substantive review: 1091 63
In course of substantive review: 337 20
Substantive review completed: 299[48] 17
                             Total eligible for review: 1727100

33. There is not yet any reliable sign that the flow of applications received will fall significantly. The overall daily inflow has been very steady at between 4 and 4 ½ and, although the numbers in the last quarter of 1998 have been a little lower than in earlier months, this hides the fact that the number of eligible cases has not fallen.[49] There was some expectation that the number could fall, as the number of convictions arising from improper preparation of evidence fell because of the protections introduced by the Police and Criminal Evidence Act 1984. This might however be offset, it was suggested by lawyer witnesses, by an increased number of cases arising from problems relating to failure by the prosecution to disclose relevant evidence or material to the defence [50] and from other recent legislative changes.[51] Commission members also noted that there could be a large number of cases arising from current anti-corruption initiatives in police forces, in particular the Metropolitan Police.

34. The rate at which the Commission was disposing of cases, at between one and a half and two cases per day, has lagged well behind the intake rate. Even this disposal rate is misleadingly high, since it includes cases rejected as ineligible and which therefore do not receive a stage 2 review. The key issue for eligible cases is the rate at which cases are disposed of at stage 2 (or 3): in 1998 as a whole around three cases were transferred for stage 2 review per working day and around three quarters of a case per day disposed of.[52] Additionally, a small backlog has arisen in cases awaiting the initial stage 1 assessment.[53]

35. There is now a substantial and growing backlog of cases waiting to be dealt with. The result of this state of affairs is that applicants whose cases merit a full review are facing a wait of around two years before the review is begun.[54] Furthermore, the Commission is in practice unable to give applicants any very clear idea of the timescale in which the application will be dealt with.[55] Mr Clarke suggested that the "inevitable result is that people in prison who are innocent are beginning to wonder whether the whole thing is worthwhile".[56] Sir Frederick Crawford accepted that the situation was disheartening to an applicant but added that it was disheartening also for Commission members and caseworkers; he described the state of affairs as "very, very serious".[57]

36. There can be differing views as to why this situation has arisen and how it might be addressed, which we discuss below. We are in no doubt however that the present situation in respect of delays is unacceptable. People who have been wrongly convicted will be serving out their sentence before their case has been dealt with. Furthermore, far from the situation being in hand or improving, it is deteriorating. It must now become a priority for both the Government and the Commission to bring the present state of affairs to an end. The Government has made a start by agreeing additional resources for the Commission, and we will be looking to the Commission to ensure that these resources are put to effective use. We discuss the issue of resources further below.

Prioritisation

37. Given the existence of a large backlog, the Commission has had to establish a policy to determine the order in which applications should be taken. It conducted a consultation exercise on this in May 1998. There was a general consensus that the age and health of applicants had to be taken into account, and that otherwise applications from those in custody should take precedence over other cases.[58] These principles form the basis of the prioritisation policy, though the Commission also takes into account the health of key witnesses and will consider any special priority factors, such as where an application is from a co-defendant of another applicant whose case is being considered or where there may be a particular impact on the criminal justice system.

38. The practical position therefore is that where, in the initial review, possible grounds for special prioritisation are identified, or where a specific request for prioritising is received, the case is referred to the Casework Operations Group, which will decide whether the case should be given any special priority. Later developments (for example in the health of the convicted person) can lead to a reassessment for special priority.[59] If the case is not prioritised on any special grounds, then priority will be given to cases where the applicant is in custody, in order of receipt of the application.[60] In practice, the number of cases given special priority is very small (less than 1% in the last quarter of 1998).[61] Priority was also give to cases transferred from the Home Office and Northern Ireland Office, including some in which the convicted person was no longer alive.

39. A form of priority is also given to those cases which the Commission considers it can dispose of relatively easily under the 'short form of review' procedure, in that these are identified at stage 1 and are dealt with relatively quickly after that.[62] While we recognise the thinking behind this, it must nevertheless divert some resources away from cases which might otherwise have a higher priority; the Commission must ensure that effort put into the 'short form of review' cases is not unduly at the expense of other, higher priority, cases.

40. This observation apart, we accept and support the basic principle that priority is generally given to applications from those in custody. However, the implications of this policy, in the context of the growing backlog of cases, is that most applicants currently at liberty are in practice going down the waiting list rather than up.[63] The fact that the cases of applicants at liberty face not being reached at all reinforces the previous conclusion that the present situation is not acceptable. We suggest that the Commission should ring-fence a small proportion of its resources to ensure that at least some progress is made with significant 'at liberty' applications which have been waiting for a long time.

Tackling the workload and the backlog

41. There is no easy solution to the problem of the workload facing the Commission. If a serious attempt is to be made to address the situation and to remove the backlog then hard decisions will have to be made. Either the Commission will have to reassess its approach to referral; or it will have greatly to increase its productivity and efficiency; or its resources must be increased; or some combination of these three approaches must be adopted. We examine each in turn.

(i) A changed approach

42. We have already discussed, at paras 25 to 30 above, the proposition that there might be a case, as a matter of interpretation of the statutory test for referral, for the Commission to reassess how closely it needs to examine each case before deciding that a referral is justified. We concluded that, subject to examination of the outcomes of a larger number of referred cases by the Court of Appeal, there was scope for cases to be pursued in less depth. This would mean that in some cases a judgement could be made at an earlier stage that there were sufficient grounds for referral, and that in others—in addition to those subject to the 'short form of review' procedure—an earlier judgement could be made that a case was without sufficient merit.[64]

43. We recognise that problems are caused to the Commission by the fact that so few applicants are legally represented. This means that the Commission is often required to undertake additional work either to comprehend and analyse the nature of the applicant's true complaint, or to assess whether there are additional grounds for legitimate complaint which have been missed.

44. Nevertheless, in seeking to address these fears the Commission is in danger of falling into the error of being "meticulous to a fault", as Gareth Peirce put it.[65] Some Members of the Committee saw the current approach of the Commission as highly technical and formulaic. All manner of potential miscarriages of justice—some of which may never have been raised at all by the facts of the case or the complaint itself—are investigated. This generates increased administrative burdens.

45. It appears to us that the amount of detailed work done on many of the files could—with no loss of efficiency—be pruned. Unless some adjustment in the Commission's approach is made, the backlog will, quite simply, grow. We accept that it would be wrong to speed up consideration of cases if it led to the Commission failing in its statutory duty. However, if the monitoring of outcomes of more cases shows that there is scope within the terms of the statute for cases to be processed at less depth, then, given the present backlog of cases, the Commission should adjust its approach accordingly.

(ii) Increased efficiency

46. As already noted, the Commission's projections as to the numbers of Case Review Managers which will be needed to bring the flow of work to break-even point and in due course to reduce the backlog, have been done on the basis that increases in productivity can be made. Its December 1998 submission to the Committee referred to an "assiduous attention to process improvement",[66] and their supplementary evidence referred to a large number of steps set out in the Corporate Plan which were being taken to make more effective use of resources.[67] The Home Office, while accepting that the Commission is not an inefficient organisation, have laid some emphasis on the need for further efficiency gains.[68]

47. A number of areas for possible generation of improved productivity—on some of which the Commission is already working—were drawn to our attention by witnesses or by Commission members and staff during our visit to the Commission's headquarters in Birmingham. These include:

    - further publicising the availability of legal advice under the Legal Advice and Assistance scheme for applicants, thus helping to minimise the amount of work needed at the very early stages to ensure that the application is eligible and is clearly presented;[69]

    - reviewing the use made of information technology to ensure that, while full advantage is taken of the benefits it can offer, there is no over-reliance on a computerised approach to case handling and analysis which may not be appropriate in every case;

    - contracting investigatory work out to solicitors or defence representatives (again using legal aid), though on this score the Commission indicated that there would be problems with ensuring the correct degree of independence, and that it had "established the hourly cost of out-sourced work to be significantly higher then the current in-house cost";[70]

    - reviewing the correct balance between putting resources into the recruitment and employment of caseworkers and into the administrative and clerical support needed for them to be able to work at maximum efficiency (we were told by some of the Case Review Managers whom we met in Birmingham that up to a quarter of their time might be spent in inputting text, photocopying, etc.);[71]

    - reconsidering the principle that the 3 year contracts on which Case Review Managers are employed should be renewable once only, so as to maximise the extent to which in-house expertise can be retained;[72]

    - further refining the preliminary examination of an application at 'stage 1' to identify ways in which its further review might be speeded up (for example, by identifying similarities with other cases in the issues raised).

48. This Committee is not in a position to set out the detailed steps the Commission might take. We are, however, confident that there is scope for further gains in efficiency to be made; and we consider it vital that such gains be made if the backlog of cases is to be reduced.

49. Assessment of the efficiency of the Commission is made difficult by the absence of a range of performance measures and targets against which to make such an assessment. The Home Office submission drew attention to the fact that the Commission "has not yet systematically set itself goals for what it expects to achieve, in terms of agreed measures of the outcome of the public investment in the Commission's work" and also that it "has not yet developed comprehensive performance indicators against which the efficiency with which it is using its existing resources might be judged."[73] Bindmans called for the Commission to draw up a "set of quality standards by which it, and others, can assess its performance."[74]

50. The Commission told us that in respect of its key function—case review—useful indicators of performance (as opposed to mere statistical reports of activity) were inevitably difficult to define and that it would take "several years to develop a comprehensive set of performance indicators".[75] The Home Office have to some extent accepted this, but thought that there was already some scope for more to be done in this direction.[76] We understand that further progress has been made since then. We consider it important that performance targets allowing the work of the Commission to be more critically monitored are agreed with the Home Office as soon as possible.

(iii) Resources

51. The Commission argues that the solution to the problem is bound to involve further resources, in particular resources to allow the recruitment of more Case Review Managers. This conclusion is drawn from an analysis of the throughput of cases at the various stages of review and the number of caseworker days required per case, after taking into account a number of assumptions about efficiency increases (such as reducing the amount of time needed per case as staff gain in experience).[77]

52. By the end of the 1997-98 financial year, the Commission had 24 Case Review Managers.[78] In its January 1998 submission to the Government for funding for the 1998-99 and subsequent financial years, it sought funding to allow the number to rise to 40 during that year, and to 50 by the end of 1999-2000. This total, it was then forecast, should allow the rate of arrival of new cases to balance the rate at which cases were disposed of, thus preventing the backlog from growing larger.[79] By the time the Commission gave oral evidence to the Committee in December 1998, the estimate of the number required to reach the break-even point had risen to nearer 60.[80] Sir Frederick Crawford suggested that the number needed if the backlog were to be successfully addressed, over a two year period, was about 75.[81] The Commission explained that the bids submitted to the Government had not asked for rises to the full predicted required total number of Case Review Managers in one go because it was only realistic to be able to recruit and train around 15-20 new caseworkers of the right calibre in one year.[82]

53. To the costs for recruiting the caseworkers alone must be added extra funds for premises,[83] IT support and administrative or clerical support. The overall bid for 1998-99 was for an additional £1.3m (an increase of a third over the original provision), though Sir Frederick thought that a total budget of around £7m—compared with the actual budget of just over £4m[84]—might be needed to accommodate any rise to 75 Case Review Managers.[85]

54. The Commission has emphasised that its analysis reflects the need for efficiency gains, but concludes that such gains cannot by themselves resolve the problem of delays. The 1998-2002 Corporate Plan put the problem this way:

    "In the 1998-99 financial year, and all succeeding years, the Commission will work diligently to improve its effectiveness, efficiency and economy. On any reasonable projections , however, the resource gap in staff (and the accommodation and IT resources that they will require) is far too large for the Commission to discharge the responsibilities assigned to it... to the satisfaction of its stakeholders."[86]

In oral evidence to us in December 1998, Sir Frederick Crawford said that without additional resources "The queue will build up endlessly".[87]

55. Although the Government initially rejected the bid for additional funds for 1998-99, citing the overall public expenditure constraints and the need for extra efficiency savings,[88] negotiations continued and in January 1999 the Home Secretary agreed some additional provision. In essence, the extra funding covered most of the original request for £1.3m, albeit starting one year later, but the Home Secretary emphasised that he had only agreed to the extra funding for 1999-2000 after insisting on further efficiency savings and performance measures and after paring down the bid.[89] A further review would take place at the end of 1999.[90]

56. The Commission has also emphasised that its requests for additional funding do not reflect a failure to continue providing a sufficient service at what was previously a sufficient level of funding. Although the Commission took over a function previously being conducted by a section of the Home Office, it was always understood that its method of operation and workload would be rather different and that the former Home Office costs could only represent a broad approximation to what would be needed for the new body. As things turned out, the available figures as to the Home Office's costs were anyway misleadingly low, since it transpired that the relevant former Home Office section had in fact processed far fewer cases each year than had been initially thought.[91] The Home Secretary, while pointing out that the initial level of funding was twice that of the previous arrangements, broadly accepted this.[92]

57. In these circumstances, we conclude that the extra funding announced for the Commission for 1999-2000 and beyond is both necessary and welcome. We look to the Commission to ensure that the extra funding is fully reflected in increased output. A breakdown of how the additional funds are to be allocated has been supplied by the Commission.[93] We note that staff employment costs represent nearly half of the Commission's running costs[94] and it is therefore important that salaries stay within the guidelines applicable in other parts of the public sector. We understand that the Commission's submission to the Secretary of State at the Home Office in respect of its 1999 remuneration review was based on an increase in pay rates of 4.4%;[95] in addition the remuneration review sought to recognise job growth where staff had taken additional responsibilities during the previous year, as well as increases to address issues of comparability. The effect of these three elements taken together would have been an increase in the total pay bill of around 5.5%.[96] The proposed increase was reduced by the Secretary of State to an overall pay bill increase of 4%. The Government expressed the hope that "even though the additional staff so far authorised are fewer than the Commission had sought, they will enable it to begin to bring its case accumulation under control".[97] Nevertheless, the new level of funding is still below the level of funding which the Commission has estimated will be necessary for break-even point to be achieved, let alone the backlog reduced. We accept that there will be a need for further additional resources if the problem of delays is to be resolved. We emphasise however that resources alone are not the solution.

58. At the same time, we note that the Commission's estimates of the level of increased funding required have steadily increased since it began operation. This is understandable in the circumstances of the establishment of a new service. However, we consider that the Commission has now been operating long enough for the difficulties in estimating its funding requirements to be in the past. We would, therefore, not expect there to be any further increases in the Commission's estimate of 60 as the number of caseworkers needed to keep up with the incoming work.


48   139 following full review, 160 under the short form of review. Back

49   See Appendix 10, para 10; Appendix 11, para 3.3. Back

50   QQ11-14; see also submission from Glaisyers (Solicitors) (Appendix 4). Back

51   Appendix 9. Back

52   Figures derived from Appendix 11; Table 1; the disposal rate per working day at stages 2 and 3 would be even lower if adjustment was made to reflect only cases subject to a full review rather than the accelerated short form of review process. Back

53   Appendix 11, Table 1. Back

54   Q55; see for an example of the effects of delay in one case (Mills and Poole) the note submitted by Ms Tess Kingham MP (Appendix 8). Back

55   See for example Appendix 2 (Bindmans). Back

56   Q15. Back

57   Q120. Back

58   Appendix 11, para 6.1; see also Q24 (Mrs Peirce). Back

59   The Commission points out that the process of regularly reviewing priorities, necessitated by the backlog, itself diverts resources away from working on the review of cases, thus exacerbating the problem (Corporate Plan 1998-2002, p3). Back

60   Appendix 11, paras 6.1-6.4. Back

61   Appendix 11, para 7.1. One situation in which a case might be accorded a special priority is where it is linked to other cases where a police officer's evidence has been identified as tainted by corruption (see Q25, Mr Adrian Clarke); the CCRC has stated that it is in discussion with the Crown Prosecution Service on this point (Appendix 11, para 8.1). Back

62   The CCRC Corporate Plan Apr 1998-Mar 2002 ( p. 10) states that dealing more quickly with cases which present little argument "should allow the Commission to complete a substantial number of case reviews rapidly, but is no more than a palliative; the more difficult cases remaining will require correspondingly more caseworker days per case for review." (p.10). Back

63   Appendix 11, para 7.2. Back

64   We note that the Home Secretary was under no illusions as to the number of unmeritorious claims the Commission received from "people in prison...who are guilty but who do not like being in prison, who have got loads of time on their hands" (Q172). Back

65  Q 2. Back

66   Appendix 1, section 2.2. Back

67   Appendix 11, paras 5.1-5.2; see also Q112. Back

68   Appendix 10, para 6. Back

69   Appendix 11, para 2.1. The Commission reports that applicant representation increased from 10% of cases in 1997 to 20% in December 1998, but added that "many solicitors are still unaware of the availability of legal aid for Commission work."; see also submission from Bindmans (Appendix 2). Back

70   Appendix 11, paras 2.4-2.6; Bindmans however saw "no reason to think it is any more cost-effective for investigation work to be conducted by the Commission than by solicitors under the Legal Advice and Assistance (Green Form) Scheme" (Appendix 2). Back

71   See Appendix 12, question 2, at which this issue is discussed at greater length by the Commission. The Commission decided during 1998 to convert 4 vacancies for support staff into Case Review Managers posts instead, judging these to be a greater priority; a review is currently underway to identify additional tasks which could be carried out by support staff. Back

72   We were given to understand during our visit to Birmingham that this principle was currently being reconsidered. Back

73   Appendix 10, paras 5-6. Back

74   Appendix 2. Back

75   Appendix 1, section 3; a set of 'service standards' however had been issued, covering such matters as timescales for dealing with certain categories of correspondence, and undertakings relating to 'stage 1' assessments and to inform applicants of the caseworker assigned to each 'stage 2' review. Back

76   Appendix 10, para 6. Back

77   Q110. Back

78   CCRC (1997-98) Annual Report p. 7. Back

79   Appendix 1, section 1. Back

80   Appendix 1, section 2.2; further details underlying the assessment are contained in the CCRC's paper "CCRC Case Review Manager Requirements" (March 1999). Back

81   QQ100-104; further details underlying the assessment are contained in the CCRC's paper "CCRC Case Review Manager Requirements" (March 1999). Back

82   Appendix 1, section 2.2. Back

83   Sufficient extra premises for most of the required additional staff were available on an adjoining floor of the CCRC's existing headquarters building. Back

84   i.e. the budget for 1998-99 excluding the sum for information technology expenditure transferred from 1997-98 (see footnote 27 above). Back

85   QQ103-109. Back

86   Corporate Plan p3; see also Appendix 1 section 2.2 and Q121, Q141. Back

87   Q143. Back

88   See Appendix 1(Annex B) (letter from the Permanent Secretary). Back

89   QQ171-174; he pointed out that the new agreed increase for 1999-00 represented a rise of 30%, a greater rise than in any other area of Home Office spending (Q167). Back

90   Appendix 10, para 9. Back

91   See Appendix 1 (Annex A), and Q93. One submission, from Graysons (solicitors), suggested however that it was feared from the outset that the CCRC's resources would be inadequate (Appendix 5). Back

92   Q169 and Appendix 10 para 4. We note that similar issues arose in the context of funding for the new National Crime Squad and the National Criminal Intelligence Service, and that in announcing a substantial rise in funding for 1999-2000 the Home Secretary stated that "Although NCIS and the NCS are both subject to the same stringent efficiency measures expected of the police service as a whole, the funding I have allocated recognises that the two organisations are still relatively new, and further investment is merited to enable them to continue to develop the service they provide in the fight against crime" Home Office Press Notice No 10/99 (12 Jan 99). Back

93   Appendix (HAC 169A), question 1. Back

94   Appendix (HAC 169A), question 3. Back

95   The latest figure at the time of the review available from the Government Statistical Service for public sector increases and increases in the economy in general over the previous year. Back

96   In its current stage of development, the Commission is unable to offset rises to reflect increased experience and responsibilities of existing staff against savings generated by the retirement of longer serving staff, as a more established body can do. Back

97   Appendix 10, para 10. Back


 
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