Who should
conduct investigations?
60. During the passage of the Criminal Appeal Bill
one of the issues discussed was the extent to which the Commission
would have to rely on the police to conduct investigations on
its behalf .[100] It
was recognised that the Commission would need powers of investigation
and the means to carry out those investigations. But many such
inquiries would involve inquiring into possible police errors
or malpractice, and there was some concern that if the Commission
was to be dependent on the police to carry out those investigations
then the inquiries might not be sufficiently thorough and the
public might not have sufficient confidence in the process. In
the event, the Commission was given the power to require the appointment
of an Investigating Officer (from a police force or from another
public body), under s 19 of the Act, but also had a power, under
s 21 of the Act, to take "any steps which they consider appropriate
for assisting them in the exercise of their functions including,
in particular (a) undertaking, or arranging for others to undertake,
inquiries...". In the event, the Commission has appointed
Investigating Officers, all from police forces, to investigations
covering 12 cases, but has not yet commissioned full investigations
from outside investigators. It has however used its powers under
s 21 to commission reports from outside experts on more limited
aspects of an inquiry.[101]
61. The lawyers from whom the Committee took oral
evidence remained concerned on this point. Mr Clarke suggested
that the Commission needed to have its own body of investigators
(which might include some seconded police officers).[102]
Mrs Peirce emphasised the effect on defendants of using police
investigators, saying that "there will never be the same
trust that it is truly independent as there would be if it was
not police investigating police".[103]
Bindman & Partners' written submission suggested that an applicant
should have a chance to object to the particular police force
appointed to investigate, and that an applicant's solicitor should
be allowed to be present at interviews conducted by police officers.[104]
62. The Commission was confident that the system
was nonetheless working well in practice. It recognised that applicants
might not welcome the appointment of a (police) Investigating
Officer, but explained that it sought "to provide assurance
to applicants by informing applicants or their representatives
at the earliest opportunity of the rationale for requiring the
appointment.....and by consulting on the appointment...".[105]
It considered that the police investigations commissioned had
been sufficiently thorough and quoted examples where defendants
or their representatives had had initial reservations about the
appointment of police investigators but had later, on completion,
complimented the investigation.[106]
It was pointed out that in all the cases where an Investigating
Officer had been appointed to investigate possible malpractice
by a police force the appointment was made from a different force
from the one which was the subject of the investigation.[107]
63. To some extent, the debate turns partly on the
issue of resources. Sir Frederick Crawford claimed that the Commission
already had investigative resources and expertise amongst its
staff, but could not expect to be able to deploy them on lengthy
investigations.[108]
The costs of police investigations fall to the police forces doing
the investigation or being investigated.[109]
64. In our view, the question of who should conduct
the investigations needs to be continually monitored. We accept
that it would be difficult in its present financial circumstances
for the Commission to conduct lengthy investigations, whether
using its own staff or by commissioning investigations from non-public
bodies. We also accept that investigations conducted by police
forces—certainly by forces other than the force being investigated—have
so far proved satisfactory. Nevertheless if the whole process
is to command confidence, the Commission must be ready to make
full use of its powers to use non-police investigators.
Matters for
further review
65. A number of other issues have been drawn to our
attention.
66. CCRC powers to obtain information The
Commission has mentioned deficiencies in respect of its powers
to take statements which would be admissible in the Court of Appeal,
to compel witnesses, and to require information to be provided
from non-public bodies We note that the Commission currently has
a working group examining these issues with a view to making submissions
to the Home Office.[110]
67. Obligations in respect of retention of documents
Lawyer witnesses suggested that there could be problems with the
availability of relevant documents for the Commission, arising
from inadequate obligations on the police and the prosecuting
authorities to retain documentation.[111]
68. Disclosure by the Commission We noted
a difference of opinion over the matter of disclosure by the Commission
to the applicant. While, as has been noted, there was praise for
the generally open attitude adopted by the Commission, Bindmans
suggested there was a case for a more comprehensive system for
formal disclosure by the Commission to an applicant of the material
the Commission receives[112].
The Commission felt that this could adversely affect the degree
to which some witnesses would talk cooperate with them, and would
prefer to retain the current more discretionary arrangements.[113]
69. Cooperation from the police Although the
Commission emphasised—as already noted—that the quality
of investigations carried out by the police on their behalf was
high, this did not mean that the relationship was not without
difficulty. During our visit to the Commission's offices in Birmingham
we learnt that staff still encountered a certain initial hesitance
from individual officers at the beginning of new inquiries. However,
the Commission thought this could be put down to a lack of awareness
of the role and powers of the Commission rather than to any desire
to obstruct their work. Some caseworkers also mentioned that the
speed of response in some forces—the Metropolitan Police
Service was mentioned—could be improved.
70. We have not in this short inquiry been able to
examine these issues at sufficient length to form a view on what
steps might be needed, but we take this opportunity to flag them
up as matters which the Government should be keeping under review
and should be ready to act upon if a convincing case for action
is put to them.
98 Appendix 10, para 7, and Q179; see also Q65. Back
99
Criminal Cases Review (Insanity) Bill, introduced 11 March 1999. Back
100
We have previously examined a similar issue in relation to the
Police Complaints Authority; see Police disciplinary and complaints
procedures, First Report form the Home Affairs Committee,
Session 1997-98, HC 258-I, paras 63-86. Back
101
See Appendix 11, paras 2.5-2.7. Back
102
Q28; 'Just Television' also expressed concern at the lack of in-house
investigative resources for the CCRC (Appendix 7). Back
103
Q29; additionally, Mrs Peirce suggested that the appointment of
a police investigator could be a source of delay, a point also
made by Stephens & Scown (Solicitors) (Appendix 6). Back
104
Appendix 2. Back
105
Appendix 11, para 9.2. Back
106
Appendix 11, paras 9.5-9.8. Back
107
Q151; see also submissions from 'Just Television' (Appendix 7)
and Stephens & Scown (Solicitors) (letter of 14 Jan 99).
However, in three cases where malpractice was not at issue an
officer from the 'home' police force had been appointed (information
supplied by the CCRC); see also Q29 (Ms Akester). Back
108
Q151. Back
109
See Appendix 11, para 9.10. A figure of £430,000 has been
quoted for the cost of the investigation by the Hampshire Constabulary
into the case of Brian Parsons (which involved the Devon and Cornwall
Constabulary) (Official Report 10 February 1999 Written
Answers col 262). Back
110
Q64. Back
111
Q32 (Mrs Peirce); Appendix 4 (Glaisyers (solicitors)); see QQ82-86
(CCRC). Back
112
Appendix 2 and QQ42-43. Back
113
QQ153-160. Back
