We have received the following response from the Home Office to our First Report of this Session on the Work of the Criminal Cases Review Commission[1].

  1.  We note the good start which has been made by the Commission and its staff in respect of those cases which it has examined, particularly as regards the professionalism, independence and openness which it has brought to bear on its work (paragraph 19).

  The Government agrees with and welcomes the Committee's assessment.

  2.  It is important that proper opportunities for referral are available in all cases, and accordingly that the statutory test for referral is as effective as possible in allowing justified cases to be referred. While we conclude that it would not yet be appropriate, with so few cases having been considered by the Court of Appeal, to seek to change the actual test for referral, we think it is worth noting, even at this early stage, that there may be problems with the statutory test laid down in the Criminal Appeal Act 1995. We recommend that a formal review of the wording of the test in the Act take place after the Commission has been in operation for five years (paragraph 24).

  In passing the Criminal Appeal Act 1995, Parliament accepted that "a real possibility that the conviction . . . or sentence would not be upheld" was the right test. It enables the Commission to refer cases except where it considers that there is no real possibility of the verdict being quashed or the sentence reduced. The Commission has shown itself able to apply the test and the Government is not aware that the Courts have commented adversely on it. However, while the Government does not expect problems with the test, it accepts the Committee's recommendation that there should be a review of its wording after March 2002.

  3.  Subject to monitoring of the outcomes of a larger number of decisions, we believe that there may be some force in the proposition that the Commission is interpreting the test too strictly. The statutory phrase "real possibility", however interpreted, clearly allows for a fair proportion of referrals not to lead to a quashing of the conviction (paragraph 30).

  It remains the Government's view that it is essentially for the Commission, in the light of the relevant law and taking into account the outcome of its referrals, to satisfy itself that it is operating the test rightly. The Government agrees with the Committee's implication that the number of referred cases so far heard by the Court of Appeal is too small a sample to support an argument that the Commission is interpreting the "real possibility" test too strictly.

  4.  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 (paragraph 36).

  The Government agrees that the present delays are unacceptable, which is why, as the Committee knows, the Government in January this year authorised the Commission to recruit additional staff, and agreed to a further review of the Commission's resource requirements at the end of 1999. The Commission has meanwhile presented to the Home Secretary for agreement its Business Plan for 1999-2000, in which it sets itself the goal of maintaining the average time applicants in custody wait for a detailed review of their case to begin at its 1998-99 level of 12 months.

  5.  While we recognise the thinking behind [the short form of review process], 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 (paragraph 39).

  6.  We accept and support the basic principle that priority is generally given to applications from those in custody (paragraph 40).

  7.  The fact that the cases of applicants at liberty face not being reached at all reinforces the [earlier] 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 (paragraph 40).

  The Government notes these recommendations. It regards the issues of prioritisation of applications, and all allocation of resources to different kinds of applications, as essentially matters for the Commission, taking into account the views of its stakeholders.

  8.  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 (paragraph 41).

  9.  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 (paragraph 45).

  The Government expects the Commission continually to strive to strike the right balance between dealing with cases as expeditiously as possible, and the necessary level of investigation indicated by its statutory responsibilities and the circumstances of particular cases. As the Home Secretary noted when he gave evidence to the Committee, this is a difficult balance to strike. The Commission's Business Plan for 1999-2000 says it will keep its approach to the identification, and investigation of issues in cases under review, with the aim of optimising resource use whilst fulfilling the Commission's statutory role and responsibilities.

  10.  We are 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 (paragraph 48).

  The Government agrees with the Committee's conclusion, and notes that the Commission is committed to continuous process improvement.

  11.  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 (paragraph 50).

  The Government agrees. The Commission's Business Plan for 1999-2000 includes goals for the year for the number of cases completed, for the number under detailed review, and, as noted above, for the average waiting time for a detailed review of cases of applicants in custody to begin. The Commission is also committed to developing a range of performance indicators before the end of 1999.

  12.  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 (paragraph 57).

  The Government welcomes the Committee's conclusion.

  13.  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 (paragraph 57).

  As the Committee knows, the Government is committed to a further review of the Commission's resource requirements at the end of 1999. The Government agrees with the Committee's conclusion that resources alone are not the solution.

  14.  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 (paragraph 58).

  The Government notes the Committee's conclusion.

  15.  We hope and expect that Government business managers will do what they can to give a fair passage to this uncontroversial measure [the Criminal Cases Review (Insanity) Bill] (paragraph 59).

  Ministers and Government business managers have indeed done their best to facilitate the passage of the Criminal Cases Review (Insanity) Bill, which is due to have its Third Reading in the House of Commons on 23 July.

  16.  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 (paragraph 64).

  The Government is glad that the Committee concludes that investigations conducted by police forces for the Commission have so far proved satisfactory. The use of its various statutory powers is of course a matter for the Commission, in the light of the resources available to it.

  17.  The reversal of some very long-standing miscarriages of justice has been a good start for this new organisation . . . There are, however, clearly still major problems. Although we have been favourably impressed with the way in which the Commission has dealt with the limited number of cases it has so far examined, we are concerned about the growing backlog (paragraphs 71 and 72).

  The Government refers to its responses to conclusions 1 and 4.

  18.  We accept that some extra funding will be needed. There is further scope for efficiency savings as the Commission gains in experience. We believe it ought to be possible to process most cases with greater speed than is presently the case. The key is to identify at an early stage the most critical issues and then to examine those in detail without becoming bogged down or side-tracked by matters which are of less importance (paragraphs 73, 74 and 75).

  The Government refers to its responses to conclusions 9 to 13.

  19.  If the Commission is able, through a combination of these measures, to reduce significantly the time which an applicant has to wait for a case to be reviewed, then the sooner it will achieve what it was set up to do (paragraph 76).

  The Government agrees that a goal of the Commission should be to reduce the time that at least an applicant in custody has to wait for a case to be reviewed. The Commission's Business Plan for 1999-2000 describes minimising the delay in reviewing applications from persons in custody as one of its two key challenges.

15 June 1999