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Let us make a start, ladies and gentlemen. Item 1 on the agenda is evidence on the Scottish Criminal Cases Review Commission. With us are Professor Sheila McLean, chairperson of the commission; Carol Kelly, chief executive; and Jackie Bergen, director of administration. A paper from Sheila McLean has been circulated. She does not wish to say anything to supplement that paper, so—unusually—we will move straight to questions. I welcome that.
If you do not mind, convener, I will ask Carol Kelly to answer that question as well. To try to predict roughly the number of staff that we would need, we looked backwards at how we managed cases and the progress that we made. We also looked forwards. As the committee knows, we have appointed three new legal officers, so the commission has a staff of seven. We did that to meet increased demand. We have tried hard to avoid developing a substantial backlog. To an extent, we made a judgment and to an extent, we speculated so that we could come up with a number of cases that we hoped we would be able to progress. As Alasdair Morgan rightly said, we must speculate to some extent, because the time that is spent on a case depends largely on that case's complexity. We made an informed judgment about how long we hoped that we would take to complete cases.
We based the number of cases that we expected to receive on the number that we have received since the commission was established. That figure averaged out at between eight and nine cases a month. It seemed reasonable—certainly during the commission's early days—to assume that we would continue to receive cases at roughly that rate. Since we made the calculations, they have proved to be correct. When the commission's profile becomes higher, it is possible that the number will increase. On the other hand, the number of cases might decrease as time goes on and older cases pass through the system and are concluded.
What constraints does funding from the Executive place the commission under? You say that you have appointed three new caseworkers. Must you approach the Executive and argue for an increased budget to fund those posts?
We must obtain authority from the Executive to make additional appointments. Where possible, the Executive expects us to meet additional costs from the budget that we have been allocated, but when additional funding is needed, we must make a case for that.
I note that the powers of the commission allow it to
Normally, we request documentation centrally via the Crown Office—at least in all solemn cases. We are working with the law officers on a protocol on how we should proceed in future. Normally, the Crown Office collects the information from the local and regional procurators fiscal. The committee might know that we tested in court the legislative provisions on the amount of information that we were entitled to receive. Lord Clarke's judgment was clear—we are entitled to receive all information that is held in connection with the cases that we are investigating. We anticipate that all such information would be filtered and sent to us through the Crown Office.
If that is the case, can the commission publish its findings, or is the information reserved for the appellant?
Are you talking about publishing names?
If the commission received information that led to reasoning about why an individual was not taken to task through the procurator fiscal system and why charges were dropped, could you reveal that to the public?
I am not sure whether we have jurisdiction to do that. In examining the case load, we can ask the Lord Advocate or the Crown Office to investigate any suspicions that we have that criminal activity has taken place, if that is what Phil Gallie refers to. I do not think that the Crown Office's policy decisions are part of our jurisdiction. The commission is bound strictly by confidentiality rules, which prevent us from disclosing information that we receive as part of a case.
I recognise that the issue is not really part of the commission's remit, but I will draw a parallel. I imagine that, in some of the commission's investigations, a third party might be considered to be the most likely person to have committed a crime for which the person whose case you are reviewing was convicted. That third party might have been discharged from a court. Do you see any need for an extension of the commission's powers to allow consideration of such a discharge?
That would change the commission's work fundamentally. As members know, we are concerned only with people who have been convicted. Such an extension would make the commission another Crown Office, which we do not need because we already have one. We would not view that as a positive step.
I understand that response, but I think that the commission will come across such issues time and again. However, it is early days.
As Phil Gallie knows, one third of the people on the board are required to be legally qualified and—of the total—two thirds must have some knowledge of the criminal justice system. The remaining third can be lay people. One person on the board does not have a law degree, if that is what Phil Gallie means by the word "lay". Some of us who have law degrees regard ourselves as lay people because we have not practised law. The mix on the board is not as simple as it might appear at first. When I was involved in interviewing people to become members of the commission, I took the view that it was likely that we would be confronted with some complex legal problems. To that end we have, for example, ensured that all our legal officers, who perform the work of investigation, have some legal training.
I note that two board members are allocated to oversee each case. Is that task terribly time consuming? Can people who have a part-time interest give sufficient effort, which would be appropriate to the complexity of a case?
Commission members' work is time consuming. I congratulate the commission's members on the dedication and commitment that they have shown to working with the case load. As committee members may have seen from the paper that I prepared, we are reviewing our procedures because we feel that the arrangement might be too cumbersome and we want to ensure that we are financially accountable.
I have a question that may be answered by the statistics at the back of Sheila McLean's paper, but unfortunately I received that paper only this morning. My notes say that many applications to the commission are inadmissible because other procedures have not been exhausted. Is the number of such applications given at the back of the paper? I cannot see it—I have probably missed it.
The commission has refused to deal with six cases because an appeal was outstanding or the appeal procedures had still to be exhausted.
Is there a mechanism for sifting such cases? Does the system for advising applicants before they approach the commission lack something that would mean that the commission could avoid having to deal with such cases?
It is difficult to say. As Christine Grahame will have seen from the figures—we managed to put them together only yesterday—that just under half of those who apply to the commission are legally represented. That number is high compared with the English equivalent. Of course, one would anticipate that such people were better informed about procedures.
We hope that they would.
Yes. I am not sure what else can be done. When we receive an application, we assume that we have an obligation to deal with it, either by returning to the applicant to inform them that they should complete the appeals process before approaching us, or by putting the case to the board, if there are special circumstances. We have taken some cases in which we were satisfied that there were special circumstances—for example, when somebody tried to appeal but could not obtain legal representation. It might be important that we receive such cases, because we can point the applicants in the appropriate direction.
I will expand on the point about legal representation, which is well taken. It would assist the commission considerably if applications were more focused in the first instance, and if the legal profession had more input. Recently, we wrote to every firm of solicitors in Scotland that does criminal work. We explained the commission's role and offered to provide them with information, seminars and so on at our offices. We have had discussions with the Scottish Legal Aid Board about the provision of advice and assistance on work that is to be carried out by solicitors to establish whether there is a case for sending an application to the commission.
Are you saying that such advice and assistance is not available at the moment? I thought that it would be.
Advice and assistance is available, but the commission's experience of applications was that there seemed to be confusion about whether further advice and assistance was available when an application reached the commission. That led to general confusion within the profession regarding the position on applications to the commission—that matter required to be clarified. I hope that that has happened as a result of recent discussions with the Scottish Legal Aid Board. We will certainly inform the profession of the position regarding the provision of advice and assistance prior to an application to the board and we will encourage the legal profession to assist applicants prior to the submission of an application.
Will advice and assistance continue until physical representation by an agent takes place? Can a solicitor, in pursuing a response to an application that is before the commission, continue with advice and assistance?
Do you mean after the application has been made to the commission?
Yes—are there further communications?
It appears that the Scottish Legal Aid Board feels that, because the commission is able to carry out the necessary investigations, that should not be done by the legal profession with input from the legal aid fund. As I understand it, legal advice and assistance are available for a solicitor who is consulting an applicant to ascertain whether there was any response to a particular point that had been raised, but not in relation to the investigation and review of the case itself.
This is a daft lassie question, but is any appeal or review of your decision available? If somebody has already been to you in relation to a review of a conviction and you have made a decision, can that person return in relation to that same matter, or would it be barred?
When you ask whether there is an appeal against our decision—
On the first decision you have made on whether the matter should be taken any further, can an applicant appeal against the decision or have it reviewed in any way, or is that the end of the matter?
As Christine Grahame is aware, there is always the possibility that public bodies will be judicially reviewed. For example, if we failed procedurally, there is a way in which that could be reviewed.
There is the general review procedure.
There is no direct appeal, but people can come back to the commission—there have already been two cases in which people have done that.
If the commission made a determination in a case, and something else came to light, would there be any bar to reopening the case?
Absolutely none. We send detailed letters to applicants. When we notify them that we do not intend to refer their case back to the appeal court, the first letter that they get will invite them to respond to our preliminary decision within 21 days of the date of the letter. In a number of cases, we have extended that time because people have indicated that they needed more time to respond—we are always prepared to do that. However, when the final decision letter goes out, we let people know that, if something comes up in future that they feel would make a difference to their case, they are welcome to reapply.
Are you flexible in that? Are there any statutory or time limits?
No.
At what stage in the process can an applicant apply to the commission? Can they do so before or after they appeal to the High Court?
We assume that applicants have exhausted the legal process before they come to us. They would normally come to us after they have attempted to appeal, or after they have appealed unsuccessfully.
Can you consider evidence and whether the law has been applied? Can you consider both aspects to the case?
Sorry—I did not catch that.
Can you consider evidence and the legal aspects of a case?
Yes—the legal officers do the bulk of that work. We have a budget for investigation. As Carol Kelly said, that ties in with responsibilities being shared between legal aid supplying the funding and the commission doing the investigative work. Our legal officers interview witnesses and—where they consider it to be necessary—they consider every piece of evidence. It is an inquiring job, as well as one in which one sits back and contemplates the law.
If the commission is considering the evidence in a case—precognition statements and advice from experts—is not that more time consuming than consideration of whether the law is being applied?
It can be very time consuming, depending on the complexity of the case that we are dealing with. In some cases, we have large volumes of evidence that need to be gone through.
Are you happy that the process of appointment is sufficiently independent of the Executive?
Do you mean in relation to appointments to the commission?
Yes.
Yes—it is sufficiently independent.
The good old European convention on human rights.
We get feedback only from the occasional applicant who contacts us after we have dealt with a case although, as Pauline McNeil knows, our job is finished when we make the referral decision. The only other feedback that we get comes through the media. Some of that has been not especially positive but, by and large, coverage of what we have done has been reasonable.
Does the commission set the time scale for dealing with a case?
We have an internal time scale system—it is part of the case monitoring programme. Carol Kelly might want to expand on that, but she keeps tight control over how cases are being progressed.
I would like to know about that.
We have priority criteria, which members might have seen set out in our annual report. The most important criterion relates to whether an applicant is in custody. In fact, that criterion is often the only one that is of any relevance in an application. On one occasion, we prioritised a case because the applicant was very unwell and there was a question mark over his future health.
To pick up on what Professor McLean said about press coverage, how would you summarise the coverage of your operation thus far?
By and large, it has been intelligent and balanced. There is the odd piece of coverage that I feel was not particularly balanced, but that is what happens. Some of our decisions have received considerably less press interest than we thought they might, but that is not necessarily a bad thing. On the whole, we have not been subjected to any particular problems—I do not know whether Carol Kelly agrees—and people report factually what the commission has done.
One of the commission's aims is to increase public confidence in the justice system. That is obviously a long-term aim, but how will you measure whether you have succeeded?
It is difficult to say. As members know, when the commission was set up, we made a considerable effort to ensure that we were widely known. We felt that that was important. We had a video made, which we sent to all public libraries, prisons and various other organisations. We prepared information leaflets and flyers. Some members of the commission have given talks in various places, from bar associations to prisons. We wrote to all the bar associations, offering our services as speakers. Carol Kelly is doing something similar with the legal firms.
I will go back to the beginning of the process. I was surprised at the statistics about the lack of involvement by solicitors—less than half are involved. I suppose that some applicants might be quite disenchanted with the legal profession, if they feel that they have been wrongly convicted. Is there a role for advice agencies, if an applicant feels that they do not want any more to do with the legal profession? How does the process start? Do people write to the commission or do they fill in a form? What does the form look like? Do you interview them or is that done through an intermediary?
Applicants can get in touch with the commission either by phoning, as some do, or by writing to us. When applicants contact us, they usually deal directly with Mrs Jackie Bergen. An information pack, including an application form, is sent to them. Applicants can fill in the form themselves, or a friend or their solicitor—if they have one—can help them. When that is done, they send the form back to the commission, when it goes into the pot of cases, if you like. When it is ready for allocation, Carol Kelly takes over.
I would like to know about the involvement of advice agencies. Do you have contact with the citizens advice bureaux? They might be a point of contact for people who are not in custody; if they do not want to go to a solicitor, they might go to a CAB or another advice agency.
We have sent to citizens advice bureaux and other organisations all the information that we have available, so that they know that we exist. About 75 per cent of our applicants are in custody, so CABx might not be especially helpful for them. However, we recognise the potential role that the bureaux can play.
Do you deal directly with applicants? I have heard of cases in which relatives wrote to the commission about miscarriages of justice. Do you deal only with applicants, or would you deem it to be appropriate to deal with relatives?
There have been some cases in which it was a relative or friend who contacted us. It is not a requirement for applications to be received only from the applicant. However, we would want to clarify with the applicant that they were content, that the case was investigated by us. We would automatically do that if someone else alerted us to a problem.
Could a third party—for example, one of those journalists about whom we are all so ambivalent—refer a matter to you, just saying, "I think you ought to be looking at this"?
Yes.
Do you ask the 25 per cent of the applicants who are not in custody—the number is quite low, so this question may not be very relevant—where they learned about you, for the purpose of monitoring how successful you are? They might have contacted you through CABx or lawyers, or they might have found you in the "Yellow Pages".
Such questions are not directly asked.
I was taken aback by how slow the legal profession was to become aware of you in your early days. It is early days not only for you, but for the relevant legislation: the Crime and Punishment (Scotland) Act 1997. It is when legislation is tried that we find out whether it fits properly and does its job as it ought to. What problems have you encountered that will require not-too-difficult changes in legislation or regulations?
The main difficulty that we found with the legislation is the "interpretation of section 194K of the Criminal Procedure (Scotland) Act 1995, as inserted by the 1997 act" which relates to disclosure of information. There seems to be a contradiction in the wording in that section, and we are currently considering that matter. Within the Scottish Criminal Cases Review Commission is a legislative changes working group, consisting of two commissioners, a legal officer and me. We are considering the matter of that section as well as other aspects of our own and other legislation.
I am perhaps getting dramatic about this, but when you mentioned disclosure, were you alluding to the fact that a party that was disclosing information, whether in documentary or oral form, would be imperilled?
That is indeed of obvious concern.
In section 6 of "Scottish Criminal Cases Review Commission: First Annual Report and Accounts for the period 1 April 1999 to 31 March 2000", you mention quite a few bits of legislation that you think need amending. Do they need urgent attention, or can we simply reach them in the fulness of time—which, when it comes to legislation, can often mean decades?
I am not sure about Carol Kelly's view on this, but we were able to resolve one or two of the problems that we encountered in the first year, either by taking counsel's opinion or, in one case, by going to court. We are able to function as things stand, but the legislative committee that Carol mentioned is urgently considering the need for legislative amendments. There are real ambiguities in the current legislation that need to be resolved. For the moment, because we have established and maintained good relationships with the outside agencies with whom we work, there are fewer problems than there might have been in a different environment.
I did not see anything in your briefing paper about levels of budget. Could you remind us how much the exercise costs?
This year, the budget for 2000-01 was £650,000. We were able to agree additional funding of £50,000 for the purpose of employing three extra legal officers, making the revised total provision for this year £700,000. I can supply you with a breakdown of that if you wish.
No, I am happy with that—the ballpark figure is fine, thank you.
I return to the question of disclosure and to the problems that you have with the current legislation. I understand that there have been communications on that subject with the Executive. Has the Executive informed you when it will give you a firm response? Once it responds, amending legislation, policy guidelines or whatever is required can be put in place.
My understanding is that the Executive is waiting for us to come to it with our specific proposals and comments. We have not discussed any time scale, but we will be considering the situation over the next six months to a year.
Parliaments always seem to be examining quangos, to justify whether they are necessary. You might say that you have dealt with X cases in Y months, and you have set yourselves efficiency targets in that context. However, that does not tell us whether the commission is worth while per se. You could take the other view: that justice is beyond price, and that the commission's existence is justified if one person who had been wrongly convicted has a successful appeal. Is there a more objective way—perhaps in the future, it being early days yet—by which, looking back in 10 years' time, we will conclude that setting up the commission was a good idea, and that we want it to continue?
The obvious test is to do with the notional one person who had been wrongly convicted having a successful appeal, as you suggested, convener. In that case, we will have earned our place in the criminal justice system. However, that will not do as an answer. The intangible—but, we hope, real—outcome of the commission's existence in the criminal justice system will be a firm faith on the part of the people of Scotland, first that they have a system that is accountable and which will take cases as far as we are prepared to take them, and, secondly, that they are comfortable and confident with the way in which we investigate and present cases.
There is also the question of cases dealt with by the Scottish Office. We have referred four cases, and, since our briefing paper was prepared, we have taken a decision to refer a further one. Two of the cases were dealt with by the Scottish Office and, as I understand, were refused by it. That may further indicate our role in the criminal justice system.
I think that we would all agree that our work cannot be measured by the number of cases that we refer. If we did that, we would be presuming that a substantial number of cases in the system involved a miscarriage of justice. Simple numbers will not help. Our work is difficult to evaluate. Whether we refer 20 cases or none next year will not tell anybody anything about the quality of the work.
In due course, you must make an impact if cases that are referred to you and that relate to the criminal justice system itself are successful. We hope that mistakes will not be repeated—if they are on the Crown side, not the defence side. In fairness, that is also intangible. In due course, you would do yourselves out of a job if the system worked properly.
There is perhaps a case for a commission to look after victims who do not feel that they have been properly dealt with. I am not sure if you would care to comment on that.
I think that I will keep clear of the victim issue.
That point was behind my opening remarks about the procurator fiscal service. It is a valid point, and is perhaps something that we could come to terms with, although that falls outwith the scope of the commission.
There might be a problem with regard to press perception—that the commission is viewed simply as another avenue for appeal and another way by which the accused person can get off their charge. You said that most of the press coverage has been fair, but were there negative aspects about your not being effective enough in getting somebody off a charge, or were you viewed as being too effective?
Where coverage was negative, it was usually because there was a perception that innocent people were still in prison, or that we had taken too long to get cases moving through the system. However, I repeat that the coverage has, by and large, been very responsible, and people seem to understand it.
If members of the committee have no further questions, I thank Professor McLean and her colleagues for their attendance and for the information that they sent us.