Oral evidence: The Criminal Cases Review Commission, HC 850Friday 6 February 2015

Oral evidence, 3 February 2015.

Witnesses

Rt Hon Mike Penning MP, Minister of State for Policing, Criminal Justice and Victims, and Stephen Muers, Director for Sentencing and Rehabilitation, Ministry of Justice, gave evidence.

Chair

Welcome, Mr Penning. Thank you for being here early, which means we can crack on.

Mike Penning

You are very welcome. Shall I ask Stephen to introduce himself?

Chair

By all means.

Stephen Muers

I am Stephen Muers, the director of criminal justice policy at the Ministry of Justice.

Chair

Thank you very much. As you know, we have been looking at the Criminal Cases Review Commission for some weeks and we have had a whole series of evidence sessions, the one that we have just had being with the chair and chief executive of the commission. I am going to ask Mr Corbyn to begin.

Jeremy Corbyn

Thanks very much for coming. It is nice to see you both here. The first question is a really easy one for you. The CCRC’s budget has been cut by £0.6 million and the work load has gone up 74%. All the indications are that the work load is likely to increase partly because of the general campaign for people to get their cases reviewed, which is, of course, what they are entitled to do. Do you have any comment on this, because it must lead to problems in the administration and staffing at the commission?

Mike Penning

I will begin and Stephen can comment, by all means, if he wants to. Yes, there have been cuts. This is a difficult austerity period. We have made cuts across Government. The cuts that they have experienced here are not as deep, for want of a better word, as those that have been made in the Ministry of Justice as a whole. I am confident, and it will be up to the chief executive and the chairman—you heard the evidence—that they can do the job that we are asking them to do. That is an important thing.

Jeremy Corbyn

But they are being asked to make a saving of £1.15 million between this financial year and next. That is massive, considering that their budget is less than £6 million. That is a huge cut with this very big increase in work load. What we are picking up is excessive delays in dealing, often, with what are, apparently, very meritorious cases. We appreciate that they are making themselves as efficient as they possibly can, but this is a massive demand upon them.

Mike Penning

We have asked for a massive demand across Government, apart from the protected Departments, because of the difficult financial situation we are in, and we are still working our way out of that financial position. As I said, all Departments have had to cut, and arm’s length bodies are no exception to that. We are, as I said a moment ago, confident that they can do the job that we are asking them to do.

Jeremy Corbyn

What can you predict for them for the future funding after 2016? There is a difficulty here. While, yes, of course, you are responsible for spending all across the piece, nobody else is having this increase in work load by that comparison. The prison population certainly is not going up by 74%; other cases are not going up by that; yet you have this massive increase of people exercising their rights. Is that not something that you are concerned about?

Mike Penning

Of course I want people to exercise their rights, but I am also quite determined that we need to continue with the austerity measures that we have in place so that Departments can live within their budgets. As we want to get ourselves into a better financial position, then this is exactly what we have to do. I know colleagues across the House don’t necessarily agree with that, but the Government’s job is to get the economy back on track so we can get investment into different areas.

Andy McDonald

Minister, everyone who has submitted evidence to us and mentioned the proposed extension of the CCRC’s section 17 powers to cover private bodies has supported it, including the Ministry of Justice. That has been an issue now for 15 years or so. Your excuse for not implementing that extension is because you have not been able to secure its inclusion in a suitable legislative vehicle. We have been told in this inquiry that that failure is “totally ridiculous” as all it needs is one extra clause in a Criminal Justice Bill “and there will always be criminal justice Bills”. Is it a ridiculous failure and can you explain why it has not been done?

Mike Penning

No, I don’t think it is ridiculous. I accept that doing this has been looked at under previous Administrations. Under this Administration, we are determined to bring it forward. We want them to have the powers. It is not as simple—and Stephen will probably want to come in here—as needing one extra clause. If I am wrong, Stephen will tell me. At the end of the day, we want to bring it forward but we don’t have a primary legislative vehicle at the moment to do so, but we are quite determined in the next Parliament to do so.

Andy McDonald

We have had the Anti-social Behaviour, Crime and Policing Act 2014, and we have the Criminal Justice and Courts Bill currently going through Parliament. One piece of legislation is still extant, so why can’t we consider that as a legislative vehicle?

Stephen Muers

As with all Bills, there is a long, long list of different measures that need to get into them. Ultimately, Ministers take that judgment. As you know, there is always a process of working out which measures can fit into a Bill. There is always a list of things we want to do, including this measure. On this occasion, it has not been possible to find space. As the Minister said, the Government remain committed to do this.

Mike Penning

Having been in five Departments in four-and-a-half years, we have been criticised before for adding in things to Bills, and the process you go through when you are bidding for primary legislation time is that you commit to other Departments as best you can that you keep it as tight as possible, so that the legislation gets through.

Chair

But that is never what happens in criminal justice Bills, is it?

Mike Penning

I know that, Sir Alan, but that is what we try and do. As you know, I have not been here an awful long time, but it is a priority for the Government. We want to do it. It is not a case of not wanting to do it.

Andy McDonald

Why isn’t there an opportunity now? Is it one clause? Is it terrifically complicated to do this? Is it beyond the wit of draftsmen to put this into the Bill currently going through?

Stephen Muers

It is not an enormously complex piece of legislation. Equally, it is not a sentence either. It is between the two. Clearly, Bills are currently going through the House, there is a certain timetable and there is a certain set of things that they need to get done in the remaining time of the Parliament. It is unlikely that we could get it into a Bill that is currently before the House.

Andy McDonald

What about the Serious Crime Bill? Could it not be put into that?

Mike Penning

As Stephen said, I don’t think we will have an opportunity to get it into the Bill that has come before the House.

Chair

Have you looked at the clause in John Hemming’s private Member’s Bill which covers this?

Mike Penning

Yes, we have.

Chair

Have you examined that clause and decided whether it is satisfactory?

Stephen Muers

Yes. It is roughly in the right direction. It is roughly what you would need.

Andy McDonald

If it is roughly what we need—

Mike Penning

It needs time. Private Members’ Bills tend not to have that, as we know. Because of the way that private Members’ Bills work in the parliamentary system, it means they get into a queue and if something comes up at Report, it gets backed. It could be amended, of course, if it gets time to come through.

Andy McDonald

If it is a good idea, if it is well expressed and it is not far from what we want, why can’t we just take it and put it into one of the Bills that is available to us? It sounds like a solution. If there is a genuine desire to make progress on this issue, why don’t we grab that opportunity and put it in the Bill?

Mike Penning

Because the business managers have decided that there will not be time to put it into another Bill. It would not be right to do it. Both of those Bills have been scrutinised extensively in both Houses. We have had a degree of ping-pong on them. If John’s Bill is successful, I think we will support that coming through, subject to some amendments.

Chair

Are you willing to have another look at this and perhaps have another go?

Mike Penning

Of course. We continue to look at it.

Chair

That phrase “continue to look at it” is something I hear Ministers say so often.

Mike Penning

Sir Alan, I have sat in for more bids for more legislation than many, and I have not always been successful. It is difficult at times.

John McDonnell

This is like men from the Ministry. It has been 15 years to get the draft of, possibly, two clauses into a Bill, and within that 15 years there must have been 20 pieces of legislation, possibly 30. This is bizarre.

Mike Penning

I can’t be blamed for that.

Chair

Not all of which can be blamed on you.

Mike Penning

That is a point I was going to make, Sir Alan.

John McDonnell

But there is a collective wisdom within the Department itself and there is a collective failure here, is there not?

Mike Penning

I don’t think there is a collective failure. You have to prioritise the legislation that you want to bring through.

Mr Llwyd

Isn’t that exactly the point, though? If I may just enlighten the Committee, I introduced a ten-minute rule Bill in February to bring in coercive control under the domestic violence legislation. Thankfully, that was tacked on to the Serious Crime Bill, by the Government. It went through the Committee stage last week and it is going to become law. Really, this should also be a priority, should it not?

Mike Penning

If I can get it tacked on, Sir Alan, I will. I will look at it again, but we are right at the tail end of a Parliament, and it is going to be difficult. If I can, we will.

Chair

Thank you very much indeed. I think Mr McDonnell wanted to come back on the earlier budget.

John McDonnell

It would be really useful for us to have any information that you have about the comparability of the treatment of the CCRC and other parts of the Ministry of Justice—it is not just about what has happened with regard to austerity over the last four years—as to what has happened over the last decade, which is about inflation-proof freezing of their budgets as well as a round of cuts. It has meant that, on the argument that they have put forward, what they were doing for £10 they now have £4 to do it. That seems a proportion which is considerably worse than any other part of Government. In fact, they argue that it is worse than any other part of Government in terms of cuts. The other issue is that they are looking for consistency of budgeting. What seems to have happened is that an assessment takes place of their budget and then, because they are struggling, another £500,000 is found here or there. So again, they are not only concerned about the quantum of what they are getting and how that has been whittled down over time, but the fact that their budget is never properly assessed and they live from year to year on the basis of the extension of additional moneys, which then fails to enable them to plan their budgets properly and recruit accordingly.

Mike Penning

On the first question, we will write to the Committee and give an assessment as to how other agencies in particular have been dealt with. The Department as a whole has experienced really large cuts, which they have had to deal with as we have gone through the last four-and-a-half years.

Mr Llwyd

The triennial review showed that one of the most controversial aspects of the CCRC is the “real possibility” test. Would there be merit in altering the test so as to refocus the CCRC on investigating whether a miscarriage of justice has occurred, rather than, in truth, anticipating the Court of Appeal throughout its investigations?

Stephen Muers

I will say something on this one. The triennial review evidence showed that there were genuine differences of view on this point. There are strong arguments in both directions. Our perspective is that it is not clear how changing the test would deliver better results, given that, ultimately, the Court of Appeal has to make a decision about whether to uphold or overturn a conviction. The alternative of not having a “real possibility” test implies that the commission would be referring cases where there was not a real possibility of the Court of Appeal overturning them, which seems a slightly strange position to get into, given the attendant costs, the impact on victims and so on that you might get from that. We are open-minded. If someone came up with a brilliant alternative that was clearly better and commanded a widespread consensus, then clearly we would have a look at it, but I have not seen one yet that is generally agreed to be a better option.

Mr Llwyd

Following on from that, we have been told throughout this inquiry, by several witnesses, of the issues lying with the Court of Appeal and its unwillingness, apparently, to interfere with jury verdicts. The Royal Commission on Criminal Justice, as you may know, recommended that the grounds for appeal should be changed to “whether the conviction is or may be unsafe”, and that, as part of that change, “it should be made clear that the Court of Appeal should quash a conviction, notwithstanding that the jury reached their verdict having heard all the relevant evidence and without any error of law or material irregularity having occurred, if, after reviewing the case, the court concludes that the verdict is or may be unsafe.” Why were these changes watered down to only altering the grounds for appeal to “whether the conviction is unsafe”? Is it time to look at this again?

Stephen Muers

On the first point, as to why the recommendation of the Royal Commission was altered in its implementation, neither the Minister nor I are, probably, well qualified to explain what happened nearly 20 years ago. We are probably not in a position to say why that decision was made. In terms of whether we should look at it again, in my experience, it is not something that has been raised with us by a lot of people or I have not seen any strong arguments as to why we should re-visit that. If such arguments were put forward, we could have a look at it.

Mike Penning

Sir Alan, it is an interesting point, from the evidence that you have been picking up, which is good, because that is exactly what is happening, but we have not been getting that. When I looked at the figures as to what had been sent back to the Court of Appeal—because they don’t make a decision: it goes back to the Court of Appeal, quite rightly, for them to make a decision—it is 70% where the Court of Appeal have agreed with what was sent back to them. While we could always look at things, and we will continue to keep it under review, such evidence to this Committee, in this particular case, is not something that we have been picking up, certainly not as I looked into the evidence before I came to see the Committee today. I asked my legal advisers whether they had been pushed on a particular area, and we haven’t.

Chair

It is only fair to say that earlier this afternoon we heard on behalf of the commission the argument that if they think the test is met, even if there are not those features which the Court of Appeal would normally rely on to quash the verdict, they do submit them. We know that the Court of Appeal is very reluctant, if not completely unwilling, to interfere with the verdict of a jury if there is no fault in the court process and no evidence of the jury being tampered with or anything of that kind. We know that there is a belief that this would be a very fundamental change in our court system.

Stephen Muers

I do not think it is our place to second-guess the way the Court of Appeal approaches these things. That is clearly for them to do and for the commission, as you say, to exercise its discretion as to what to refer and on what basis, as the independent body rather than for us to second-guess their choices.

Mike Penning

Going back to your original point of us keeping it under review, the answer is yes. Subject to what the Committee submit in their report, that would be part of our continual review.

Mr Llwyd

Should the CCRC be able to refer cases on the basis that it has a serious doubt about the correctness of the verdict? Surely any verdict about which both the CCRC and the Court of Appeal have serious doubts should not be allowed to stand.

Stephen Muers

I may not be understanding the question aright. Is that different from the real possibility test? Are you suggesting that that is something that is different from the real possibility test?

Chair

The real possibility test is a test for the commission. The serious doubt test in this argument is a test for the Court of Appeal.

Mike Penning

Yes.

Stephen Muers

As I say, it is probably not for us to get into exactly how the Court of Appeal exercises its jurisprudence because that is clearly something that evolves through the senior judiciary rather than through Ministers sitting here and telling them. The CCRC’s role is set out in statute as is the real possibility test. As I said, I haven’t seen a better option so far.

Mike Penning

Especially for a non-legally trained Minister.

Mr Llwyd

During our deliberations we have heard several times about going behind the jury decision and so on. Do you consider that section 8 of the Contempt of Court Act 1981 should be amended to allow for strictly controlled and anonymised research into jury verdicts on the way they work?

Mike Penning

I have not seen any reason, as yet, to do so, but if evidence has come before the Committee about that, then we will look at that.

Mr Llwyd

I have one final question. Why has the use of the royal prerogative of mercy fallen so sharply since the creation of the CCRC? Would the Ministry be open to references to the Secretary of State from the CCRC for the exercise of the royal prerogative?

Stephen Muers

We are clearly open to any such references, and the CCRC has the power to make them. We have only ever had one, I believe. I would have to check the exact number. It is certainly very low. It is a judgment for the commission to make as to whether they think it is appropriate to refer to the Secretary of State.

Mike Penning

They have the power to do so.

Stephen Muers

We would then consider, very seriously, any such recommendation that we got from the commission.

Mike Penning

It is very much for them. They have the power to refer.

Mr Llwyd

I realise that they have the power. My question implied that they have the power. I am interested in that answer. I am sure that they will be, too.

Chair

Would you have any worries if they exercised that power about the political pressures that would then be on the Secretary of State?

Mike Penning

No. Secretaries of State and, sometimes, Ministers of State have to make decisions when cases are referred to them. Decisions did not have to be made by Ministers very often. So no, I wouldn’t have concerns about that. That’s why it sits there. If there was a huge use of it, we would all sit back and take another look to see what was going on. It is there, not as a last resort, but it is there and it is available for them to use should they wish to do so.

Mr Llwyd

In exceptional cases.

Mike Penning

In exceptional cases. It is there for them to use if they wish to do so. Of course, they hardly, if at all, opted to use it. That is their decision.

John Howell

In terms of feedback to ensure that the criminal justice system functions as effectively as possible, what is the relationship between the Ministry and the CCRC? What do you do to each other, if I can put it that way?

Mike Penning

That’s a very interesting way of putting it. Stephen will give you a more legalistic view of this. They are an arm’s length body. I am the Minister responsible through the Secretary of State. They have an opportunity, literally, to come and see me and talk to me about any of their concerns and vice versa. They are independent, and because they are independent—that is what it says on the tin—that is how they should operate. At the end of the day, they are, like all agencies or quangos, responsible to Ministers.

Stephen Muers

In terms of your point about feedback in the system, we have a constant dialogue with CCRC about all sorts of things, including issues that have been raised by the Committee today, but also about specific problems that come out of specific cases or lessons from the system. That is not just with the Ministry of Justice. The CCRC is also in touch with the other criminal justice agencies, such as the CPS, the police and so on. Much of what comes out will be as much for others to take on board as the Ministry. There is potential for a relationship which works quite well.

Mike Penning

Technically, I am the sponsoring Minister. That is the correct terminology.

John Howell

What scope is there for increasing the functions of the CCRC to include taking advantage of its unique position to comment, and to undertake research, on issues within the criminal justice system?

Stephen Muers

There is a choice to be made here about whether the CCRC is the right body to do that kind of function. We have heard about the work load pressures and the budget pressures that the commission is under. Making sure that the core business is done properly has to be the first duty. Then, clearly, there are lots of people who can do research into the criminal justice system, academic bodies, think-tanks and so on. Whether the CCRC would add a lot to that, I am not sure. It is something we could think about, but there is clearly a resourcing question that comes tied in with it.

John Howell

But it does have a unique position in terms of the understanding that it has of the issues involved that could usefully be used in this way.

Stephen Muers

Yes; and the CCRC does talk, for example, to academics who work in this field and feed into their research and so on. That may be a better way to do it rather than the CCRC commissioning research itself. I don’t know.

Mike Penning

It is something that the academics are particularly interested in, for obvious reasons. I know that evidence has been given to the Committee as to whether the work they are doing and the decisions they are coming out with are right. That is a right academic rigour. As Stephen has alluded to, immediately I suggest that, I will be put under further pressure on funding. I don’t necessarily feel why they should be the initiator of that rather than being a part of some of the information that is coming out.

John Howell

Let me take you on to one other issue, and that is the impact of the legal aid cuts. There has been a suggestion that the cuts to legal aid will lead to a higher level of miscarriages of justice. First of all, do you recognise that and is that your view of it? Secondly, what are you doing to work with the CCRC to explore that possibility and ensure that they are in a good position to be able to handle them?

Mike Penning

Any future comments on that would have to be evidence based, so I don’t accept that because I don’t see where the evidence base is for that assumption by whoever put that to the Committee. As we go forward, they will be able to see whether that is the sort of situation that is occurring and we can learn from that. It is much too early, I would have thought, to have any indication. People have assumptions, and they are their personal concerns about the cuts to legal aid. How that reflects across the criminal justice system—it is much too early to make that sort of assumption.

Chair

Thank you for your help this afternoon. You have agreed to write to us on the point that was raised a little earlier in the debate. If there are no further points, we are grateful to you for your help this afternoon. We will be reporting on this subject in some weeks’ time, although I will not give a precise estimate. Thank you very much, indeed.

Mike Penning

Thank you, Sir Alan. You are welcome, as always. Oral evidence: The Criminal Cases Review Commission, HC 850 19