Here are all of the questions that Panorama put to us and the answers we supplied. We publish them here because, having seen the Panorama programme on 30th May, we did not feel that they had been represented clearly or given sufficient weight.
- The CCRC has been accused by certain stakeholders of being “moribund and desk bound” whilst failing to properly investigate some cases. What is your response to that?
There is no sense whatsoever in the idea that office based investigations are, in the context of the type of cases we work with, intrinsically less valuable than any other types of inquiry. Indeed, it is fatuous to suggest that somehow so called “boots on the ground” investigations are always to be preferred and that anything else is lazy or second best..
We consider a lot of cases where the offence in question occurred years earlier. The passage of time will often mean that activities such as visiting the scene of the crime years or decades later can serve little or no purpose. Where that is the case, we won’t waste time on such visits for the sake of presentation or to satisfy some misconceived idea of what an investigation ought to look like.
We do whatever types of investigation we think a case requires. As we demonstrate week in week out in numerous cases, we will take whatever steps we think may be necessary in a case and conduct any kind of inquiries we believe we need from interviewing applicants and witnesses to instructing leading experts in whatever discipline is relevant.
Probably our greatest strength as an investigative body is our unfettered access to the paper trail, and increasingly the digital footprint, left by the investigation, prosecution and trial processes that take place in criminal cases.
The detailed analysis of all that material, and of the products of the various police databases, and sources of intelligence and other sensitive material that only we have access to, are intrinsically desk based activities; we make no apology for doing that skilled and careful work in an office environment. The recent discussion of disclosure issues in the justice system highlights the importance of our legal powers of access to material whether disclosed or otherwise.
- Internal board minutes passed to BBC Panorama suggest the commission suffers from poor staff morale, chronic under staffing, high sickness levels and problems with workload. Do you accept these issues affect overall CCRC performance?
It is the everyday work of a Board to be involved in discussions about morale, work load, staff sickness and so on. In fact it would be very odd if these things were not discussed by the Board; that they are should not be taken to indicate that there is any kind of crisis.
Sickness absence is one of our KPIs. We report on this area each year in our Annual Report where we discuss the reasons if our KPI target is missed.
Regarding staff morale, we use the very well known independent company OCR to conduct a staff survey every two years. In recent years we have twice won OCR awards for our results in the area of employee engagement – which broadly equates to staff morale.
Here are the results on morale for the last two surveys (2014 and 2016). The figures that they show are, by any standards, at the very top end of results in this area.
CCRC staff survey results 2016
|I am proud to work for the CCRC 92%||92|
|I would recommend the CCRC as a good place to work 81%||81|
|I feel committed to the values of the CCRC 95%||95|
|I am happy to go the ‘extra mile’ at work when required 91%||91|
|I feel a strong sense of loyalty to the CCRC 84%||84|
|I am optimistic about the future of the CCRC 57%||57|
|I am happy working at the CCRC at the present time 83%
Staff survey results for 2014
We would never claim that things are perfect, and we are far from complacent about our situation and the types of issues you’ve raised . We are a public sector body, our workload has increased in recent years and our budgets have not. That undoubtedly puts pressure on the organisation and its people – we are not alone being in that position.
We have taken all the steps we can to make sure that the quality of our investigations and the correctness of our decision making has not been adversely affected.
The situation is helped enormously by the fact that at the CCRC we are fortunate to have very able and committed staff.. Our staff surveys have repeatedly demonstrated that we enjoy very robust good morale.
More generally on the points you have sought to extract from the board minutes, we would say it is part of the Board’s job to scrutinise such matters. We certainly won’t be dissuaded from having full and frank Board discussions about these and other issues because someone trawling through the minutes might misinterpret or overstate their meaning.
- The minutes suggest that at least one commissioner, understood to be Alexandra Marks, expressed doubts about whether the work required to uncover certain miscarriages of justice was being done. According to the minutes of the September 2017 board meeting, she “doubted whether the enquiries that led to the discovery of the non-disclosure would be made if the applications had been today.” How do you respond to this?
As the minutes of the Board meeting of September 2017 show, a Commissioner did question whether current CCRC practises would today uncover the important information that our inquiries had uncovered in earlier cases. The question was posed in relation to two specific cases.
The same minute also clearly shows that the Director of Casework Operations undertook to assess the matter with a view to amending any process or policies if it was needed.
The Director of Casework carried that assessment. The process included undertaking a “blind screening” exercise in which a very experienced member of staff was asked to consider one of the cases afresh (without knowing why) in order to test our policy and processes relating to checks of the relevant kind. That and a number of other steps triggered by the question raised at the Board satisfied us that the necessary checks would also be made today as they were when the cases first came to us.
- The board minutes also reveal a culture in which the CCRC is deeply worried about its reputation with the Court of Appeal. It is suggested that this factor has made the CCRC timid in the face of criticism from the Court, impacting on staff confidence and referral potential. How do you respond to this?
We do not accept that it is a fair characterisation of the minutes to say the Commission appears to be “deeply worried”. Our relationship with the Court of Appeal is central to our role. What they have to say in the judgments they make in the cases we send them (and on other cases) is important. The real possibility test that we apply requires us to take note of what the Court does and says so we are bound to carefully consider the tone and content of its judgments.
- Lawyers for Eddie Gilfoyle are preparing a fresh submission on the basis of fresh expert evidence commissioned by BBC Panorama. They say the CCRC has “completely misunderstood the evidence” in relation to previous submissions on perinatal mental health; for example, that it was wrong to describe the undisclosed Gilfoyle diaries as “arguably normal adolescent” diaries. How do you respond to this?
We referred Mr Gilfoyle’s murder conviction to the Court of Appeal back in 2001 but his subsequent second appeal failed. We have since looked twice more at the case but we have not been able to identify any new evidence or legal argument on which we could refer the case again.
Mr Gilfoyle can apply to us again and we will look again at his case and any new submissions he and his legal team wish to make. They will receive full professional and unbiased consideration. It would be completely wrong of us to offer an opinion, or comment in any way on matters that might come to us as a submission, From what you say, it seems that a new application is pending.
We do however think, in light of the comments that Mr Gilfoyle and his representatives have repeatedly made about the Commission’s investigation and decisions on this case, that it would be helpful if Mr Gilfoyle would make public the full CCRC decision documents in his case so that any one interested can judge for themselves the extent of the Commissions investigations and the detailed explanations of why, so far at least, we have been unable to refer his case a second time.
We would argue that our investigations in this case have been painstaking and thorough. A judicial review of our recent decision not to refer the Mr Gilfoyle’s murder conviction found no fault in our reasoning. The only way that people will be able to judge the matter for themselves is for Mr Gilfoyle to agree to make public the lengthy and detailed document, the Statement of Reasons, where we explained what we have done in our review and why we have concluded that there are no grounds on which we can refer the case for a second time. It is not within our power to release that document. However, Mr Gilfoyle can do so; we hope that he will.
- Gilfoyle’s lawyers also claim the CCRC is conflicted, and unable to make a fair assessment of the important of the non-disclosed diaries because the commission may have had access to the diaries during its first assessment of the case in 1999, but did not assess them. How do you respond to this?
We are a professional investigative body and we will have no difficulty whatsoever in ensuring that any fresh review of the case is free from self-interest or any other kind of bias. Any reapplication will be considered by investigative staff and decision makers who have had no previous involvement in the case.
- In one of the CCRC’s dismissals of Kevin Lane’s applications, and in subsequent correspondence with him, the CCRC states that there is no mechanism to transplant a fingerprint from one surface to another. Lane has maintained that could be an explanation for his print being found on the binbag. BBC Panorama has commissioned fingerprint experts to test this, and has established that, using the same technology available in the 90s, that it is possible to transfer a high quality fingerprint from one surface onto a binbag, meaning the CCRC was wrong in its conclusion. What is your response to this?
- The BBC has also commissioned a ballistics expert to analyse a key plank of evidence in this case: that a gun had been in the car linked to the shooting which Lane had previously used. A single particle of gunshot residue (GSR) was found in the boot of the car. The expert has told BBC Panorama that under today’s standards, this would NOT be considered evidence that a gun or ammunition had been present. The Forensic Science Service issued guidance in 2006 in relation to this. Whilst various CCRC investigations of the Lane case have been underway, the CCRC has actually referred other cases to the Court of Appeal based on GSR evidence – famously, Barry George. Given the knowledge about GSR evidence within the CCRC, Can you explain why your investigators failed to spot this crucial piece of new evidence in the Lane case?
If Mr Lane and his representatives feel that they have some new information that has a bearing on the safety of his conviction, they will need to make a new application to the CCRC. They can rest assured that it will be given professional, impartial consideration. If in the overall evidential context of the conviction, new information is strong enough to raise a real possibility that the Court of Appeal would quash his conviction, we will have no hesitation whatsoever in referring the case for appeal.