3rd Report - Leadership of the Criminal Cases Review Commission

We recommend that the Ministry of Justice shares the independent panel report into the former CCRC Chair with the CCRC’s Board and the commissioners. (Recommendation, Paragraph 3) The CCRC’s approach to Andrew Malkinson’s acquittal and the Henley report

It should not have taken an independent review for the CCRC to apologise to Andrew Malkinson. The public statements of the then Chair of the CCRC, Helen Pitcher, after Andrew Malkinson’s acquittal were woefully inadequate and showed a worrying lack of understanding of the potential damage to the CCRC’s reputation and public confidence that would almost inevitably arise from a failure to admit its mistakes and to apologise. By failing to offer a timely apology and by seeking to claim credit for the acquittal, the leadership of the CCRC caused significant damage to the organisation’s reputation. The CCRC’s statements gave the impression that the organisation and its leadership were more concerned with defending their own reputation than offering an honest assessment of how they had failed Andrew Malkinson. (Conclusion, Paragraph 18)

Karen Kneller’s statements on 29 April in relation to the version of the report sent to the CCRC by Chris Henley KC in January 2024 are problematic. Chris Henley KC was entitled to be concerned that Karen Kneller had wrongly suggested that he was somehow partly responsible for the delays in finalising the report. We welcome the clarifications provided by Karen Kneller in her letter on 20 May, but we regret that these were only provided because of Chris Henley KC’s further correspondence. (Conclusion, Paragraph 21) 43

The Committee does not understand why the CCRC would consider itself bound by the government’s General Election guidance. Even if it did consider the guidance applicable, we do not understand why applying that guidance would lead to the conclusion that the report should not be published, given that this was not a party-political issue. The report was concerned with the CCRC’s approach to Andrew Malkinson’s applications, not with government decision-making. We accept that after the General Election was called on 22 May 2024, the CCRC might have decided to check with the Ministry of Justice whether the Henley report could be published. However, we were not convinced by Karen Kneller and Amanda Pearce’s explanation that publication was impossible. Given the CCRC’s constitutional independence and the importance of the report, the leadership of the CCRC should have arrived at their own view as to whether publication at the earliest possible date was necessary, whatever the guidance or the Ministry of Justice said. (Conclusion, Paragraph 25)

Chris Webb’s resignation letter to Karen Kneller set out several concerns over the delays to the publication of the Henley report. When asked about the reason why Chris Webb resigned in the evidence session on 29 April, Karen Kneller’s answers did not reflect the content of Chris Webb’s resignation letter. Karen Kneller’s responses indicated that she was aware that he had “hoped the report would have been published earlier”. Karen Kneller has since provided clarification to us as to the intention of her answers to this line of questioning. However, in our view Karen Kneller’s answers misrepresented the true position, which was that Chris Webb had communicated significant concerns over both the causes and consequences of the delays to the publication of the report. (Conclusion, Paragraph 29)

We accept that it was appropriate for the CCRC to provide feedback to Chris Henley KC on the version of the report that had been shared with them. However, it was inappropriate for the CCRC to suggest to Chris Henley KC that his report should not draw broader conclusions on the CCRC as an organisation and its casework based on his analysis of the CCRC’s handling of Andrew Malkinson’s case. The CCRC’s leadership should have accepted that the gravity of the failings in the handling in the Andrew Malkinson case would lead to concerns that it was highly unlikely to be an isolated example. In fact, the extracts from the CCRC’s letter to Chris Henley KC on 11 March 2024 indicate that the leadership were operating under the misguided assumption that the fallout from the report could be contained if they simply accepted the recommendations and referred to the fact that the findings “were limited to this case”. (Conclusion, Paragraph 36)

In her evidence on 29 April and her letter on 20 May, Karen Kneller denied that the CCRC had attempted to water down the report in any way. Karen Kneller did not inform us in her evidence that one of the reasons the Henley report was delayed was that the CCRC had expressly requested changes to 44 minimise the impact of Henley’s findings and conclusions. These requests did not represent “additional information”, “typographical errors” or “factual issues”. In our view, it was entirely inappropriate to commission an independent review by a leading criminal lawyer and then to seek to suggest that the reviewer should alter their findings. We are disappointed that Karen Kneller’s letter on 20 May does not even acknowledge that asking Chris Henley KC to limit the breadth of his conclusions and remove potential “soundbites” was in any way problematic. (Conclusion, Paragraph 37)

The leadership’s handling of the Henley report was utterly incompetent. The level of delay and the attempt to minimise the damage to the CCRC’s reputation were a spectacular failure of leadership. (Conclusion, Paragraph 38)

In our view, Chris Henley KC’s assessment of the work done by the CCRC was damning. It is true of course that the review focused only on one case, but it is also clear beyond doubt that Chris Henley KC’s conclusions have significant implications for the CCRC’s overall approach to its casework. The mistakes made in relation to Andrew Malkinson’s application should have been taken as evidence of systemic problems within the CCRC. It was therefore wrong for the CCRC to repeatedly emphasise that Chris Henley KC’s report was “necessarily limited” to one case. The CCRC stated that they accepted all of Chris Henley KC’s recommendations, which we welcome. However, we are unconvinced that the CCRC has taken on board the strength of his overall conclusions about the quality of the CCRC’s work on Andrew Malkinson’s applications. Those findings have significantly damaged public confidence in the CCRC’s approach to its work. The CCRC’s response should have reflected the severity of Chris Henley KC’s conclusions. (Conclusion, Paragraph 39) Leadership

There is merit in Amanda Pearce’s suggestion that the CCRC should be able to explain its decisions on whether to refer cases to the appeal courts. This would allow for greater transparency which would aid proper scrutiny of the Commission’s decisions. This might go some way towards rebuilding public trust in the CCRC. (Conclusion, Paragraph 45)

The forthcoming review of the organisation should consider the impact on the Commission of the prohibition on disclosure set out in section 23 of the Criminal Appeal Act 1995. (Recommendation, Paragraph 46) 45

We support the conclusions of the Westminster Commission and some of the comments made by Karen Kneller regarding the interim chair. The chair should be someone who is not afraid to be honest about the flaws of the CCRC and the changes that need to be made. (Conclusion, Paragraph 47)

The Chair should have a background in criminal justice, have recognised experience in that field and, above all, be absolutely dedicated to the CCRC’s purpose of identifying miscarriages of justice and upholding its independence. (Recommendation, Paragraph 48)

The former Chair held multiple executive roles which gave the perception of a lack of focus and may have contributed to the CCRC’s failings. (Conclusion, Paragraph 49)

The next permanent chair or interim chair of the CCRC should be dedicated to the organisation above all other duties. (Recommendation, Paragraph 50)

The CCRC has now been without an interim chair for four months. This is an unacceptably long period of time for the organisation to be without a chair, particularly following a difficult and turbulent period. (Conclusion, Paragraph 51)

We reiterate the importance of our request for pre-appointment scrutiny of the next permanent chair. We believe this is vital given the recent failings of the CCRC and the shortcomings of the previous chair. (Conclusion, Paragraph 54)

We were not satisfied by the justifications given by Karen Kneller for her attendance at expensive training courses in France, using public money. There is a potential conflict of interest in Karen Kneller attending the course at INSEAD on the recommendation of the then Chair who held a board-level position at the business school at that time. It is not clear from Karen Kneller’s answers whether proper consideration was given to this. (Conclusion, Paragraph 64) Resources and relationship with the Ministry of Justice

The significant budget reductions imposed on the Commission in previous decades must have had a lasting effect on its ability to conduct timely and comprehensive investigations, especially when combined with an increasing caseload. Despite recent budget increases, its current expenditure remains 15 per cent lower than it was in 2005 in real terms. The Chief Executive was reticent about giving us a full picture of the resource constraints 46 facing the organisation. She did however suggest that it was currently understaffed, leading to case review managers having large caseloads. (Conclusion, Paragraph 70)

The forthcoming review should include an assessment of the sufficiency of the Commission’s current level of funding and what resource increases it might need in future years. (Recommendation, Paragraph 71)

Operating without a full quota of commissioners and delays to their recruitment are serious and urgent issues for the CCRC. However, Karen Kneller’s evidence did not appear to reflect this, demonstrated by her response that recruitment is not up to the Commission. While the Ministry of Justice is ultimately responsible, it is up to the Commission to lobby, exert pressure and push for the process to be speeded up. Given the importance of commissioners to the organisation, the leadership could have been lobbying the Ministry of Justice much harder to resolve the fee issue and speed up recruitment—far more than just “regular contact” is required. (Conclusion, Paragraph 76)

Karen Kneller told us that the “validity of the work of the CCRC or any decision taken is not impacted by commissioner numbers”. We question this assertion. Operating without a full quota of commissioners, in other words ‘short-staffed’, must place pressure on those in position, thereby increasing organisational risk. This is further evidence that the CCRC leadership does not appear to us to be treating this issue with the seriousness it warrants. (Conclusion, Paragraph 77)

The Ministry of Justice’s approach to commissioner recruitment, including the recruitment of an interim chair, is also concerning. We are shocked that negotiations over the fee paid to commissioners took as long as three years to resolve and that a recruitment exercise that appears to have begun in April 2024 will take until the end of 2025 to conclude. (Conclusion, Paragraph 78)

We are concerned that the current terms of appointment for commissioners are not sufficiently attractive to recruit and retain the best possible candidates. Further, a minimum time commitment of 52 days per annum does not seem sufficient. (Conclusion, Paragraph 79)

We recommend that the terms of appointment for commissioners should be reviewed to enable them to make a greater contribution to the day-to-day running of the CCRC. (Recommendation, Paragraph 80)

Commissioners, who take the key decisions in respect of the CCRC’s work, are the backbone of the organisation. The arrangements introduced as a result of the Ministry of Justice’s Tailored Review in 2019 changed the role 47 set out for them in statute with the effect that they are now no longer fully involved in, and able to input into, the making of key decisions about the organisation. (Conclusion, Paragraph 83)

The interim chair’s review should consider the impact of this change, with a view to substantially increasing the number of commissioners on the CCRC Board. The review should also consider whether the current corporate structure of the organisation and its lines of decision-making are appropriate. (Recommendation, Paragraph 84)

We are concerned about the CCRC’s independence and its relationship with the Ministry of Justice. Independence requires the chair and senior leadership to prioritise and defend the interests and constitutional functions of the institution above all. In practice, this does not appear to be happening. This is demonstrated by the decision to delay the publication of the report by Chris Henley KC into the CCRC’s handling of the Andrew Malkinson case due to the pre-election period. (Conclusion, Paragraph 87)

It appears to us that the senior leaders have not been doing enough to challenge the Ministry of Justice and ensure that it has the resources it needs to carry out its functions. We are unclear whether this is due to a lack of robust lobbying on the part of the Commission’s leadership or a failing on the Ministry of Justice’s part to provide the Commission with the support that it needs. (Conclusion, Paragraph 88)

We recommend that the interim chair considers the dynamic of the relationship between the Commission and the Ministry of Justice and how the Commission’s leadership could be supported to take a more robust approach to its dealings with the department. (Recommendation, Paragraph 89) Remote-first

We were shocked by the CCRC leadership’s decision—quite out of line with the rest of the public sector where hybrid working prevails—to turn the organisation fully remote. We struggle to understand how investigative case work, with its complexities and potential for distress, is suitable to be undertaken fully from home, even with the most robust virtual support in place. We find it difficult to see how staff can readily and spontaneously get advice, talk through difficult issues or share concerns—with each other and with commissioners—in the way they had done in the office. Amanda Pearce told us that that there was “no magic” to working in the office. Although we would not describe it as “magic”, we believe that there is much to be gained for staff and their work from interacting in the office. (Conclusion, Paragraph 93) 48

Fundamentally, we question whether fully remote working is right for the Commission and urge the interim chair to evaluate its impact on the Commission’s efficiency, the quality of casework and on staff wellbeing and morale. (Recommendation, Paragraph 94)

We were told that recruitment played a role in the decision to become fully remote. However, we hope that other options were thoroughly explored first and staff were consulted before this drastic step was taken. Moving to a hybrid model of working in January 2022 may have been sufficient to widen the pool of candidates given Birmingham’s central location and good transport links. If recruitment was the driving factor, the CCRC’s senior leaders should have been pushing the Ministry of Justice hard for more funding to enable the Commission to offer competitive salaries. (Conclusion, Paragraph 95)

The regular physical presence of senior leaders in the office conveys, to staff and stakeholders, that the leadership is present, operational and effective. (Conclusion, Paragraph 96)

We recommend that the senior leadership should have a regular presence in the office, particularly in light of recent events and the high-profile criticism directed at the Commission. In our view, it is imperative that the organisation moves towards a hybrid model to ensure that it operates more effectively. (Recommendation, Paragraph 97) Conclusions on the CCRC’s effectiveness and leadership

We conclude that, a decade on from our predecessor Committee’s inquiry into the CCRC, there is evidence that the situation for the CCRC has deteriorated significantly. At the time of writing, the CCRC lacks a chair and has struggled to secure a sufficient number of commissioners, which are central to how it operates. The CCRC has moved to remote-first as a means of operation, which is out of step with the rest of the public sector and seems unsuited to the nature of their work. An independent review found a number of significant failures in how it dealt with one of the most significant miscarriages of justice of recent times. The leadership of the organisation failed to respond adequately to Andrew Malkinson’s acquittal and to the publication of the independent review. (Conclusion, Paragraph 99)

The CCRC is a hugely important organisation and the senior leadership could have done much more in their evidence to reassure us that they understood the seriousness of the criticisms it has faced and the need for an overhaul of the organisation to rebuild public trust and provide applicants to the CCRC with the justice they deserve. For an organisation that is 49 designed to identify failures within the criminal justice system, the CCRC’s leadership has shown a remarkable inability to learn from its own mistakes. (Conclusion, Paragraph 100)

We are concerned that the current structure of the CCRC does not appear to be functioning as it should. The Criminal Appeal Act 1995 created the CCRC as a body corporate, with the commissioners as members of the Commission, vested with the statutory functions to investigate and refer miscarriages of justice to the courts. At present, it appears that the relationship between the commissioners and the senior leadership team is not operating effectively. The absence of a chair, or even an interim chair, since January appears to have caused significant difficulties. The Ministry of Justice must take a degree of responsibility for not putting a plan in place to replace Helen Pitcher. (Conclusion, Paragraph 101)

We recommend that the interim chair’s review considers how the relationship between the commissioners and the senior leadership team can be made to operate more effectively. (Recommendation, Paragraph 102)

The released extracts from the panel report on the former Chair made clear that one of her main failings was the absence of any evidence that the Chief Executive’s performance was subject to sufficient challenge. It is likely that the interim chair will have to bring about significant changes to the working practices of the CCRC. These changes are likely to involve undoing practices brought in by the current Chief Executive. (Conclusion, Paragraph 103)

The information provided to us by Chris Webb and Chris Henley KC has raised significant doubts regarding the evidence given by Karen Kneller on 29 April. Subsequently, in response to that information, Karen Kneller has provided some clarifications of her statements. We are not persuaded by these clarifications. It is regrettable that her original answers were not satisfactory and required further clarification. (Conclusion, Paragraph 104)

We cannot perform our scrutiny function if witnesses provide incomplete or partial responses to our questions. The information provided since the session establishes that Karen Kneller omitted important information that would have provided a more accurate account of how the CCRC handled the Henley report. As a result of our concerns regarding the performance of the CCRC and the unpersuasive evidence Karen Kneller provided to the Committee, we no longer feel that it is tenable for her to continue as Chief Executive of the CCRC. (Conclusion, Paragraph 105) 50