Behind the scenes ... Being an Independent Reviewer
13 November 2006
Retired civil servant Sir John Caines is a self-confessed stickler for fairness, objectivity and detail. Just as well, too, as these are essential for his role as Independent Reviewer of ASA Adjudications. "I have got to be scrupulously careful to stick to the rules laid down for my task. I have to be fair. I have to consider all sides of the argument objectively and reasonably. If I fail to do all of these things, then I could be taken to court," he says.
Sir John is the man who deals with any requests for the ASA Council to reconsider adjudications that have already been made, including Council decisions not to investigate a complaint. "People often think I'm here to over-turn decisions made by the ASA Council. I'm not. I'm here to see whether someone who is disappointed by a decision made by the Council has a case to justify asking the Council to reconsider that decision," he says.
Sir John decides if a case warrants reconsideration by analysing whether the request satisfies one of two criteria. One is that the request makes additional relevant evidence available; the other is that there is shown to be a substantial flaw in the Council's adjudication or process by which that decision was made. His first task is to review the entire ASA file on the case. After reaching a preliminary view, Sir John consults two assessors, the Chairman of Asbof (the funding body of the self-regulatory system) and the Chairman of the ASA, to help him come to his decision. It takes him on average about five or six weeks to decide whether or not there is a convincing argument for referring a case back to the Council for reconsideration. If he thinks that there is, he will carry out his own investigation, including giving all parties to the case the opportunity to make an input. Next Sir John presents a full report to the Council. The Council then makes a final decision. Sir John informs all the parties of that decision, usually some five to six weeks after he has told them that a case is being referred back to the Council.
The role of Independent Reviewer requires the ability to absorb large amounts of evidence, weighing up all the arguments objectively. These are all skills that Sir John honed throughout his long career as a Civil Servant in different Government departments including the Department of Trade and Industry, where at one point he was responsible for consumer affairs. At 73 years old with a wealth of experience behind him, he is now adept at identifying the nub of an issue quickly. This can mean, he admits, that he can be a rather tough, uncompromising character, especially if those requesting reviews do not follow properly the procedure laid down for reviews, or merely repeat arguments which they know have already been considered and thrown out by the Council for valid reasons.
"I have to send quite a lot of requests back to people. Of the 318 non-broadcast cases I have received since my appointment, 67 - that's 24% - failed to get past the first hurdle. This is usually because they missed the 21 day deadline or because the applicant was ineligible. And sometimes, when I started asking questions, applicants have realised that they hadn't got a leg to stand on and have withdrawn their request," he says.
He urges those seeking a review to check the procedure as described in the advertising codes and make sure that they follow it correctly. For example, if it is a marketer requesting a review, the company chairman or chief executive must always support the application personally, with his own signature.
Since his appointment in April 1999, Sir John has dealt with over 330 cases. Last year, he received 37 requests. Six of these failed to get past the first hurdle but nine of them merited reference back to the Council for reconsideration. And all nine were changed either in decision or in the wording of the adjudication. However, Sir John is quick to point out that he does not regard it "as a sign of virility" if the Council accepts his recommendations. "It's no skin off my nose if they don't," he says. "For me the satisfaction is the knowledge that I've ensured that all the relevant issues have been considered and fully and fairly assessed and that any errors of process have been put right. I see my role as key in helping to maintain the reputation for efficiency and effectiveness of the UK's self-regulatory arrangements for advertising".