3rd August 2018
The Criminal Cases Review Commission (“CCRC”) has come under heavy criticism recently following a decline in the number of cases it refers to the Court of Appeal. The performance of the CCRC has become a pressing issue which has led to the formation of an All-Party Parliamentary Group on Miscarriages of Justice and a dedicated BBC Panorama programme highlighting the inadequacies of the Commission. The Guardian has recently obtained the results of a survey of lawyers which concluded that the CCRC is not fit for purpose. The aim of this article is to clarify the current threshold for cases to appear before the Court of Appeal and what is required in order for the CCRC to make a reference, whilst also addressing the recent condemnation of the CCRC.
The CCRC was established by section 8 of the Criminal Appeal Act 1995 and started investigating potential miscarriages of justice in 1997. The fact that the CCRC is an independent body means that it is able to investigate cases impartially. The circumstances in which the CCRC can refer a case to the Court of Appeal are contained in section 13 of the Criminal Appeal Act. This is known as ‘the real possibility test’. The Commission can only make a reference where there is a real possibility that the conviction or sentence would not be upheld. That real possibility must arise from evidence, arguments or information not advanced on the application for permission to appeal. In addition, the applicant must have already unsuccessfully appealed or been denied permission to appeal. It is therefore useful to consider the threshold for succeeding in the Court of Appeal. Under section 2 of the Criminal Appeal Act 1968, as amended, the Court of Appeal will allow an appeal against conviction if they think the conviction is unsafe. Further, the Court of Appeal shall allow an appeal against sentence where they consider the sentence to be manifestly excessive. It is important to note that a sentence can be harsh without being excessive.
Recently, the Guardian gained access to a survey of prominent lawyers which concluded that the CCRC is no longer fit for purpose. The survey suggests that the Commission refers just 0.77% of the cases which appear before it to the Court of Appeal. According to BBC Panorama, there are more than 1500 claims of wrongful convictions each year. Although it is unclear how many claims make their way to the Commission’s desk, it is evident that persuading the CCRC to make a reference to the Court of Appeal is not an easy task. The BBC Panorama episode, ‘Last Chance for Justice’ exposed the CCRC’s office-based approach to investigating miscarriages of justice. This may be considered a waste of the Commission’s significant powers to request information from public bodies such as the Crown Prosecution Service. Nevertheless, the BBC suggests this has become the cultural norm within the Commission.
It is clear that the CCRC is not fulfilling its purpose of investigating miscarriages of justice. The Centre for Criminal Appeals, a charity appearing on Panorama, stated that had the Commission being doing its job, the charity itself would not exist. This is a convincing argument. It is difficult to suggest the CCRC is functioning adequately when charities such as the Centre for Criminal Appeals and an All-Party Parliamentary Group on Miscarriages of Justice exist. However, Sir Anthony Hooper, former member of the Court of Appeal, looks beyond the CCRC and suggests the threshold of succeeding in the Court of Appeal itself is too high. This means that it is now more difficult for appellants to succeed. It is logical that a high threshold of success in the Court of Appeal would affect the CCRC, as it directly affects the real possibility test. The case of Kevin Lane, who appeared on Panorama, demonstrates the seemingly unreachable standards within the criminal appeals process. Kevin Lane was convicted of murder for a contract killing. Since Kevin Lane’s prosecution, a policeman in his case has been convicted of dishonesty crimes including offences relating to tampering with evidence. In addition, two men originally suspected of the murder have been convicted of murder in similar circumstances. Despite this, the CCRC refused to make a reference to the Court of Appeal in Kevin Lane’s case. Therefore, it is compelling to suggest that the Court of Appeal, and in turn, the CCRC have set their standards too high. This has led to the criminal appeals process proving impassable in some cases. This seems at odds with a fundamental principle of justice, namely that a jury should convict only if they are sure of a Defendant’s guilt. It seems that once a conviction is secured, the CCRC requires much more than a reasonable doubt to refer a case to the Court of Appeal.
To conclude, evidence suggests that the CCRC is reluctant to refer cases to the Court of Appeal. Considering the Commission’s purpose to investigate miscarriages of justice and the high profile cases which were successfully appealed in its early days (such as the Birmingham Six in 1975), it is evident that the Commission is no longer effectively fulfilling its purpose. This may be caused by lack of funding, but Sir Anthony Hooper makes a compelling argument that the high standards of the Court of Appeal has affected the number of cases referred to it by the CCRC. It is clear that the criminal appeals process can be difficult, but it remains possible to have a case referred by the CCRC. In the midst of the controversy and publicity surrounding the CCRC, Jason Elliott Barristers successfully appealed a sentence referred back to the Court of Appeal by the CCRC last week.
Jason Elliott Associates LimitedBack to News & Insights