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I would like to comment on the issues raised by the triangular dialogue between the House of Commons Justice Committee, Lord Judge and Professor Michael Zander. My analysis is based mostly on my experience as a member of the Criminal Cases Review Commission (CCRC) from 1997-2006. I am not aware (but may stand corrected) that there have been any significant developments of law or practice subsequently which would affect my conclusions.

• You can read Michael Zander QC on www.thejusticegap.com here and Mark George QC on Lord Judge’s submission to the Justice Commission’s inquiry into the CCRC here

I will raise – and attempt to answer – eight questions directly engaged by the current debate; and then add two further questions which seem to me to have some bearing on the issues.

1. Does the existing statutory safety test for appeals sufficiently encompass ‘lurking doubt’ cases?
In my opinion the existing appeal test is perfectly fit for the purpose of resolving lurking doubt cases.

It is no doubt unnecessary to remind readers of www.thejusticegap.com that the current test propounded by Section 2(1) of the Criminal Appeal Act provides that the Court shall allow an appeal against conviction if they think that the conviction is unsafe – replacing but not substantively changing the wordier test contained in the corresponding section of the 1968 Act (On this point, see the persuasive article by the late Professor Smith, The Criminal Appeal Acr 1995: Appeals Against Conviction [1995] Crim L R 920).

The word ‘unsafe’ embraces any manner of doubt, concern or (tautologically) want of safety be it trial irregularity, misdirection, the impact of new evidence, anxiety about the trial verdict or any combination of the above. The words of the statute give no comfort to those who would seek to exclude, on policy or other grounds, any particular category of concern.

This was judicially confirmed in R v Criminal Cases Review Commission ex parte Pearson (2000) 1 Cr.App.R. 141 the first case in which the Divisional Court considered a substantive challenge to the CCRC’s exercise of its powers and very much treated on all sides as a test case. Lord Bingham stated:

‘The expression “unsafe” in section 2(1)(a) of the 1968 Act does not lend itself to precise definition. In some cases unsafety will be obvious, as (for example) where it appears that someone other than the appellant committed the crime and the appellant did not, or where the appellant has been convicted of an act that was not in law a crime, or where a conviction is shown to be vitiated by serious unfairness in the conduct of the trial or significant legal misdirection, or where the jury verdict, in the context of other verdicts, defies any rational explanation. Cases however arise in which unsafety is much less obvious: cases in which the Court, although by no means persuaded of an appellant’s innocence, is subject to some lurking doubt or uneasiness whether an injustice has been done (Cooper [1969] 1 QB 267). If, on consideration of all the facts and circumstances of the case before it, the Court entertains real doubts whether the appellant was guilty of the offence of which he has been convicted, the Court will consider the conviction unsafe. In these less obvious cases the ultimate decision of the Court of Appeal will very much depend on its assessment of all the facts and circumstances.’

2. Is an amendment of the current test likely to prove helpful?
In my opinion it is unlikely that the Justice Committee’s proposal for the Law Commission to review the current test will be acted upon and if the Law Commission were called upon, I do not believe that they would recommend any change of the test. The present test gives the Court of Appeal broad and flexible power to act upon miscarriages of justice and does not need to be changed.

3. Does Professor Zander’s charge that the Court of Criminal Appeal has acted in ‘dereliction of its duty’ by being ‘overly reluctant to review jury decisions’ stand up to analysis?
In research carried out in 1990 for the Runciman Commission, Kate Malleson found that the principle of lurking doubt as stated in Cooper [1969] 1 QB 271 was hanging on albeit being applied “very sparingly”. She found that in 300 appeals considered in that year lurking doubt was referred to in eight cases and in six ‘the Court found that there was a lurking doubt sufficient to render the conviction unsafe and unsatisfactory’.

I am not aware that there has been any quantitative research subsequently but in preparation of my book Righting Miscarriages of Justice?: 10 years of the Criminal Cases Review Commission 2008 (published by JUSTICE) I scoured the Lexis data base for appeal decisions in which the phrase was referred to in the years 2004-6. This limited research exercise threw up a substantial number of cases in which the phrase was used but the Court in each case concluded, almost formulaically, that whilst the principle of lurking doubt was acknowledged, it had no lurking doubt in the instant case.

Such quantitative analysis, even if done more comprehensively than my own limited exercise, does not put the matter beyond doubt. Appeals resembling cases disposed of yesteryear under the lurking doubt principle may now being settled under different ‘categories’ but with the same result – see point 6 of my analysis below. A refusal to acknowledge lurking doubt in terms does not of itself prove a dereliction of duty.

However, speaking only for myself, my readiness to give the Court the benefit of the doubt was dissipated by its shameful disposal of the CCRC’s second referral of the case of Tony Stock (Stock [2008] Crim EWCA 1862 – see also The First Miscarriage of Justice: The ‘Amazing and Unreported’ Case of Tony Stock, Jon Robins Waterside Press 2014 for a full analysis of the case). For reasons of brevity, I will not go into the details of the case but it suffices to say that dispassionate analysis of all the information now available shows that there is absolutely no evidence worth its salt that Mr Stock committed the offence of armed robbery of which he was convicted. My last act as a Commission member was to persuade two reluctant colleagues that the conviction should be referred a second time. I argued that the case was a manifest miscarriage of justice and that the Commission’s Statement of Reasons could be drafted to leave the court in no doubt of this fact. My colleagues were concerned that, be that as it may, the Court having previously decided against Mr Stock, would be loath to change its position now, however persuasively the facts were placed before them. We were of course all correct and the Court chose to uphold the conviction.

Of course, one anecdotal example proves nothing of its own. However, I am now personally convinced that the Court has developed a morbid distrust of convicted persons who persist in asserting their innocence. Moreover, it does not trust the CCRC not to act as “post-box” on behalf of persistent applicants and campaign groups acting on their behalf. Whilst I would not necessarily agree with Professor Zander or others about the scale of the problem this represents, I think that the phrase “dereliction of duty” is indeed apt.

4. What difference does the decision in Pope make?
In Pope v R [2012] EWCA Crim 2241 Lord Judge set out the Court’s stall as clearly as he could, no doubt with the intention to décourager les autres:

‘As a matter of principle, in the administration of justice when there is trial by jury, the constitutional primacy and public responsibility for the verdict rests not with the judge, nor indeed with this court, but with the jury. If, therefore, there is a case to answer and, after proper directions, the jury has convicted, it is not open to the court to set aside the verdict on the basis of some collective, subjective judicial hunch that the conviction is or may be unsafe. Where it arises for consideration at all, the application of the “lurking doubt” concept requires reasoned analysis of the evidence or the trial process, or both, which leads to the inexorable conclusion that the conviction is unsafe. It can therefore only be in the most exceptional circumstances that a conviction will be quashed on this ground alone, and even more exceptional if the attention of the court is confined to a re-examination of the material before the jury.’

At one level, the pronouncement seems to me to be unexceptionable. Who can gainsay that a finding of ‘lurking doubt’ should rest, not on some ‘judicial hunch’ but rather on ‘reasoned analysis of the evidence or the trial process’ leading to the conclusion that the verdict is unsafe. It is the adjectives: inexorable conclusion; most exceptional circumstances which express the true intention. The process of reasoned analysis is the correct one but the bar has been set impossibly high.

Furthermore, it seems to me that the ‘constitutional principle’ gets in the way of reasoned analysis. I return to the case of Stock. Had the Court got to the point of conducting reasoned analysis of all the evidence, it could not have failed to conclude that there was lurking, indeed thundering, doubt. Instead the Court elected to treat the verdicts of the trial jury, and previous divisions of the Court itself, as somehow representing distilled wisdom on the case picking away in the most disdainful way at the new matters raised by the referral, like an anorexic with a Sunday roast, and declining to carry out the holistic ‘reasoned analysis’ of the case as a whole. I have described this elsewhere as the ‘atomistic’ approach and this remains a formidable obstacle to the consideration of referrals where there is even a hint of lurking doubt in the ether (Elks L: Miscarriages of Justice: a challenging view Justice Journal 2010 Volume 7 Number 1).

5. Was the Justice Committee right to be confused by Lord Judge’s submission?
The Justice Committee was perplexed by the statement in the submission of Lord Judge that ‘if having examined the evidence, the court is left in doubt about the safety of the conviction it must and will be quashed’.

The Committee observed that:

‘In the short time available to us at the end of the inquiry we were unfortunately unable to explore how this statement could be reconciled with the judgment in Pope, which we were told by the Court of Appeal represents a “very clear indication of what will be this Court’s approach” in relation to “lurking doubt”.’

The Committee were right to be perplexed. Whilst there is nothing semantically inconsistent between the statement and the judgment in Pope the rhetorical adjectives in Pope give the game away.

6. How does the CCRC deal with lurking doubt cases?
Thus far my analysis marches in step with that of Professor Zander but I feel that he does not do justice to the way the CCRC approaches applications which are characterisable as lurking doubt cases.

The CCRC has been set up to investigate alleged miscarriages of justice and has been provided (at any rate up to a point) with the staff, resources and powers requisite for its investigative task. It is rare in practice that a lurking doubt case does not include some evidential chink which is susceptible to further investigation. Three cases, all as it happens involving sexual allegations, will illustrate this point.

In H [2005] Crim EWCA 1828 the complainant was convicted of sexual offences against his daughter and in G the same complainant’s instrumental music teacher was convicted of a very similar catalogue of offences. Without going into details, the cases reeked of suspicion of false memory and indeed that would certainly have been clearer had the two cases (and the suspiciously similar allegations) been considered together. The Commission could perhaps have referred these convictions on the basis of lurking doubt simpliciter but decided to commission a report from a memory expert. His very clear evidence was that the complainant’s detailed-sequential account of things said to have been done to her when she was three to four years old was inconsistent with scientific understanding about the formation of memory of events in early childhood. Her account must have been based on later confected memories and the conviction was quashed.

In Smith (Shane) [2003] EWCA Crim 927 the offence was attempted rape. The complainant had not seen her attacker (which took place at night) but stated that he had, for a man, an unusually high-pitched voice. S was a near neighbour picked up in house-to-house enquiries on account of his high-pitched voice. He was never exposed for voice identification by the complainant but interrogated at length to the point of confession. The police repeatedly put to S details of the offence (such as the layout of the house) and browbeat him into adopting the details put to him as his own account. The interviews were then edited so it appeared that S’s confession account could be relied upon since it was informed by special knowledge. The Commission’s Statement of Reasons contained ample material to quash the conviction on the basis of lurking doubt but also contained expert evidence of a forensic psychologist that S was both vulnerable and suggestible and therefore prone to making a false confession. The Court gave lurking doubt a wide berth but adopted the expert evidence as basis for quashing the conviction.

In G (G) [2005] EWCA Crim 1795 the applicant had also been convicted of a catalogue of sexual offences against his daughter the complaint being made 20 years after the last alleged offence. There were many concerning aspects of the complainant’s evidence and the Commission made painstaking but unsuccessful attempts to seek out additional evidence (such as records of long-ago adolescent counselling). It established some small slivers of new evidence but referred principally on the basis of various trial irregularities and some case law including Bell [2003] EWCA Crim 619 which appeared briefly to provide a specific lurking doubt gateway for defendants like G who had no practical means of defending themselves against allegations of sexual offences in the distant past. In that case, the Court upheld the conviction applying the mantra of the finality of the jury verdict.

I could cite many further cases but I trust that these three cases sufficiently illustrate why and how the Commission seeks to establish additional and specific bases of referral in lurking doubt cases.

7. How surprising is it that the CCRC has never used Section 13(2) which allows a referral in the absence of new evidence or argument in exceptional circumstances?
I hope that these cases will demonstrate that the CCRC has by no means been perverse in failing to apply the exceptional circumstance provision of Section 13(2) of the Criminal Appeal Act 1995 which empowers the Commission to refer on the basis of lurking doubt – absent any new evidence or point of law.

I believe (and hope) that the CCRC would never exclude – as a matter of principle – any lurking doubt referral even if no point of law or new evidence can be identified. However, I believe in practice that it is almost inconceivable that the CCRC would not have the resourcefulness to identify and develop some new issue going beyond the matters canvassed at trial. That is why I think this part of Professor Zander’s analysis is a distraction from the central issue.

8. Has the Court of Criminal Appeal moved the goalposts in lurking doubt cases?
It seems to me that in the early days of the CCRC the Court was more disposed to act on historic cases which carried the whiff of (dread words) miscarriages of justice. Cooper and McMahon [2003] EWCA Crim 2257 and Mills and Poole [2003] EWCA Crim 1753 are cases in point. Less well known than either of those cases was Brannan and Murphy [2002] EWCA Crim 120, a case which involved a Manchester gangland murder and a gallery of unprepossessing witnesses. The CCRC referred on the basis of very limited new witness evidence but the Court was prepared to consider this evidence and decided that it might have ‘tipped the balance’ of the jury’s assessment of witnesses seen at trial. In all three cases, although there was some new evidence to support the referrals they were in reality cases in which the Court was prepared to act against possible miscarriages of justice.

I have argued elsewhere that the Court’s attitude changed as part of the row back from the House of Lords’ decision in Pendleton. As the Court takes a so much more restricted view of jury impact in any new evidence case, this restrictive approach must affect its approach to ‘slender’ new evidence cases, such as the ones referred to above, still more no new evidence cases. I think it most unlikely that the Court would entertain a case like Brannan and Murphy in its present mood.

The two further points I would like to comment on are as follows.

9. How do the activities of campaigning organisations affect the current debate?
I have already commented that I think the Court fears that to entertain appeals on the basis of miscarriage of justice or lurking doubt will encourage the CCRC to allow itself to be used as a tool of campaigning organisations. I think that suspicion, if it exists, was grossly unfair in my period as Commission Member and – I am sure – still is. It was a slightly vexing aspect of the job to be exposed from time to time to personal vilification from some campaigning groups but it was part of the job. I do, however, feel some concern when I see campaigning groups presenting cases as conclusive miscarriages of justice even where there is formidable evidence against the convicted person. Virulent campaign groups can add colour to the Court’s apprehension – however unfounded – that any concession to lurking doubt will open a floodgate of appeals.

10. Does the CCRC remain equipped to do its investigative job?
I have suggested above that in the past, cases which might have been referred on the basis of lurking doubt, were in fact referred on the basis of new investigation and information. I am not aware that there has been any acknowledgement in the CCRC literature of the very major role played in many referrals by the CCRC’s investigation officers, Ralph Barrington and Clive Harding, both formerly very senior detectives. The investigative experience of these officers greatly assisted the CCRC to direct the use of its powers to generate the case for referrals. I am very concerned that these posts were allowed to lapse when the holders retired. I may be wrong but I have a real concern that without the ‘nous’ of highly experienced investigation officers, the work needed to convert lurking doubt cases into solid referrals may be missed in some cases.