The Lord Chancellor has asked the government’s official law reform body to review the controversial statutory test that has to be applied by the miscarriage of justice watchdog before referring a case back to the Court of Appeal. The Criminal Cases Review Commission, under the Criminal Appeal Act 1995, can only refer cases back to the appeal judges if it believes there is a ‘real possibility‘ that the court will overturned the conviction. There has been increasing concern about the falling number of referrals being made by the watchdog and a perceived reluctance to take on an increasingly hostile Court of Appeal.
Many critics have pointed out that this statutory test has operated as a constraint upon the watchdog including the House of Commons’ Justice committee in its 2015 report and, most recently, the Westminster Commission which argued that the requirement acted as a break on the group. In a letter to a prisoner Mark Alexander who claims to be wrongly convicted of the murder of his father, Dominic Raab struck a cautious note, saying: ‘The alternative of not having a real possibility test implies that the CCRC would be referring cases where there was no real possibility of the Court of Appeal overturning them. “Real possibility“ is already a far lower bar than exists, for example, when the Crown Prosecution Service has to make a decision about whether to charge someone (i.e., there has to be a reasonable prospect that a tribunal of fact, properly directed, would convict). If the CCRC were to adopt a lower bar and refer cases with no “real possibility“ of success, they and other criminal justice partners would need to spend significant resources defending cases that may be bound to fail. This would have a human cost for the appellant (raising false hope) and the victim of the original offence.)’
However Raab then went on to say: ‘Before considering this further, I need more evidence of the need for change and how that might impact on the wider criminal justice system. The Law Commission is best placed to provide such evidence which is why I have asked them to consider a review of the law in this area in the 14th work program.‘
The development was welcomed by Barry Sheerman MP, chair of the All Party Parliamentary group on Miscarriages of Justice. ‘This a very promising and much needed step in a positive direction,’ he commented. ‘I hope it is followed by firm action from the Law Commission. Let us hope it will be accompanied by more resources for the CCRC.’ One of the main recommendations of the Westminster Commission report on the CCRC, a group set up by the APPG, was to scrap the real possibility test which acted ‘as a brake on the CCRC’s freedom of decision’. The report called for ‘a more objective test: that the CCRC is to refer a case if it considers the conviction may be unsafe, the sentence may be manifestly excessive or wrong in law, or that it is in the interests of justice to make a referral. This would encourage a different and more independent mindset.’
Until the test was changed, the report’s authors Lord Edward Garnier QC and Baroness Vivienne Stern urged the CCRC to be ‘bolder in applying the current test and to adopt a broader interpretation of its power to refer cases in exceptional circumstances where there has not been an appeal’. The CCRC, in its response to the Westminster Commission report, backed the call (see here).
‘A review is long overdue,’ said Glyn Maddocks, a special adviser to the APPG. ‘ For years now, critics including the likes of the House of Commons justice committee and, most recently, the Westminster Commission have called on the miscarriage of justice watchdog to be bolder and refer more cases. It needs to be supported in doing so and scrapping the real possibility test is the obvious place to start. Â The test means that the CCRC is obliged by statute to “second guess” the Court of Appeal and that’s an inappropriate constraint upon the group – as is it’s completely inadequate funding. The criminal justice system needs a CCRC that’s firing on all cylinders.’
In 2015 the House of Commons’ justice committee called on the Law Commission to review the Court of Appeal’s grounds for allowing appeals, as well as to look specifically at whether there needs to be a change in the law to ‘allow and encourage’ the court to quash a conviction where it has a serious doubt about the verdict even without fresh evidence. However, and as reported on the Justice Gap, the then Lord Chancellor Michael Gove rejected the proposal. The MPs took evidence from a dozen experts and received some 47 written submissions, but Gove rejected their work on the basis of an assurance from the organisation that was being criticised. ‘We note the views expressed by the former Lord Chief Justice, Lord Judge, and we do not believe that there is sufficient evidence that the Court of Appeal’s current approach has a deleterious effect on those who have suffered miscarriages of justice,’ Gove wrote.
Concerns about the real possibility test have dogged the CCRC since it was established in 1997 – the journalist and former CCRC commissioner David Jessel called the test the group’s ‘baptismal curse’. The CCRC theoretically has power to send a case back to the Appeal court when there are no new arguments or evidence available; however, as Carolyn and Mai Sato pointed out (in their 2019 book Reasons to Doubt) that power has never been used. In its 25 year history the CCRC has only ever sent two cases back to the Court of Appeal a second time.
The history of miscarriages of justice was, Jessel explained at a Justice Gap debate, ‘all about was banging on the doors of the Court of Appeal and sending cases back until they got it bloody right – whether it was Carl Bridgewater or the Birmingham 6. Sending it back until the penny dropped. At the same event, the veteran human rights lawyer Gareth Peirce said the Court of Appeal has ‘always behaved when there is an appeal like headmaster expelling a pupil: “I do not wish to see you in my school again…”.’