The government’s law reform body looks set to review criminal appeals although it is unclear whether any review will satisfy the court’s critics. Speaking at the Criminal Appeal Lawyers Association earlier in the month, Professor David Ormerod, the Law Commissioner for criminal law, said that the group was ‘keen’ to turn its attentions to the Court of Appeal.
Last year the Law Commission shortlisted a review of the Court of Appeal’s grounds for allowing appeals as a potential project. This followed a decision by the government to reject the recommendations of a 2015 House of Commons’ justice select committee investigation into the Criminal Cases Review Commission. The MPs then urged the CCRC to be ‘less cautious’ and refer more cases back to the Court of Appeal. ‘If a bolder approach leads to five more failed appeals but one additional miscarriage being corrected, then that is of clear benefit,’ they said.
In September 2015, the then Lord Chancellor Michael Gove ruled out acting upon the MPs’ recommendation following the written assurance of a former Lord Chief Justice. Gove took the view that there was not ‘sufficient evidence’ that the court’s approach had ‘a deleterious effect on those who have suffered miscarriages of justice’.
It is now understood that the focus of any review by the Law Commission is likely to correct ‘technical glitches’: for example, to clarify the court’s powers to allow it to impose sentences to ensure serious offenders can be supervised for longer in the community on release to protect the public; and to correct the period of disqualification for drink drivers serving time in prison.
The Law Commission would also look at reforms to cut down on unnecessary court hearings to save money and improve efficiency. To that end, the Law Commission would consider consolidating appeal rights and allowing the court to focus its resources on those cases which matter the most.
In the Law Commission’s 13 programme for reform published at the end of last year, a review of the court was described as a ‘potential’ project. That specifically addressed concerns raised by the 2015 justice committee and the role of the Criminal Cases Review Commission ‘and the continuing appropriateness of the arguably over restrictive “reasonable possibility” test’ under the Criminal Appeal Act 1995. Albeit those concerns were framed in the context of dealing with the increasing work load of the Court.
‘The CCRC serves an important function but is arguably struggling to fully realise its role in the appeals system given recent and numerous criticisms of decisions taken and cases referred to the Court of Appeal under the 1995 Act. The growing workload of the Court of Appeal… and the CCRC is also of concern, although the interests of access to a fair remedy must take precedence.’