The government’s official law reform body has confirmed that it will look at the controversial law around criminal appeals and the statutory test applied by the miscarriage of justice watchdog before referring a case back to the Court of Appeal. The long awaited review by the Law Commission in its 14th programme, called for in last year’s report by all the All-Party Parliamentary Group on Miscarriages of Justice (APPG) as well as the House of Commons’ justice committee in 2015, was reported in the Observer in an article that focussed on post-conviction disclosure although it is understood the review will be broad in scope.

The Law Commission confirmed to the Justice Gap that the review would take place following a letter from the Lord Chancellor to  prisoner Mark Alexander via Andrew Selous MP – as reported on the Justice Gap here. The Criminal Cases Review Commission (CCRC), 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 overturn the conviction. There has been increasing concern about the falling number of referrals made by the watchdog and a perceived reluctance to take on an increasingly hostile Court of Appeal.

The APPG was set up after the number of CCRC referrals hit an all time low of just a dozen in 2017. According to last year’s Westminster Commission report into the CCRC by the APPG, ‘the predictive nature’ of the statutory test had ‘encouraged the CCRC to be too deferential to the Court of Appeal’. The report by the commission chaired by Lord Garnier QC and Baroness Stern argued that the test acted as ‘a brake on the CCRC’s freedom of decision’. Instead it recommended that there should be ‘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’.

The charity APPEAL hopes that the review includes an overhaul of the rules of disclosure and the Observer article focussed on the chaotic approach to post conviction disclosure as a result of a 2014 Supreme Court ruling in the Nunn case (as reported here). The group, in a submission to the Law Commission, argues that the law on post-conviction disclosure as set out in Nunn leaves wrongly convicted defendants ‘without an effective means of accessing any evidence held by law enforcement that undermines the safety of their conviction’. ‘Essentially, this is because it places those seeking post-conviction disclosure in a Catch-22. To make a successful request, the law requires a requestor to pinpoint the existence of specific exculpatory material held by law enforcement – yet the only means of discovering that such material exists will almost always be through having access to law enforcement material and proactively searching for it.’ As reported by the Justice Gap, it is now ‘nearly impossible’ for the victims of wrongful conviction to access material held by the police that might assist any appeal.

APPEAL flags practice in Louisiana where those investigating potential miscarriages of justice are allowed full access to files held by police and prosecutors on a case once a conviction is final. According to Innocence Project New Orleans, of the 48 people in Louisiana who have been exonerated since 1990, ‘at least 43 exonerations were based on public records’. ‘The current law on post-conviction disclosure should be replaced by a statutory right of access that gives appeal representatives and unrepresented appellants a right of controlled access to all non-sensitive material held by the police and prosecution on a case,’ the group says. ‘As Louisiana demonstrates, such a broad right of access is the only reliable way to ensure that withheld exculpatory evidence comes to light and can be used to exonerate the wrongly convicted.’

‘The risk of miscarriages of justice is unacceptably high in this country,’ comments Charlotte Threipland of APPEAL. ‘Evidence is being routinely withheld and prematurely destroyed from would-be appellants. The legal thresholds for having a conviction reviewed and then quashed by the Court of Appeal are unattainably high. That’s why we are delighted that the Law Commission is considering criminal appeals as part of its 14th programme of law reform. Root and branch reform is vital to ensuring wrongful convictions are identified and overturned.’