The miscarriage of justice watchdog has backed calls for the government’s law reform body to review the criminal appeals process over concerns that the threshold for sending cases back to the Court of Appeal is too restrictive. The Criminal Cases Review Commission (CCRC) in it’s response to a report by the All-Party Parliamentary Group on Miscarriages of Justice (the Westminster commission report) published in March has recommended that the Law Commission should review the Criminal Appeal Act 1968 with a view to recommending any changes it deems appropriate in the interests of justice. The group said:
‘The CCRC supports the recommendation that the Law Commission reviews the Court of Appeal’s test and issues around post-conviction disclosure.’ As a result of a controversial 2014 ruling of the Supreme Court in the case of Kevin Nunn, police forces have been refusing to disclose evidence that might assist in the overturning of a conviction.
The watchdog also gave its backing for the Law Commission to urgently consider a change in law to remove the ‘substantial injustice’ test currently applied by the Court of Appeal to block the progress of joint enterprise appeals. In 2016 the Supreme Court ruled in the Jogee case that the law on joint enterprise had ‘taken a wrong turn’. However, that seemingly landmark judgment did not prompt the predicted wave of successful appeals as the court also asserted that new appeals needed demonstrate a ‘substantial injustice’ prior to any leave for appeal being granted.
This has proved an almost impossibly high bar for applicants to clear. Within a year of Jogee, the watchdog received 99 applications citing the ruling but only one case has been overturned. ‘We support the suggestion that the Law Commission considers the issue of ‘substantial injustice’ as part of a wider review of the Court of Appeal’s test and, by implication, our statutory test,’ the CCRC said.
The chairman of the CCRC, Helen Pitcher, welcomed the Westminster Commission report and its calls for more funding for the group. ‘We are a vital public function, so it is important for us to recognise proper public scrutiny in relation to how we operate,’ Pitcher said. ‘In the current climate this has never been more crucial given the impact of reduced funding across the criminal justice system.’
Growing concerns over the falling number of referrals back to the Court of Appeal and a creeping conservatism on the part of appeal judges has led to repeated calls on the Law Commission to review the criminal appeals process. Most notably in 2015 when the House of Commons’ justice committee recommended such review in its final report which included a request 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’.
As reported on the as reported Justice Gap, the then Lord Chancellor Michael Gove rejected that proposal on the basis of a last minute assurance from the organisation that was being criticised (here). ‘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.
In 2018 a former appeal judge argued that the watchdog had become more cautious because the court had set the bar higher than it had been in living memory. ‘It’s become much more difficult for an appellant to succeed…and, therefore that will no doubt influence [the CCRC] on what cases that they send through,’ Sir Anthony Hooper told a BBC Panorama reporter. When asked if he was saying the bar currently set by the Court of Appeal was wrong, Sir Anthony said: ‘I’m saying that.’
The CCRC also backed moves to make public the reasons why it turns down cases ‘where this appears to be in the public interest’. The CCRC does not release the documents known as ’statements of reason’ which outline its reasons for turning down a case. Criminal appeal specialists have become increasingly concerned over the CCRC’s recent shortening of SORs and critical about the lack of detail.
The CCRC said it ‘welcomes transparency and the more transparent we can be with our reasons the more people can have confidence in our decision-making’. ‘We see the ability to publish SoRs (perhaps in a redacted format or a summary report) as good for confidence in the CJS overall,’’ it says. ‘We note that applicants may choose to publish the decision or extracts should they wish to do so and have always been free to do so. Very few have done so.’
The watchdog also endorsed the Westminster commission’s call for a statutory power requiring public bodies to comply with ‘section 17’ requests within a fixed timescale including sanctions for non-compliance. The CCRC said it used its statutory power to obtain public body material ‘on thousands of occasions each year’ and reported that compliance was ‘generally very good’. ‘However, it would undoubtedly assist our work if sanctions could be applied to those public bodies who do not comply or who delay unreasonably in complying with CCRC statutory notices,’ it said.