In August, Dominic Raab, then still the justice secretary, asked the Law Commission to launch ‘a wide-ranging review of the laws governing appeals for criminal cases’. Predictably, there will be two dominant issues:
- Does the Criminal Cases Review Commission (CCRC) have the right test for deciding whether to refer a case to the Court of Appeal?
- Does the requirement to show that a jury’s verdict is ‘unsafe’ make it too difficult for the Court of Appeal to correct miscarriages of justice?
My concern is that a great deal of time will be wasted by everyone involved in the review—both the Law Commission and those who take part in the consultation—by going over well-trodden, though hotly contested, ground, when the issues above are not actually the problem.
The real possibility test
Section 13(1) of the Criminal Appeal Act 1995 states that a referral to the Court of Appeal by the CCRC may not be made ‘unless the Commission considers that there is a real possibility that the conviction. . . would not be upheld were the reference to be made’.
The Ministry of Justice’s Triennial Review of the CCRC in June 2013 stated (p9) that only just over half (54%) of those who responded with a view on the question thought this was the right test. The Justice Select Committee in its report on the CCRC in 2015 likewise found many doubtful whether it was the right test (‘We have also found a broad agreement, or at least perception that something in the test or its application is not working properly’ (Justice Committee, 12th Report, 2014-2015, para 9)).
The Justice Select Committee’s report said (para 14) that several alternative tests had been suggested, ‘each of which advocates claimed would refocus the Commission from the Court of Appeal onto miscarriages of justice’. JUSTICE proposed: ‘Whether there is an arguable case that there has been a wrongful conviction’. Dr Michael Naughton, founder of the Innocence Project, supported ‘Whether there is a real possibility that a miscarriage of justice occurred’. Investigative journalist Bob Woffinden suggested: ‘If you were constituted as a jury. . . would you have found this particular person guilty?’
The Scottish CCRC can refer a case where ‘they believe (a) that a miscarriage of justice may have occurred and (b) that it is in the interests of justice that a reference should be made’. The Scottish CCRC’s rate of referral (7%) was higher than that of the English CCRC (3–4%), but Richard Foster, then chair of the CCRC, said that the difference was explained by the fact that 40% of the English figures were applications excluded because they had not fulfilled the requirement of first appealing to the Court of Appeal. Richard Foster told the Justice Select Committee that the CCRC considered the ‘real possibility test’ to be the best test.
The committee’s report (para 15) quoted the view of the Ministry of Justice: ‘The alternative of not having a “real possibility’” test implies that the Commission would be referring cases where there was not a real possibility of the Court of Appeal overturning them. . .’.
For this writer, that seems unanswerable.
The Justice Committee did not itself suggest that there should be a change in the test, but said (para 16) that if there were a change, it ‘would have to be taken in light of a change to the Court of Appeal’s grounds for allowing appeals’.
Does the CCRC apply the test properly?
The only sensible way of answering this question is through empirical research based on a substantial and properly drawn sample of cases. A study fulfilling these criteria was conducted by Dr Stephen Heaton of the University of East Anglia (A critical evaluation of using innocence as a criterion in the post conviction process, 2013, see here).
His study included a sample of 147 cases that were seriously considered for referral by a committee of three commissioners which were not in fact referred. Dr Heaton found 26 of these cases ‘troubling’ in the sense that he thought them worthy of referral. He found that in each case the committee deciding the referral had sought to apply the test as they anticipated the Court of Appeal would do.
Dr Heaton’s verdict (p273): ‘Ultimately, I considered that their conclusions were well founded and that whatever my doubts, if I had been charged with discharge of the statutory real possibility test, I would have reached the same conclusion.’
The Justice Select Committee quoted this sentence from Dr Heaton’s work, but nevertheless recommended that the CCRC should be bolder in its approach: ‘If a bolder approach leads to five more failed appeals but one additional miscarriage of justice being corrected, then that is of clear benefit,’ (para 20). That is an arguable proposition.
The Court of Appeal
The report of the Justice Select Committee said (para 21): ‘The central complaint about the Court of Appeal is that it is overly reluctant to interfere with a properly delivered jury verdict, requiring appellants to show some material irregularity or fresh evidence which creates a high barrier for the CCRC to meet if a conviction is to have a “real possibility” of being quashed’.
The history goes all the way back to s 4(1) of the Criminal Appeal Act 1907, which provided: ‘The Court of Appeal shall allow the appeal if they think that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence . . .’. The judges did not approve. Professor Rosemary Pattenden wrote: ‘The bulk of the judiciary opposed an appeal on the facts up to the very day the Court of Criminal Appeal was created’ (English Criminal Appeals 1844-1944, Oxford: Clarendon Press, 1996, p22).
The court’s reluctance to overturn a jury’s verdict was signalled at its very first sitting. Chief Justice Lord Alverstone said: ‘It must be understood that we are not here to re-try the case where there was evidence proper to be left to the jury upon which they could come to the conclusion to which they have arrived’ (R v Williamson (1908) 1 Cr App Rep 3).
In 1965, the Donovan Committee said that under s 4(1) of the 1907 Act strictly construed, for ‘an innocent person who has been wrongly identified and in consequence wrongly convicted, virtually no protection [is] conferred by his right to appeal’ (Report of the Interdepartmental Committee on the Court of Criminal Appeal, 1965, Cmnd 2755, para 145). It proposed a new formula—that the court should quash a conviction where in its opinion the verdict was ‘under all the circumstances of the case unsafe or unsatisfactory’, and that became the new test in s 2(1)(a) of the Criminal Appeal Act 1968.
The Runciman Royal Commission on Criminal Justice (1991–93)—of which the writer was a member—like the Donovan Committee, urged that the Court of Appeal adopt a new approach. It rejected ‘lurking doubt’ as the test but unanimously recommended that it be serious doubt such that the verdict ‘is or may be unsafe’:
‘The jury has seen the witnesses and heard their evidence, the Court of Appeal has not. Where, however, on reading the transcript and hearing argument the Court of Appeal has a serious doubt about the verdict, it should exercise its power to quash. We do not think that quashing the jury’s verdict where the court believes it to be unsafe undermines the system of jury trial’ (p171, para 46).
Section 2(1)(a) of the Criminal Appeal Act 1995 states that judges should allow an appeal ‘if they think that the conviction is unsafe’.
To see whether this new test made any difference to the Court of Appeal’s approach, Dr Heaton compared the 312 conviction appeals in 2009 with the 392 conviction cases referred by the CCRC to the Court of Appeal in the 14 years from April 1997 to March 2011.
His verdict: ‘My conclusions were that the criticisms of the Court made by the Royal Commission in 1993 remain entirely valid. Although the law was changed by amendment in the Criminal Appeal Act 1995 this has not brought about any discernible change of approach by the Court of Appeal’; and: ‘The overall performance of the Court of Appeal is a significant obstacle to addressing miscarriages of justice’ (Dr Heaton’s submission to the Justice Select Committee cited in its 2015 report at para 23; see also R v Pope [2012] EWCA Crim 2241, [2012] All ER (D) 72 (Nov) at [14] per Lord Judge CJ).
The Justice Select Committee said: ‘Any change in this area would require a change in the Court of Appeal’s approach, which would itself require a statutory amendment.’ This, it said, would ‘qualify to a limited extent the longstanding constitutional doctrine of the primacy of the jury’, but ‘neither of these things should be allowed to stand in the way of ensuring that innocent people are not falsely imprisoned’ (para 27).
Thinking outside the box
The trouble with this recommendation is that the history tells us that it will not work. Altering the statutory test was tried in 1968 and again in 1995 to no effect. There was nothing wrong with the test in the 1907 Act or the 1968 Act or the 1995 Act (the original 1907 formulation was perhaps the best). The problem lies not in the formulation of the test, but in the Court of Appeal’s approach to the test. Argument over tweaking of the statutory test is a waste of everyone’s time.
Moreover, the Justice Committee was wrong in saying that there needs to be a change in the constitutional doctrine of the primacy of the jury in criminal cases. That constitutional change was made by the enactment of the 1907 Criminal Appeal Act when judges were for the first time given the power to quash the jury’s verdict in criminal cases—a change resisted by the judges at the time, despite the fact that in civil jury cases it had been possible since the 17th century to move for a new trial on the grounds of fresh evidence or insufficiency of evidence.
Nothing could be clearer than the formulation in the 1907 Act—a power to quash the jury’s verdict if it ‘cannot be supported having regard to the evidence.’ The 1907 Act was a paradigm shift. The jury remained constitutionally supreme only in regard to acquittals. The convicted person was given the possibility of persuading the Court of Appeal that the jury got it wrong. The unfortunate reality is that the plain import of this has never been accepted by the judges.
Neither the Donovan Committee nor the Runciman Royal Commission, nor the statutory provisions implementing their recommendations, succeeded in moving the Court of Appeal to adopt a fresh approach on this fundamental issue. To find a way forward now may require some ‘thinking outside the box’.
If I were the chairman of the Law Commission taking on this review, I would seek agreement for a reputable, independent (perhaps non-lawyer) researcher to interview the judges who regularly sit in the Court of Appeal Criminal Division (and any available retired predecessors), to explore with each individually (on an agreed interview schedule) their views, concerns and suggestions. None would be identified by name. Out of such an exploration might come some constructive new thinking.
Notwithstanding the obvious difficulties, persons convicted whose sole ground of appeal is that the jury’s decision was against the weight of the evidence deserve a more receptive hearing from the Court of Appeal than they have had for the past century. A way forward has to be found.
Michael Zander KC is a NLJ columnist and Emeritus Professor, LSE.
