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Annotated feedback on the Law Commission's expanded Terms of Reference by Dr Michael Naughton




In July 2023, the Law Commission published an Issues Paper, which explains the existing law on criminal appeals and the Criminal Cases Review Commission (CCRC).


It invites responses by the 31 October 2023 from those with experience of the appeals system, including lawyers, academics, groups with an interest in miscarriages of justice, and, those who have personally sought to appeal their conviction or sentence – whether successfully or unsuccessfully – and their families.


In February, I met with the criminal appeals review team at the Law Commission to discuss my work on the limitations and outright failings of the Court of Appeal (Criminal Division) (CACD) and the Criminal Cases Review Commission (CCRC) when dealing with appellants or applicants who are claiming to be factually innocent. A major problem is that many are deemed to not have the necessary so called 'fresh' evidence required for their convictions to be referred (CCRC) or overturned (CACD) so they are unable to overturn their wrongful convictions within the existing criminal appeals and CCRC systems.


The meeting was at the pre-consultation stage and I was sent an expanded Terms of Reference document prior to the meeting that was not publicly available.


Below is my annotated feedback to those expanded Terms of Reference in red that I sent back to the Law Commission before our meeting.


It is being made publicly available with the blessing of the Law Commission.


My reason for publishing it is to highlight the importance of having a clear vision of what the role and duty of the Court of Appeal (Criminal Division) (CACD) and/or the Criminal Cases Review Commission (CCRC) should be.


In particular, the existing requirement for appellants to the CACD and applicants to the CCRC to have 'fresh' evidence not available at the time of the original trial to have their convictions referred (CCRC) or overturned (CACD) is in urgent need of reform as it renders innocent victims of wrongful conviction unable to overturn their convictions.


We urge all those who agree that the current CACD and CCRC systems are in need of urgent reform to make submissions to the Law Commission and say so!


Full information and a portal for making responses in on the Law Commission's website here.



By Michael Naughton

=====================================================


CRIMINAL APPEALS – LAW COMMISSION REVIEW 1.1 This note sets out and expounds the terms of reference (“ToRs”) for the Law Commission project on reform of the law of criminal appeals, which are at para 1.2. The rationale for the project, and the agreed ToRs, follows at para 1.3.


Terms of Reference 1.2 The Law Commission will conduct a review of the law governing appeals in criminal cases and consider the need for reform with a view to ensuring that the courts have powers that enable the effective, efficient and appropriate resolution of appeals.


What does this mean? What do these different notions, ‘effective’, ‘efficient’ and ‘appropriate’, mean here? How are they to be understood and how to they relate to a criminal appeals system grounded in points of law and what I would call a ‘procedural justice’ approach versus a system to assist innocent victims of wrongful convictions to overturn their convictions?


The review will be particularly concerned with inconsistencies, uncertainties and gaps in the law. It will consider, but is not limited to, the following:


Again, how is ‘inconsistencies’, ‘uncertainties’ and ‘gaps in law’ being defined? Also, again, we first need an understanding of what the purpose of the criminal appeals system is. Is it to assist factually innocent victims of wrongful convictions to overturn their convictions or is it about ensuring conviction are ‘safe’? Where did these Terms of Reference come from? How were they decided? What are they trying to achieve?

Appeals against conviction and sentence in the Court of Appeal (Criminal Division) (“CACD”)

(1) Whether the CACD has adequate and appropriate powers to: (a) order a re-trial, substitute a conviction, or substitute a sentence; and (b) make directions regarding time spent in custody pending appeal. (2) Whether there is evidence which suggests that the test for allowing an appeal on the grounds that a conviction is unsafe may hinder the correction of miscarriages of justice, How is ‘miscarriage of justice’ being defined or understood here? The definition of ‘miscarriage of justice’ can relate equally to the wrongful conviction of an innocent victim or an ‘unsafe’ conviction which can and does see individuals who commit crimes, including murder, overturn their convictions on points of law. Including with regard to: (a) the approach to fresh evidence; I have been highlighting the limitations of the ‘fresh’ evidence requirement for almost 20 years in terms of how it can fail innocent appellants (or applicants to the CCRC which is subordinate to s.23 of the Criminal Appeal Act 1968). See the chapter in The innocent and the criminal justice system on “The Court of Appeal (Criminal Division)”. It charts the history of the CACD, showing that originally the CACD was empowered to look at alleged miscarriages of justice (understood in terms of claims of factual innocence) in their entirety, that is to say that it was not originally restricted by the ‘fresh’ evidence clause, which was introduced in 1968. The reason for the shift from innocent to restricting appeals to ‘fresh’ evidence was a political decision by judges who didn’t want to question the judgments of their peers. It works to the detriment of innocent victims of wrongful convictions. It is implicated in the failings of the CACD in the now notorious cases of miscarriages of justice of the Guildford Four, Birmingham Six, etc, which prompted the Royal Commission on Criminal Justice (RCCJ), which recommended the creation of the CCRC. That the CCRC mirrors how the CACD can and does fail innocent applicants is a cruel irony that is long overdo reform. There are those that say that it is the CACD that is the main problem for innocent victims unable to overturn their convictions, both in the sense that the CACD can and does reject appeals from innocent appellants and in the sense that the CCRC works under the CACD when it is thinking about whether to refer a case or not, my efforts have been focused on the CCRC as the last resort for alleged innocent victims of wrongful convictions to overturn their convictions. That said, if the CACD were reformed in such a way that it no longer required so called ‘fresh’ evidence, as it was originally set up, then it could be argued that there would be no need for the CCRC. I would also say here that I have always argued that any evidence not heard by the jury, the so called finders of fact, should be considered as new or fresh. (b) the approach to “lurking doubt” or grounds not attributable to fresh evidence or a material irregularity; and (c) the test of “substantial injustice”, which applies in cases where there is an appeal on the basis of a subsequent change in the common law (3) Whether the law in relation to grounds of appeal provides sufficient certainty to allow a convicted person to receive clear advice about the prospects of an appeal. (4) Whether the Attorney-General’s powers to refer a matter to the CACD are adequate and appropriate. (5) Whether codification of common law tests in relation to grounds for appeal against conviction and sentence may be warranted. (6) Whether the composition of judicial panels in the CACD is an efficient and effective use of court resources and judicial time, while serving the interests of justice.


Appeals against matters other than conviction and sentence in the CACD

(7) Whether the CACD has adequate and appropriate powers to deal with appeals relating to findings on fitness to plead.


Appeals against conviction and sentence in the Magistrates’ Court and Crown Court

(8) Whether the rights to appeal and processes for appeals in summary matters are an efficient and effective use of court resources and judicial time, while serving the interests of justice. I would only say here that it seems unfair and a perversion of justice that convictions for relatively minor alleged criminal offences that are given ain magistrates’ courts and appealed in The Crown Court are full rehearings of the case where appeals to the CACD from convictions in The Crown Court are restricted to so called ‘fresh’ evidence. (9) Whether the Crown Court has adequate and appropriate sentencing powers ina new trial that is a result of an appeal. Referral of matters from the Criminal Cases Review Commission

(10) Whether the conditions for referring cases to the CACD under the Criminal Appeal Act 1995 allow the CCRC to fulfil its functions. It is response to this specific question that much of my work on how the CCRC can and does fail innocent applicants has been directed. I will not rehearse the arguments here other than to provide references to my research (at the end of this document) for Law Commission researchers to explore and make the general point that the Royal Commission on Criminal Justice (RCCJ) that recommended the creation of the CCRC and JUSTICE who provided the blueprint for how it should function were both referring to a body that could assist innocent victims of wrongful conviction who failed to overturn their convictions in the CACD.

Evidence and records of proceedings

(11) Whether appeals (both from CCRC referrals and generally) are hampered by inadequate laws governing the retention and disclosure of evidence, including post-conviction, and retention and access to records of proceedings. Under the UDHR, all citizens have the right to benefit from advancements in science and scientific technologies. As such, all potential DNA materials should be retained, particularly in alleged wrongful conviction cases, as new testing techniques can be harnessed to determine the truthfulness or otherwise in alleged wrongful conviction cases many years or even decades after convictions. See: Naughton, M. and Tan, G. (2010) ‘The Right to Access DNA Testing by Alleged Innocent Victims of Wrongful Convictions in the UK?’ International Journal of Evidence & Proof. 14(4): 326-345. (can be provided upon request).

Consolidation of statutory provisions

(12) Whether consolidation of rights to appeal, which are currently spread across a number of statutes, may make the law clearer and more consistent. It may, but it is very clear already that the criminal appeals system has shifted from a concern to correct wrongful convictions given to innocent individuals to what Nobles and Schiff depicted as an autopoietic system of internal legal rules and procedures that do not relate to the question of whether an alleged innocent victims of a wrongful conviction did or did not commit the alleged offence; is innocent or not.


Expanded Terms of Reference

1.3 The project addresses two broad areas of law in relation to appeals.

Technical reforms

1.4 One set of issues will address a wide range of inconsistencies, uncertainties and gaps in the law. Over time it has become apparent that there are numerous areas where current laws do not provide the courts with powers that enable the effective, efficient and appropriate resolution of appeals. As I said above, this is rather vague and needs clarification on what the desired or intended purpose of the criminal appeals system is. Concerns noted by stakeholders such as? including the courts(where some concerns are identified in judgments), include: · ToR (1): The powers to order a re-trial, substitute a conviction or substitute a sentence are not always adequate. As a result, an appellate court may be limited in its ability to deal with sentences that it considers too lenient or even unlawful(for instance where a required minimum sentence had not been imposed), or a new hearing may be required even though it would be fair and efficient to substitute a conviction or sentence. There is a lack of certainty about the CACD powers to direct that time spent in custody pending appeal shall not count towards the term of a sentence. · ToR (4): Concerns have been expressed that legislation does not give the Attorney-General power to refer a case to the CACD in a sufficiently wide range of circumstances. This may mean that some unduly lenient sentences cannot be referred. Strict time limits relating to Attorney General’s references may also cause difficulties where there are reporting restrictions in place or sentencing errors are expected to be addressed under the “slip rule”.ToR (5): It has been suggested that codification of the common law tests in relation to grounds for appeal against conviction and sentence will improve the clarity, certainty and accessibility of the law. Explain further? · ToR (6): In relation to the composition of panels, while current legislation allows some matters to be dealt with by a single judge, there may be arguments for greater flexibility. For example, current statutes may preclude a matter being heard by a single judge even where it could be efficient and fair to do so, or may require a single judge to hear a matter before it goes to a bench of three judges, where it could efficiently and fairly go directly to a bench of three. It would be valuable to know how many appeals get refused by a single judge that go on to the CCRC and then get referred by the CCRC and are then overturned. · ToR (7): The CACD itself has raised concerns that that the Criminal Appeal Act 1968 (“CAA 1968”) does not provide it with sufficient powers to manage the outcome of a fitness to plead appeal; even though the person may later be fit to plead, the court may not have the power to order a retrial and may need to enter a verdict of acquittal. (The Law Commission has previously When ?? recommended that this gap in the appeal provisions be closed by the creation of a power to order a rehearing of the alternative procedures for scrutinising the allegation.1 However, that recommendation has not yet been implemented and the gap remains.) Why has it not been implemented? Will any recommendations from this review not be implemented? · ToR (8): In summary matters the rights to appeal and processes for those appeals do not always appear to be an efficient and effective use of court resources and judicial time. This is especially so where there are appeals as of right; matters are effectively re-heard in the Crown Court see my comment that relates to this point above even where there is no merit How is without merit being defined here? Even if such appeals fail it is not so straightforward to say that they were ‘without merit’. to the appeal. As the CPS pointed out in their submission to our 14th Programme consultation: This process is extremely costly How much does it cost? for the police, CPS, and Crown Court. It is also unfair to victims Should be alleged victims here. In contested criminal cases we don’t always know who the victim is. In established wrongful conviction cases it was those wrongly convicted and their families. and witnesses who are asked to go through the trial process again in cases where no reasonable explanation can be given to them for the request. The unfairness is at its height when the case is an appeal from the youth court. It is therefore unsurprising that appeals commonly succeed so the CPS is ‘pointing out’ that even successful appeals can be conceptualized as ‘without merit’, ‘unfair’, etc? because of the non-attendance of witnesses. · The existence of three routes for challenging conviction and sentence in the magistrates’ courts (appeal to the Crown Court, appeal to the High Court by way of case stated, and judicial review) has also been criticised as complex and inefficient. · ToR (9): Where the Crown Court sentences an offender who has been found guilty on a retrial then, if the retrial resulted from a successful appeal, the Court has statutory limits on its sentencing powers. In particular, it cannot impose a sentence more severe than that imposed at the original trial. Where, at the original trial, the judge failed to impose a mandatory minimum sentence, this has the effect that the sentencing court at the retrial must pass a sentence which would otherwise be unlawful. 1 Unfitness to Plead, Vol 1: Report (2016) Law Com No 364, HC 714-I,paras 8.20-8.24, 10.77.


· ToR (12): Rights to appeal are spread across a number of statutes, whereas consolidation may make the law clearer and more consistent, which should reducethe likelihood of procedural inconsistencies or errors. I am not saying that there shouldn't be consolidation to make things clearer, but is there any empirical evidence of such ‘procedural inconsistencies or errors’? Is it a major or minor issue or problem? Does research need to be conducted? 1.6 A second set of issues is more contentious. These relate to uncertainties about whether the law as it stands adequately and appropriately enables the correction of miscarriages of justice. It depends on how ‘miscarriages of justice’ is defined and understood. If there is a genuine concern for innocent victims of wrongful convictions and a commitment to create a criminal appeals system that can guarantee that wrongful convictions given to innocent victims will always be able to be overturned then there is an urgent need for reform of the CACD and/or the CCRC. Three issues in particular warrant attention and in each the underlying aim will be to examine the evidence, often in the face of conflicting views and in the context of competing demands and pressures in the justice system. 1.7 We intend to publish a discussion paper which would concentrate on these “policy” issues in order to enable early consideration of whether there is evidence of a need for reform see my previous point – it depends on what the aim is, and to provide reassurance that these contentious issues have been fully ventilated I think we are way past the stage of ‘ventilation’ of competing or conflicting views. I, personally, have been invited to submit evidence to several inquiries into the CCRC over the last decade. Further, there is a growing list of cases that illustrate the limitations or failings, whichever language one cares to use, that innocent victims can be and are being failed by the existing arrangements of the CACD and CCRC. In response, there needs to be a clear statement on the purpose of the criminal appeals system in direct relation to the wrongful conviction of the innocent or the existing failures will not be rectified. The existing ‘safety in law’ approach fails innocent victims of wrongful convictions and must be reformed. See: Naughton, M. (2010) ‘Why “safety in law” may fail the innocent – the case of Neil Hurley.’ The Guardian. 11 February. See, also, Naughton, M. (2012) ‘The Criminal Cases Review Commission: Innocence versus safety and the integrity of the criminal justice system’. Criminal Law Quarterly. 58: 207-244. in pre-consultation, before the Commission makes (or rejects the need for) provisional proposals for reform in a consultation paper.

ToR (2): The CACD safety test

1.8 There are conflicting views about the extent to which the “safety test” (as it is called – the test for allowing an appeal on the grounds a conviction is unsafe) ensures that miscarriages of justice are remedied. As per my previous point, the ‘safety test’ can and does fail innocent appellants to the CACD and applicants to the CCRC, which both work to s.23 of the Criminal appeal Act 1968 – ‘fresh’ evidence requirement. See: Naughton, M. (2010) ‘Why “safety in law” may fail the innocent – the case of Neil Hurley.’ The Guardian. 11 February. See, also: Naughton, M. (2012) ‘The Criminal Cases Review Commission: Innocence versus safety and the integrity of the criminal justice system’. Criminal Law Quarterly. 58: 207-244. Critics argue that the bar is set too high where fresh evidence, new argument, or a change of law are in issue, and that there is insufficient room to correct verdicts where juries have erred or that the CACD is too reluctant to use the residual “lurking doubt” ground. The Justice Committee suggested that the CACD should be allowed and encouraged “to quash a conviction where it has a serious doubt about the verdict, what does this mean in practice? Why not just say that any evidence not heard at trial or put before the jury is new or fresh? Why not also heed and implement what the RCCJ said in terms of the need for the new body that was recommended (which became the CCRC) should be able to assist ALL innocent victims of wrongful convictions who were unable to overturn their convictions in the CACD in cases where their lawyers had let them down or where juries had made a mistake? even without fresh evidence or fresh legal argument”.2 The Westminster Commission on Miscarriages of Justice3 endorsed this recommendation but put it more strongly, adding that the CACD should be mandated to undertake “a cumulative review of the issues” I totally agree for the reasons outlined in my comments above. In addition, the Commission recommended “introducing the premature destruction of crucial evidence which could have undermined the safety of a conviction as a standalone ground of appeal.”4 Why should innocent victims of wrongful convictions be unable to overturn their convictions because the evidence that could or would have proven that they are innocent has been destroyed? What message does this send to police or the CPS if there is no consequences to destroying such potentially exculpatory evidence? This could be extended to also include evidence that is lost by police or prosecutors that could have proven an alleged victim of a wrongful conviction to be innocent. In short, there must be accountability and consequences if we are to have confidence and trust in the criminal justice system. Finally, in relation to change of law cases (which include pre-Jogee convictions on the basis of joint enterprise), the Commission recommended the removal of the “substantial injustice” test applied by the CACD to appeals in such cases which are made out of time.5 1.9 To others, those criticisms are overstated and researchers have argued that analysis of the case law does not support those views. “Unsafe” is a broad notion which encompasses breaches of the right to a fair trial as well as factual innocence, and a conviction can be held to be “unsafe” where there is doubt as to whether the appellant should have been convicted, or where the prosecution involved a blatant and extremely serious breach of the rule of law. I cover these issues in the Chapter on ‘The Criminal Cases Review Commission’ in the edited book on the CCRC and in the following article: Naughton, M. (2012) ‘The Criminal Cases Review Commission: Innocence versus safety and the integrity of the criminal justice system’. Criminal Law Quarterly. 58: 207-244. I show that the notion that ‘unsafe’ is a better protection is profoundly problematic. Such an approach sees innocent victims unable to overturn their wrongful convictions whilst guilty offenders can overturn their convictions on points of law. This is the nub of the current problem. It is this difference of opinion that the Law Commission will have to settle if it is to make recommendations to reform the existing arrangements so that innocent victims of wrongful convictions are the priority rather than adherence to legalise and points of law that work against the innocent and to the benefit of the guilty. 1.10 Although, as the CACD stated in Pearson [2001] 1 Cr App R 141, the “safety test” does not lend itself to a precise definition, there have been criticisms by practitioners that the lack of precision can make it difficult for a convicted person to receive clear advice about the prospects of an appeal. It may be the case that the statutory test could be redrafted or expanded to give greater clarity as to the circumstances in which the CACD will consider a conviction unsafe. I will not repeat my critique of the notion of ‘unsafe’ in law again here, but it is perverse and contrary to justice that under the existing criminal appeal arrangements, whether at the CACD or the CCRC, that innocent victims of wrongful conviction do not satisfy the ‘safety test’; that their convictions are considered to be ‘safe’; and, that guilty offenders can overturn their convictions because they are deemed to be ‘unsafe’ on a procedural point of law. 1.11 There have been direct, express calls for Law Commission to review the safety test; they are found in recommendations of the Justice Select Committee in its 2015 This was a report of a public consultation that was called in response to my invited response to the CCRC’s report to the Committee. Please see my submissions to this inquiry and others on the CCRC at: http://michaeljnaughton.com/?page_id=3413 report and the Westminster Commission on Miscarriages of Justice in 2021. See my response to the Westminster Commission at: https://www.thejusticegap.com/please-forgive-me-but-i-wont-be-holding-my-breath/ There is a strong case to examine the evidence base, which is what this ToR envisages. In particular, the ToR does not start from the position that the safety test is flawed; rather, it is explicitly framed as a scoping ToR requiring the Commission to consider the evidence that the safety test may hinder the correction of miscarriages of justice, before considering the case for reform. In your scoping exercise, please read all of my work that critiques the safety test from the perspective of how it relates to the wrongful conviction of innocent victims and you will see that it is, indeed, flawed from this perspective.

ToR (10): Referrals by the CCRC The “real possibility” test

1.12 The CCRC was established 25 years ago. It serves a vital function Depends how the notion of ‘vital function’ is defined and understood. The evidence is clear that it is functions as an extension of the criminal appeals system, rather than being detached and independent from it. As already mentioned above, the ‘real possibility’ test under s13 of the 1995 Criminal Appeal Act chains it to the criminal appeals system and renders it subordinate to it. It was this reason that I set up the first innocence project in the UK and facilitated more than 30 others – because the CCRC is not the panacea to the perennial problem of the wrongful conviction of innocent victims. See the following article from 2006: http://www.innocencenetwork.org.uk/wp-content/uploads/2014/09/wrongful-convictions-innocence-project.pdf but concerns have been expressed by academic experts, civil society organisations, Parliamentarians and from within the CCRC that it is struggling fully to realise its role in the appeals system. Again, we need a clear statement of what it’s role or function is. The RCCJ was clear that it was supposed to be a post-appeal body to assist innocent victims of wrongful convictions to overturn their convictions. The reality, which has been written about in academic peer reviewed journal for more than 15 years is that is can and does fail innocent applicants whilst it can and does refer the convictions of guilty offenders on points of law. 1.13 There have been express calls for the Law Commission to review the law in this area, including by the House of Commons Justice Committee in 2015 and by the Westminster Commission on Miscarriages of Justice in 2021. A feature article in The Guardian in 2012 stated the case for the reform of the CCRC in unequivocal terms and the arguments made are as valid today as they were then. See: https://www.theguardian.com/law/2012/mar/27/criminal-cases-review-commission-reform-campaign 1.14 There are several areas of concern that derive directly from the 1995 Act and feature heavily in the Justice Committee and Westminster Commission reports, including: (1) The Criminal Appeal Act 1995 (“CAA 1995”) requires that for referral the CCRC use a predictive test of whether there is a “real possibility” that the CACD would uphold an appeal. This has been criticised on the grounds that it requires the CCRC to predict what the CACD would do, rather than consider whether a conviction is unsafe. The effect of the ‘real possibility’ test is that it forces the CCRC to consider how the CACD might respond if a referral was to be made. This, in turn, forces the CCRC to look at the criteria of the CACD for receiving appeals in a way that was not envisaged by the RCCJ when it recommended the creation of a new post-appeal body and is contrary to what was expressly intended. Another effect is on how the CCRC reviews applications. Rather than an extensive investigation to get to the truth of the claim of innocence by the applicant, it restricts the review to potential ‘fresh’ evidence that might satisfy s.23 of the 1968 Criminal Appeal Act. This is clearly stated on the CCRC’s application form and on its website. If it is thought that ‘fresh’ evidence may not be available, the application is rejected, notwithstanding that the applicant may be or is innocent. The RCCJ said that the new body should be able to assist innocent victims of wrongful convictions whatever the cause. The legitimacy of the criminal justice system rests on the assumption that innocent victims who are wrongly convicted have an available route to overturning their wrongful convictions when the reality is that they don’t if the evidence of their innocence is not deemed to be ‘fresh’ or the CCRC does not use its powers to unearth evidence of innocence if it is deemed that it is not worth doing as the evidence would not be considered to be ‘fresh’ if they did. (2) Inherent in that referral criterion is the ground on which the CACD may quash a conviction, which, under the CAA 1968, is that the conviction is unsafe. As explained above, the safety test as developed by the CACD has been criticised as too narrow in its application and, if this criticism is valid, as a result of the predictive test, the CCRC is unable to refer convictions that it may see as unsafe. As just explained, it is not so much that the notion of ‘unsafe’ conviction is problematic per se. Rather, it depends on what ‘unsafe’ means in practice. Under the existing arrangements, it is the ‘real possibility’ test (s.13 Criminal Appeal Act 1995) that is the greatest obstacle for innocent victims of wrongful convictions because of how it shackles the CCRC to the CACD, determines that CCRC reviews are mainly desktop exercises to determine whether ‘fresh’ evidence is available, and forces the CCRC to only refer cases where there is ‘fresh’ evidence that wasn’t available at the time of the original trial or could not have been made available had it been sought for. (3) The vast majority of CCRC referrals but this is misleading in the sense that the CCRC reject circa. 97 % of applications and have rejected as many as 98% and 99 % in certain years. in relation to conviction result in the conviction being found unsafe. While this may be seen as evidence that the CCRC is correctly judging the likelihood of the CACD finding the conviction unsafe, it could alternatively indicate that the CACD is only referring cases where it is highly likely that the CACD will uphold the appeal, a more rigorous test than required by statute. I agree that the CCRC is altogether too cautious with referrals which inevitably means that meritorious cases will not be referred – meritorious here meaning innocent victims of wrongful convictions.


(4) It is noteworthy in what sense ?? that the law in England and Wales is out of step not necessarily ??? with the law in other jurisdictions, where criminal cases review bodies can make referrals on broader grounds that are not tied to prediction. May look broader but not necessarily so. For example, the Scottish CCRC operates under a different referral test which mirrors the test applied on appeal in the Scottish High Court. Which also undermines its claims to independence ??? The Scottish CCRC may refer a case to the High Court where it believes that a miscarriage of justice yes, but what does ‘miscarriage of justice’ mean here? See the chapter in the edited book, The Criminal Cases Review Commission: Hope for the Innocent by Kevin Kerrigan. It shows that the SCCRC has different wording but it is still a predictive test of how the high Court of Justiciary may view the referral. Overall, the comparison is between an apple and an orange. The CCRC and SCCRC cannot be compared in such a simplistic way. may have occurred and it is in the interests of justice that a reference should be made.6 The Westminster Commission recommended a similar approach so that the CCRC could refer a case where it determines that the conviction may be unsafe, the sentence may be manifestly excessive or wrong in law or where it concludes that it is in the interests of justice to make a referral. By definition this would include all cases where it finds that a miscarriage of justice How is ‘miscarriage of justice’ being defined here? Brings us back to the innocence versus ‘safety test’ mentioned above. may have occurred including ‘lurking doubt’ cases.7 1.15 It has also been suggested this is not a mere suggestion. It is supported with actual cases. by academic experts that in coupling the CCRC test to the CACD test, the former “is not only failing potentially innocent victims of wrongful conviction” but that “the CCRC is routinely referring the convictions of guilty individuals back to the Court of Appeal because there is a possibility their convictions will be quashed on some form of procedural breach. … [It] is routinely assisting guilty violent criminals, sex offenders and drug traffickers in overturning their convictions on technicalities”.8 It has been argued that the focus on procedure, with these outcomes, undermines confidence in the criminal justice system and its legitimacy and that a referral test focused on the “interests of justice” would better accommodate an “innocence-based” understanding of wrongful convictions.9 All of my comments thus far relate to this issue.



Exceptional circumstances in “no appeal” cases

1.16 In addition to concerns about the “real possibility” test for referrals, the Westminster Commission also recommended that the CCRC interpret the “exceptional circumstances” in which they may refer a case to the CACD without the applicant ?? defendant having exhausted their right of appeal to include cases where applicants can show that there were reasons why they were unable to exercise an appeal right in time, including the inability to access legal advice and representation, as well as where there is new evidence or new techniques which were not available at the time.10


Discretion not to refer

1.17 The CCRC “may” refer a conviction or sentence when they consider there is a “real possibility” it will not be upheld.11 However, they are not obliged to do so, even where they believe that the conviction would be quashed. The Westminster Commission recommended the removal of this residual discretion: we are uncomfortable with the CCRC having such a [discretion], because of the risk, however remote, of preventing a miscarriage of justice case being heard by the Court ofAppeal. We also note that any referrals based upon due process failures12

… bring attention to flaws within the criminal justice system and can thus contribute to the prevention of future miscarriages of justice.13 1.18 The CCRC’s response to the Westminster Commission argues that there are cases where there is a “real possibility” but it is nonetheless not in the public interest for a referral to be made: For example, cases that are very old and in which no living individual is affected by the original conviction or would benefit from it being quashed. The CCRC are expressing a very limited notion of ‘public interest’ here. Such cases could lead to improvements in the criminal justice system to the benefit of all. Similarly, the referral of a single, inor conviction for an individual who has numerous convictions, or other very serious convictions, is unlikely to be in the public interest. Again, this notion for a supposed to be ‘miscarriage of justice’ body is problematical. A wrongful conviction is a wrongful conviction is a wrongful conviction. Just because an individual has correct convictions it doesn’t mean that it doesn’t matter if they have wrongful convictions too. Moreover, does the CCRC give any examples of how it defines a ‘minor’ conviction? My research on mundane miscarriages of justice in the magistrates’ courts show that such convictions can incur significant forms of harm. We have also seen cases where, for technical legal reasons, one count on a multi-count indictment might arguably be unsafe but would result in no change to the nature of the conviction or the sentence which was imposed. It would not be in the interests of justice to refer wholly technical points of that kind to the Court of Appeal.14 1.19 Of course, were the test for referral to be changed from the predictive “real possibility” to one which refers to the “interests of justice” or a “miscarriage of justice”, so long as it is understood as meaning the wrongful conviction of an innocent individual such considerations could be incorporated within the referral test itself, without any need for a residual discretion not to refer. Agreed.


Disclosure by the CCRC

1.20 Section 23 of the CAA 1995 criminalises the disclosure of “any information obtained by the Commission in the exercise of any of their functions”, subject to certain exceptions in section 24. The Westminster Commission recommended that the exceptions to this prohibition should be expanded to allow the CCRC to disclose to applicants and their legal representatives copies of material gathered or generated in the course of its review, with appropriate redactions and restrictions on onward disclosure, except where the CCRC deems disclosure of the material would give rise to a real risk of serious prejudice to an important public interest, including, for example, the privacy of complainants and the protection of law enforcement techniques [and] allow the CCRC to make public its Statements of Reason[s] or parts of them, where it believes this is in the public interest subject to the agreement of applicants.15


1.21 In its response, the CCRC accepted the second part of this recommendation, but described the first part as “impractical and unacceptably resource intensive”, arguing that “[a]n application to the CCRC must not be used as a vehicle for individuals to obtain documents and information to which they have no legal right.”16 Alleged innocent victims of wrongful convictions must have a legal right under a number of Articles of the HRA as well as the UDHR to challenge their convictions and must have all possible information and evidence provided to them and their representatives, save in the most extreme circumstances where it can be demonstrated that to do so would be harmful to others.



ToR (11): Evidence and transcripts


1.22 There are numerous arguments, again featuring in the Justice Committee and Westminster Commission reports, that CCRC review and appeals to the CACD (both from referrals and generally) are hampered by inadequate laws governing the retention and disclosure of evidence, including post-conviction, and by a lack of access to records of proceedings. Again, there is a case to test the evidence on these arguments. Above it was mentioned that alleged innocent victims of wrongful convictions should not be disadvantaged on the basis that evidence of their possible innocence is claimed to be ‘lost’. It is equally true that all evidence, including any evidence that could be tested for DNA in the future should be retained. We have seen with wrongful conviction cases in our own jurisdiction as well as other jurisdictions, e.g. the US, that forms of forensic testing that may not be available at the time of the conviction can exonerate innocent victims of wrongful convictions many years and sometimes decades into the future. This is simply not possible if evidence and biological samples are not retained. See, also, Naughton, M. and Tan, G. (2010) ‘The Right to Access DNA Testing by Alleged Innocent Victims of Wrongful Convictions in the UK?’ International Journal of Evidence & Proof. 14(4): 326-345. http://www.innocencenetwork.org.uk/wp-content/uploads/2011/11/Naughton-and-Tan-IJEP-Nov-2010.pdf This article was instrumental in the case of Nunn at the Supreme Court which provided access to evidence post-conviction for the purpose of making applications to the CCRC as strong as they can possibly be on the grounds that the CCRC is a review body with investigatory powers that it is not mandated to use. As such, access to evidence can permit testing prior to an application to the CCRC to prove an applicants innocence in cases where the CCRC may not have conducted such testing. See the case of Victor Nealon, for instance, or the more recent case of Andrew Malkinson.


1.23 The Westminster Commission recommended17 a statutory power requiring public bodies to comply with requests for disclosure made under section 17 of the CAA 1995 (as there is for private bodies).18 Agree.


1.24 Across all three of these more contentious terms of reference the Law Commission sees significant nuance in the criticisms and concerns. Just as there are differences of opinion about the CACD safety test, the apparent differences of opinion derive from different and competing opinions about the role and purpose of the criminal appeals system, the CACD and the CCRC. This is why a clear statement on what the function and purpose of the CACD and/or CCRC is so crucial and without which the existing conflicting opinions will not be resolved, which works to the detriment of trust and confidence in the criminal justice system, etc. there are also differences of opinion Again, these apparent differences of opinions will only be resolved with a clear statement about what the role and function of the CCRC is. I would go further, and say that it shouldn’t be about opinions. The CACD and the CCRC should be and must be about all attempts to assist innocent victims to overturn their convictions. This is not an opinion. It is a fact. The CACD and the CCRC do not function in such a way, which is an ongoing cause of challenge by alleged victims of wrongful conviction and lack of confidence and trust in the workings of the criminal justice system by the general public when they become aware of wrongful convictions, which is why there is resistance to them becoming public knowledge. See: Naughton, M. (2022) ‘Theorising miscarriages of justice.’ Islamic Perspective. Published by the Institute for Critical Social Theory. Volume 28. Winter: 93-116. Overall, and crucially, the legitimacy of of the criminal justice system is predicated on its ability to be able to overturn convictions given to innocent victims. Think about the public crisis of the entire criminal justice system that was caused by the cases of the Guildford four, Birmingham Six, and so on. Those cases and others at the time combined to force the setting up of the RCCJ and the CCRC. It is to the detriment of the general public and a sign of governmental failure that the CCRC has yet to be reformed so that it can function in the way that was intended. about the extent to which the CCRC is falling short and about the cause of any problems. There are legitimate concerns that a lowering of the referral threshold might see too many how can there be too many? ALL wrongful convictions should be overturned. If there is a problem with ‘too many’, then the system should be reformed in such ways that it doesn’t cause ‘too many’. or inappropriate cases how defined? What does this mean? referred to the CACD, with the risk that these will create false hopes for defendants, my understanding is that alleged victims of wrongful convictions have lost hope with the CCRC and are not applying. This may serve those who want to argue that wrongful convictions are few or a thing of the past, but it undermines the criminal justice system and should trouble us all. It’s akin to Black young men having no trust or confidence in the Met police. Just because they don’t report crimes that they experience doesn’t mean that things are going well. unnecessary distress for victims, we need to always be aware that in alleged wrongful conviction cases that the victim could well be the innocent victim of the wrongful conviction. and a poor use of court time and resources. This should not be part of the conversation on rectifying the wrongful conviction of innocent victims. If time and resources are expended in overturning wrongful convictions then it is those individuals who, or the system that, caused them that is responsible. There are legitimate concerns that any asymmetry between a referral test and grounds of appeal may create tensions that undermine certainty and fairness what does ‘fairness’ mean here? in appeals. This comprehensive review will examine these competing arguments and the evidence Good. It has to be about evidence rather than mere opinion. on which they are based.


All of the references that I provide here are available via my website (michaeljnaughton.com) or can be provided to the Law Commission upon request:


Naughton, M. (2023) ‘What if the CCRC had unlimited funding? A submission to the Law Commission’s consultation.’ University of Bristol Law School Blog. 23 January.


Naughton, M. (2022) ‘Theorising miscarriages of justice.’ Islamic Perspective. Published by the Institute for Critical Social Theory. Volume 28. Winter: 93-116.


Naughton, M. (2022) ‘CCRC Watch: Can we transform the current miscarriages of justice ‘lapdog’ into a genuine ‘watchdog’ body that can truly assist innocent victims to overturn their wrongful convictions?’ University of Bristol Law School Blog. 25 April.


Naughton, M. (2019) ‘The Westminster Commission on Miscarriages of Justice: Please forgive me, but I won’t be holding my breath.’ The Justice Gap. 6 September.


Naughton, M. and Tan, G. (2013) ‘Report of the Symposium on the Reform of the Criminal Cases Review Commission.’ (Printed by LexisNexis).


Naughton, M. (2013) The Innocent and the Criminal Justice System. (Palgrave Macmillan). See, Chapter 6: The Court of Appeal (Criminal Division); and Chapter 7: The Criminal Cases Review Commission.


Naughton, M. (2012) ‘The Criminal Cases Review Commission: Innocence versus safety and the integrity of the criminal justice system’. Criminal Law Quarterly. 58: 207-244.


Naughton, M. (2012) ‘No champion of justice’ in Robins, J, (2012) Wrongfully Accused: Who is Responsible for Investigating Miscarriages of Justice? Jures. The Solicitors Journal: London.


Naughton, M. (2010) ‘Why “safety in law” may fail the innocent – the case of Neil Hurley.’ The Guardian. 11 February.


Naughton, M. (2009) (Editor) The Criminal Cases Review Commission: Hope for the Innocent? Basingstoke: Palgrave Macmillan.


Naughton, M. (2006) ‘Wrongful Convictions and Innocence Projects in the UK: Help, Hope and Education.’ Web Journal of Current Legal Issues. 3.



References


1 Unfitness to Plead, Vol 1: Report (2016) Law Com No 364, HC 714-I, paras 8.20-8.24, 10.77.

2 Justice Committee, para 28. 3 The Westminster Commission on Miscarriages of Justice was established by the All-Party Parliamentary Group on Miscarriages of Justice in 2019. The Commission was co-chaired by Baroness Stern and Lord Garnier and reported in March 2021. 4 Westminster Commission, p 43. 5 Westminster Commission, p 63.

6 Criminal Procedure (Scotland) Act 1995,s 194C. 7 Westminster Commission, p 37. 8 Gabe Tan, in Michael Naughton and Gabe Tan, Report of the Innocence Network UK (INUK) Symposium on Reform of the Criminal Cases Review Commission, 2012, p 31. 9 Carolyn Hoyle and Mai Sato, Reasons to Doubt: Wrongful Convictions and the Criminal Cases Review Commission, OUP, 2019, pp 15-16, citing (among others) Michael Naughton, The Innocent and the Criminal Justice System: A Sociological Analysis of Miscarriages of Justice, Palgrave, 2013. 10 Westminster Commission, p 39.

11 CAA 1995, s 9(1). 12 The CCRC’s published policy gives an example of a case where it may be appropriate not to refer: where “the applicant complains with some justification of a serious irregularity or abuse of process, but admits his guilt publicly.” CCRC, Casework Policy on Discretion in Referrals (17 September 2019),para 8. 13 Westminster Commission, pp 39-40. 14 CCRC response to the Westminster Commission.

15 Westminster Commission, p 60.

16 CCRC response to the Westminster Commission.

17 Westminster Commission, p 52.

18 CAA 1995, s 18A.

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