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Abolish s.13 of the Criminal Appeal Act 1995 ("real possibility test") of the CCRC so innocent victims can overturn their convictions.

Innocent people are still languishing in prison despite a publicly funded body that was set up to assist them to overturn their wrongful convictions.

Empowering the Innocent (ETI is today launching a UK Government and Parliament Petition calling for the abolition of the 'real possibility' test under s.13 of the Criminal Appeal Act 1995 which can prevent innocent applicants from having their wrongful convictions back to the Court of Appeal by the Criminal Cases Review Commission (CCRC) — the last resort for innocent victims of wrongful conviction.

The Criminal Cases Review Commission (CCRC) was established twenty five (25) years ago following a recommendation of the Royal Commission on Criminal Justice (RCCJ), set up in the wake of notorious cases of wrongful convictions such as the Guildford Four and the Birmingham Six.

Empowering the Innocent’s (ETI) project on the CCRC, CCRC Watch, details a growing number of cases that reveal the CCRC is not fit for the purpose of helping the innocent to overturn their wrongful convictions.

The case spearheading Empowering the Innocent's (ETI) Petition for the reform of the Criminal Cases Review Commission (CCRC) is the case of Clive Freeman who was convicted of the murder of Alexander Hardie. Mr Freeman is currently in his 35th year of incarceration for an alleged crime that he would have spent 13 years in prison for if he had admitted his guilt, shown his remorse and complied with his sentence plan.

The CCRC has so far rejected 4 applications from Mr Freeman, who now has nine (9) of the most eminent experts in the World saying that no crime actually occurred, and that Mr Hardie was not murdered. This was also the original finding of the police forensic pathologist in his first and second post-mortems, but who changed his opinion during his third post-mortem and will not accept the growing number of global experts who say that he was mistaken to do so.

In each of its rejections of Mr Freeman's applications, the CCRC apparently fails to see the growing number of experts and weight of scientific opinion against the finding of the forensic pathologist in the case as it considers each submission in isolation from the others. It shows a total deference to the forensic pathologist at trial who refuses to accept that he may have made a mistake when he was a junior forensic pathologist 35 years ago when conducting post-mortems that forensic pathologists at the stage of their careers that he was at the time are no longer permitted to conduct for fear of making mistakes.

The CCRC's feeble claim that there is also circumstantial evidence against Mr Freeman misses the point entirely: if Mr Hardie was not murdered, which is the overwhelming conclusion of the growing number of experts against the original prosecution pathologist at trial, then there is no circumstantial evidence!

The case of Clive Freeman is supported by other cases of alleged innocent victims of wrongful conviction with plausible claims of innocence who have also been rejected by the CCRC. This includes the case of Robin Garbutt (see here, here, here, here and here), Jeremy Bamber (see here, here, here and here), Ray Gilbert, Mark Osborne, Walid Habib, Ben Geen, Sean Bw Parker, John Bartlett (see here and here) and others, all of whom have articles about their cases on the CCRC Watch website. They also attest to the CCRC failing to investigate claims of innocence by alleged victims of wrongful convictions due to the restrictive nature of the so called 'real possibility' test under a blanket rejection of the evidence in your application 'was or could have been dealt with in your trial.'

In this call for the abolition of the CCRC's 'real possibility' test under s.13 of the Criminal Apeal Act 1995 we build on the Innocence Network UK (INUK) dossier of 44 cases, all of which were rejected at least once by the CCRC despite continuing doubts about the evidence that led to their convictions.

Overall, the Criminal Cases review Commission (CCRC) has rejected an average of 97% of the 29,569 applications it has received from alleged victims of miscarriages of justice since it was set up.

For four years in a row it rejected 99% of applications. Are we really to accept that the criminal justice system is near-perfect and that 99% of around 1,500 applicants per year are wrong or barefaced liars in their claims of miscarriage of justice?

The CCRC was meant to ensure that victims of miscarriages of justice have their cases investigated and referred back to the appeal courts if it is thought that the applicant is or might be innocent. However, the law that established the CCRC requires it to only refer cases if it believes that there is a “real possibility” that the conviction will be quashed.

As a result, only very few applicants fortunate enough to have fresh evidence that was not available at the time of the original trial or first appeal that is thought to undermine the safety if their convictions will have their cases referred. This leaves the vast majority of applicants unable to obtain a referral back to the courts even though the circumstances that led to their convictions are dubious and they might well be innocent.

The reforms that Empowering the Innocent (ETI) is calling for are:

  • The urgent repeal of the ‘real possibility test’. This would uncouple the CCRC from the Court of Appeal so that it is free to conduct truly independent and impartial investigations into claims of factual innocence by alleged victims of wrongful convictions in the interests of truth and justice.

  • In these investigations, any evidence not presented to the jury at trial is to be considered as fresh or new, as it should be as it has not been heard by a jury, and if it undermines the reliability of the evidence that led to the conviction or validates a claim of innocence then the conviction must be quashed by the CCRC.

  • This requires the CCRC to also have its own authority to overturn wrongful convictions and not have to send cases that it finds are wrongful convictions backwards to the Court of Appeal which previously refused to overturn the alleged wrongful conviction. This authority is also something that the Royal Commission on Criminal Justice (RCCJ) envisaged the CCRC to have.

Clive Freeman said:

“I am a totally, 100 per cent innocent man trapped in prison for a murder that I did not commit and did not occur. I thought that the British legal system was the best in the World, bit I know different now. If the CCRC is not reformed in a way that allows it to refer my wrongful conviction I will surely will die in prison protesting my innocence.”

“Unless the 'real possibility' test under s.13 of the Criminal Appeal Act is abolished innocent victims of wrongful convictions will continue to be failed down by the body that Parliament set up to assist them.”

The reforms proposed, aimed at making the Criminal Cases Review Commission (CCRC) a more adequate body to assist the innocent, would also potentially save millions of pounds from the public purse by shortening the length of time that those wrongly incarcerated might otherwise spend in prison. In 2020/21, the average cost of a prison place in England and Wales was £48,162.

Please sign the Petition if you agree that it is wrong, inhumane and unacceptable to have a criminal justice system in which innocent victims cannot overturn their wrongful convictions and want support the campaign for the abolition of the CCRC's 'real possibility' test.

Further information

Empowering the Innocent (ETI) is a research project aimed at criminal justice system reform that operates from the School of Law, University of Bristol. It was founded in September 2019 to give voice to alleged innocent victims of wrongful convictions that they can use in their struggles for justice.

To these end, Empowering the Innocent (ETI) has so far set up two subprojects, CCRC Watch and False Allegations Watch (FAW):

  • CCRC Watch features articles which centre on applications that are rejected by the CCRC, not because applicants are not innocent but, rather, because they are not deemed to have the so called 'fresh' evidence required to fulfil the 'real possibility' test and have their case referred back to the Court of Appeal (Criminal Division). CCRC Watch also features research articles on the wider limitations of the CCRC in dealing with applications from alleged innocent victims of wrongful convictions.

  • False Allegations Watch (FAW) features articles which centre on alleged false allegations, charges or wrongful convictions for sexual offences. False Allegations Watch (FAW) also features articles on the wider context within which false allegations of sexual offences can occur, including the legislation, policies and/or cultures that can act to facilitate or enable such false allegations to be made.

These subprojects highlight the limitations and/or outright failings of the existing structures, procedures and cultures of criminal justice system and systems for overturning wrongful conviction in alleged wrongful conviction cases with the aim of fostering public support as a precursor to criminal justice reforms.

Contact ETI at:

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