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A change in approach from the CCRC? by Anita Davies
The CCRC referred a record number of convictions to the Court of Appeal in March 2020. Anita Davies considers the challenges of making a CCRC application, and whether the March decisions reflect a changing trend.
On 04 March 2020 the Criminal Cases Review Commission (CCRC) conceded a judicial review in the case of the “Shrewsbury 24” (24 building workers prosecuted in 1973 following a national building workers strike in 1972) and referred the
convictions of eight men to the Criminal Division of the Court of Appeal to consider the lawfulness of their convictions in 1973/4. Following a refusal to refer from the CCRC in 2017, four applicants had pursued a judicial review on behalf of the wider group. The CCRC continued to defend the
proceedings until the day of the substantive hearing; unusually conceding part way through the submissions of Danny Friedman QC that the CCRC would withdraw its decisions and reconsider them. On 26 March 2020, the CCRC referred 39 convictions of former sub-postmasters and postmistresses convicted of theft and fraud after using Horizon accounting software. The referral represents the single-largest number of cases ever sent back to the courts at one time by the CCRC, with a further 22 cases still under consideration.
The two decisions (announced in the space of one month) illustrate what an important role the CCRC plays in overturning miscarriages of justice, acting as they do as the “gatekeepers” to the Court of Appeal, but also perhaps marks a change of trend in the CCRC referring cases to the Court. The CCRC was established after a royal commission on criminal justice report in 1993 examined a series of high-profile wrongful convictions, including those of the Guildford Four and Birmingham Six. The RCCJ report concluded that the Home Office was not sufficiently independent to investigate miscarriages of justice, so the new statutory body was set up. The CCRC has always faced considerable scrutiny, as it is the last resort for those seeking to appeal a conviction or sentence, and those who make applications have often been pursuing cases for years. The CCRC has faced considerable criticism for the low rate of referrals to the Court of Appeal.
Part of the challenge is that the legal threshold for a referral is relatively high. The conditions for the making of such a reference are identified in section 13 of the 1995 Criminal Appeal Act:
“13. (1) A reference of a conviction … shall not be made under any of sections 9 to 12B unless—
(a) the Commission consider that there is a real possibility that the conviction … would not be upheld were the reference to be made,
(b) the Commission so consider— (i) in the case of a conviction … because of an argument … not raised in the proceedings which led to it or on any appeal or application for leave to appeal against it… ”
The CCRC’s approach s is set out in R v Criminal Cases Review Commission ex parte Pearson  3 All ER 498,  1 Cr App R 141 at page 149D-E in the judgment of Lord Bingham CJ:
“Thus the Commission’s power to refer under section 9 is exercisable only if it considers that if the reference were made there would be a real possibility that the conviction would not be upheld by the Court of Appeal. The exercise of the power to refer accordingly depends on the judgment of the Commission, and it cannot be too strongly emphasised that this is a judgment entrusted to the Commission and to no one else. Save in exceptional circumstances, the judgment must be made by the Commission, in a conviction case, on the ground of an argument or evidence which has not been before the Court before, whether at trial, on application for leave to appeal or on appeal. In the absence of such exceptional circumstances, the Commission cannot therefore invite the Court to review issues or evidence upon which there has already been a ruling. Resort to the Commission must ordinarily follow and not precede resort to the Court of Appeal.”
In effect, that means the CCRC is unlikely to refer unless there is a legal error or significant new evidence. Further, the “real possibility test” is difficult to define, ex parte Pearson149F-150A:
“The ‘real possibility’ test prescribed in section 13(1)(a) of the 1995 Act as the threshold which the Commission must judge to be crossed before a conviction may be referred to the Court of Appeal is imprecise but plainly denotes a contingency which, in the Commission’s judgment, is more than an outside chance or a bare possibility, but which may be less than a probability or a likelihood or a racing certainty. The Commission must judge that there is at least a reasonable prospect of a conviction, if referred, not being upheld. The threshold test is carefully chosen: if the Commission were almost automatically to refer all but the most obviously threadbare cases, its function would be mechanical rather than judgmental and the Court of Appeal would be burdened with a mass of hopeless appeals; if, on the other hand, the Commission were not to refer any case unless it judged the applicant’s prospect of success on appeal to be assured, the cases of some deserving applicants would not be referred to the Court and the beneficial object which the Commission was established to achieve would be to that extent defeated. The Commission is entrusted with the power and the duty to judge which cases cross the threshold and which do not.”
If the CCRC refuse to refer, the only option is judicial review, but the case law makes clear that a court will be reluctant to interfere in the CCRC’s decision, see R (Charles) v Criminal Cases Review Commission  EWHC 1219 (Admin) where Gross LJ provided further clarification of the role to be performed by the CCRC:
“65. The question is not straightforward. First, as already seen, the exercise of the power to refer, including its predictive element, is a matter for the judgment of the CCRC, not the Court – and is not to be usurped by the Court. Secondly, the CCRC has a discretion not to refer, even when the threshold conditions are satisfied. Thirdly, in many cases (perhaps most but I do not know) the issue for the CCRC will not give rise to ‘bright-line’ decisions on substantive criminal law at all; for instance, cases where a reference is sought on grounds of fresh evidence or an alleged failure to give proper disclosure. Fourthly, questions of some awkwardness could arise as to the role of this Court and that of the CACD were this Court purportedly to decide unsettled issues of substantive criminal law definitively for itself. All of this points towards the Court being slow to intervene where the CCRC has taken a tenable and not irrational view, whatever the Court’s own view might be.”
The legal test for referral is therefore one reason that the current rate of referrals to the Court of Appeal is far lower than when the Home Office was responsible for miscarriages of justice. In December 2017 the CCRC celebrated its twentieth anniversary and figures published at the time show that as at December 2017, the Commission received more than 1300 applications per year; since inception, 634 cases had been referred to the Court of Appeal, with 419 of those convictions overturned. However, the number of referrals to the Court had decreased from almost 4% of cases to under 1%. A survey in May 2018 found that the majority of lawyers considered the CCRC not fit for purpose, and referred to failings regarding not interviewing witnesses, not understanding the significance of non-disclosure, not visiting the scene, and a misunderstanding of key points of law. Sir Anthony Hooper, who retired in 2012 after eight years on the court of appeal, told a Panorama documentary aired in June 2018 that the CCRC has been compelled to become more cautious because the court itself was increasingly resistant to legal challenges.
The low rate of referrals has led to calls that the statutory threshold for referral be changed. A 2015 Justice Committee report considered the matter and concluded that the statutory test was being properly applied, but recommended that the Law Commission examine the issue as to whether it should be altered. So far this has not occurred, but the CCRC might do well to remind itself of the comments from the Justice Committee report of 2015:
“20. We have seen no conclusive evidence that the CCRC is failing to apply the ‘real possibility’ test correctly in the majority of cases. We accept that application of the test is a difficult task and is by no means a precise science, but where potential miscarriages of justice are concerned we consider that the CCRC should be willing to err on the side of making a referral. The Commission should definitely never fear disagreeing with, or being rebuked by, the Court of Appeal. If a bolder approach leads to 5 more failed appeals but one additional miscarriage being corrected, then that is of clear benefit.”
An application to the CCRC is always likely to be a challenging process in terms of likelihood of success, and judicially reviewing a refusal even more so. It is too early to say whether the March 2020 referrals mark a change in trend in the number of cases referred to the Court of Appeal. One of the issues identified in the Justice Committee report was a lack of resourcing for the CCRC, with Commissioners’ dealing with an overwhelming number of cases. Five new commissioners were appointed at the end of 2017 and apparently cuts in resource are now being reversed. Given further resourcing it is to be hoped that the CCRC will start to adopt a less stringent approach to referrals to the Court of Appeal in future.