06 Dec 2006

The Divisional Court has upheld the independence of the Criminal Cases Review Commission (CCRC) when determining which cases it should refer to the Court of Appeal. The human rights group Liberty intervened in the case.

The decision resolves a potential conflict between the CCRC and the Criminal Court of Appeal in relation to appeals based on the subsequent development of the law by judicial decision. If applied to directly, the Court of Appeal may refuse to give appellants leave to appeal out of time if it does not believe the development of the law means they have suffered “substantial injustice”. However, if a case is referred to it by the CCRC the Court of Appeal has no choice but to consider that case. The Divisional Court has confirmed that the CCRC has no obligation to take into account the approach of the Court of Appeal to granting leave when making its decision to refer a case. 
 
Alex Gask, Legal Officer for Liberty, said: 
 
“We are pleased that the CCRC’s strength and truly independent role has been upheld. As an autonomous body focusing on the safety of convictions rather than procedural bars it plays a key role in preventing miscarriages of justice.” 
 
In the Queen on the Application of Director of Revenue and Customs Prosecutions v. Criminal Cases Review Commission, the RCPO challenged the CCRC’s decision to refer to the Court of Appeal the cases of four individuals who had been found guilty of conspiracy to launder money based on “reasonable suspicion” after new case law determined that the conspiracy offence actually required “knowledge” or “intention” (R v Saik 2006). The RCPO argued that the cases should not be referred, as the Court of Appeal would not itself have granted the four individuals leave to appeal. 
 
Contact: Jen Corlew on 0207 378 3656 or 0797 3 831 128 

NOTES TO EDITORS
 
1. The Criminal Cases Review Commission (CCRC) is an independent public body that was set up in March 1997 by the 1995 Criminal Appeal Act. Its purpose is to review possible miscarriages of justice in the criminal courts of England, Wales and Northern Ireland and to refer appropriate cases to the appeal courts. It was set up following growing concern about a succession of miscarriages of justice which had undermined public confidence, including the Birmingham Six.
 
2. Where a judicial decision changes the law subsequent to an individual’s conviction, that individual may believe that the clarification of the law indicates that they should not have been convicted. If they appeal to the Court of Appeal, the Court only has to hear their appeal if they have already been granted ‘leave to appeal out of time’. Usually, leave needs to be obtained from the Court of Appeal itself. The Court of Appeal often refuses leave to appeal out of time in such circumstances if it does not consider that the individual has suffered ‘substantial injustice’.
 
3. The convicted individual may instead apply to the CCRC. Under the 1995 Act, the CCRC has the discretion to refer a case to the Court of Appeal where it considers “that there is a real possibility that the conviction…would not be upheld were the reference to be made” (s13(1)(a)). Thus the CCRC must consider whether the Court of Appeal would find a conviction unsafe if dealing with the substantive issues. The Court of Appeal has no choice but to hear any appeal referred to it.
 
4. There is no equivalent of ‘leave to appeal out of time’ prior to referrals by the CCRC, as the CCRC has no time limits. There is also nothing in the 1995 Act requiring the CCRC to consider whether the Court of Appeal would have exercised its discretion to refuse leave to appeal out of time in any particular case.
 
5. Lord Justice Maurice Kay explained in the Divisional Court judgment (CACD = Court of Appeal Criminal Division):
 
“In considering the scope of the Commission’s statutory powers, it is essential to focus on the terms in which they are expressed. In our judgment, the significant features are as follows: (i) unlike the CACD, the Commission does not act within statutory time limits. Section 9(1)(a) expressly enables it to refer a case “at any time”. (ii) The power to refer is not linked to consideration of whether there is a real possibility that the CACD would extend time or grant leave. Indeed, by section 9(2), once a reference is made, the need for the leave of the CACD is removed. (iii) The central test is in the form of a prediction of a real possibility that a conviction would not be upheld by the CACD, not of whether the continued existence of the conviction would be held to be a miscarriage of justice. (iv) The 1995 Act provided for a truly independent Commission and clothed it with discretionary powers of the utmost width, as has been confirmed in all the cases since Pearson. (Emphasis added) Although it is empowered by section 14(3) to seek the opinion of the CACD (and, we are told, has done so on two occasions, each raising highly specific issues of jurisdiction), it is not bound to do so. Its obligation is to decide whether, on a substantive appeal, there would be a real possibility of the quashing of a conviction. (v) In addressing that question, the Commission must have regard to the way in which the CACD approaches the “unsafe” test….
 
All this leads us to the clear conclusion that the independent Commission was under no obligation to have regard to, still less to implement, a practice of the [Court of Appeal] which operates at a stage with which the Commission is not concerned.”