Law Commission issues proposals to reform law on criminal appeals

Specific provisional proposals include:

*Replacing the ‘real possibility’ test used by the Criminal Cases Review Commission (CCRC) when considering an appeal against conviction with a test focusing on the CCRC’s own view of the case rather than requiring it to predict the court’s response

*Making the CCRC subject to an independent inspectorate

*Replacing the current requirement for the wrongly convicted to prove their innocence beyond reasonable doubt in order to receive compensation so that those who can prove their innocence, on the balance of probabilities, would be eligible

*Simplifying appeals to the High Court in summary proceedings by abolishing the ‘case stated’ procedure

*Giving courts and the CCRC greater powers to investigate claims that a conviction is unsafe due to misconduct by jurors

*Enabling more appeals to be considered by the Supreme Court by virte of removing the requirement for the Court of Appeal to certify that an appeal involves a question of law of general public importance

Number of topics

The Law Commission is also seeking views on a number of topics:

*The core principles that should apply to criminal appeals

*Time limits for lodging an appeal

*The law governing the composition and terms of appointment of CCRC Commissioners

*Whether the Unduly Lenient Sentence Scheme should be expanded to cover offences such as causing death by careless driving

*Whether provisions allowing for an individual who has previously been acquitted to be retried when there’s compelling new evidence should be extended to cover certain historic offences that are not presently covered

*Whether it should be lawful to disclose evidence for the purposes of responsible journalism to reveal a possible miscarriage of justice

*Establishing a National Forensic Archive Service to take over responsibility for long-term storage of evidence used in trials

The review also proposes various technical reforms including:

*Preventing an individual convicted at a retrial from having their conviction quashed solely because the prosecution did not obtain an extension of time from the Court of Appeal

*Protecting the public by giving the Court of Appeal extended powers to order a new hearing when quashing a verdict of not guilty by reason of insanity or the findings made by a Jury where the defendant was unfit to plead

*Enabling the efficient disposal of appeals by allowing a single Judge to deal with certain issues in the Court of Appeal

Crucial function

Professor Penney Lewis, Commissioner for Criminal Law, said: “The criminal appeals system serves a crucial function in society. It not only ensures that miscarriages of justice are corrected, but also that the criminal law is applied consistently and predictably. As the Post Office scandal has demonstrated, anyone can be a victim of a miscarriage of justice. Our proposals seek to ensure that those who are wrongly convicted can effectively challenge their convictions.”

On changes to the test used by the CCRC, Professor Lewis observed: “We received persuasive evidence that the ‘real possibility’ test used by the CCRC may lead the CCRC to focus its investigations too narrowly and so neglect lines of inquiry that might exonerate a person. Rather than focusing on what the Court of Appeal may do, we think the CCRC should first form its own view as to whether a conviction may be unsafe.”

Referencing the test for compensation for victims of a miscarriage of justice, Professor Lewis commented: “Requiring people to prove their innocence beyond reasonable doubt is contrary to the fundamental principles of both criminal and civil law and can present an insurmountable obstacle to obtaining compensation for injustice. We think that if a person can prove their innocence on the usual standard of proof – ie the balance of probabilities – then they should be compensated.”

*Copies of ‘Criminal Appeals: A Consultation Paper’ are available online