House of Commons - Criminal Cases Review Commission

Criminal Cases Review Commission - Justice Contents

2 The 'real possibility' test

The legal basis for making a reference

8. The test applied by the CCRC in deciding whether or not to refer a case to the Court of Appeal is known as the 'real possibility' test. This is derived from section 13 of the Criminal Appeal Act 1995, which states that:

A reference of a conviction, verdict, finding or sentence shall not be made […] unless the Commission consider that there is a real possibility that the conviction, verdict, finding or sentence would not be upheld were the reference to be made.

Lord Bingham, sitting in the High Court, gave a judicial interpretation of the test in R v Criminal Cases Review Commission (ex parte Pearson):

9. Fifty-four per cent of responses to the triennial review which expressed a view on the test for referral agreed that it is the right one.[10] We have received a similar split in responses to our question on whether it is appropriate. Despite this we have also found a broad agreement, or at least perception, that something in the test or its application is not working properly, with many witnesses alleging that the CCRC's current referral rate of 3% to 4% is too low. This compares with a referral rate of around 7% by the Scottish CCRC, which operates under a different referral test mirroring that applied on appeal by the Scottish High Court; the CCRC told us that its referral rate would be similar if looked at "as a percentage of the cases that Parliament intended us to look at", disregarding applications which fall outside its remit but which it still includes in its calculations.[11]

10. The evidence we have received has revealed that simply asking whether the 'real possibility' test is the right test is too narrow and misses the subtle underlying dispute as to where the issues raised really lie. In fact, debate about the existing referral system focuses on three issues, which we will deal with in turn: the 'real possibility' test itself, the CCRC's application of the 'real possibility' test, and the Court of Appeal's approach to criminal appeals.

Is it the right test?

11. The main criticism of the 'real possibility' test itself concerns how it frames the relationship between the CCRC and the Court of Appeal. In its written evidence the Cardiff University Law School Innocence Project claimed that the test "explicitly makes the CCRC subservient to the Court of Appeal."[12] In response to our request for comments in February 2014 Dr Michael Naughton, Director of Innocence Network UK, argued that the test "is entirely contrary to what the Royal Commission envisaged and directly against its recommendation that it be 'independent of both the Government and the courts'" and "means that the CCRC are always in the realm of second-guessing what the Court of Appeal may think about cases that are received following a referral by the CCRC."[13] Glyn Maddocks, a solicitor specialising in appeal cases, contended that it creates "an unfair or unequal relationship between the Court of Appeal and the CCRC. Therefore, the CCRC cannot be independent because it is frightened of the Court of Appeal."[14]

12. The issue that such critics raise is that, in their view, to be truly independent the CCRC needs to be able to stand up to the Court of Appeal when it disagrees with an actual or predicted decision. The CCRC's supposed difficulty in doing so is reflected in the fact that only two cases have ever been referred to the Court of Appeal by the CCRC more than once.[15] Witnesses argued that this leaves the Commission susceptible to being effectively steered by the Court of Appeal. David Jessel, a former CCRC Commissioner, has previously highlighted sentence referrals, historical cases and shaken baby syndrome cases as areas in which the Court of Appeal has indicated an unwillingness to receive such cases and so the CCRC has subsequently found it difficult to refer.[16] Dr Carole McCartney, of Northumbria University School of Law, echoed this when she told us:

13. The claim implicit in this is that the CCRC's investigations are coloured throughout by the 'real possibility' test. This seems to be the perception of many of those who have submitted evidence to us, that the Commission's investigations are into whether a case has a 'real possibility' of not being upheld rather than into whether a miscarriage of justice has actually occurred. Despite this, Richard Foster, Chair of the CCRC, explained:

14. A small number of alternative tests have been put to us, each of which advocates claimed would refocus the Commission from the Court of Appeal onto miscarriages of justice. The Cardiff University Law School Innocence Project submitted that "the view of the Royal Commission was that any test of referral should be in line with that articulated in 1994 by the organisation JUSTICE: namely 'whether there is an arguable case that there has been a wrongful conviction'", and that this was the right test.[19] Dr Naughton supported a test of whether there is a 'real possibility' that a miscarriage of justice occurred.[20] Bob Woffinden, an investigative journalist, said that he thought the test should be, "If you were constituted as a jury, in view of all the evidence that you have seen, would you have found this particular person guilty?"[21]

15. There is also much opposition to changing the test. The CCRC itself supports the test, with Richard Foster telling us that "it is the best test" and that "I have never heard anybody suggest an alternative test that would work better".[22] The CCRC has however said that it would be open to a review of the test.[23] In response to the allegations that the CCRC has failed to remain independent, Lord Runciman, who chaired the Royal Commission, said that it "is subservient in the sense that it is not itself a court, and nor should it be."[24] Lord Judge also defended the constitutional arrangement between the CCRC and the Court of Appeal, "The CCRC is not and never has been a court. The Commissioners are not judges. Evidence is sometimes put before the Commission by one side in the absence of the other."[25] Professor Michael Zander, who was a member of the Royal Commission, defended the test and expressed his belief that if the Royal Commission had discussed grounds for referral it would have come up with something identical or broadly similar.[26] In her written submission Professor Carolyn Hoyle stated, "There is no evidence that a move away from the 'real possibility' test would increase the referral rate or the rate at which the Court of Appeal overturns convictions, without a simultaneous change to the Court's 'Safety Test'. There is no persuasive case for this."[27] The Ministry summarised the position of many when it gave us its reasons for supporting the test as is:

16. There was a strong difference of views amongst our witnesses on changing the 'real possibility' test. Any change would have to be undertaken in light of a change to the Court of Appeal's grounds for allowing appeals, which we deal with later at paragraphs 21 to 28, and would have to take account of the need to avoid a waste of resources or a detrimental effect on applicants and victims alike. While an alternative test might allow the CCRC more scope to display its independence of the Court of Appeal, by definition the only additional referrals which a change to the test alone would allow would be those with less than a real possibility of success.

Is the test applied properly?

17. More numerous than criticisms of the test itself in the evidence that we received have been criticisms of the way that the CCRC applies the test. In the previous section we noted criticisms that the CCRC was too cautious or too deferential to the Court of Appeal, being afraid of cases being rejected or of being rebuked by the Court for referring cases the Court deems to have no merit. In its defence the CCRC pointed to the fact that 70% of the cases which it referred were successful on appeal, which it believed proved that it had the balance right. The CCRC's Key Performance Indicators include a targeted success rate for referrals of between 60% and 80%.

18. On the other side, critics of the CCRC said that this success rate proved the criticism, as the judicial interpretation of the test indicates that a 'real possibility' is not a high threshold.[29] Professor Jacqui Hodgson, of the University of Warwick School of Law, told us that:

Professor Carolyn Hoyle agreed that "they could be a little bit less cautious" in applying the test.[31] We have also heard allegations of individual Case Review Managers and Commissioners glossing the test. Professor Hodgson told us that she has seen "different approaches from certain Commission members as well as in terms of whether they are trying to second-guess the Court of Appeal, and say, 'I can just see the Court of Appeal knocking this back.' Wrong test: that is not the test."[32] Bob Woffinden also thought that the CCRC often bypasses the 'real possibility' test and goes straight to a test of "is the Court of Appeal going to overturn the conviction?"[33]

19. In his December 2013 doctoral thesis, which involved an empirical analysis of a random sample of 404 applications, Dr Stephen Heaton identified 26 cases in which he found the decision not to refer troubling. While Dr Heaton felt that these cases could have been referred, and felt them worthy of referral, he also found that in all of them "the committee [deciding the referral] had sought to apply the test as they anticipated the [Court of Appeal Criminal Division] would do. Ultimately, I considered that their conclusions were well founded and that whatever my doubts, if I had been charged with discharge of the statutory 'real possibility' test, I would have reached the same conclusion."[34] Notably he also stated that in none of the troubling cases was he able to conclude that the applicant was innocent. This suggests that even a bolder approach to the test might not lead to a greater number of quashed convictions, and supports what Richard Foster told us:

He had also previously told us, "The view I have always taken, and pressed very strongly within the Commission and publicly, is that if we are in the grey area, we should always refer."[36]

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. We recommend that the CCRC be less cautious in its approach to the 'real possibility' test, and reduce the targeted success rate in its Key Performance Indicators accordingly.

The Court of Appeal's grounds for quashing convictions

21. We have been told by some that criticisms of the CCRC and the 'real possibility' test, made by those who believe miscarriages of justice are not being rectified, would more properly be directed towards the Court of Appeal (Criminal Division) and its approach to cases. Since the 1995 Act the only ground on which the Court of Appeal can allow an appeal against a conviction is that "they think that the conviction is unsafe".[37] The central complaint about the Court of Appeal is that it is overly reluctant to interfere with a properly delivered jury verdict, requiring appellants to show some material irregularity or fresh evidence, which creates a high barrier for the CCRC to meet if a conviction is to have a 'real possibility' of being quashed. Lord Bingham laid out a comprehensive statement of this constitutional doctrine of the primacy of the jury in the 2002 case of Pendleton:

22. Historically this reluctance to go behind a jury verdict has not been an absolute rule. In 1968 the grounds for appeal, as they then were, were expanded in line with the recommendations of the Donovan Committee to broaden the Court's approach—arguably this was Parliament's first attempt to make the Court rethink its deference to juries. As a result the Court developed the 'lurking doubt' doctrine, with which it could quash a conviction if there was "some lurking doubt in [its] minds which [made it] wonder whether an injustice has been done", even without fresh evidence or a material irregularity in the trial process.[39] Despite this, by the time of the Royal Commission's Report the doctrine had fallen into sparse use, leading it to state that it appreciated the Court's reluctance but that it did not "believe that quashing the jury's verdict where the court believes it to be unsafe undermines the system of jury trial". It therefore recommended that where "the Court of Appeal has a serious doubt about the verdict, it should exercise its power to quash" and that this should be made apparent in statute.[40] That change was not implemented and use of the doctrine has since been disapproved of for all but the "most exceptional circumstances", especially if there is no new evidence.[41] This aspect of the Court of Appeal's jurisprudence is complex and understandably difficult to anticipate in the 'real possibility test'.

23. Professor Michael Zander, who was a member of the Royal Commission, has been particularly critical of the Court of Appeal's reluctance in this area. He stated in written evidence to us his view, "If the Court of Appeal were readier to act on [the Royal Commission's] recommendation, many of the concerns raised by critics of the CCRC would be resolved."[42] Paul May supported this: "Much of the criticism levelled at the CCRC would in my view be better directed at the Court of Appeal which remains capable on occasions of quite breath-taking obduracy towards appellants claiming wrongful conviction."[43] Dr Stephen Heaton's research led him to a similar conclusion, "The overall performance of the Court of Appeal is a significant obstacle to addressing miscarriages of justice." In his written evidence he blamed in part "the Court's 'atomistic' approach. That is to consider the fresh material in an isolated fashion rather than review the whole picture in a case." He also raised the issue of inconsistencies in the Court's jurisprudence creating difficulties for the CCRC in predicting the Court's approach, "I see no evidence that the Court of Appeal has at any point recognised this aspect of responsibility."[44]

24. In his written submission to us in February 2014 Professor Richard Nobles put forward a proposal that the CCRC be able to refer a case based on 'lurking doubt', as he questioned "whether the referral power should simply anticipate the Court of Appeal's approach, given the tendency of the court to blow hot and cold in its willingness to reconsider jury verdicts."[45] The University of Warwick School of Law supported this approach in its written evidence.[46] Professor Zander put forward a similar idea, based on 'serious doubt',[47] although then amended his proposal to acknowledge that section 13(2) of the 1995 Act already allows the CCRC to do this, as in exceptional circumstances it may refer cases without fresh evidence or argument.[48] Professor Hoyle told us that the CCRC was reluctant to go ahead with such cases, "if it thinks the case does not meet the 'real possibility' test."[49] None of the propositions put to us include any formal change to the Court of Appeal's approach and so do not address how any such referrals would have a real possibility of success. While supporters of such a change, or increased use of section 13(2), may be hoping that the CCRC having such a power and using it would inherently change the Court's approach, the Lord Chief Justice indicated to us that a change in approach would be preferable through statute as the Court has to be "quite careful about overruling previous decisions."[50]

25. Professor Hoyle made the point that if the CCRC had a doubt about a case then it would pursue it with more tenacity and willingness to pursue all lines of investigation in order to gather enough evidence so that the case meets the test.[51] Richard Foster also later told us the same thing, "If we find that we have a concern, then we will find a way of referring it. I can give you particular examples where we have come at a case, time and time again, until we have found a ground on which we can get through the gateway".[52]

26. The judiciary was given an opportunity to respond to these criticisms, but declined to comment or provide evidence on anything more than factual matters. Towards the end of our inquiry we received a kind offer of assistance from the former Lord Chief Justice, Lord Judge, and then a submission from him. Lord Judge stated that he had discussed that submission with the present Lord Chief Justice, Lord Thomas, and that he had been authorised to say that Lord Thomas agreed with it. In his evidence Lord Judge pointed out that "if having examined the evidence, the court is left in doubt about the safety of the conviction it must and will be quashed."[53] In the short time available to us at the end of the inquiry we were unfortunately unable to explore how this statement could be reconciled with the judgment in Pope, which we were told by the Court of Appeal represents a "very clear indication of what will be this Court's approach" in relation to 'lurking doubt'.[54] In that case the Court stated that "the application of the 'lurking doubt' concept requires reasoned analysis of the evidence or the trial process, or both, which leads to the inexorable conclusion that the conviction is unsafe [emphasis added]."[55] Lord Judge went on in his evidence to disagree with Professor Zander's proposal for adding to the CCRC's grounds for referral, "Just because the CCRC is a respected body, even if, on examination, the [Court of Appeal Criminal Division] disagreed with the CCRC and dismissed the appeal, public confidence in that verdict would never be restored. From the public point of view, whatever the true constitutional position might be, there would be two conflicting decisions by bodies with responsibility for considering the safety of a conviction."[56]

27. We are concerned that there may be some miscarriages of justice which are going uncorrected because of the difficulty the CCRC faces in getting some such cases past the threshold of 'real possibility', as a result of the Court of Appeal's approach. While it is important that the jury system is not undermined, properly-directed juries which have seen all of the evidence may occasionally make incorrect decisions. The Court's jurisprudence in this area, including on 'lurking doubt', is difficult to interpret and it is concerning that there is no clear or formal mechanism to consider quashing convictions arising from decisions which have a strong appearance of being incorrect. Any change in this area would require a change to the Court of Appeal's approach, which would itself require a statutory amendment to the Court's grounds for allowing appeals. We are aware that this would constitute a significant change to the system of criminal appeals in this country and that it would qualify to a limited extent the longstanding constitutional doctrine of the primacy of the jury. Neither of these things should be allowed to stand in the way of ensuring that innocent people are not falsely imprisoned.

28. We recommend that the Law Commission review the Court of Appeal's grounds for allowing appeals. This review should include consideration of the benefits and dangers of a statutory change to allow and encourage the Court of Appeal to quash a conviction where it has a serious doubt about the verdict, even without fresh evidence or fresh legal argument. If any such change is made, it should be accompanied by a review of its effects on the CCRC and of the continuing appropriateness of the 'real possibility' test.

The Royal Prerogative of Mercy

29. One possible solution that has been put to us to the problems mentioned above is for the CCRC to utilise its power under section 16 of the 1995 Act to bypass the Court of Appeal and refer cases to the Secretary of State for application of the Royal Prerogative of Mercy. This has only been done once since the creation of the CCRC, in a sentence-only case.[57] Professor Zander told us that he thought it should be used as a last resort, in "desperation."[58] However, the Royal Commission recommended that the use of this power "should only be where the Court of Appeal is unlikely to be able to consider the case under the existing rules".[59] The Lord Chief Justice argued that this would raise "a serious question of constitutional propriety".[60] Lord Judge stated that this would lead to "precisely the problems which the [Royal Commission] successfully avoided."[61] We do not think that the CCRC should change its approach to the Royal Prerogative. Greater use of the power under section 16 of the 1995 Act would bring the executive back into the process in precisely the manner that the creation of the CCRC was intended to avoid. In our view, increased use of the Royal Prerogative would be a wholly inadequate and inappropriate answer to the problems that have been raised, given that it does not lead to the quashing of the conviction or the correction of the miscarriage of justice but only commutes the sentence, and so does not provide complete justice for a falsely convicted person.