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):
The 'real possibility' test [
] 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.[9]
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:
Also, the difficulty with the Court of Appeal
is that if they are taking a very cautious approach, or there
is a narrow interpretation of something, that percolates down
to the Case Review Manager inasmuch as when they are investigating
or looking through the bundle, as we say, they are coming at that
from a very narrow perspective because they are already thinking
three steps ahead [
] all the way through the system, we
have this very narrow focus that we are getting the lead from
the Court of Appeal.[17]
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:
When we start looking at a case, we don't start
looking at it from the point of view of there being a test called
the 'real possibility' test and whether this case might pass it
or not. We start, when we look at a case, in the way that anybody
ought to start looking at the case - by saying, "Here's the
case. Is there anything here that concerns us? If there is, let's
investigate it."[18]
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:
The alternative of not having a 'real possibility'
test implies that the Commission would be referring cases where
there was not a real possibility of the Court of Appeal overturning
them, which seems a slightly strange position to get into, given
the attendant costs, the impact on victims and so on that you
might get from that.[28]
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:
When the CPS are looking at a realistic prospect
of conviction, that is generally understood to be about 51% or
more; so 'real possibility' seems to me to be potentially less
than realistic prospects. I do not think it has to be as high
as 70%.[30]
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:
A lot of this debate proceeds on the almost unspoken
assumption that there are obvious cases of miscarriages of justice,
obvious cases of lurking doubt, where if only people would see
sense and refer that case, or if only the Court of Appeal took
a slightly different view, then a wrongful conviction would be
quashed. Our experience is that it is extraordinarily difficult,
if not impossible, to judge from the outside a situation of that
kind, and in particular many of the cases which have attracted
huge support as "obvious miscarriages" turn out not
to be.[35]
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:
The Court of Appeal is a court of review, not
a court of trial. It may not usurp the role of the jury as the
body charged by law to resolve issues of fact and determine guilt.
[
] Trial by jury does not mean trial by jury in the first
instance and trial by Judges of the Court of Appeal in the second.
The Court of Appeal is entrusted with a power of review to guard
against the possibility of injustice but it is a power to be exercised
with caution, mindful that the Court of Appeal is not privy to
the jury's deliberations and must not intrude into territory which
properly belongs to the jury.[38]
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 approacharguably
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.
9 [1999] 3 All ER 498 Back
10
Ministry of Justice, Triennial Review of the Criminal Cases Review Commission,
June 2013, p 9 Back
11
Oral evidence taken by the Justice Committee on 14 January 2014,
HC (2013-14) 971, Q 18 Back
12
Cardiff University Law School Innocence Project (CCR0029) para
1.3 Back
13
Dr Michael Naughton, Written evidence on the CCRC, February 2014,
paras 22 and 8 Back
14
Q 14 Back
15
Cardiff University Law School Innocence Project (CCR0029) Back
16
Innocence Network UK, Report on the Innocence Network UK (INUK) Symposium on the Reform of the Criminal Cases Review Commission (CCRC),
August 2012), p 28 Back
17
Q 33 Back
18
Q 115 Back
19
Cardiff University Law School Innocence Project (CCR0029) para
1.2 Back
20
Q 18 Back
21
Q 95 Back
22
Oral evidence taken by the Justice Committee on 14 January 2014,
HC (2013-14) 971, Q 23 Back
23
Criminal Cases Review Commission (CCR0055) Back
24
Q 51 Back
25
Lord Judge (CCR0057) Back
26
Professor Michael Zander QC (CCR0002) Back
27
Professor Carolyn Hoyle (CCR0024) Back
28
Q 146 Back
29
Being "more than an outside chance or a bare possibility,
but which may be less than a probability or a likelihood or a
racing certainty"-Lord Bingham in R v Criminal Cases Review
Commission (ex parte Pearson) [1999] 3 All ER 498. Back
30
Q 34 Back
31
Q 33 Back
32
Q 31 Back
33
Q 95 Back
34
Stephen Heaton, A critical evaluation of the utility of using innocence as a criterion in the post conviction process,
December 2013, p 273 Back
35
Q 121 Back
36
Oral evidence taken on 14 January 2014, HC (2013-14) 971, Q 23 Back
37
This differs slightly from the Royal Commission's recommendation
that the ground be that "they think that the conviction is
or may be unsafe [emphasis added]". Back
38
[2001] UKHL 66 Back
39
R v Cooper [1969] 1 QB 267 Back
40
As part of the redrafting of the Court of Appeal Criminal Division's
grounds for allowing appeals. Back
41
R v Pope [2012] EWCA Crim 2241 Back
42
Professor Michael Zander QC (CCR0002) Back
43
Paul May (CCR0003) para 27 Back
44
Stephen Heaton (CCR0015) Back
45
Professor Richard Nobles, Written evidence on the CCRC, February
2014, para 4 Back
46
University of Warwick School of Law (CCR0026) para 8 Back
47
Professor Michael Zander QC (CCR0048) Back
48
Professor Michael Zander QC (CCR0051) Back
49
Q 32 Back
50
Oral evidence taken by the Justice Committee on 27 January 2015,
HC (2014-15) 1018, Q 5 Back
51
Q 32 Back
52
Q 115 Back
53
Lord Judge (CCR0057) Back
54
Lord Chief Justice of England and Wales (CCR0047), on behalf of
the Court of Appeal Criminal Division Back
55
[2012] EWCA Crim 2241 Back
56
Lord Judge (CCR0057) Back
57
Professor Michael Zander QC (CCR0002) Back
58
Q 64 Back
59
The Royal Commission on Criminal Justice, Report, Cm 2263, July
1993, p 184 Back
60
Lord Chief Justice of England and Wales (CCR0052) Back
61
Lord Judge (CCR0057) Back
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