Law Commission makes wide-ranging proposals to reform law on criminal appeals

The Law Commission has today published a comprehensive consultation paper on reforming the criminal appeals system in England and Wales.

The Law Commission seeks views on potential reforms to make the appeals system more effective and accessible while maintaining the principle that trials are the primary mechanism for establishing facts. The consultation paper and a summary are available at the Criminal appeals project page.

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 removing the requirement for the Court of Appeal to certify that an appeal involves a question of law of general public importance.

The Law Commission also seeks 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 and animal cruelty.
• Whether provisions allowing for a person who has previously been acquitted to be retried when there is compelling new evidence should be extended to cover non-penetrative sexual offences, and certain historic offences that are not 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 a person 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 findings made by a jury where the defendant was unfit to plead.
• Allowing the Court of Appeal to leave a Sexual Harm Prevention Order or similar order in place when it was shorter than could lawfully be imposed but cannot be increased.
• Enabling the efficient disposal of appeals by allowing a single judge to deal with certain issues in the Court of Appeal.

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 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, Prof Lewis said:

“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 appeal court may do, we think the CCRC should first form its own view as to whether a conviction may be unsafe.”

On the test for compensation for victims of a miscarriage of justice, Prof Lewis said

“Requiring people to prove their innocence beyond reasonable doubt is contrary to 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 – the balance of probabilities – they should be compensated.

The full consultation paper and a summary of it, along with Welsh language, easy-read and audio versions of the summary, are available at the Criminal appeals project page.