The Court of Appeal Civil Division considers the applicable principles for judicial review of decisions made by the Criminal Cases Review Commission. In this case the Applicant had been convicted of murder and unsuccessfully appealed to the Court of Appeal Criminal Division in 1973. After five unsuccessful applications to the Home Secretary for a reference to the Court of Appeal he later applied to the CCRC who, ultimately referred his case to the Court of Appeal which again refused his appeal. He made 8 applications to the Commission between the dismissal of his appeal in 2002 and the application for judicial review in 2019 which resulted in the present appeal.
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inal Cases Review Commission [:
In light of the Supreme Court decision in Re McGuinness which clearly overruled the earlier case of R (Saxon) v CCRC Bean LJ said the Court had jurisdiction to entertain the application for permission to appeal.
It was noteworthy that the Divisional Court in Northern Ireland had taken the same view in Re Quinn .
The Criminal Appeal Act:
That raised the issue of what test the Court of Appeal Criminal Division applied when deciding whether to uphold a conviction in cases where evidence was put before them which was not before the jury at the appellant’s trial.
of the Criminal Appeal Act:
Section 23(1) of the 1968 Act gave the CACD power to receive any evidence which was not adduced at the trial. Section 23(2) provided that the Court of Appeal shall have regard to whether the evidence was capable of belief and whether it appeared to the court that it may afford any ground for allowing the appeal.
Counsel for the applicant relied on the speech of Lord Bingham in R v Pendleton on the approach to the safety of a conviction in a fresh evidence appeal.
However, it was clear from subsequent decisions of high authority that Pendleton did not alter the principle that the ultimate responsibility for deciding whether a conviction was safe rested with the CACD. See Dial v Trinidad and Tobago which was reaffirmed by Lord Judge CJ in R v Noye when he said the essential question was whether in the light of the fresh evidence the conviction was unsafe. The responsibility rested with the Court.
The principles applicable to judicial review of the CCRC were explained by Lord Bingham CJ in R v CCRC : (a) Judgment under section 13(1) was entrusted to the CCRC and no-one else; (b) save in exceptional circumstances the CCRC must make its judgment on the basis of evidence or argument which had not already been placed before a court; and (c) on the application for judicial review the duty of the court was not to consider whether the CCRC was right or wrong, but only whether its decision was lawful.
eal against his conviction in:
Between 1986 and 1996 he unsuccessfully petitioned the Home Secretary on five occasions for a reference to the Court of appeal.
Once the Criminal Appeal Act:
The applicant advanced 20 grounds of appeal but on 13 February 2002 the Court of Appeal dismissed his appeal.
he dismissal of his appeal in:
Garnham J refused permission on the papers. Lavender J agreed and said that the Statement of Reasons demonstrated the Commission had carefully considered the points made by the applicant but concluded that the Court of Appeal would not consider that they affected the safety of his conviction.
The Court’s view was confined to considering whether the Commission’s decision was irrational or otherwise unlawful. The application came nowhere near showing that such a test was met.
he Commission’s decision in:
The Court of Appeal unanimously refused permission to appeal. The Commission was right not to have an absolute rule prohibiting an applicant from applying to it more than once. Some miscarriages of justice did not come to light at the first time of asking.
But Mr Cleeland had abused the flexibility of the Criminal Cases Review Commission by making repeated applications to the point of now being vexatious. The Commission had limited resources and should be entitled to give priority to first applications by serving prisoners, rather than further applications by a man who had long since been released but who, over a period of nearly half a century, had challenged his conviction 12 times.
A transcript of this summary with case references appears under the News section of my website at www.barrybaines.co.uk
