Written evidence from the Lord Chief Justice (CCR 47)

Question 1

How did the Court of Appeal respond to the recommendations of the 1995 Royal Commission on Criminal Justice which were directed at it? Did the accompanying statutory change to the grounds on which an appeal should be allowed substantively change the law?

There were 29 separate recommendations under the heading “Court of Appeal” (nos 302-330) in the 1995 Report of the Royal Commission on Criminal Justice. Many were directed not to the Court of Appeal but to other bodies; to Parliament, to the Prison Service, and to professional bodies. Those which were directed to the Court of Appeal itself appear to be as follows:

• No 302 – Publication of Statistics: The statistics identified are published annually in the Court of Appeal, Criminal Division’s Annual Report.
• Nos 307 and 315 – Loss of Time orders: Section 68E of the Criminal Practice Direction deals with the subject of loss of time. The Court has given general guidance as to its policies in this regard on a number of occasions, most recently in Gray & Others [2014] EWCA Crim 2372.
• No 314 – Entitlement to Legal aid: The giving of advice and the drafting and lodging of grounds of appeal following conviction and sentence are covered under the terms of the representation order granted in respect of Crown Court proceedings.  In principle, the giving of simple advice as to whether to renew a refused application or not is also covered under that order. The Court has not adopted the practice of automatically granting a representation order for the renewed application where counsel advises that the application should be renewed. Instead, the full Court will decide whether to grant a representation order when it considers the renewed application. In practice, where it grants the substantive application, it will ordinarily grant a representation order to include the renewal. And, exceptionally, in some cases where it refuses the renewed application it will nevertheless grant a representation order for its presentation.
• No 318 – Error at trial: The majority view as expressed in this recommendation reflects the current practice of the Court.
• No. 320 – Fresh evidence: The Court takes a very broad approach when considering an appeal based upon fresh evidence. Since the Court’s task is to decide whether the conviction is unsafe it may admit evidence even where  there is no good explanation for the failure to adduce it at trial but the lack of any good explanation for the failure to call it is one of the factors which the Court considers. It is commonplace for the Court to hear evidence de bene esse before determining whether to admit it.  In Hanratty [2002] EWCA Crim 1141 the Court said that the overriding consideration in deciding whether fresh evidence should be admitted on the hearing of an appeal was whether the evidence would assist the Court to achieve justice. Justice could equally be achieved by upholding a conviction if it was safe or setting it aside if it was unsafe.
• No 321 - Error by trial lawyers: The test applied by the Court is the statutory test as to whether the conviction is unsafe. The nature of the error made by defence advocate and its effect on the proceedings is but one of the factors which the Court will take into account. Farooqi & Others [2013] EWCA Crim 1649 is a recent example where there was sustained misconduct by a defence advocate but where all convictions were held to be safe.
• No 323 – Testing of fresh evidence: The modern practice is that set out in Noye [2011] EWCA Crim 650. The test is whether the conviction is unsafe.
• No 324 – Retrials: If the Court views the conviction as unsafe it will quash the conviction. Whether it is practicable to order a retrial is a separate question which will not arise until the court has determined the issue of safety.
• No – 327 – Appeals to the House of Lords (now Supreme Court): No hard and fast rule as recommended has been adopted. The Court will consider all relevant matters in determining whether to grant leave.
• No. 330 – Sitting in regional centres: This is regularly now done. See LCJ’s Introduction to CACD Annual Report 2014.

Whether the changes in the statutory test made by the Criminal Appeal Act, 1995, amounted to a substantive change in the law is an interesting point on which views may differ. Certainly the view has been taken that the meaning was broad enough to permit the quashing of the conviction on the ground that it was unsafe because of abuse of process prior to trial. In particular, a conviction could be unsafe even if there was no doubt that the defendant had committed the offence of which he had been found guilty. The substitution of the current statutory test (that the conviction is unsafe) therefore allows the court to consider any aspect of the proceedings without the need to concern itself with potentially arid questions as to whether what occurred rendered the conviction “unsafe” or  merely “unsatisfactory”; or with whether an identified irregularity was “material” or not; or whether there was any wrong decision of a question of law; or indeed, if there was, whether no miscarriage of justice had occurred. It allows the court to consider the matter in the round with the objective of achieving justice.

Question 2

What interactions, if any, does the Court of Appeal have with the CCRC, beyond references and judgments?

The Court of Appeal has a close and valuable connection with the CCRC.  The position of the CCRC in making directed investigations under section 23A Criminal Appeal Act 1968 is a vital and necessary part of the Court’s function particularly into allegations of jury impropriety.  It is necessary to emphasise that such an investigation will almost always be an investigation into a crime.  Their experience and expertise is particularly useful in these cases where sensitive and impartial questioning is required. Senior officials and senior judges also meet with and visit the CCRC.

Question 3

How many times has the Court of Appeal exercise its powers under s23A of the Criminal Appeal Act 1968 (and s25A of the Criminal Appeal (Northern Ireland) Act 1980) to direct the CCRC to investigate? What process is used to determine whether to use this power, and in what circumstances is it used?

The exercise of the Court’s power under s23A is done on a case by case basis.  Although we do not keep statistics the number of directed investigations has dropped substantially since the implementation and (now) good use of the directions set out in the Criminal Practice Directions at 39M.  Anecdotally there seems to be some indication that better direction and advice to jurors by Trial Judges has had an impact on juror conduct.

The matters on which the Court may direct investigations are unlimited other than by the express terms of s23A. The issue may arise either by application by an appellant or respondent or may be something which the Court will raise of its own motion. There is no closed list of matters into which the Court may direct an investigation. Although it is not a power which arises for consideration in a great number of cases it can be of great utility in some circumstances. Joof & Others [2012] EWCA Crim 1475 (a case involving substantial allegations of police misconduct in the handling of an informant) is a relatively recent case where the Court found the power of immense value in its consideration of the appeals.

Question 4

On a reference (or repeat reference) from the CCRC, and in considering safety, does the Court of Appeal consider primarily just the new evidence or argument contained in the reference, all new evidence of arguments arising after conviction, or all of the evidence and arguments in the case as a whole?

A Reference from the CCRC in respect of a conviction is treated as an appeal by the defendant. In respect of the matters on which the reference is made, no leave is required. But if the appellant wishes to raise matters not referred he must seek leave.  Thereafter the test under section 2(1)(a) CAA 1968 (as amended by the CAA 1995) is “is the conviction safe?”  The Full Court will always look at any case in the round in applying that test.

Question 5

How many times has the “lurking doubt” principle been applied since 1997 to quash a conviction? On how many of these occasions was there no fresh evidence or argument? What is the current status in law of this principle, and how has this been changed since 1997?

The concept of the phrase “lurking doubt” was recently examined with some care by Lord Judge, CJ, in Pope [2012] EWCA Crim 2241. At paragraph 14 he gave the following very clear indication of what will be this Court’s approach:-

“As a matter of principle, in the administration of justice when there is trial by jury, the constitutional primacy and public responsibility for the verdict rests not with the judge, nor indeed with this court, but with the jury.  If therefore there is a case to answer and, after proper directions, the jury has convicted, it is not open to the court to set aside the verdict on the basis of some collective, subjective judicial hunch that the conviction is or maybe unsafe. Where it arises for consideration at all, 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. It can therefore only be in the most exceptional circumstances that a conviction will be quashed on this ground alone, and even more exceptional if the attention of the court is confined to a re-examination of the material before the jury.” 

January 2015