Law Commission issues paper on criminal appeals

Closes 30 Nov 2023

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Chapter 4: Appeals in proceedings on indictment

Question 3: Does the single test of “safety” adequately reflect the range of grounds that should justify the quashing of a conviction?

In particular, under what circumstances, if any, should a conviction be quashed because of serious impropriety which does not cast doubt on the guilt of the appellant?

At present, there is a single ground on which a conviction may be quashed by the Court of Appeal – that the conviction is “unsafe”. This covers both situations in which the appellant is, or may have been, factually innocent, and situations in which the defendant did not receive a fair trial or the prosecution was an abuse of process.

Question 4: Is there evidence that the Court of Appeal’s approach to the admission of fresh evidence hinders the correction of miscarriages of justice?

The Criminal Appeal Act 1968 permits the Court of Appeal to receive fresh evidence if they think it is necessary or expedient in the interests of justice to do so. In considering whether to receive fresh evidence, the court must have regard to whether the evidence is capable of belief; whether it may afford any ground for allowing the appeal; whether it would have been admissible at trial on an issue which is the subject of the appeal; and whether there is a reasonable explanation for the failure to adduce the evidence at trial.

Question 5: Is there evidence that the Court of Appeal’s approach to assessing the safety of a conviction following the admission of fresh evidence or the identification of legal error hinders the correction of miscarriages of justice?

Where fresh evidence has been admitted, or a legal error at the trial has been identified, the Court of Appeal decide for themselves whether, in the light of this, the conviction is safe. They are not required to consider whether the jury might have decided the case differently. However, in Pendleton, the House of Lords said that “it will usually be wise for the Court of Appeal, in a case of any difficulty, to test their own provisional view by asking whether the evidence, if given at the trial, might reasonably have affected the decision of the trial jury to convict. If it might, the conviction must be thought to be unsafe”.

Question 6: Is there evidence that the Court of Appeal’s approach to “lurking doubt” cases (not attributable to fresh evidence or material irregularity at trial) hinders the correction of miscarriages of justice?

Although it is open to the court to do so, it is very rare for the Court of Appeal to quash a conviction in the absence of fresh evidence or identification of a legal error which renders a conviction unsafe.

Question 7: Are the options and remedies available following the quashing of a conviction by the Court of Appeal adequate and appropriate?

Where the Court of Appeal quashes a conviction, they may order a retrial or declare that there should be no retrial. Alternatively, the court may substitute a conviction for another offence of which the appellant could have been convicted on the indictment in the original trial.

In order to qualify for compensation for a miscarriage of justice, a person whose conviction has been quashed must prove beyond reasonable doubt that they were innocent of the offence for which they were convicted.

Question 8: Are the powers of the Court of Appeal in respect of appeals against sentence adequate and appropriate?

The Court of Appeal’s tests for an appeal against sentence are not laid down in statute. The main grounds on which the court will allow an appeal against sentence are that the sentence was "wrong in principle" or "manifestly excessive".

Question 9: Does the law satisfactorily enable appropriate criminal cases to be considered by the Supreme Court?

In order for the Supreme Court to consider a criminal case tried on indictment, the Court of Appeal must certify that a question of law on a matter of public importance is involved and leave must be obtained from either the Court of Appeal or the Supreme Court.