Every year, hundreds of thousands of people are convicted (either by a jury, by magistrates, or by their own plea of guilty) of criminal offences. And that’s before you start looking at traffic offences … So, against that backdrop, here’s a question:
Surely not all of these people can actually be guilty, can they?
Much as we like to think that our system is perfect, it clearly isn’t. It’s human, and so inevitably, mistakes are made. For those found guilty in the Crown Court, there is the possibility of an appeal to the Court of Appeal (here’s our fact sheet on that process). For those (the vast majority) who are convicted in the Magistrates’ Court, it’s a somewhat easier process.
Again though, as we know, this isn’t guaranteed to pick up every time a case has gone wrong. We have all seen the high profile miscarriages of justice, but there are even more ‘mundane’ cases where, for whatever reason, someone is wrongly convicted.
What happens if the Court of Appeal says no?
Looking at the Crown Court, once an appeal has been heard, or an application for permission to appeal refused, that is the end of the process. You can’t appeal to the Court of Appeal more than once.
Previously, a convicted person could petition the Home Secretary to look at their case again and hope that he or she would refer the case to the Court of Appeal. It was fairly clear that this wasn’t particularly satisfactory, so as a result an independent body was established.
This is the Criminal Cases Review Commission, or CCRC for short.
Procedure with the CCRC
Sometimes an applicant may have, or be asking to obtain, a specific piece of evidence for example, a DNA test. Othertimes it may be that they are generally dissatisfied and want their case to be re-investigated without any specific trigger, although there are normally points that they would highlight.
This is important as the CCRC won’t refer a case unless there is some fresh evidence or a new understanding of the law. There are exceptions, the case of Barry George is generally seen as one where the general unease that was widely felt about the conviction caused the matter to go back to the Court of Appeal, but you need something for the Court of Appeal to look at and thing ‘ah yes, we got it wrong before because of ….‘
There is a requirement that the person has already ‘exhausted their rights of appeal’ – which means that they have already either appealed, or at least tried to appeal, their conviction
Sometimes, this can be waived if there is a very good reason, but they would often say to go and ask the Court of Appeal for permission to appeal out of time.
The CCRC will conduct an investigation and prepare a report. If they think that there is a ‘real possibility’ that the Court of Appeal would allow an appeal, then they have a discretion to refer the case.
The above is formalised in s13 Criminal Appeals Act 1995 that created the CCRC. This reads as follows:
A reference of a conviction, verdict, finding or sentence shall not be made under any of sections 9 to 12 unless—
(a) 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,
(b) the Commission so consider—
(i) in the case of a conviction, verdict or finding, because of an argument, or evidence, not raised in the proceedings which led to it or on any appeal or application for leave to appeal against it, or
(ii)in the case of a sentence, because of an argument on a point of law, or information, not so raised, and
(c) an appeal against the conviction, verdict, finding or sentence has been determined or leave to appeal against it has been refused.
This has been widely criticised as being too narrow. Both because there is (in theory) no referral on the grounds that the person is probably innocent and the Court has just got it wrong previously, and because the ‘real possibility’ test is too restrictive as well as meaning that the CCRC needs to second guess the Court of Appeal.
How long is the process?
Depends on the case. Some are straightforward and can have a very quick turnaround (sometimes a matter of days, although that is unusual). Others are a lot more complicated, and can take months, particularly if lengthy investigations are needed.
Other than that, the CCRC will prioritise some cases over others. Those where someone is in prison are an obvious example.
There are three levels of priority, and the CCRC have a formal policy statement of how they consider and prioritise cases.
What about the Magistrates’ Courts?
The procedure is the same, but the referral is back to the Crown Court for an appeal. For various reasons, applications to the CCRC from magistrates court cases are fewer, but they do still happen (I have had four successful referrals).
Does it cost anything?
Nope, it’s free.
Do I need a lawyer? Can I get one if I want one?
You don’t need a lawyer, the system is designed to operate without one, however we would advise that you get one to draft the application.
This is because it will make the process much smoother and much easier for the CCRC to deal with (which makes it more likely you’ll get the result you want). It’s also the case that a lawyer may pick up on things that you have not spotted (this has happened on a case that I have dealt with).
Having said that, there are plenty of cases that succeed without a lawyer. I have represented two people in the Court of Appeal who drafted their own application to the CCRC where I only got involved after the CCRC had referred the case).
You will often be eligible for legal aid for CCRC applications – speak to a solicitor who has a criminal legal aid franchise about that.
Can the CCRC refer a sentence?
Yes, although this is very rare. It does happen though if there is some particular point of principle.