Secretary of State refers Court of Appeal Safety Test to Law Commission

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The Deputy Prime Minister, Secretary of State for Justice Dominic Raab has confirmed to us that he has asked the Law Commission “to consider including a review” of the threshold test for overturning convictions in the Criminal Appeals Court, in line with recommendations made by the Westminister Commission on Miscarriages of Justice in 2021, the Justice Committee in 2015, and indeed the Royal Commission on Criminal Justice as far back as 1993.

The proposed reform to s2(1) Criminal Appeal Act 1968 would “allow and encourage the Court of Appeal to quash a conviction where it has a serious doubt about the verdict, even without fresh evidence or fresh legal argument”, essentially placing Lord Widgery’s original, broad interpretation of the ‘safety test’, set out in the case of R v Cooper [1969] 1 QB 267, on a statutory footing. The safety test requires a conviction to be deemed “unsafe”, but the way in which ‘safety’ is defined determines how easy it is to overturn wrongful convictions.

The proposed reform would address the problem of the disappearance of the ‘lurking doubt’ doctrine from everyday use, and the corresponding narrowing of the safety test which has become increasingly difficult for appellants to meet, which Mark has written about previously. As the Justice Committee put it in 2015:

The central complaint about the Court of Appeal is that it is overly reluctant to interfere with a properly delivered jury verdict, requiring appellants to show some material irregularity or fresh evidence, which creates a higher barrier for the CCRC to meet if a conviction is to have a ‘real possibility’ of being quashed…” (paragraph 21)

We are concerned that there may be some miscarriages of justice which are going uncorrected… as a result of the Court of Appeal’s approach. While it is important that the jury system is not undermined, properly-directed juries which have seen all of the evidence may occasionally make incorrect decisions. The Court’s jurisprudence in this area, including on ‘lurking doubt’, is difficult to interpret and it is concerning that there is no clear or formal mechanism to consider quashing convictions arising from decisions which have a strong appearance of being incorrect. Any change in this area would require a change to the Court of Appeals’ approach… We are aware that this would constitute a significant change to the system of criminal appeals in this country and that it would qualify to a limited extent the longstanding constitutional doctrine of the primacy of the jury. Neither of these things should be allowed to stand in the way of ensuring that innocent people are not falsely imprisoned”. (paragraph 27)

You can read the Deputy Prime Minister’s letter, and Mark’s response to it – which sets out the evidence from all three public inquiries – below (use the page buttons at the bottom of the pdf to scroll through the pages – or download the pdf here). Mark is encouraging Dominic Raab to take a more proactive approach, rather than relying on the Law Commission, which has failed to prioritise this issue for the past 7 years in spite of repeated referrals:


Justice Gap have since reported comments from Barry Sheerman MP, chair of the All Party Parliamentary group on Miscarriages of Justice.

This a very promising and much needed step in a positive direction, I hope it is followed by firm action from the Law Commission.”

What do you think?