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:

Dominic-Raab-Letter-with-Response-from-Mark-Alexander-on-Reforming-s21-Criminal-Appeal-Act-1968

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.”

Further to Mark’s letter writing campaign, one of our supporters received the following response (ref: MC96170) from the Deputy Prime Minister, Dominic Raab, on 23 May 2022 in relation to the other recommendations in the Westminster Commission’s report which require legislative reform to implement:

The Government acknowledges that miscarriages of justice have a devastating impact on all those involved and undermine vital public confidence in the justice system. [You have] referred to the report of the Westminster Commission on Miscarriages of Justice, which the Ministry of Justice has welcomed, and the findings of which are currently being considered by my officials. There are more than 30 recommendations in the report which cover a broad area, therefore, the impact of these on other parts of the justice system must be analysed carefully before determining which proposals require further exploration”.

The Deputy Prime Minister also explained the government’s response last year to:

…the Westminster Hall debate on 13 April 2021, at which Alex Chalk MP, then Parliamentary Under-Secretary of State for Justice, responded to the Westminster Commission on Miscarriages of Justice’s report into the CCRC. During that debate, the Minister noted the CCRC’s good performance, the additional funding provided to it, and the position on the most significant recommendations in the report. The Minister also noted that the CCRC had responded in a summary fashion and there would be a further response in due course. That response was published on the CCRC’s website in July and can be found here

Given that the CCRC were able to issue this response within 3 months of the Report’s publication, it is disappointing that the government is still considering the findings of that same Report more than 14 months later. It is noteworthy that 8 of the 28 recommendations listed in the CCRC’s official response of 2 June 2021 “require changes in the law”, which obviously cannot happen without government intervention.

The Law Commission have now confirmed that they will be launching the recommended review into the criminal appeals system, with a view to exploring potential reforms. Mark is delighted that his letter writing campaign has had such a positive impact, and would like to thank everyone who got involved. Hopefully this will led to swift and meaningful change both for future generations of miscarriages and those like Mark who are still caught in legal limbo today.

What do you think?