Criminal appeals review: Raab’s only legacy?

Two child killers have had their sentences increased after challenges by the law officers, the attorney general’s office proudly proclaimed last Friday. Suella Braverman said she was ‘glad’ the Court of Appeal had added three years to Thomas Hughes’s 21-year sentence for manslaughter.

But you had to read to the very end of Braverman’s news release to see that the Court of Appeal had ‘declined to increase’ the minimum term of 29 years given to Emma Tustin, 32, for the murder of Hughes’s six-year-old son, Arthur Labinjo-Hughes. And yet that was the main reason the attorney had referred the case: her counsel argued that Tustin should have received a whole-life order, even though the murder did not come within any of the qualifying factors in the Sentencing Act.

Are the attorney general’s powers to refer matters to the Court of Appeal ‘adequate and appropriate’? That is one of the questions the government’s law reform advisers have been asked to consider as part of a wide-ranging review of criminal appeals announced by the Law Commission today. It will be ‘particularly concerned with inconsistencies, uncertainties and gaps in the law’.

The review’s terms of reference confirm that it will consider the most important question of all. Is there ‘evidence which suggests that the test for allowing an appeal on the grounds that a conviction is unsafe may hinder the correction of miscarriages of justice’? In other words, is the statutory test being interpreted too narrowly?

Current guidance from the courts suggests that a ‘lurking doubt’ may not be enough: a jury’s verdict can be quashed on this ground alone only ‘in the most exceptional circumstances’. Should that change? What approach should be taken to fresh evidence? Should the appellant still have to prove a ‘substantial injustice’, even if the common law has moved on?

All these questions are within the commissioners’ terms of reference. They will also seek views on whether the court has adequate and appropriate powers to order a retrial, substitute a conviction and substitute a sentence.

'Is there "evidence which suggests that the test for allowing an appeal on the grounds that a conviction is unsafe may hinder the correction of miscarriages of justice"?'

It is the job of the Criminal Cases Review Commission (CCRC) to review cases and refer suspected miscarriages of justice to the Court of Appeal. For that, the CCRC must almost always identify new evidence or a new argument not raised at the trial. This must be convincing enough to raise a ‘real possibility’ that the conviction will be overturned. What the Law Commission will now consider is whether these conditions are too restrictive for the CCRC to fulfil its functions.

The review is not confined to the Court of Appeal. It will also consider appeals against magistrates’ decisions. Other topics include fitness to plead; the retention and disclosure of evidence; and whether consolidating statutory rights of appeal into a single statute would make the law clearer.

This review has its origins in a letter sent by Dominic Raab in April to the Conservative MP Andrew Selous, a former justice minister. Selous had written to the justice secretary on behalf of Mark Alexander (pictured), a prisoner who claims he was wrongly convicted of murdering his father in 2009.

In response, Raab said he had asked the Law Commission to consider reviewing the law relating to criminal appeals. He noted that the all-party parliamentary group on miscarriages of justice had argued that the ‘real possibility’ test was too narrow. An inquiry by the group had said the CCRC should refer a case if it considered the conviction might be unsafe, the sentence might be manifestly excessive or wrong in law, or a referral was in the interests of justice.

Raab’s letter came as something of a surprise, not least to senior judges who might have thought they would be asked in advance for their views or at least been told to expect an announcement. But the justice secretary’s suggestion was strongly endorsed in a letter to the Law Commission from Sir Bob Neill MP, chair of the Commons justice committee. The CCRC itself supports a review of its ‘real possibility’ test.

The justice committee considered this in 2015 but concluded that the Law Commission needed to concentrate on the Court of Appeal’s grounds for allowing appeals. ‘This review,’ it said, ‘should include consideration of the benefits and dangers of a statutory change to 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’.

Seven years on, that review is now beginning. Any legislative reform is still some years off. But taking steps to ensure that innocent people are not left languishing in prison may be the one positive thing Raab is remembered for.

And if the job of referring lenient sentences to the Court of Appeal is taken away from an increasingly politicised attorney general’s department, we should thank him for that too.

joshua@rozenberg.net