In depth: Law Commission issues proposals on reforming criminal appeals

The Runciman Royal Commission on Criminal Justice was announced on 14 March 1991 – the day the Birmingham Six had their conviction quashed by the Court of Appeal. ‘The widely publicised miscarriages of justice which have occurred in recent years have created a need to restore public confidence in the criminal justice system,’ the commission said two years later in its final report.

Thirty-one years later and this remains an aspiration, as evidenced by the public outcry over miscarriages of justice such as the Post Office Horizon scandal and the 17 years Andrew Malkinson spent in prison after being wrongly convicted of rape.

Campaigners for reopening suspect convictions will therefore welcome the Law Commission’s 700-page consultation paper, published yesterday, on reforming the appeals system to make it more effective and easier for people to get wrongful convictions overturned.

Much of the media coverage has focused on what the commission has to say about the Criminal Cases Review Commission (CCRC), which came under fire over its handling of the Malkinson case.

The report’s lead author, criminal law commissioner Professor Penney Lewis, said that in response to its 2023 pre-consultation paper, the commission received persuasive evidence that the ‘real possibility’ test used by the CCRC may lead it to focus investigations too narrowly and thus neglect lines of inquiry that might exonerate a convicted person.

'As the Post Office scandal has demonstrated, anyone can be a victim of a miscarriage of justice. Our proposals seek to ensure that those who are wrongly convicted can effectively challenge their convictions'

Professor Penney Lewis, criminal law commissioner

Rather than focusing on what the appeal court may do, Lewis said the CCRC should first form its own view as to whether a conviction might be unsafe. The consultation paper says that whatever replaces the ‘real possibility’ test should not be subject to a requirement for fresh evidence or argument. The commission moots the option of being able to challenge CCRC decisions in the first-tier tribunal and recommends that the CCRC should be supervised by a criminal justice inspectorate.

Other proposals include increasing from 28 to 56 days the time limit to bring an appeal against a conviction or sentence to the Court of Appeal’s criminal division.

One prisoner convicted of murder told the commission that it was impossible to find fresh evidence within 28 days, especially when legal aid funding expires at the point of conviction. The commission also noted that legally aided defendants are entitled to advice from their representatives on whether they have grounds for appeal. This process takes time. Should defendants not get the answer they want, this leaves little time to formulate their own grounds or seek alternative advice.

If a convicted person thinks their conviction is unsafe due to a changed judicial interpretation of the law after their conviction, but needs an extension of time to appeal, they must demonstrate ‘substantial injustice’. The commission says the current test has become a real obstacle to the correction of miscarriages of justice, proposing that the law should be reformed to allow a person to appeal against their conviction on the basis that there has been a development in the law.

Another recommendation would pave the way for the UK’s highest court to hear more criminal appeals.Currently, for a criminal appeal to be considered by the Supreme Court, the High Court or Court of Appeal must certify that a point of law of general public importance is involved in the decision. However, the consultation paper states that it has become common practice for the lower court to certify a point but refuse permission to appeal, requiring a convicted person to apply to the Supreme Court. A recent example is the Supreme Court decision to hear the cases of the ‘IBOR Two’ currency traders, which is listed to begin in March.

The commission believes the Supreme Court should be able to determine what cases to hear, even if the lower court has not certified a point of law of general public importance – effectively ending the lower courts’ control of appeals.

Other proposals include simplifying the procedure for appealing to the High Court and a 56-day cap on ‘loss of time orders’ (used to discourage persistent unmeritorious appeals taking up court time). The current requirement for the wrongly convicted to prove their innocence beyond reasonable doubt in order to receive compensation would be amended so that those who can prove their innocence on the balance of probabilities would be eligible.

Announcing the consultation, Lewis said: ‘As the Post Office scandal has demonstrated, anyone can be a victim of a miscarriage of justice. Our proposals seek to ensure that those who are wrongly convicted can effectively challenge their convictions.’

The consultation closes on 30 May.