. 29
( 34)


Journal, 1999, p. 1089; L.H. Leigh, ˜Lurking Doubt and the Safety of
Convictions™, Criminal Law Review, 2006, pp. 809“16.
At ¬rst it seemed that, despite what had been said in Parliament, changing
˜unsafe or unsatisfactory™ to the simple ˜unsafe™ had resulted in a signi¬cant nar-
rowing of the Court of Appeal™s power to quash a conviction where something
has gone wrong either at the trial or pre-trial but there is enough evidence to

Criminal Law Review, 1995, p. 922.
194 195
House of Commons, Hansard, 6 March 1995, col. 24. Ibid, col. 27.
House of Lords, Hansard, 15 May 1995, col. 311.
703 The grounds for allowing appeals

show that the defendant was correctly found guilty. In R v. Chalkley and R v.
Je¬ries197 the police arrested C in connection with credit card frauds as a pretext
in order to be able to place a listening device in his home in connection with
conspiracies to commit robberies. The defendants changed their plea to guilty
after the judge ruled that the evidence of the tape recorded conversations was
admissible. The Court of Appeal held that the court had no power to allow an
appeal ˜if it does not think the conviction unsafe but is dissatis¬ed in some way
with what went on at the trial™.198(The decision in Chalkley was applied by the
Court of Appeal in several later cases “ Kennedy,199 Hewitson and Bramwich,200
Rajcoomar201 and Thomas.202)
However, in Mullen203 the Court of Appeal took a completely di¬erent
approach. The appellant had been brought unlawfully to this country by collu-
sion between the British and the Zimbabwean authorities. He was deported
without regard to normal extradition procedures. He was convicted here of ter-
rorist o¬ences and was sentenced to thirty years™ imprisonment. Some years
later he was given leave to appeal out of time on the ground that the whole trial
was vitiated by the illegality of his deportation. The Court of Appeal held that,
despite the gravity of the charges, the conduct of the British authorities was so
shameful that it was an a¬ront to the public conscience to allow the conviction
to stand. There had been a blatant and extremely serious failure to adhere to the
rule of law. All the relevant circumstances had to be weighed. Here they came
down decisively against the prosecution. In light of con¬‚icting views expressed
in the cases, the meaning of the word ˜unsafe™ in the Criminal Appeal Act as
amended in 1995 was su¬ciently ambiguous to permit recourse to Hansard
from which it was apparent that the new form of s. 2 was intended to restate the
previous practice of the Court of Appeal which had allowed abuse of process as
a ground for quashing a conviction. Furthermore, for a conviction to be safe, it
had to be lawful. If it resulted from a trial that should never have taken place, it
could hardly be regarded as safe. In his commentary in the Criminal Law
Review, Professor Sir John Smith wrote: ˜We seem now to be close to achieving
the result intended by Parliament “ i.e. no change™.204
Cases following Mullen in which convictions were quashed despite there
being little doubt as to the factual guilt of the accused include Togher,205 Davis,
Johnson and Rowe206 and Sargent.207 By 2003 it seemed that the Court of Appeal
had rejected the approach in Chalkley.

197 198
[1998] 2 Cr App Rep 79, [1998] 2 All ER 155. At 172.
199 200 201
[1999] 1 Cr App Rep 54. [1999] Crim LR 307. [1999] Crim LR 728.
202 203
[2000] 1 Cr App Rep 447. [2000] QB 520, [1999] Crim LR 561.
Note 203 above at pp. 562“3.
[2001] Cr App Rep 457, [2001] 3 All ER 463. For commentary see especially R. Nobles and D.
Schi¬, ˜Due Process and Dirty Harry Dilemmas: Criminal Appeals and the Human Rights
Act™, 64 Modern Law Review, 2001, pp. 911“22.
[2000] Crim LR 1012. For commentary see Professor Andrew Ashworth at 1017.
[2001] UKHL 54, [2003] Crim LR 276.
704 Appeals

In his report in October 2001 Lord Justice Auld (who gave the court™s judg-
ment in Chalkley) called for legislative clari¬cation of whether the approach in
Chalkley or that in Mullen was to be preferred. (˜In my view, consideration
should be given to amendment of the present statutory test to make clear
whether and to what extent it is to apply to convictions that would be regarded
as safe in the ordinary sense of that word but follow want of due process before
or during trial™.208) He did not, however, indicate his own preference. Pending
any such statutory amendment, it seems that the Court of Appeal has decided
that it is Mullen rather than Chalkley that should prevail.
However, on 19 April 2006 in a ministerial statement on compensation for
miscarriages of justice Mr Charles Clarke, the then Home Secretary, announced
that ˜an urgent review™ would be undertaken with the Lord Chancellor and the
Attorney General ˜of the statutory test the Court of Appeal must use in decid-
ing whether to quash a conviction™. The Home Secretary proposed ˜to examine
whether and if so to what extent an error in the trial process necessarily means
a miscarriage of justice™.
On 18 September 2006 a consultation paper (Quashing Convictions)209 issued
jointly by the Home Secretary, the Lord Chancellor and the Attorney General
announced that the Government had decided to change the position by legisla-
tion. (˜The Government believes that the law should not allow people to go free
where they were convicted and the court are [sic] satis¬ed they committed the
o¬ence™ (para. 31).)
The consultation paper identi¬ed three options: (1) to reinstate the proviso
(pp. 691, 699 above) so that a conviction would not be quashed if the court con-
sidered that no miscarriage of justice has occurred;210 (2) to replace the proviso
with a di¬erent formula to achieve the same result211 or (3) to recast the test to
require the Court of Appeal to re-examine the evidence (˜akin to the task of the
jury™).212 In view of its reservations about each option it asked for other sugges-
tions as to how the objective could be achieved.213
It would be surprising if the Government achieves its objective. It will be
di¬cult, and maybe impossible, to prevent the Court of Appeal from doing
what it thinks is right to uphold the integrity of the legal process.
Has the Human Rights Act changed the position? What is the relationship
between the statutory test of ˜unsafe™ under the 1995 Act and the question
whether the defendant has had a fair trial within the meaning of the European

208 209
Report, p. 614, para. 10. www.homeo¬ce.gov.uk and www.cjsonline.gov.uk.
The Government said it did not rule out option 1 but it su¬ered from disadvantages “ for
instance that ˜miscarriage of justice™ required interpretation. Also, commentators had thought
that the proviso added little to the test (para. 34).
This would be implementing Lord Justice Auld™s approach expressed in Chalkley (para. 35).
The Government said it did not favour reconstituting the Court of Appeal as a trial court
˜hearing all the witnesses and supplanting the jury as a tribunal of fact™ (para. 38).
For critical response to the Government™s position see the editorial in the November 2006
issue of the Criminal Law Review at p. 955 and Peter Ferguson QC, ˜Retrials and Tribulations™,
156 New Law Journal, 20 October 2006, pp. 1582“83
705 The grounds for allowing appeals

Convention on Human Rights? If there have been breaches of the defendant™s
right to a fair trial under Article 6 of the Convention does that mean that the
conviction is automatically unsafe? In July 2000 the Court of Appeal dealing
with the matter in Davis, Johnson and Rowe said the two questions must be kept
separate. It was not helpful to think in terms of there being a presumption that
a ¬nding of a breach by the European Court meant that the conviction was
unsafe. The e¬ect of a breach of the Convention on the safety of the conviction
would vary according to the nature and degree of the breach.214
A few months later in Togher, Lord Woolf, giving the judgment of the court, said
that ˜the circumstances in which there will be room for a di¬erent result before this
court and before the European Court because of unfairness based on the respec-
tive tests we employ will be rare indeed™ and ˜if a defendant has been denied a fair
trial it will be almost inevitable that the conviction will be regarded as unsafe™.215
However, in Cranwell216 the Court of Appeal said: ˜Although in very many
cases a trial which is unfair will result in a conviction which is unsafe, this is not
necessarily the case. There may be cases, for example, in which, though there
has been unfairness, the evidence of the guilt of the defendant is so strong that
there can be no doubt that the verdict is safe™.
It seems unlikely that the Strasbourg Court will rule that a breach of the
Convention automatically makes a conviction unsafe.217 In Condron v. United
Kingdom the Strasbourg Court said: ˜In the court™s opinion, the question
whether or not the rights of the defence guaranteed to an accused under Article
6 of the Convention were secured in any given case cannot be assimilated to a
¬nding that his conviction was safe in the absence of any enquiry into the issue
of fairness™. It seems equally unlikely that legislative amendment to the 1995 Act
will lay down such a rule.218 In all probability therefore the matter will remain
fuzzy. In most cases ˜unfair™ will equate to ˜unsafe™ but in some cases it will not.219
There will be no rule. The real question for the future is whether the number of
exceptions is great or small.
For a powerful statement that the courts should give particular emphasis to
the right to a fair trial see A. Jennings, A. Ashworth and B. Emmerson, ˜Silence
and Safety: The Impact of Human Rights Law™, Criminal Law Review, 2000,
pp. 879 and 893“4 which concluded: ˜One e¬ect of bringing Convention rights
into English law must be to ensure, at every level of the criminal process, that
justice is not only done but is seen to be done™. D. Ormerod has argued that
breaches of the Convention should at least create a presumption that the evi-
dence be excluded “ ˜ECHR and the Exclusion of Evidence: Trial Remedies for
Article 8 Breaches?™, Criminal Law Review, 2003, p. 61.

[2000] Crim LR 1012 at 1015. See to the same e¬ect the court™s decision in Francom [2000]
Crim LR 1018 per Lord Woolf. [2001] 1 Cr App Rep 457, [2001] 3 All ER 463 at [33].
216 217
[2001] EWCA Crim 1216. (2000) 8 BHRC 290 at para. 65.
K. Malleson and S. Roberts proposed such an amendment in ˜Streamlining and Clarifying the
Appellate Process™, Criminal Law Review, 2002, pp. 272 and 277.
See for example Lyons [2002] UKHL 44, [2002] 4 All ER 1028 dealt with below (p. 707).
706 Appeals

See also Professor Andrew Ashworth™s Hamlyn Lectures, Human Rights,
Serious Crime and Criminal Procedure (Sweet & Maxwell, 2002).
For scepticism as to the likelihood of the Court of Appeal changing its tradi-
tional approach in light of the Human Rights Act see R. Nobles and D. Schi¬,
˜Due Process and Dirty Harry Dilemmas™ which concluded:
The grounds for appeal have undergone a number of changes since the Court of
Criminal Appeal was founded in 1907. In each case, the formal grounds for
quashing convictions, represented by the statutory wording of the court™s juris-
diction, has mattered less than the court™s sense of what constitutes an appro-
priate basis for appeal, based on its own professional experience. Those
standards have always included a strong deference towards a jury™s verdict, and
a willingness to regard less serious breaches of due process as insu¬cient reasons
to quash convictions. Changing the Court of Appeal™s legal authority by statu-
tory amendment has, in the past, done little to alter its treatment of appeal cases.
The Human Rights Act can be viewed as simply another alteration to the formal
grounds for appeal, but unless it alters the court™s view of what constitutes a
serious irregularity it will make little di¬erence to the outcome of appeals. While
the language of rights may be a new addition to Court of Appeal judgments it
will not, by itself, alter the court™s view of which irregularities justify freeing
those thought to be guilty . . . of serious o¬ences™.220
Is the test of unsafeness that of then or of now? Since the Court of Appeal normally
hears an appeal within a relatively short time after the trial, it is not often that
the relevant law or procedure will have changed signi¬cantly in the interim, but
where the Court of Appeal deals with a case that has been referred to it by the
Criminal Cases Review Commission, the trial may have occurred years earlier.
(In the case of Derek Bentley it occurred forty-¬ve years earlier; in the James
Hanratty case it took place forty years earlier.) When considering whether the
original conviction is unsafe should the Court of Appeal apply the standards
applicable at the time of the trial or those applicable at the time of the review?
In Bentley221 in a judgment given by Lord Bingham, the Court of Appeal held
that the statutory law of homicide had to be taken as it was at the time of the
trial but that the common law was that current at the time of the review and the
conduct of the trial and the judge™s direction of the jury should likewise be
judged by the standards that would now apply. This has remarkable implica-
tions. Commenting on the decision, Professor Sir John Smith wrote: ˜How
many convictions of, say, more than twenty years ago could be regarded as
“safe” in the light of the changed, but relevant, conditions of today?™ It was
depressing, he said, to think that so many, perhaps a majority of the convictions
in our courts, were ˜unsafe™ “ i.e. wrong in law. ˜Is there any satisfactory way of
preventing this rewriting of legal history? No one really believes that the present
common law was the common law in 1189™.222
220 221
Note 205 above at p. 922. [2001] 1 Cr App Rep 307, [1999] Crim LR 330.
[1999] Crim LR 330 at 332. See to the same e¬ect a critique of Lord Bingham™s judgment by F.
Bennion, ˜Rewriting history in the Court of Appeal™, 148 New Law Journal, 14 August 1998,
707 The grounds for allowing appeals

In a commentary on a further case raising the same issue,223 D.C. Ormerod
suggested a di¬erentiation between three types of case: (1) cases where new evi-
dence has come to light which throws doubt on the conviction; (2) cases where
there is no new material but there is a new understanding of material in exis-
tence at the time of the trial “ for instance, new scienti¬c knowledge and (3)
cases where there has been a change in the law™s attitude prompted solely by
legal developments, such as more liberal procedures or changes, perhaps driven
by the ECHR, with regard to such matters as the admissibility of evidence, pro-
viding access to legal advice or with regard to disclosure of unused evidence. It
was the third category that gave rise to problems. ˜If the Court of Appeal is
prepared to quash convictions as “unsafe” because the law has changed its per-
ception of what is “fair” to defendants, irrespective of whether that also under-
mines the reliability of the conviction, this really opens the ¬‚oodgates™. Even if
the third category were restricted to cases of potential unreliability, it would
leave an enormous number of cases open to challenge, for example, ˜all convic-
tions based on old disclosure rules™.
In Hanratty (decd)224 the Court of Appeal seems to have taken the point. The
court said:
In order to achieve justice, non-compliance with rules which were not current
at the time of the trial may have to be treated di¬erently from rules which were
in force at the time of the trial. If certain of the current requirements of, for
example, a summing up are not complied with at a trial which takes place today
this can almost automatically result in a conviction being set aside but this
approach should not be adopted in relation to trials which took place before the
rule was established. The fact that what has happened did not comply with a rule
which was in force at the time of the trial makes the non-compliance more
serious than it would be if there was no rule in force. Proper standards will not
be maintained unless this court can be expected when appropriate, to enforce
the rules by taking a serious view of a breach of the rules at the time they are in
force. It is not appropriate to apply this approach to a forty year old case.225
The court upheld the conviction even though it found that much material that
today would be required to be disclosed by the prosecution had not been dis-
See also Lyons226 where the House of Lords refused to apply the current stan-
dard of fairness because at the time of the convictions the admissibility of the
incriminating statements taken under compulsory powers of questioning had
been authorised by statute.227 This was despite the fact that the Strasbourg

p. 1228. (˜The past is a foreign country; they do things di¬erently there. Or to put it even
more succinctly: You can™t change history, and you shouldn™t even try™ (at 1243).) However,
the principle enunciated in Bentley was applied in O™Brien, Hall, Sherwood [2000] Crim LR
676, CA. King [2000] Crim LR 835 at 838“41.
224 225
[2002] EWCA Crim 1141, [2002] 3 All ER 534, [2002] Crim LR 650. At [98].
[2002] UKHL 44, [2002] 4 All ER 1028.
A statement taken under compulsory power of questioning was admissible in evidence at a
subsequent prosecution by virtue of the Companies Act 1985, s. 434(5).
708 Appeals

Court had ruled the convictions to be unfair228 and Parliament had as a result
changed the law.229

The power to receive fresh evidence
The Court of Appeal, both civil and criminal, had and still has full power to
receive fresh evidence. The issue has rather been how the court chooses to exer-
cise that power.
In civil cases, pre-CPR, the Rules of the Supreme Court (Order 59, r. 10) pro-
vided that although the court had the power to receive fresh evidence, ˜no such
evidence . . . shall be admitted except on special grounds™. The White Book™s
gloss pre-CPR stated: ˜After there has been a trial or hearing on the merits, fresh
evidence will not be admitted in the Court of Appeal unless the conditions in
Ladd v. Marshall are satis¬ed. A strict approach is adopted™.
The CPR puts the matter even more narrowly: ˜Unless it orders otherwise, the
appeal court will not receive (a) oral evidence; or (b) evidence which was not
before the lower court™ (CPR 52.11(2)). But despite the fact that there is no
longer reference to ˜special grounds™, the principles laid down by the Court of
Appeal in Ladd v. Marshall still govern the situation.230 Lord Phillips has said
that the principles of Ladd v. Marshall are consistent with those of the overrid-
ing objective in the CPR.231
In Ladd v. Marshall232 the plainti¬ called the defendant™s wife as his witness.
She was a reluctant witness and said she did not remember a particular incident.
Judgment was given for the defendant. Subsequently, after she had obtained a
divorce, she informed the plaintiªs solicitors that she now did remember the
incident and that she wished to change her evidence. The plainti¬ asked the
court either to order a new trial or itself to hear the evidence. The Court of
Appeal dismissed the appeal. Lord Denning gave the court™s judgment:
To justify the reception of fresh evidence or a new trial, three conditions must
be ful¬lled: ¬rst, it must be shown that the evidence could not have been
obtained with reasonable diligence for use at the trial; secondly, the evidence
must be such that, if given, it would probably have an important in¬‚uence on
the result of the case, though it need not be decisive; thirdly, the evidence must
be such as is presumably to be believed, or in other words, it must be apparently
credible, though it need not be incontrovertible.
We have to apply those principles to the case where a witness comes and says:
˜I told a lie but nevertheless I now want to tell the truth™. It seems to me that the
fresh evidence of such a witness will not as a rule satisfy the third condition. A
confessed liar cannot usually be accepted as being credible.

Saunders v. United Kingdom (1997) 2 BHRC 358 and IJL v. United Kingdom (2000) 9 BHRC 222.
Under the Youth Justice and Criminal Evidence Act 1999, s. 59 and Sch. 3 statements made
under compulsory powers of questioning are inadmissible.
See Hertfordshire Investments Ltd v. Bubb [2000] 1 WLR 2318 at 2325 per Lord Justice Hale.
231 232
See Hamilton v. Al Fayed (2001) Times, 16 January, CA. [1954] 1 WLR 1489, CA.
709 The power to receive fresh evidence

With regard to criminal cases, the Criminal Appeal Act 1968, s. 23(2) permit-
ted the court to receive fresh evidence if ˜it appears to them that the evidence is
likely to be credible and would have been admissible™ and ˜there is a reasonable
explanation for the failure to adduce it™ in the earlier proceedings. On the rec-
ommendation of the Runciman Royal Commission, the de¬nition of admissi-
ble fresh evidence was broadened by the Criminal Appeal Act 1995 to evidence
˜which appears to the court to be capable of belief ™.233
The decision of the Court of Criminal Appeal in R v. Flower234 showed that
the court™s policy regarding the admission of fresh evidence was similar to that
expressed for civil cases in Ladd v. Marshall. Widgery J, giving the judgment of
the court, said:
When this court gives leave to call fresh evidence which appears at the time of
the application for leave to be credible, it is still the duty of the court to consider
and assess the reliability of that evidence when the witness appears and is cross-
examined, and this is particularly true when evidence is called in rebuttal before
this court. Having heard the fresh evidence and considered the reliability of the
witness, this court may take one of three views with regard to it. If satis¬ed that
the fresh evidence is true and that it is conclusive of the appeal the court can,
and no doubt ordinarily would, quash the conviction. Alternatively, if not satis-
¬ed that the evidence is conclusive, the court may order a new trial so that a jury
can consider the fresh evidence alongside that given at the original trial. The
second possibility is that the court is not satis¬ed that the fresh evidence is true
but nevertheless thinks that it might be acceptable to, and believed by, a jury, in
which case as a general proposition the court would no doubt be inclined to
order a new trial in order that the evidence could be considered by the jury,
assuming the weight of the fresh evidence would justify that course. Then there
is a third possibility, namely that this court, having heard the evidence, posi-
tively disbelieves it and is satis¬ed that the witness is not speaking the truth. In
that event, and speaking generally again, no new trial is called for because the
fresh evidence is treated as worthless and the court will then proceed to deal with
the appeal as though the fresh evidence had not been tendered.
A dramatic example of the narrowness of the approach of the Court of Appeal
to fresh evidence was the case of Luke Dougherty. Dougherty was charged with
shoplifting, having been identi¬ed by two witnesses. The o¬ence occurred at a
time when Dougherty was in fact on a bus outing with some twenty others,
many of whom knew him. In the event only two were produced as witnesses at
the trial. One was his girlfriend and the other was someone with previous con-
victions. The jury disbelieved the alibi and convicted. He received a sentence of
six months™ imprisonment and the judge also activated a nine months™ sus-
pended sentence, making ¬fteen months in all.
The case was taken up by JUSTICE. On the application for leave to appeal,
the single judge ruled that there was no ground to appoint a solicitor and that

Criminal Appeal Act 1968, s. 23(2)(a) inserted by the Criminal Appeal Act 1995, s. 4(1) “
replacing ˜likely to be credible™. (1965) 50 Cr App Rep 22.
710 Appeals

the fresh evidence could not be called. In conversation between counsel for
Dougherty and the Registrar of the Court, the Registrar said that ˜this kind of
case is unlikely to get o¬ the ground™ and that there were various unreported
decisions in which the court had refused to allow the calling of fresh evidence
where counsel at the trial had not called witnesses in spite of the client™s request
that they be called. When the case was argued before the full court, the fresh evi-
dence point was not even argued. Counsel proceeded instead on a di¬erent issue
(that of the dock identi¬cation). Nevertheless the court in dismissing the appeal
said that if the point had been argued, ˜the conditions necessary before such evi-
dence could be received before this court could not be ful¬lled™.
JUSTICE pursued its concern over the case and eventually in November
1972, through the good o¬ces of the former Lord Chancellor, Lord Gardiner,
it was referred back to the Court of Appeal by the Home Secretary. Dougherty™s
release was ordered immediately by the court. An examination of the alibi wit-
nesses was then ordered and on the hearing the prosecution did not contest the
contention on behalf of Dougherty that the conviction was unsafe and unsatis-
The whole sorry story was told in the Report of the Devlin Committee on
Identi¬cation Evidence, which was set up partly as a result of this case.235 The
report said that our administration of justice was based on the adversary system
and the trial retained many characteristics of a battle. (˜In a battle it is the respon-
sibility of each side to get all its troops on the ¬eld on time. Napoleon could not
appeal against the verdict of Waterloo on the ground that Marshall Grouchy and
his army were still on their way when Blucher and the Prussians arrived in the
nick of time™.236) Under the adversary system, relief was granted if the lack of evi-
dence at the time of trial was due to misfortune, but not if it was due to lack of
diligence or to a deliberate decision to do without the evidence. The rule was the
same for civil as for criminal cases. However, it was no longer acceptable that an
innocent person should continue to spend time in prison ˜on the principle of
“woe to the conquered”™. But the remedy lay chie¬‚y with the executive in exer-
cising the Royal Prerogative of Mercy by pardon (as to which see p. 720 below).
A more relaxed attitude to the problem of fresh evidence was shown by the
Court of Appeal Civil Division in Dixon v. Dixon.237 A husband was ordered to
pay maintenance for a child that he claimed was not his. After the magistrates™
court hearing, the husband had blood tests done which showed conclusively
that the child was not his. He applied to the Divisional Court for leave to appeal
out of time against the order for periodic payments and for leave to admit the
fresh evidence of the blood test. The Divisional Court refused leave to admit the
fresh evidence on the ground that the evidence was available or could have been
available if the husband had used reasonable diligence at the time of the hearing
before the magistrates.

Report of the Departmental Committee on Evidence of Identi¬cation in Criminal Cases, 1976,
236 237
House of Commons Paper 338, Ch. 2. Paragraph 6.3. (1983) 133 NLJ 305.
711 The power to receive fresh evidence

On appeal, the Court of Appeal remitted the matter to the magistrates to hold
a re-hearing with the fresh evidence. The court said it was a very serious matter
to exclude evidence which was wholly conclusive in favour of an applicant on
the ground that it could have been available with reasonable diligence at the
time of the hearing. It would be most undesirable that an order of the court
should be allowed to stand which was based on crucial facts that everyone knew
were incorrectly stated.
A few months later the House of Lords took a less generous view. In Linton v.
Ministry of Defence238 it upheld a decision from Northern Ireland denying a
fresh trial and permission to introduce fresh evidence to a plainti¬ who had
been shot by a soldier. He claimed that he was an innocent passer-by caught in
a hail of bullets exchanged between soldiers and IRA terrorists. The army
claimed that he had been one of the terrorists himself. He sued for damages for
his injuries. A crucial piece of evidence concerned an employment card which
he said he had had in his jeans™ back-pocket, which proved that he was on his
way to a job interview at the time of the incident. He was unable, however, to
explain on cross-examination why it was neither bloodstained nor crumpled.
The barrister for the army suggested to the jury that he had not in fact had it on
him and the jury rejected his claim.
On appeal he sought to introduce fresh evidence of two kinds. First, he said
he now remembered that he had actually been carrying the card in his jacket,
which would explain why it was not bloodstained or crumpled. Secondly, he
wanted to produce the entry in the hospital record where he was taken uncon-
scious after being shot, which showed that his e¬ects included an employment
card which Lord Scarman said was almost certainly the card which he had been
talking about at the trial.
Giving judgment for a unanimous House of Lords, Lord Scarman said that the
appellant had satis¬ed the second and third of the tests laid down in Ladd v.
Marshall. The evidence was important and it was apparently credible, but he could
not satisfy the ¬rst test. He (or his lawyers) had lacked reasonable diligence in not
producing the new evidence at the trial. ˜Ours is an adversarial system and it is the
duty of a plainti¬ to come to court with the evidence to prove his case™. He cited
with approval the dictum of the Lord Chief Justice of Northern Ireland in the court
below: ˜A new trial cannot be granted or fresh evidence admitted just because the
result of the ¬rst trial was or may have been occasioned or made more likely by the
unsuccessful party™s inattention or faulty memory or by an innocent mistake™.
Sometimes, however, the Court of Appeal receives fresh evidence even
though there is no reasonable explanation as to why it was not adduced at the
trial “ simply on the basis that it is expedient to do so in the interests of
justice.239 The trouble is that the attitude of the court is unpredictable. In
Dosoruth v. Mauritius240 the Judicial Committee of the Privy Council said that

238 239
(1983) 133 NLJ 1103. As in Cairns [2000] Crim LR 473.
[2004] UKPC 51, [2005] Crim LR 474.
712 Appeals

before ordering a retrial on the basis of evidence that could have been adduced
at the trial it had to be persuaded that it was in the interests of justice, having
regard to the constitutional right of the accused to a fair trial.
Appeals which attempt to raise for the ¬rst time the diminished responsibil-
ity of the appellant will normally not succeed “ on the ground that the evidence
should have been produced at the trial, but again, sometimes the court makes
an exception.241
The Runciman Royal Commission suggested that possibly the court had con-
strued its powers too narrowly. It was understandable that the court should view
fresh evidence with suspicion. There was the fear that the allegedly fresh evi-
dence might be manufactured. It agreed that defendants and their lawyers
should not be encouraged to think of trials ˜as nothing more than a practice run
which in the event of a conviction will leave them free to put an alternative
defence to the Court of Appeal in whatever manner they please™.242
On the other hand, the court should ˜be alive to the possibility that the fresh
evidence, if true, may exonerate the appellant or at least throw serious doubts
on the conviction™.243 The court had to consider whether the fresh evidence was
available at the trial and, if so, whether there was a reasonable explanation for
the failure to adduce it. It had been suggested to the Commission that the atti-
tude of the court had on occasion been excessively restrictive. It said: ˜We would
urge that in general the court should take a broad, rather than a narrow,
approach to them™.244 Thus, where the witness wished to change his evidence,
the Court of Appeal was right to look at it very carefully, but if there were some
reasonable explanation why the witness gave the previous evidence from which
he wants to depart, the court should receive it.245
Despite the frequently narrow and negative attitude of the Court of Appeal
to its powers to receive fresh evidence, there is no doubt that the court has the
power to receive any admissible evidence if it so chooses and it can call and hear
such evidence on its own initiative. It seems that it can even receive evidence
that is inadmissible under the rules of evidence.246 (The Runciman Royal
Commission said that if there were convincing but inadmissible evidence
showing that a miscarriage of justice had occurred it should be dealt with
through the Royal Prerogative of Mercy rather than by the Court of Appeal. ˜If
the fresh evidence sought to be admitted is inadmissible under the rules of evi-
dence, in our view the court should not receive it™.247)
Fresh evidence can be introduced by the prosecution just as much by the
defence. That is what happened in the appeal hearing in 2002 in the case of
James Hanratty who was hanged for murder in 1962. The case, which had
always been the subject of controversy, had been referred back to the Court of

For an example see Neaven [2006] EWCA Crim 955, [2006] Crim LR 909. For a review of the
242 243
cases see the commentary at 910“11. Runciman, p. 173, para. 55. Ibid.
244 245 246
Ibid, para. 56. Ibid, p. 174, para. 57. D and J [1996] 1 All ER 881 at 886, CA.
Report, p. 176, para. 67.
713 The power to receive fresh evidence

Appeal by the Criminal Cases Review Commission. The prosecution wished to
introduce DNA evidence obtained in 2000 after the body was exhumed at the
request of the defence, which, it argued, proved conclusively that Hanratty was
not innocent but guilty. Allowing the application, the Court of Appeal held that
the overriding consideration was whether the evidence would assist the court to
achieve justice.248
The situation is obviously di¬erent when the fresh evidence concerns matters
that occurred after the trial, but here too the appeal courts have traditionally
taken a rather narrow approach on the basis that there should be an end to liti-
gation and that cases should not be re-opened unless there are very good grounds.
Thus in Mulholland v. Mitchell 249 the plainti¬ had su¬ered very serious injuries
and damages had been assessed by the judge on the basis that he could be looked
after either at home or in an ordinary nursing home. The appeal was on the basis
that after the trial his condition had deteriorated dramatically. The Court of
Appeal allowed fresh evidence to be given to establish the facts. On appeal to the
House of Lords, the Law Lords held that the Court of Appeal had exercised its dis-
cretion reasonably but, generally, fresh evidence should not be admitted relating
to a matter of uncertainty taken into account by the judge unless the basis on
which he had given his decision had been clearly falsi¬ed by subsequent events.
When a case is referred back to the Court of Appeal (formerly by the Home
Secretary and now by the Criminal Cases Review Commission, pp. 725“29
below) the power to receive fresh evidence is less restrictive than on an ordinary

New points taken on appeal
The Court of Appeal™s attitude to new points taken on appeal is similar to its
attitude to fresh evidence. If they could have been taken at the trial, the Court
of Appeal will generally not allow them to be advanced for the ¬rst time at the
appellate stage. So in Re Tarling 251 Gibson J in a habeas corpus case said: ˜It is
clear to the court that an applicant for habeas corpus is required to put forward
on his initial application the whole of the case which is then fairly available to
him “ it becomes an abuse of process to raise in subsequent proceedings matters
which could, and therefore should, have been litigated in earlier proceedings™.252
In the same year in Maynard 253 Lord Justice Roskill said: ˜We have often said in
this court that where a question, and in particular a question of the admissibil-
ity of evidence, is deliberately not raised at the trial it is only in very rare cases
that we allow the matter to be raised in this court for the ¬rst time. To hold oth-
erwise would be to encourage counsel to keep points of this kind up their sleeve
and then reserve them for the Court of Appeal and thus have a second bite at

248 249
R v. Hanratty [2002] EWCA Crim 1141, [2002] 3 All ER 534. [1971] AC 666.
McGrath [1949] 2 All ER 495; Sparkes [1956] 1 WLR 505; Swabey [1972] 2 All ER 1094; Graves
251 252
[1978] Crim LR 216. [1979] 1 All ER 981. At 987.
(1979) 69 Cr App Rep 309.
714 Appeals

the forensic cherry™. (It was noted earlier that it is now required by the Bar™s
Code of Conduct that points be drawn to the trial court™s attention rather than
withheld for use on an appeal and that this is now also required by the courts as
part of their drive to improve the e¬ciency of the process (p. 390 above.)
In Stirland v. DPP254 the House of Lords rejected any ¬rm rule that the courts
could not allow an appeal on admissibility of evidence where counsel had failed
to take objection at the trial, but, it said, ˜the failure of counsel to object may
have some bearing on the question whether the accused was really prejudiced™.
It was not ˜a proper use of counsel™s discretion to raise no objection at the time
in order to preserve a ground of objection for a possible appeal™.255

The power to order retrials
Until 1988 the power to order a retrial in a criminal case existed only in one sit-
uation “ where the court allowed an appeal on the ground of fresh evidence.
The basic statutory provision regulating the right to order retrials was s. 7 of the
Criminal Appeal Act 1968:
7“(1) Where the Court of Appeal allow an appeal against conviction [and do so
only by reason of evidence received or available to be received by them under
s. 23 of this Act]256 and it appears to the court that the interests of justice so
require, they may order the appellant to be retried.
The question whether there ought to be a general right to order a retrial was
considered in 1954 by the Tucker Committee257 and in 1964 by a committee of
JUSTICE. The Tucker Committee was divided on whether there should be a
general power to order a retrial (¬ve to three against). The JUSTICE committee
was divided nine to four in favour. Both committees were unanimous that there
should be a power to order a retrial when there was fresh evidence.
A general power to order retrials became law through s. 43 of the Criminal
Justice Act 1988. It applies whenever the court thinks it to be in the interests of
justice. However, there was not at ¬rst any great increase in the tiny number of
retrials ordered. In the nineteen month period from August 1989 to March 1991
only four retrials were ordered by the Court of Appeal Criminal Division.258 But
this has changed signi¬cantly. In the years 1995“2004 the number of retrials
ordered was respectively 52, 53, 33, 73, 70, 72, 58, 50, 45 and 66.259
The Runciman Royal Commission strongly supported the Court of Appeal
ordering more retrials:
We welcome and wish to encourage the increasing exercise of this power.
Although . . . retrials will not be practicable or desirable in a signi¬cant

254 255
[1944] AC 315. At 328. See also R v. Cox (Andrew Mark) [1995] Crim LR 741.
The words in brackets were removed by the Criminal Justice Act 1988, s. 43 (ed.).
Report of the Departmental Committee on New Trials in Criminal Cases, 1954, Cmnd. 9150.
House of Commons, Hansard, 11 March 1991, vol. 187, cols. 361“2.
Judicial Statistics 2005 (Revised), Table 1.8. No ¬gure was given for 2005.
715 The power to order retrials

number of cases, they o¬er the Court of Appeal an attractive solution for its
understandable reservations about speculative prediction of a hypothetical
jury™s decision. Where the court is not in doubt, there is no di¬culty in allow-
ing or dismissing the appeal as appropriate. Where, on the other hand, the
court is in doubt and would like to see the evidence or arguments more fully
tested, then, other things being equal, retrials seem to all of us the better way
to proceed, even if some of us would not like them to be as frequently ordered
as would others.260
The Royal Commission was split down the middle as to what should happen if
for one or another reason a retrial, though desirable, was felt to be impractica-
ble and fresh evidence was not involved. Six members of the Commission
thought that in that situation the Court of Appeal should quash the conviction
on the basis that, by de¬nition, to want a retrial it must already have decided
that the conviction, at the least, might be unsafe. Five members of the
Commission thought that in that situation the Court of Appeal should still
decide the matter for itself.261
In Reid v. R262Lord Diplock, giving the judgment of the Judicial Committee
of the Privy Council, said that the factors the court should consider when decid-
ing whether to order a retrial included the seriousness and prevalence of the
o¬ence, the probable duration and cost of a new trial, the ordeal to be faced by
the defendant in being tried a second time, the lapse of time since the commis-
sion of the o¬ence and its e¬ect on the quality of the evidence and the strength
of the prosecution case. A retrial should not be permitted where the prosecu-
tion failed for lack of evidence. (˜It is not in the interests of justice as adminis-
tered under the common law system of criminal procedure that the prosecution
should be given another chance to cure evidential de¬ciencies in its case against
the defendant™.263)
The rule regulating retrials does not prevent the court from ordering a new
trial where none has taken place initially “ for example because the jury failed
to agree on a verdict. Sometimes the court holds that an irregularity vitiates
the trial and orders a fresh start (venire de novo). In order for venire de novo to
lie, the court must be in a position to rule that the trial was void from the
outset “ a nullity.264 In Rose the House of Lords quashed a conviction for
murder when the judge was shown to have brought pressure on the jury to
hasten its decision. But it held that venire de novo could not be ordered as the
trial had been validly commenced and could not be said to have been void
from the outset.265

260 261 262 263
Runciman, p. 175, para. 65. Ibid, para. 66. [1980] AC 343, PC. At 350.
For examples see Crane v. DPP [1921] 2 AC 299 and Cronin [1940] 1 All ER 618. For examples
of cases where the court did not feel able to order a retrial on this ground see Neal [1949] 2
KB 590; McKenna [1960] 1 QB 411 and the House of Lords decision in Rose [1982] 2 All ER
The most authoritative study of the issue is by Sir Robin, later Lord, Cooke in 71 Law
Quarterly Review, 1955, p. 100.
716 Appeals

In fresh evidence cases should the Court of Appeal order retrials or
decide for itself?
In his book, The Judge, Lord Devlin argued powerfully that the Court of Appeal
had started to usurp the function of the jury in deciding doubtful cases by either
quashing the conviction or by applying the proviso.266 He took as his text
Sta¬ord v. DPP267 and the ˜Luton Murder Case™, in which the Court of Appeal
repeatedly refused to order a new trial even though crucial new evidence came
to light.268
In Sta¬ord the House of Lords held unanimously that the task of the Court
of Appeal in fresh evidence cases was to decide whether it thinks the verdict
unsafe or unsatisfactory. It should consider the weight of the evidence and not
concern itself so much with the question as to what e¬ect it might have had
on a jury. Lord Devlin had strongly criticised this approach on the ground that
it usurped the function of the jury.269 Under the rule adopted in Sta¬ord,
Sta¬ord was not, in his view, convicted by a jury but rather by a mixed trial by
judges and jury. It was in e¬ect now the judges who had to evaluate the impact
of fresh evidence. (˜If the court has no reasonable doubt about the verdict, it
follows that the court does not think that the jury could have one; and con-
versely, if the court says that a jury might in the light of new evidence have a
reasonable doubt, that means that the court has a reasonable doubt™.270) The
danger of that approach in Lord Devlin™s view was that it could lead to an end
to the jury. (˜If judge and jury are bound to give the same answer why bother
with a jury?™271)
The issue came up again in Pendleton.272 P was convicted in 1985 of a murder
committed in 1971. In 1999 the case was referred back to the Court of Appeal
by the Criminal Cases Review Commission in light of fresh evidence. The Court
of Appeal received the fresh evidence but held that it did not a¬ect the safety of
the conviction. P appealed to the House of Lords and, surprisingly, persuaded
their Lordships to overturn the Court of Appeal™s decision. (Lord Hobhouse in
a concurring opinion expressed his disquiet that the House of Lords should
become involved in a question that was properly the province of the Court of
Appeal.) On the question of principle the Law Lords unanimously a¬rmed
Sta¬ord. Lord Bingham, with the approval of all the judges, said that the test to
be applied was the e¬ect of the fresh evidence on their minds, not the e¬ect it
would have had on the mind of the jury.273 But in approving Sta¬ord, Lord
Bingham put a slightly new spin on the issue. Mr Michael Mans¬eld, counsel

266 267
(OUP, 1979) pp. 148“76. [1974] AC 878.
For the story of this case see Ludovic Kennedy, Wicked Beyond Belief.
269 270
The Judge, pp. 148“76. Citing Sta¬ord v. DPP per Lord Dilhorne at 893.
For an illustration of the principle being applied see R v. Trevor [1998] Crim LR 652. See
further P. O™Connor, ˜The Court of Appeal: Retrials and Tribulations™, Criminal Law Review,
1990, pp. 620“5 and generally K. Malleson, ˜Miscarriages of Justice and the Accessibility of the
Court of Appeal™, Criminal Law Review, 1991, p. 323.
272 273
[2001] UKHL 66, [2002] 1 All ER 524, [2002] Crim LR 398. At [19].
717 The power to order retrials

for the appellant, had argued for the view urged by Lord Devlin. This, Lord
Bingham said, had the merit of reminding the Court of Appeal that it was not
and should never become the primary decision-maker. Secondly, it reminded
the Court of Appeal that it had an imperfect and incomplete understanding of
the full processes which led the jury to convict:
For these reasons it will usually be wise for the Court of Appeal, in a case of any
di¬culty, to test their own provisional view by asking whether the evidence, if
given at the trial, might reasonably have a¬ected the decision of the trial jury to
convict. If it might, the conviction must be thought to be unsafe [19].
The question for consideration, Lord Bingham said, was ˜whether the convic-
tion is safe and not whether the accused is guilty™. That question had to be sep-
arated from the quite di¬erent question whether there could or should be a
retrial. (˜A conviction cannot be thought unsafe if a retrial can be ordered but
safe if it cannot™.)
In his concurring speech Lord Hobhouse took a more robust approach. He
pointed out that if the jury™s decision should be paramount, it was Mr
Mans¬eld™s argument that was unprincipled ˜since it is he who is seeking to
escape from the verdict of a jury merely upon the possibility (which will exist
in almost every case) that the jury might have returned a di¬erent verdict™.
Commenting on the decision, Professor Sir John Smith suggested that if Lord
Devlin were alive he would not have been satis¬ed by it but that did not mean
that the decision was wrong: ˜Giving e¬ect to Lord Devlin™s opinion would have
meant that in all cases where fresh evidence was admissible there would have to
be either a new trial or, if that was impracticable, a ¬nal acquittal™.274
In Mills (No 2), Poole (No 2)275 the Court of Appeal, quashing two 1990
murder convictions, held that what it called the Pendleton impact test as a range
of permissible intrusion into the jury™s thought processes was equally applica-
ble where the new matter was one of argument either of law or interpretation
of or inference from the evidence at the trial.
The Runciman Royal Commission considered Lord Devlin™s criticism that
the Court of Appeal usurped the function of the jury if it decided the e¬ect of
fresh evidence on the result. It agreed with Lord Devlin save if the fresh evidence
was so clear cut as to satisfy the Court of Appeal that it rendered the conviction
unsafe “ in which case it should quash the conviction. Otherwise, having admit-
ted fresh evidence on the basis that it was relevant and capable of belief which
could have a¬ected the outcome of the case, it should order a retrial unless that
was not practicable or desirable. (˜The Court of Appeal, which has not seen the
other witnesses in the case nor heard their evidence, is not in our view the
appropriate tribunal to assess the ultimate credibility and e¬ect on a jury of
fresh evidence™.276)

274 275
[2002] Crim LR 400. [2003] EWCA Crim 1753, (2003) Times, 26 June.
Runciman, p. 175, para. 62.
718 Appeals

Where a retrial was not practicable or was otherwise undesirable in an appeal
based on fresh evidence the Royal Commission unanimously said that there was
no alternative other than the Court of Appeal deciding the matter for itself.277
It is to be noted that there is in fact no way of taking away from the Court of
Appeal the duty of deciding what it thinks about fresh evidence since, unavoid-
ably, it always has to decide the initial questions “ is the evidence capable of belief
and signi¬cant? This is not usurping the role of the jury but it does involve con-
sideration of the credibility and importance of the evidence “ pace Lord Devlin.
The matter was put plainly by the Judicial Committee of the Privy Council:
While . . . the Court of Appeal and this House may ¬nd it a convenient approach
to consider what a jury might have done if they had heard the fresh evidence,
the ultimate responsibility rests with them and them alone for deciding the
question [whether or not the verdict is unsafe].278

Does the criminal appeal system make sense?
Under this provocative title Professor John Spencer of Cambridge University
has suggested a number of issues that deserve reconsideration:279
• The system allows an appeal from magistrates™ courts as of right by way of
rehearing, whereas an appeal from the Crown Court is not a rehearing and
requires leave.
• The prosecutor can appeal from the magistrates™ court against an acquittal but
cannot appeal against an inadequate sentence. In Crown Court cases it is basi-
cally the other way round.
• On appeal from the magistrates™ court to the Crown Court, the sentence can
be increased, whereas on appeal from the Crown Court to the Court of Appeal
there is no power to increase sentence.
• A person who is convicted and sentenced to imprisonment goes to prison whilst
he is appealing. (˜This is a feature of our system which, in my experience, our
colleagues from continental Europe ¬nd both shocking and astonishing™.280)
• The prosecution has no right to appeal against a perverse jury acquittal.
(Professor Spencer shares Lord Justice Auld™s view that this is wrong “ as to
which see p. 527 above.)
• The prosecution in a Crown Court case cannot directly challenge an acquit-
tal that results from a failure of due process or a misapplication of the crimi-
nal law. An Attorney General™s Reference can set the law straight but has no
e¬ect on the acquittal.
• Under the Criminal Justice Act 2003 the prosecution has the right to inter-
locutory appeals. There is no equivalent right for the defence “ for instance

Ibid, para. 63.
Dial v. State of Trinidad and Tobago [2005] 1 WLR 1660 per Lord Brown at [31]. See also
Harris [2005] EWCA Crim 1980 at [101]. Criminal Law Review, 2006, pp. 677“94.
At p. 685.
719 Dealing with alleged miscarriage of justice cases

against a ruling that there is a case to answer or that contested prosecution
evidence is admissible. The right to appeal later after conviction is not the
• The Court of Appeal Criminal Division is seriously overworked. (According
to Sir Robin Auld, ˜¬ve or six hours™ preparation a day in addition to normal
sitting hours, sometimes longer, and much of the weekend is not unusual™.281)
This a¬ects both the quality of work and the capacity of the court to hear
appeals on disputed facts involving hearing witnesses. A solution, he sug-
gested, would be to have regional Courts of Appeal sta¬ed by senior Circuit
judges to handle most appeals against sentence and simple appeals against
conviction. The court in London would handle only the more important and
di¬cult cases.282

4. Dealing with alleged miscarriage of justice cases
The problem of the machinery for dealing with miscarriages of justice has
been a contentious issue for years. It came sharply into focus especially in the
context of three famous IRA cases “ the Guildford Four, the Maguire Seven
and the Birmingham Six.283 In all three cases all the defendants had their con-
victions quashed by the Court of Appeal. In all three the defendants had served
long terms of imprisonment. In all three it took years of campaigning to get
them set free and in each case it was eventually proved that they had been the
victims of a miscarriage of justice. The Government announced the establish-
ment of the Royal Commission on Criminal Justice on 14 March 1991, the day
that the Birmingham Six had their convictions quashed. One of the topics
speci¬cally referred to in the Commission™s terms of reference was ˜the
arrangements for considering and investigating allegations of miscarriages of
justice when appeal rights have been exhausted™. As will be seen below, the
Royal Commission recommended that a new system be established for dealing
with this problem and the recommendation was implemented in the Criminal
Appeal Act 1995.
A distinguished role in this long battle to set things right was played by
JUSTICE, the British Section of the International Commission of Jurists. Its

Runciman, Ch. 12, p. 642, para. 79.
Lord Justice Auld, for the same reason, proposed that for straightforward appeals the court
should sit with two instead of three judges “ two High Court judges or a High Court judge
with a Circuit judge. (Auld, Ch. 12, p. 646, para. 92.)
Mountains of newsprint, major television programmes and books all played an important
part in the saga of these three cases. On the Guildford Four and Maguire cases see in
particular G. McKee and R. Franey, Time Bomb (Bloomsbury, 1988), R. Kee, Trial and Error
(Hamish Hamilton, 1986) and Sir John May, Interim Report on the Maguire Case, July 1990,
HMSO, HC 556 and Second Report on the Maguire Case, 1992, HC 296. On the case of the
Birmingham Six see especially C. Mullin™s Error of Judgment (Poolbeg, 1990). Apart from the
reports and articles referred to in the following pages see also the special issue of the New Law
Journal on miscarriages of justice, 17 May 1991.
720 Appeals

report in 1968, Home O¬ce Review of Criminal Convictions, was e¬ectively the
¬rst to examine the issue critically. Between the JUSTICE report of 1968 and the
report of the Runciman Royal Commission in 1993 the topic was inquired into
by the Devlin Committee (1970),284 the House of Commons Home A¬airs
Committee (1982)285 and by JUSTICE again (1989).286 The main recommen-
dations of these reports, which were covered in earlier editions of this work, are
not included here as they are now of purely historical interest.

Powers of the Home Secretary
When someone has exhausted his right of appeal to the courts his last recourse
is to appeal to the executive. The minister responsible for such matters is
the Home Secretary. The Home Secretary has various powers that may be

Free pardon
The minister can recommend that the person be given a free pardon. This
wipes out the e¬ects of conviction and sentence though, curiously, not the
conviction itself.287 In R v. Secretary for the Home Department, ex p Bentley288
the Divisional Court held that the courts could review the refusal by the Home
Secretary to recommend the grant of a pardon. The court accepted that to get
a free pardon it was necessary to establish both moral and technical innocence.
See to the same e¬ect the evidence of the Home O¬ce to the Home A¬airs
Committee of the House of Commons in 1982: ˜it is a long-established policy
that the free pardon, as an exceptional act of grace, should be con¬ned as far
as possible to those who are morally as well as technically innocent. This
“Clean Hands” doctrine means that the Home Secretary must be satis¬ed
before recommending a free pardon that in the incident in question the defen-
dant had no intention of committing an o¬ence and did not in fact commit
Most free pardons occur in road tra¬c and other minor o¬ences, usually for
technical reasons. Frequently, for instance, the reason is that a whole batch of
speeding convictions has to be cancelled when it turns out that the stretch of
road in question was not properly marked in accordance with the regulations.
The Home O¬ce™s evidence in 1982 to the House of Commons Home A¬airs
Committee gave statistics about the use of the free pardon. In the eight-year
period from 1972“1980 there had been 2,180 instances in which free pardons
had been granted with regard to the original conviction. In nine-tenths of the

Evidence in Identi¬cation in Criminal Cases, 1976, House of Commons Paper 338.
Miscarriages of Justice, Sixth Report from the Home A¬airs Committee, 1982, Cm. 421. See
also The Government Reply to the Sixth Report from the Home A¬airs Committee, 1983.
286 287
Miscarriages of Justice. See Foster [1984] Crim LR 423.
[1993] 4 All ER 442.
Quoted in JUSTICE, Miscarriages of Justice, 1982, p. 3, para. 12.
721 Dealing with alleged miscarriage of justice cases

cases the conviction had been for minor motoring o¬ences. There had also been
a total of 1,519 cases in which action had been taken on other grounds, such as
compassionate remission of imprisonment or early release resulting from assis-
tance given to the prison authorities.290
For a suggestion that failure to exercise the power of mercy might in some
circumstances be open to judicial review see B.V. Harris, ˜Judicial Review and
the Prerogative of Mercy?™ in Public Law, 1991, p. 386.

Conditional pardon
The conditional pardon substitutes one form of punishment for another, again
leaving the original conviction standing.291

Remission, also under prerogative, consists of a reduction in a sentence without
a change in the nature of the sentence.

Reference to the Court of Appeal Criminal Division under the Criminal Appeal
Act 1907, s. 17
The Home Secretary could refer a case to the Court of Appeal. In the eight years
1981“9 the Home Secretary referred a total of thirty-nine cases involving ¬fty-
four defendants. In eighteen of these cases the appeals were allowed.292 The
Report of the Runciman Royal Commission stated that in the three years
1989“92 there were a total of twenty-eight cases referred involving ¬fty-nine
defendants. Thirty-¬ve had their convictions quashed. Two were ordered to be
retried and in both cases the defendant was acquitted. One appeal was dis-
missed. The rest were then still pending.293

Other powers
In particular cases, the Home Secretary releases a prisoner on licence by virtue
of his sentence of life imprisonment. Although these powers are normally exer-
cised on considerations not a¬ecting the original conviction, there is some evi-
dence that they are occasionally used in this way.

Principles upon which the Home Secretary exercised his powers
The 1968 JUSTICE report (above) reported on the criteria for acting adopted
by the Home O¬ce:

Miscarriages of Justice, Sixth Report of the Home A¬airs Committee, 1982, Cm. 421,
Appendix A, p. 7.
As to pardons see A.T.H. Smith, ˜The Prerogative of Mercy, the Power of Pardon and Criminal
Justice™, Public Law, 1983, p. 398; A. Wolfgarten, ˜Free Pardon™, Solicitors™ Journal, 28 February
1986, p. 157.
Home O¬ce evidence to the May Inquiry into the Guildford and Woolwich pub bombings.
Report, p. 181, n. 5.
722 Appeals

The overriding factor governing the exercise of the powers available to the
Home Secretary is a proper concern to avoid even the appearance of interfer-
ing with the independence of the judiciary. Home Secretaries have accordingly
taken a very restricted view of the proper scope for executive intervention “ a
matter which has been dealt with before a competent court is not normally
considered to be reviewable. As a consequence, a Home Secretary will only
intervene in cases where evidence is presented by the petitioner which was not
available to the courts which dealt with the case. At the level of executive
review, the onus of proof is e¬ectively reversed. In cases where the petitioner
fails to convince the Home Secretary of his innocence, but establishes that a
serious doubt exists as to his guilt, he may be granted some remission of his
sentence, or released on licence if the sentence is appropriate. Remission is
more commonly granted however in respect of matters arising during the cur-
rency of the sentence, such as ill health, or as reward for assistance to the police
or prison authorities.
Prisoners, inevitably, had great di¬culty in putting their points e¬ectively. They
usually had no legal or other professional help. Unless there was a public cam-
paign by the media or some individual journalist or an organisation like
JUSTICE, the Home O¬ce usually paid little attention to prisoners™ petitions.
Perhaps understandably, neither the Home O¬ce nor the police showed much
enthusiasm for re-examining cases.

The case for an independent body
The case for a new independent system to investigate miscarriages of justice
was made by the Home A¬airs Committee in 1982 and by JUSTICE in 1989.
In October 1989 the Home Secretary and the Attorney General appointed
Lord Justice May to inquire into the circumstances leading to the conviction
of the Guildford Four and the Maguire family in respect of the pub bombings
in Guildford and Woolwich in 1974.294 The inquiry was partly about the cir-
cumstances of the particular cases but it was also about the general problem
of miscarriages of justice. Many of those who gave evidence to the May
Inquiry supported the call for some form of independent body to assist the
Home Secretary to identify cases. In addition to JUSTICE they included the
Criminal Bar Association, the Law Society, the National Association of
Probation O¬cers, the Society of Labour Lawyers and the Legal Action
The most signi¬cant evidence to the May Inquiry on this matter was the oral
statement of Mr Douglas Hurd, then the Foreign Secretary, who had been the
Home Secretary between 1985 and 1989 and in that capacity had been con-
cerned with the Maguire case. In his evidence on 2 October 1991 Mr Hurd said

Sir John May was a member of the Runciman Royal Commission. The general question of the
machinery for handling miscarriage of justice cases was transferred by his Inquiry to the Royal
723 Dealing with alleged miscarriage of justice cases

that he was now persuaded that the power to refer possible miscarriages of
justice should be removed from the Home Secretary and given to an indepen-
dent standing body with investigative facilities.
In 1987 he had told the House of Commons that cases should be referred to
the Court of Appeal only when new evidence or new considerations of sub-
stance cast doubt on a conviction. It was important that Home Secretaries not
bow to other pressures. He told the May Inquiry that Home Secretaries came
under ˜fairly continuous pressure in case after case to use the power to reopen
arguments already before the courts™. In the face of that, successive Home
Secretaries had ˜tried to establish rules and criteria which would enable them to
exercise the power without getting into a position where they are in e¬ect sub-
stituting themselves for the court™. He explained to the May Inquiry that he had
refrained from referring the cases back to the Court of Appeal for fear of under-
mining public con¬dence. It would be better if these pressures could be handled
by some new machinery. Possibly it might consist of some form of ˜court of last
resort™ or an independent investigatory bureau, but it should have the power
itself to refer cases to the Court of Appeal.

The Runciman Royal Commission
The Runciman Commission™s recommendations on the machinery for dealing
with miscarriage of justice cases were unanimous. The main recommendation
was that the responsibility for dealing with these cases should be taken from the
Home O¬ce and given instead to a new body independent of Government.
Most of the witnesses who gave evidence to the Runciman Commission, includ-
ing the Home O¬ce, the Home Secretary and two former Home Secretaries,
had urged this upon the Commission.
The Royal Commission said:
Our recommendation is based on the proposition, adequately established in our
view by Sir John May™s Inquiry, that the role assigned to the Home Secretary and
his Department under the existing legislation is incompatible with the consti-
tutional separation of powers as between the courts and the executive. The
scrupulous observance of constitutional principles has meant a reluctance on
the part of the Home O¬ce to enquire deeply enough into the cases put to it
and, given the constitutional background, we do not think that this is likely to
change signi¬cantly in the future.295
It recommended that a new body be set up ˜to consider alleged miscarriages of
justice, to supervise their investigation if further inquiries are needed, and to
refer appropriate cases to the Court of Appeal™.296 It suggested that the new body
might be called the Criminal Cases Review Authority. (In the event, the
Government decided instead that it should be called the Criminal Cases Review
Commission (CCRC). For convenience the new body will be referred to here as

295 296
Runciman, p. 182, para. 9. Ibid, para. 11.
724 Appeals

the CCRC, whether reference is being made to the recommendations of the
Royal Commission or to the provisions of the Criminal Appeal Act 1995.)
The Royal Commission proposed that the applicant could apply to the new
body only after his appeal against conviction had been turned down or he had
been refused leave to appeal. The CCRC would investigate the case if it thought
an investigation was called for. Where it instructed the police to conduct inves-
tigations, it would be responsible for supervising the investigation and would
have the power to require the police to follow up lines of inquiry it thought nec-
essary. If the investigation suggested that a miscarriage of justice might have
occurred, the CCRC would refer the case to the Court of Appeal which would
consider it as if it were an appeal referred by the Home Secretary under s. 17.
The CCRC would provide the court with a statement of reasons and such
(admissible) supporting material as it thought desirable.297 If it considered there
were no grounds for a reference it would explain this decision, with its reasons,
to the applicant.298
The CCRC would be independent of Government but there would have to be
a minister answerable for it in Parliament. That should be the Home Secretary.
The CCRC would report annually to the minister who would lay the report
before Parliament. The chairman should be appointed by the Queen on the
advice of the Prime Minister. The other members could be appointed by the
Lord Chancellor.299
The Court of Appeal should have power to refer cases to the CCRC for inves-
tigation and the CCRC would report to the Court of Appeal about the outcome
of any such investigation, but the CCRC would be wholly separate from the
Court of Appeal and would not form a part of the court structure.300
When the Court of Appeal received a reference from the CCRC it would
ensure that the defence and the prosecution had a copy of the statement of
reasons and the supporting material together with any additional material that
it thought ¬t, so far as that was not prohibited by public interest immunity.301
The appellant would present his case as he saw ¬t and he would be able, as
before, to raise any matter of fact or law regardless of whether it was included
in the papers sent to the CCRC.302
The Home Secretary could continue, very exceptionally, to exercise the Royal
Prerogative of Mercy especially for cases that the Court of Appeal could
not consider under the existing rules, for instance because of the rules of
The CCRC should not be subject to judicial review in respect of its
The CCRC should consist of several members, some lawyers and some lay
persons. Not all would need to be full-time. The chairman should not be a

297 298 299
Ibid, pp. 182“3, paras. 12 and 16. Ibid. Ibid, p. 183, paras. 13“14.
300 301 302
Ibid, para. 15. Ibid, para. 13 and pp. 186“7, para. 31. Ibid, p. 183, para. 16.
303 304
Ibid, p. 184, paras. 17“18. Ibid, para. 19.
725 Dealing with alleged miscarriage of justice cases

serving member of the judiciary.305 The body should be supported by a sta¬ of
lawyers and administrators and it should have access to specialist advisers such
as forensic scientists, as necessary. It might be desirable for it to have on its sta¬
one or two people expert in investigations especially to assist it in supervising
police investigations.306
In its annual report the CCRC should be able to draw attention to general fea-
tures of the criminal justice system which it found unsatisfactory and to make
any recommendations for change it thought ¬t.307
The Royal Commission did not attempt to de¬ne the test the new body
should use in deciding whether to investigate a case. (˜In practice, it will need
no further justi¬cation for investigating a case than a conclusion on the part of
its members that there is, or may be on investigation, something to justify refer-
ring it to the Court of Appeal™.308) The CCRC would need to devise its own rules
and procedures for selecting cases for investigation.
The CCRC should be resourced su¬ciently to enable it when appropriate to
discuss cases direct with applicants. (˜It is not always possible for people who
have su¬ered a miscarriage of justice and then been sentenced to a long term of
imprisonment to set out their case clearly and cogently in writing and an inter-
view may sometimes be the best way of convincing the [Commission] that the
case is one worth investigation™.309)
The Royal Commission considered but rejected the idea that investigations
should be carried out by persons other than the police. (˜Given the size and
scope of the inquiries that sometimes have to be made in these cases, and the
resources required, there is in our view no practicable alternative to the police
carrying out the investigation™.310)
There would need to be adequate arrangements for granting legal aid to con-
victed persons after they had lost their appeals to enable them to make repre-
sentations to the Commission.311

The Criminal Cases Review Commission (CCRC)
The recommendations of the Royal Commission were implemented in the
Criminal Appeal Act 1995. The Act established the CCRC, consisting of not
fewer than eleven persons, all of whom have to be appointed by the Queen on
the recommendation of the Prime Minister. At least one-third must be legally
quali¬ed. At least two-thirds must be persons with knowledge or experience
of the criminal justice system. There is no prohibition on a serving judge
being on, or chairman of, the Commission.312 The Commission began work
in 1997.

305 306 307 308
Ibid, para. 20. Ibid, p. 185, para. 21. Ibid, para. 22. Ibid, para. 24.
309 310 311
Ibid, para. 25. Ibid, p. 186, para. 28. Ibid, p. 187, para. 32.
The ¬rst chairman, Sir Frederick Crawford, was a lay person, a distinguished scientist. The
second chairman, Professor Graham Zellick, was an academic lawyer and university
726 Appeals

In Scotland, following the recommendations of the Sutherland Committee,313
an equivalent Scottish Criminal Cases Review Commission was set up in 1999.314
The CCRC™s power to refer a case to the Court of Appeal applies not only to
Crown Court conviction issues but also to Crown Court sentencing issues and
to conviction and sentence cases dealt with by magistrates.315 It also includes
Northern Ireland cases.
A reference to the Court of Appeal cannot be made unless the Commission
˜considers that there is a real possibility that the conviction, verdict, ¬nding or
sentence would not be upheld were the reference to be made . . . 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™ (s. 13(1)(a), (b) emphasis
supplied). In the case of a sentence, it must be a new point of law or informa-
tion (s. 13(1)(c)).
A pre-condition is that an appeal has been determined or leave to appeal has
been refused. However, the CCRC retains a discretion to make a reference even
if these conditions are not ful¬lled ˜if it appears to the Commission that there
are exceptional circumstances which justify making it™ (s. 13(2)).316
The minister told the House of Commons during the Committee Stage of the
Bill that these criteria were wide enough ˜to enable a conviction, verdict or
¬nding to be referred if there was new evidence, or new argument in relation to
evidence which has already been raised, which is of su¬cient weight in the
context of the whole case to give rise to a real possibility of the conviction,
verdict or ¬nding not being upheld on appeal™.317
In R v. Criminal Cases Review Commission, ex p Pearson318 the Divisional
Court said the Commission™s task was to predict what view the Court of Appeal
would take as to whether a conviction was unsafe. That phrase included cases
in which the court, though not persuaded of the appellant™s innocence, was
˜subject to some lurking doubt or uneasiness whether an injustice has been
done™.319 That was a judgment entrusted to the CCRC and to no one else. If a
decision not to refer a case was challenged, the courts would not consider
whether the CCRC™s judgment had been objectively right or wrong, only
whether it was reasonable and lawful. The CCRC can refer a case even where
the Court of Appeal would not have granted leave to appeal out of time because
of its policy not to do so where the appeal is based on a change in the law
(Director of Revenue and Customs Prosecutions (R) v. Criminal Cases Review
Commission [2006] EWHC 3064 (Admin)).

Criminal Appeals and Alleged Miscarriages of Justice, 1996, Cmnd. 3425, Ch. 5.
The Crime and Punishment (Scotland) Act 1997, s. 24 inserted a new Part (XA) into the
Criminal Procedure (Scotland) Act 1995.
For consideration of the CCRC™s power in cases dealt with by the magistrates™ courts see K.
Kerrigan, ˜Miscarriage of Justice in the Magistrates™ Court: the Forgotten Power of the
Criminal Cases Review Commission™, Criminal Law Review, 2006, pp. 124“39.
On consideration of s. 13(1) and (2) see Poole [2003] EWCA Crim 1753, [2003] Crim LR 60.
House of Commons, Standing Committee B, 30 March 1995, col. 126.
318 319
[1999] 3 All ER 498. At 503, citing Cooper, p. 693 above.
727 Dealing with alleged miscarriage of justice cases

The Scottish Commission has broader statutory powers. It may refer a case if
it believes ˜(a) that a miscarriage of justice may have occurred; and (b) that it is
in the interests of justice that a reference should be made™.320 So, at least accord-
ing to the statutes, unlike the English Commission, the Scottish is not required
to ˜second guess™ the Court of Appeal™s approach to the referral.321
In a decision of major importance, the House of Lords in Kansal (No 2)322
held that an appellant who had been convicted before the implementation of
the Human Rights Act 1998 could not rely on Convention rights in an appeal
heard after the implementation of the Act.323 This has obvious implications for
the work of the CCRC since it will have to adopt the same approach.
During the Lords Committee stage of the Criminal Appeal Bill, the minister
rejected a Labour attempt to amend the Bill so as to permit a reference where a
point was new because it had not been adequately considered at the trial or the
appeal. That amendment, Baroness Blatch said, ˜would enable the Commission
to refer a case on no grounds other than that, in its opinion, the courts had given
insu¬cient consideration to some matter or matters that had come before it™.324
That would not be right ˜as it would put the Commission in the invidious posi-
tion of asserting its opinion or judgment on a matter above that of the courts™
(ibid). The CCRC was not ˜a court of last resort, second guessing, sitting over
and above the appellate courts™ (ibid).
However, ˜where an argument was so poorly presented that the courts may
have been misled, or where the appellant™s case was not put to the court, then
the Commission could reasonably regard such matters as new and could refer™
When making a reference the CCRC gives the court and all the parties a state-
ment of its reasons (s. 14(4)). Equally, if the CCRC decides not to refer a case,
it must give a statement of its reasons to the applicant (s. 14(6)).
Originally, regardless of the CCRC™s reasons for the reference to the Court of
Appeal, the convicted person was at liberty to raise any points he wished.
However, this was changed by the Criminal Justice Act 2003, s. 315325 which pro-
hibits an appeal on grounds other than those referred to the court by the CCRC
unless the court gives leave for any other grounds to be raised.

Criminal Procedure (Scotland) Act 1995, s. 194C as amended.
See, however, the decision of the High Court of Justiciary in Crombie v. Clark 2001 SLT 635
which suggests that the Scottish Commission must have some regard to the likely attitude of
the High Court. The di¬erence in the statutory provision was based on the Sutherland
Committee™s apparent view that the English criteria were too stringent “ see its report at para.
5.62. For consideration of the implications of the di¬erence between the English and the
Scottish statutes in this regard see P. Du¬, ˜Criminal Cases Review Commissions and
“Defence” to the Courts: The Evaluation of Evidence and Evidentiary Rules™, Criminal Law
Review, 2001, pp. 341“62 and the follow-up correspondence at pp. 761“3.
[2001] UKHL 62, [2002] 2 AC 69, [2002] 1 All ER 257.
Applied in Rezvi [2002] UKHL 1, [2003] 1 AC 1099, [2002] 1 All ER 801; Benja¬eld [2002]
UKHL 2, [2003] 1 AC 1099, [2002] 1 All ER 815; and Lyons [2002] UKHL 44, [2002] 4 All ER
1028. House of Lords, Hansard, 8 June 1995, col. 1515.
Inserting new subsections (4A) and (4B) into s. 14 of the Criminal Appeal Act 1995.
728 Appeals

In R v. Secretary of State for the Home Department, ex p Hickey (No 2)326 the
Divisional Court held that before the Home Secretary made a decision whether
to refer a case under s. 17 of the 1968 Act the convicted prisoner was entitled to
disclosure of fresh information revealed by inquiries about his case. Lord Justice
Simon Brown, giving judgment, said that advance disclosure was required in
the interests of both fairness and informed decision-making and the guiding
principle as to the level of disclosure should be such as to enable the petitioner
to present his best case e¬ectively. He could only do that if he adequately appre-
ciated the nature and extent of the evidence that had been produced by the
Home Secretary™s inquiries. The CCRC is subject to the same duty of disclosure.
The CCRC has the power to obtain documents (ss. 17 and 18). This includes
access ˜to all relevant information held by the Secretary of State, whether it is
representations by, or on behalf of, any person claiming wrongful conviction,
or police reports, forensic science reports, opinions from lawyers, doctors, and
other independent experts, transcripts of legal proceedings, correspondence
and records of telephone conversations™.327 It does not, however, receive advice
to ministers about cases from their civil servants. That would put the CCRC in
an invidious position. It would be vulnerable to the charge of having been
unduly in¬‚uenced by the views taken during the earlier consideration of the
case by a di¬erent authority.
The powers of the Scottish Commission are greater since, on application to
a court, it may seek documents held by anyone (not only by public bodies) and
it can apply for a warrant to compel anyone to give a statement on oath (known
as a precognition).
The Court of Appeal has the power to direct the CCRC to investigate and
report to the court.328 Originally this power only existed with regard to appeals
against conviction. It was hardly ever used. The Criminal Justice Act 2003
extended the power to include also applications for leave to appeal.329
As proposed by the Royal Commission, when investigations are conducted
on behalf of the CCRC they are generally conducted by the police. In supervis-
ing or directing the police, the CCRC play a role similar to that played by the
Independent Police Complaints Commission. The CCRC can require a chief
o¬cer of police to appoint a person from his own force or another force to carry
out an investigation (s. 19). It also has a power of veto over the selection of the
o¬cer by the chief constable (ibid). It can direct the actual investigations made
and can sack the investigating o¬cer (s. 20). In practice, however, the CCRC
generally carries out its own investigations.
At the outset the CCRC took over the existing Home O¬ce caseload (279
¬les). Understandably, there was a considerable initial surge of fresh applica-
tions “ some of which related to cases previously rejected by the Home O¬ce.
326 327
[1995] 1 All ER 490. House of Lords, Hansard, 8 June 1995, col. 1529.
Section 23A of the Criminal Appeal Act 1968 inserted by s. 5 of the Criminal Appeal Act 1995.
Criminal Justice Act 2003, s. 313. This came into force in September 2004 and applied to cases
lodged after that date.
729 Dealing with alleged miscarriage of justice cases

The case intake in 2004“5 was 955, the highest ¬gure to date. In 2005“6 it was
938 and it was expected to continue at that level. It has not yet been below 800.
The backlog of cases, though reducing, is still great and the delay in getting a
case reviewed is considerable. The number of cases where the review process
had not yet begun peaked at 1,208 in May 1999, but had been reduced to 338 by
March 2002. In March 2006 it was down to 200.330
The CCRC has a residual power under s. 16 of the 1995 Act to refer cases to
the Home Secretary for consideration of the Royal Prerogative of Mercy where
a reference to the Court of Appeal is not possible. This might occur where the
CCRC is convinced that the applicant is innocent but the Court of Appeal
would appear not to be able to quash the conviction. By March 2006 no such
reference had been made.
All the posts on the board of the CCRC including that of chairman are adver-
tised publicly. In March 2006 the CCRC had total sta¬ of around a hundred
including forty-six case review managers. (By comparison, in 1995, C3 in the
Home O¬ce had a sta¬ of twenty-one.) Expenditure in 2005“6 was £7.75
The Commission started handling cases as from 31 March 1997. By July 2006,
it had received a total of 8,856 cases and had completed 8,163. There had been
a total of 318 referrals to the Court of Appeal “ an average of some thirty-¬ve
per year compared with an average of under ten per year by the Home Secretary
Of the 318 referrals, 287 had been determined. Over two-thirds (69 per cent)
had resulted in the conviction being quashed; just under one-third (31 per cent)
in it being upheld. There were only thirty sentence references of which 83 per
cent were varied and 17 per cent were upheld.331
A great deal of information about its work, including the annual report, is
available on the CCRC™s Website: www.ccrc.gov.uk.


On the pre-CCRC era see for instance K. Malleson, ˜The Criminal Cases Review
Commission™, Criminal Law Review, 1995, pp. 929“37. See also R. Nobles, D. Schi¬
et al, ˜The Inevitability of Crisis in Criminal Appeals™, International Journal of the
Sociology of Law, 1993, p. 21; D.S. Greer, ˜Miscarriages of Criminal Justice
Reconsidered™, 57 Modern Law Review, 1994, pp. 58“74; R. Nobles and D. Schi¬,
˜Miscarriages of Justice: A Systems Approach™, 58 Modern Law Review, 1995,
pp. 299“320.
For an assessment of the work of the CCRC see A. James, N. Taylor and C. Walker, ˜The
Criminal Cases Review Commission: Economy, E¬ectiveness and Justice™, Criminal


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