Boyle, R (On the Application Of) v Criminal Cases Review Commission

The court may quash an unlawful decision of the Criminal Cases Review Commission and require a fresh review, but should not ordinarily direct the Commission to refer a case to the Court of Appeal. Parliament has entrusted the Commission with investigating the facts and assessing the prospects of a successful appeal. The court lacks the Commission’s investigatory and fact-finding functions and should not substitute its own assessment, even where the grounds appear strong. A fresh review should be independent, address all material grounds, and proceed with appropriate urgency where delay is established.

The claimant sought judicial review of the Commission’s refusal to refer his criminal case to the Court of Appeal (Criminal Division). Permission had previously been granted by Mr Justice Henriques, whose permission judgment identified strongly arguable grounds and led the Commission to agree to reconsider the case through new personnel. The claimant nevertheless sought an order requiring an immediate reference, alleging prolonged delay and contending that the material made referral mandatory. The court also considered a claim for damages and the appropriate order concerning costs.

1. Mandatory reference refused. Even assuming that the court theoretically possessed power to direct the Commission to refer a case, it would be wrong to exercise that power on these facts. The Commission is the body entrusted by Parliament with reviewing the case, investigating the evidence and assessing the prospects of success on appeal.
2. The court and the judge who granted permission were not in a position to reach the final view required to compel a reference. The court did not possess the necessary investigatory or fact-finding powers. The strength of the claimant’s arguments did not remove the Commission’s duty to consider all five grounds.
3. The Commission’s decisions of 13 and 27 November 2001 were quashed. The Commission was ordered to conduct a fresh review, uninfluenced by the views of those previously involved, and to take account of the earlier permission judgment.
4. The fresh review was required to obtain expert evidence concerning the claimant’s elbow and chest injuries, bullet fragmentation and the alleged use of FMJ bullets; investigate allegations concerning evidence given by Deputy Assistant Commissioner Roy Clark and prosecuting counsel; assess the reliance properly to be placed on Mr Brindle’s evidence; exclude Mr Baden Skitt from involvement; and consider all material currently before it.
5. The claimant’s concerns about delay were well founded. The Commission was required to proceed with a full, fresh and speedy review. The court declined to make a mandatory order requiring referral. No order for costs was made, although the claimant’s costs were subject to detailed legal aid assessment. Permission was refused for a damages claim against the Commission.

The judgment records an earlier permission decision by Mr Justice Henriques on 31 March 2003 in the same judicial review proceedings. That decision granted permission and identified strongly arguable grounds, but it was not a substantive determination.