Westlake v Criminal Cases Review Commission

The Criminal Cases Review Commission has a genuine discretion under the Criminal Appeal Act 1995 whether to refer a conviction, even where the statutory conditions for referral are met. The discretion must be exercised reasonably, fairly, and for its proper purposes, taking relevant considerations into account.

For a deceased person, particularly in a historic case, fairness and justice may carry less weight than in a contemporary case involving a living convicted person. The Commission may consider the public cost and court resources required by a referral. A free pardon does not normally expunge a conviction, but may practically establish innocence and restore reputation. The Court of Appeal’s jurisdiction on a criminal appeal is confined to deciding whether the conviction is unsafe; it has no jurisdiction to determine an untried charge.

Mary Westlake, the half-sister of Timothy Evans, sought judicial review of the Criminal Cases Review Commission’s refusal to refer his 1950 conviction for murdering his daughter to the Court of Appeal under the Criminal Appeal Act 1995.

The Commission accepted that the statutory conditions for referral were satisfied and that the conviction would probably be quashed. It nevertheless declined to refer the case because Evans had received a free pardon, his innocence and the miscarriage of justice were publicly recognised, compensation had been paid, and the costs and resources of a further appeal were unjustified.

The central issues were the scope of the Commission’s discretion, the relevance of posthumous and historic circumstances, the effect of the pardon, and whether a referral could produce findings concerning Evans’s wife’s murder.

1. The claim was dismissed with costs to the defendant. The Commission had accepted that there was a real possibility that the conviction would not be upheld, but was entitled to decide not to refer it.
2. Section 9 of the Criminal Appeal Act 1995 confers a discretion to refer. Section 13 establishes preconditions for referral; it does not create a presumption in favour of referral or require compelling reasons before the discretion can be refused. The Commission must act reasonably and fairly, pursue the statutory purpose, and take relevant considerations into account.
3. The cost to the public and the resources required for a consequential appeal are relevant considerations. Where the convicted person is deceased, and especially where the conviction is historic, the requirements of fairness and justice differ from those applicable to a living person. In such a case, exceptional circumstances may be required before substantial public resources are committed.
4. The Commission was entitled to conclude that the free pardon, the public recognition of the miscarriage of justice, and the compensation paid meant that quashing the conviction would provide little additional practical benefit. Although a pardon does not ordinarily expunge a conviction, its practical effect may be to establish innocence and restore reputation. The unusual circumstances of Evans’s execution meant that the pardon was intended as a formal vindication.
5. Under section 2 of the Criminal Appeal Act 1968, the Court of Appeal would allow an appeal if the conviction were unsafe and dismiss it otherwise. Its duty is not ordinarily to declare innocence. The Court had no jurisdiction over the untried count alleging the murder of Evans’s wife and could not be expected to determine or displace the Brabin report’s findings about that allegation.
6. The Commission’s conclusion that any comment by the Court of Appeal on the wife’s murder would be merely incidental, rather than within its legal power, was lawful. The decision was neither irrational nor legally misdirected.

First-instance judicial review proceedings in the Administrative Court. The claim was dismissed with costs to the defendant.