Ward & Anor, R (on the application of) v Criminal Cases Review Commission

Judicial review of a Criminal Cases Review Commission decision is concerned with legality, not the correctness of the Commission’s assessment or a rehearing of the criminal appeal. The Commission’s statutory judgment is entrusted to it, subject to review for unlawfulness, irrationality or procedural unfairness. Where a referral depends on fresh evidence, the Commission must assess whether there is a real possibility that the Court of Appeal would receive the evidence and, if so, a real possibility that the conviction would not be upheld. Unsupported allegations of bad faith and dissatisfaction with the outcome are insufficient.

The claimants sought permission to challenge the Criminal Cases Review Commission’s decision not to refer their convictions for conspiracy to defraud and theft to the Court of Appeal. Their convictions had been upheld on appeal, and one claimant had unsuccessfully sought leave to appeal to the House of Lords.

The claimants alleged bad faith, dishonesty, inadequate investigation, errors concerning witnesses and evidence, and unlawful treatment of material obtained during the Commission’s review. The central issue was whether those allegations disclosed arguable grounds that the Commission’s decision had been reached unlawfully.

1. Nature of review. The court, applying the approach in R v CCRC ex parte Pearson [1999] 3 All ER 498; [2000] 1 Cr.App. R.141, held that the Commission’s referral decision involves a judgment entrusted to the Commission. Judicial review cannot substitute the court’s assessment or reopen the earlier appeal.
2. Statutory threshold. Under the Criminal Appeal Act 1995, the Commission may refer a conviction where there is a real possibility that it would be quashed on the basis of new evidence or argument, or where exceptional circumstances justify referral without such new material. In a fresh-evidence case, the Commission must address both whether the Court of Appeal might receive the evidence and whether there is then a real possibility that the conviction would not be upheld.
3. Scope of judicial review. The court followed the caution in R v CCRC ex parte Hunt [2001] 2 Cr.App. R. 71 that judicial review should not distract the Commission from its statutory function.
4. Application. Investigators’ provisional or favourable observations did not bind the independent decision-making committee. The Commission investigated extensively, disclosed relevant material, considered further submissions, corrected errors in its provisional reasons and reconsidered the issues in its final reasons. The allegations did not establish bad faith, irrationality, unfairness or legal error.
5. Disposition. The renewed applications for permission were refused and the claim was dismissed.

The judgment records that the claimants’ convictions were upheld by the Court of Appeal (Criminal Division) on 20 March 1997, and that one claimant unsuccessfully sought leave to appeal to the House of Lords. The present proceedings were a first-instance judicial review of the Commission’s decision dated 13 September 2004.