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

The Criminal Cases Review Commission’s refusal to refer a conviction is subject to judicial review on a residual basis. The reviewing court must ensure that the Commission acted lawfully; it must not substitute its own assessment or conduct a rigorous audit of the Commission’s reasoning.

Evidence concerning a witness’s general credibility is ordinarily collateral. Questions and rebutting evidence on such matters are generally subject to the rule that the witness’s answers are final. A flexible approach to collateral evidence does not make evidence admissible where it does not bear on an issue at trial. The Commission may therefore decline to refer a conviction where fresh material affects only a witness’s general credit and does not undermine the evidence central to the conviction.

Martin and Warren Boston sought judicial review of the Criminal Cases Review Commission’s decision not to refer their convictions for conspiracy to pervert the course of justice to the Court of Appeal Criminal Division.

The principal fresh material was an investigation report indicating a prima facie case that Detective Superintendent Edwards had been recruited by Nathanson, the principal prosecution witness, earlier than disclosed and possibly as a reward for his involvement in the case. The claimants argued that this material would have undermined Nathanson’s credibility and that the Commission had wrongly treated it as collateral.

The central issues were whether the Commission had misapplied the principles governing collateral evidence and whether its reasons disclosed a reviewable error.

1. The applications were dismissed. The Commission’s decision not to refer the convictions disclosed no defect justifying judicial review.
2. The statutory scheme under the Criminal Appeal Act 1995 makes a Commission reference a further appeal based on new evidence or argument. The judicial review jurisdiction is residual. The court must ensure legality, but must not act as an appellate body or substitute its view for a tenable decision of the Commission.
3. The principles in Mills and Poole v CCRC and R v CCRC ex parte Pearson required restraint. The Commission’s reasons need not survive a rigorous audit. Intervention is justified only where the reasons materially reveal a recognised public-law defect.
4. The Bamber Report contained evidence capable of suggesting a corrupt relationship between Nathanson and Edwards, but no evidence that Edwards had influenced the investigation or prosecution while exercising relevant responsibility. Its highest relevance was to Nathanson’s general credibility.
5. Under R v Funderburk, evidence going merely to general credibility or collateral facts is ordinarily subject to the rule that answers are final and cannot be contradicted by rebutting evidence. The flexible approach to collateral evidence did not assist the claimants because the report did not bear on an issue in their trial. The tapes established what Martin Boston had said, and the principal credibility question concerned his explanation of his intentions, not Nathanson’s general credit.
6. The Commission was entitled to conclude that the report would not have affected the safety of the convictions. It was also entitled to regard the proposed fresh evidence from Hervey-Bathurst as insufficient under section 23(2)(a), (b) and (d) of the Criminal Appeal Act 1968.
7. Langstaff J agreed. The alleged later reward could not establish that Edwards influenced the critical conversations, since Edwards was not shown to have been involved before the taped communications or present at the relevant meetings.

• Court of Appeal Criminal Division: The claimants’ appeals against conviction were dismissed on 18 July 1997.
• High Court (Administrative Court): The applications for judicial review of the Commission’s refusal to refer the convictions were dismissed.