Director of Revenue & Customs Prosecutions, R (on the application of) v Criminal Cases Review Commission

The Criminal Cases Review Commission is not generally required to apply the Court of Appeal Criminal Division’s practice on extensions of time and leave to appeal when deciding whether to refer a conviction. Its statutory task is to predict whether there is a real possibility that the conviction would not be upheld on a substantive appeal. That test differs from the Court of Appeal’s discretionary filter based on substantial injustice. The Commission has wide independent statutory powers and may lawfully refer a change-of-law case even where the Court of Appeal might have refused an out-of-time appeal. Judicial review examines legality, not whether the Commission’s conclusion was correct on the merits.

Four defendants convicted of money-laundering conspiracies had indictments alleging reasonable grounds to suspect. After the House of Lords decision in Saik [2006] UKHL 18, the Criminal Cases Review Commission referred their convictions to the Court of Appeal Criminal Division under the Criminal Appeal Act 1995.

The Director of Revenue and Customs Prosecutions sought judicial review, arguing that the Commission was bound to apply the Court of Appeal’s established practice of refusing extensions of time and leave to appeal in change-of-law cases unless substantial injustice would otherwise result. The central issue was whether the Commission had erred in law by declining to apply that practice.

1. The claim for judicial review was dismissed. The Commission’s decisions to refer the four convictions were lawful.
2. Under sections 9 and 13 of the Criminal Appeal Act 1995, the Commission must decide whether there is a real possibility that the conviction would not be upheld if referred. This requires a prediction about the outcome of a substantive appeal. It is not a prediction about whether the Court of Appeal would extend time or grant leave.
3. Section 9(2) provides that a reference is treated for all purposes as an appeal. The Court of Appeal therefore hears the referred appeal without the ordinary filters of extension of time and leave. The Commission’s independent statutory framework does not incorporate the Court of Appeal’s separate practice of refusing out-of-time appeals in change-of-law cases unless substantial injustice would otherwise be done.
4. The Commission has wide discretionary powers. It must have regard to relevant matters, but it is not required to adopt the Court of Appeal’s practice as a common filter. The practice had also been applied inconsistently and unpredictably, and recent Court of Appeal decisions had accepted or processed Commission references without criticising them.
5. The court’s supervisory role was limited to deciding whether the Commission acted lawfully. It could not substitute its own view on whether referral was correct. In any event, even if regard to the substantial-injustice practice had been required, the Commission’s decision would have remained lawful. The later decision in Montila [2004] UKHL 50 meant that it was not self-evident that the defendants could have been convicted of either applicable substantive offence.
6. The court welcomed the Commission’s later policy on change-of-law referrals but observed that legislative reconsideration of the approach in Bentley [2001] 1 Crim App R 307, and of the relationship between the Commission and the Court of Appeal, might be timely.

First-instance judicial review proceedings. The judgment describes the underlying convictions and the Commission’s references to the Court of Appeal Criminal Division, but no earlier judicial review decision is stated.