Dowsett v Criminal Cases Review Commission

A breach of Article 6 does not automatically make a criminal conviction unsafe. The court must examine the nature and gravity of the breach and its effect on the particular case, including the strength and quality of the evidence. Under section 13(1)(a) of the Criminal Appeal Act 1995, the Criminal Cases Review Commission must decide whether there is a real possibility that the Court of Appeal would not uphold the conviction. That judgment belongs to the Commission. Judicial review is unavailable merely because another assessment might have been possible. An appellate process may also cure a defect at trial, so that a reference would serve no useful purpose where the conviction would remain safe and the breach could be remedied on appeal.

The claimant had been convicted of murder after the principal prosecution witness gave evidence against him. The Court of Appeal dismissed his appeal and held that undisclosed material did not render the conviction unsafe. The European Court of Human Rights later found a violation of Article 6(1) arising from prosecution disclosure failures.

The claimant then asked the Criminal Cases Review Commission to refer the conviction under section 13 of the Criminal Appeal Act 1995. The Commission considered the undisclosed material, including document D580, but concluded that there was no real possibility that the conviction would not be upheld. The issue was whether the Strasbourg finding required a reference.

1. The application was dismissed. The Commission was entitled to conclude that there was no real possibility that the conviction would not be upheld by the Court of Appeal Criminal Division.
2. A finding that Article 6 has been violated does not necessarily mean that a conviction is unsafe. The court must analyse the nature of the breach and the facts of the particular case. Although an unfair trial will often produce an unsafe conviction, an unfairness is not invariably fatal.
3. Section 13(1)(a) of the Criminal Appeal Act 1995 imposes a threshold requiring the Commission to form its own judgment that there is a real possibility that the conviction would not be upheld. The expression denotes more than an outside chance or bare possibility, but less than probability. The judgment is entrusted to the Commission, subject to the limits of public law.
4. The Strasbourg court had found that some disclosure failures were cured by the opportunity to place disclosed material before the Court of Appeal. On a further reference, document D580 could be considered by that court, and the remaining undisclosed material might become disclosable or be examined through an appropriate procedure. The defect was therefore potentially curable on appeal.
5. A reference would consequently be academic if the conviction remained safe and the Article 6 breach could ultimately be vindicated through the appellate process. The Commission was plainly entitled to refuse the reference.

This was a first-instance judicial review in the Divisional Court. The claimant’s conviction had previously been upheld by the Court of Appeal Criminal Division. The Commission’s refusal to refer the conviction was upheld.