Davis v Criminal Cases Review Commission & Anor

An Administrative Court judicial review cannot determine an immigration detainee’s application for bail where the statutory jurisdiction lies with the Asylum and Immigration Tribunal. A challenge to the Criminal Cases Review Commission’s decision not to obtain material succeeds only if the Commission acted unlawfully in deciding that it did not reasonably require the material for its investigation. The Commission may consider the material’s likely significance in the context of evidence already available and the prospects that it would assist a possible appeal. Material bearing only on collateral credibility issues or hostility does not necessarily justify further investigation.

Kevin John Davis challenged decisions concerning his detention and his application to the Criminal Cases Review Commission. He had been convicted of a sexual offence and was liable to deportation after serving his sentence. He sought bail and also challenged the Commission’s provisional refusal to obtain and disclose CCTV footage relating to an earlier incident involving the complainant.

The Commission considered that the footage would not materially assist its investigation. The applications required the court to determine whether it had jurisdiction to deal with bail and whether the Commission was entitled to refuse to obtain and disclose the footage.

1. Bail. The court had no jurisdiction to determine whether Mr Davis should be granted bail. An application for bail in the circumstances had to be made to the Asylum and Immigration Tribunal. The court therefore made no detailed assessment of the Secretary of State’s reasons for refusing bail, although those reasons appeared potentially cogent.
2. CCTV material. Section 17 of the Criminal Appeals Act 1985 required the Commission to be satisfied that material would assist it in exercising its functions and that it was reasonable to request it from a third party. The Commission was entitled to conclude that the CCTV footage was not reasonably required.
3. The footage might show hostility or that the complainant had behaved aggressively or unreliably, but that would not itself demonstrate that she later acted from revenge or that the conviction should be reopened. The Commission also had police interview material recording what suspects said about the footage. In that context, the footage was of relatively minor significance.
4. The court observed that obtaining and disclosing the material might have assisted the Commission in confirming its understanding and might have caused little harm. That observation did not alter the legal conclusion that the Commission was entitled not to obtain or disclose it.
5. The court also indicated, without deciding the issues, that the Commission should address fairly any concern that it had approached counsel without the necessary authorisation and should consider the claimant’s request for relevant documents. The applications were dismissed.

The judgment states that Mr Davis had previously appealed against his conviction to the Court of Appeal, unsuccessfully. No citation for that decision is given. The present proceedings were first-instance judicial review applications in the Administrative Court.