Cleeland v Criminal Cases Review Commission

The Criminal Cases Review Commission’s decision whether to refer a conviction is a judgment entrusted to the Commission. Under section 13 of the Criminal Appeal Act 1995, the Commission must assess whether there is a real possibility that the conviction would not be upheld, but judicial review does not permit the court to substitute its own assessment of the evidence or the likely outcome of an appeal.

Evidence is not inadmissible merely because it is non-diagnostic, or because more sophisticated testing later becomes available. Circumstantial evidence may remain relevant for the jury’s assessment. A possible error in a summing-up will not justify quashing a refusal to refer unless it could materially affect the statutory threshold.

The claimant sought judicial review of the Criminal Cases Review Commission’s refusal, notified on 29 April 2008, to refer his 1973 murder conviction to the Court of Appeal (Criminal Division) for a further time. He alleged that expert evidence concerning lead contamination on his clothing had been misunderstood, that the trial judge had misdirected the jury by referring to lead azide, and that the evidence was inadmissible.

The Commission had previously referred the conviction in 2000, but the Court of Appeal dismissed the resulting appeal in 2002 after considering twenty grounds. The central issue was whether the Commission’s later refusal was unlawful under section 13 of the Criminal Appeal Act 1995.

1. Application refused. The Commission’s statutory power under section 13 of the Criminal Appeal Act 1995 required it to consider whether there was a real possibility that the conviction would not be upheld because of new argument or evidence. The statutory judgment was entrusted to the Commission.
2. Judicial review could not operate as an appeal from the Court of Appeal or as an appeal from the Commission. The court could not substitute its own view of the significance of the evidence or of the prospects of success. The applicable threshold was high, and a decision was not unlawful merely because a court might have reached a different view.
3. The available material did not establish that the trial evidence showed the presence of lead azide or firearms discharge residue. The evidence was that lead had been detected, and the defence expert accepted the findings while identifying possible innocent sources. The summing-up, read as a whole, did not fairly amount to a direction that lead azide had been found on the clothing.
4. The evidence was not inadmissible merely because it was a screening test which could not distinguish firearms-related lead from environmental contamination. Non-diagnostic circumstantial evidence may be considered by a jury alongside other evidence. The later availability of more sophisticated testing did not render the evidence inadmissible with the benefit of hindsight.
5. The alleged misdirection, even if established, would not have required a further referral. The Commission was entitled to consider the evidence as a whole, including the substantial incriminating evidence and the issues already considered by the Court of Appeal in 2002. The further testing points did not create a fresh basis for referral.
6. The challenge to determination by one Commissioner was not made as a question of legality and disclosed no basis for intervention. The court also declined to certify a point of law concerning the claimant’s participation after dispensing with counsel. No order for costs was made in favour of the Commission, and the earlier £50 costs order stood.

• High Court (Administrative Court): The application for judicial review was refused.
• Court of Appeal (Criminal Division): The claimant’s earlier appeal following the Commission’s 2000 referral was dismissed on 13 February 2002. The present court treated that decision as part of the relevant procedural and evidential history.
• High Court: An earlier refusal by the Commission had been quashed on 21 January 2000, after which the Commission reconsidered the case and made its referral.