Reed, R (on the application of) v Criminal Cases Review Commission

A judicial review challenge to a decision of the Criminal Cases Review Commission requires the claimant to overcome substantial constraints. Where the challenge concerns trial counsel’s conduct, the claimant must show that counsel’s chosen course was wholly unreasonable, not merely that another course would have been reasonable. The Commission retains responsibility for deciding whether there is a real possibility that a conviction would be quashed as unsafe. It need not address every argument individually, provided it deals fairly with the substance of the case and gives intelligible reasons. Its decision is also subject to the high threshold of Wednesbury unreasonableness. A renewed permission application that could not realistically overcome those hurdles was refused.

The claimant sought judicial review of the Criminal Cases Review Commission’s refusal to refer his murder conviction to the Court of Appeal under the Criminal Appeal Act 1995. His remaining complaint concerned CCTV footage which allegedly showed him wearing clothing without bloodstains shortly after the killing. He argued that the footage should have been placed before the trial jury and that the Commission had inadequately addressed the point.

Permission had previously been refused on the papers by Langstaff J. The claimant renewed the application, relying principally on alleged inadequacy of the Commission’s reasoning. The central issue was whether there was a reasonably arguable basis for judicial review in light of the statutory role of the Commission, the cautious approach to criticism of trial counsel, the scope of its duty to give reasons, and the Wednesbury threshold.

1. Outcome. The renewed application for permission to apply for judicial review was refused and the claim was dismissed.
2. Conduct of trial counsel. The Court of Appeal is cautious about quashing a conviction because of defence counsel’s decisions during trial. Many tactical decisions admit of more than one reasonable course. A claimant relying on hindsight must show that the course actually chosen was wholly unreasonable. Establishing that an alternative course would also have been reasonable is insufficient.
3. Statutory judgment of the Commission. Under section 13 of the Criminal Appeal Act 1995, the Commission must decide whether there is a real possibility that the conviction would be quashed as unsafe. That evaluative responsibility is entrusted to the Commission, as explained in R v CCRC ex parte Pearson [1999] 3 All ER 498, and is not transferred to the reviewing court.
4. Reasons. The Commission need not deal with every individual point raised by an applicant. It must address the substantive issues and deal fairly with the essence of the arguments so that the reader can understand why they were rejected. The Court followed the approach stated in R (el-Heri) v CCRC CO/217/2009.
5. Intensity of review. To establish an error of law, the claimant had to show that the Commission reached a decision which no reasonable Commission could have reached. That Wednesbury standard is demanding. The claimant’s arguments, including the significance of the CCTV footage and the distinction between issues affecting the co-defendants and issues with the prosecution, did not disclose a reasonably arguable case capable of overcoming the four hurdles.

• High Court (Administrative Court): Langstaff J refused permission on the papers on 9 April 2010. On renewal, Nicol J refused the application and dismissed the claim.