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

A judicial review court must respect the evaluative judgment entrusted to the Criminal Cases Review Commission. Its task is confined to identifying legal error, irrationality or other significant defects in the Commission’s reasoning; it must not decide whether the conviction would in fact have been upheld.

Where fresh evidence is relied upon, the Commission must consider whether the Court of Appeal might receive it and, if so, whether it might reasonably have affected the jury’s decision when assessed with the evidence as a whole. The absence of a proper direction on lies does not automatically make a conviction unsafe if the Court of Appeal could conclude that only a guilty verdict was reasonably open.

The claimant sought judicial review of the decision of the Criminal Cases Review Commission not to refer his 1969 convictions for murder and attempted abduction to the Court of Appeal under the Criminal Appeal Act 1995. The Commission had considered fresh expert and other evidence concerning police interview notes, identification procedures, and the treatment of the claimant’s wife.

Permission was granted on two grounds concerning the interview notes and identification procedure. The claimant also sought permission on issues concerning the investigation and the absence of a direction on lies. The central questions were whether the Commission had applied the correct statutory and appellate tests and whether its evaluative conclusions were irrational.

1. Judicial review of the Commission. The claim was dismissed. The court’s function was confined to errors of law and irrationality. It was not entitled to decide whether the Commission’s conclusion was right or wrong, conduct a rigorous audit of its report, or substitute its own assessment of the prospects of an appeal. The report had to be read sensibly and as a whole, while permitting intervention where its reasoning disclosed significant defects (paras [60]-[61]).
2. Fresh evidence. The Commission correctly understood the statutory test. It had to consider whether there was a real possibility that the Court of Appeal would receive the fresh evidence and whether, in the light of all the evidence, the material might reasonably have affected the jury’s decision to convict (paras [62], [66]-[69]). The approach reflected the qualification required by R v Pendleton.
3. The Commission was entitled to conclude that the rewritten page of the interview notes did not materially undermine the record as a whole. It was also entitled to regard the evidence concerning the incomplete record, the identification procedure and the treatment of the claimant’s wife as insufficient, when viewed with the compelling evidence against the claimant, to create a real possibility that the convictions would not be upheld (paras [63]-[73], [79]-[80]).
4. Direction on lies. The Commission’s view that a Lucas direction might have been appropriate was open to question, particularly in light of the trial judge’s direction that the jury should ask whether the claimant was truthful (paras [81]-[92]). Nevertheless, the Commission was entitled to conclude that the absence of such a direction did not create a real possibility that the Court of Appeal would find the convictions unsafe. The absence of a direction does not per se render a conviction unsafe (paras [93]-[96]).
5. The renewed applications for permission were refused and the claim was dismissed (para [97]).

First-instance judicial review proceedings. The judgment records that Langstaff J granted permission on two grounds on 26 October 2010. Mr Justice Simon refused the renewed application for permission on additional grounds and dismissed the claim.