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

On judicial review of a decision by the Criminal Cases Review Commission, the court asks whether the Commission’s conclusion was one that was properly open to it. The court does not substitute its own assessment of fresh evidence or decide whether further investigation would have been preferable. Where the Commission assumes in the applicant’s favour that an initial statutory or evidential hurdle can be satisfied, the applicant cannot challenge that assumption as an error. The remaining question is whether the Commission’s assessment of the evidence and prospects of a successful appeal was irrational or otherwise unlawful. The Commission may decide that further enquiries would not advance a case, particularly after a lengthy review and where the proposed expert evidence is preliminary or fails to engage with significant existing evidence.

The claimant sought judicial review of the Criminal Cases Review Commission’s decision of 25 April 2012 not to refer his murder convictions to the Court of Appeal (Criminal Division). An earlier Commission reference had been considered by that court in 2002 without the convictions being quashed.

The renewed application concerned fresh expert evidence about whether a rifle silencer had been attached when the claimant’s father was shot. The claimant relied principally on reports by Dr Caruso and Dr Fowler, together with evidence concerning the possible provenance of a blood flake and a request for further enquiries. Permission had been refused by Ouseley J, and the application was renewed before the Divisional Court. The central issue was whether the Commission’s decision was legally challengeable.

1. The renewed application was refused. The court’s task was to review the legality of the Commission’s decision, not to substitute its own view of the fresh evidence or decide whether further enquiries would have been desirable.
2. Under [1999] 3 All ER 498, the review involves asking whether there is a real possibility that the Court of Appeal would receive the evidence and, if so, whether there is a real possibility that it might have affected the conviction. The Commission had assumed, in the claimant’s favour, that the first stage could be satisfied. That assumption removed any proper basis for challenging the Commission on that stage.
3. The applicable assessment of whether the new evidence might have affected the conviction was stated in [2002] 1 WLR 72 and was regularly applied by the Court of Appeal. The court considered that principle sufficiently established, referring also to [2009] EWCA Crim 1425.
4. The Commission was entitled to conclude that Dr Caruso’s preliminary evidence did not show that the rifle barrel could have become sufficiently hot, did not address other possible mechanisms, and did not engage with the trial evidence. Dr Fowler’s report likewise did not grapple adequately with the evidence concerning the kitchen struggle, paint, the blood flake, and contemporaneous expert evidence. Those were matters plainly within the Commission’s evaluative judgment.
5. The court assumed, without deciding, that there might be grounds to question the provenance of the blood flake. That assumption did not affect the result because the Commission’s treatment of the expert evidence was independently sufficient. The proposed further enquiries were also matters for the Commission’s judgment. After its lengthy review, it was entitled to conclude that they would not advance the case.
6. The court observed that the Court of Appeal is receptive to genuinely new scientific advances but more cautious about evidence which merely represents further research or a different view on the same case. The order was confirmed at public expense.

• High Court (Administrative Court): Ouseley J refused permission. The Divisional Court renewed the application and refused it: [2012] EWHC 3768 (Admin).
• Court of Appeal (Criminal Division): An earlier Criminal Cases Review Commission reference was considered in 2002 and did not result in the conviction being set aside. The citation of that decision is not stated in the judgment.