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

The Criminal Cases Review Commission’s statutory judgment is highly evaluative and is entrusted to the Commission. Judicial review does not involve deciding whether a conviction is safe or substituting the court’s view for that of the Commission.

Where fresh evidence is relied on, the Commission must ask whether there is a real possibility that the Court of Appeal would receive it and, if so, whether there is a real possibility that the conviction would not be upheld. The threshold is more than an outside chance but less than a probability.

Evidence of lead residue may be admissible even if it has limited weight and cannot distinguish firearm-related contamination from innocent sources. The Commission may assess it alongside the remaining evidence and previous appellate decisions.

The applicant sought judicial review of the Commission’s decision of 22 April 2014 not to refer his 1973 murder conviction to the Court of Appeal for a further appeal. He relied principally on fresh expert evidence challenging the significance and methodology of lead-residue testing on his clothing, together with evidence from the Saville Inquiry and written submissions by former counsel.

The Commission accepted the material as new but concluded that, even if it were accepted in full, the other evidence against the applicant meant that there was no real possibility that the Court of Appeal would quash the conviction. The central issues were whether the Commission had failed to investigate or give adequate reasons for its decision, and whether its assessment was unreasonable or unlawful.

1. The application was dismissed. The court was reviewing the Commission’s discharge of its statutory function, not deciding a further appeal against the conviction.
2. Under Criminal Appeal Act 1995, the Commission had to predict whether a referral would create a real possibility that the Court of Appeal would receive the fresh evidence and would then not uphold the conviction. The judgment in R v CCRC ex parte Pearson [1999] 3 All ER 498 established that this was an unusual predictive judgment entrusted to the Commission. The threshold was more than an outside chance or bare possibility, but less than a probability.
3. The Commission was entitled to consider the fresh reports of Mr Gibbs but to conclude that they could, at most, reinforce explanations for the lead deposits which had already been available to the jury through the defence expert. They could not exonerate the applicant or undermine the other evidence, including evidence concerning motive, the shotgun, cartridges and alleged admissions.
4. The lead-residue evidence was admissible. The sodium rhodizonate test reliably established the presence of lead, although the evidence might carry limited weight because it did not identify the source of the lead. The possible innocent explanations were before the jury, and it was for the jury to assess the evidence as part of the case overall.
5. The Commission was entitled to take account of the previous decisions of the Court of Appeal and the Divisional Court when predicting the likely response to a further referral. The cases relied on by the applicant, including R v Barry George, R v McIlkenny & others, R v Maguire & others and R v Dwaine George, turned on their own facts and did not establish that the present decision was unlawful.
6. The Commission had considered the evidence and submissions, gave sufficient reasons, and was entitled to conclude that there was no real possibility that the conviction would not be upheld.

• Previous judicial review: The applicant’s earlier challenge to a Commission decision was refused by the Divisional Court in 2009: [2009] EWHC 474 (Admin).
• Administrative Court: Permission was granted on four grounds to challenge the Commission’s decision of 22 April 2014. The present court dismissed the application for judicial review.