Steele, R (On the Application Of) v Criminal Cases Review Commission

The Criminal Cases Review Commission’s decision whether to refer a conviction to the Court of Appeal is a judgment entrusted to the Commission. Judicial review asks whether that judgment involved an error of law, such as irrationality, perversity, failure to consider a material matter or reliance on an immaterial matter. The court must not retake the decision or substitute its own assessment.

Under the Criminal Appeal Act 1995, new evidence or argument must be identified and must create a real possibility that the conviction would not be upheld, unless exceptional circumstances justify a reference. Where repeated applications revisit matters already considered, the Commission may require a further application to be supported by a legal representative who identifies compelling and substantial new grounds.

The claimant sought judicial review of two decisions of the Criminal Cases Review Commission. The first, dated 19 February 2015, refused to refer his convictions for murder and conspiracy to import cannabis back to the Court of Appeal. The second, dated 30 March 2015, stated that no further reapplication would be accepted unless submitted through a legal representative identifying compelling and substantial grounds.

Permission was refused on the papers by Stewart J. The claimant orally renewed that application. The issues were whether the claim was out of time, whether the Commission had unlawfully rejected arguments concerning telephone evidence, mobile telephone 316 and a prosecution witness, and whether the restriction on further applications was unlawful or incompatible with the Convention.

1. Delay. The claimant’s explanations for the limited delay, including the logistical difficulties of preparing proceedings in a high-security prison and the return of papers for insufficient copies, were accepted. The court therefore considered the merits.
2. Statutory framework. The Criminal Appeal Act 1995 requires, absent exceptional circumstances, new argument or evidence and a real possibility that the conviction would not be upheld. The new material relied on by the claimant did not satisfy that threshold.
3. Grounds 1 to 3. The complaints about the provenance and manipulation of telephone evidence, the identity and use of mobile telephone 316, and the reliability of Darren Nicholls had substantially been considered in earlier reviews, proceedings or at trial. The additional material did not create a real possibility that the convictions would not be upheld. The Commission’s conclusions were open to it and were not tainted by legal error.
4. Scope of review. The court applied the approach stated in R v CCRC ex parte Pearson [1999] 3 All ER 498. The court’s task was confined to public-law error, assessed on traditional Wednesbury grounds. It was not entitled to exercise the Commission’s judgment afresh.
5. Further applications. In light of repeated applications concerning matters already considered and rejected, the Commission was entitled to require any further application to be endorsed by a legal representative identifying compelling and substantial grounds. That safeguard did not deprive the claimant of an effective remedy, discriminate against him or deny a reasonable opportunity to present his case.
6. The application for permission to apply for judicial review was dismissed as unarguable.

• High Court (Administrative Court): permission to apply for judicial review had been refused on the papers by Stewart J; Dove J dismissed the oral renewal.
• Court of Appeal: the claimant’s subsequent appeal against his convictions was dismissed in 2006. The judgment gives no citation for that decision.