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

The Criminal Cases Review Commission exercises an important residual jurisdiction. Its predictive judgment as to whether a conviction would be upheld on referral belongs to the Commission, not the reviewing court. Judicial review must not become a rigorous audit of the Commission’s reasons or an assessment of the criminal appeal afresh.

A submission of no case to answer is appropriate where no reasonable jury could reject all realistic possibilities consistent with innocence. A simple direction on intent is ordinarily sufficient in a murder trial. A Nedrick direction is exceptional and is required only where further explanation of foresight is necessary to avoid misunderstanding.

The claimant, serving a life sentence for murder, challenged the Criminal Cases Review Commission’s refusal to refer his conviction to the Court of Appeal (Criminal Division). His conviction followed an incident in which he struck the deceased’s neck with a bottle that broke shortly before impact.

The claimant argued that there had been no case to answer on murder and that the jury should have received a Nedrick direction. The Commission considered that the conviction had no real prospect of being overturned. The central issues were whether the Commission had misunderstood the relevant criminal law and what approach the Administrative Court should take when reviewing such a decision.

1. Claim dismissed. The Commission’s decision was tenable and, in the court’s view, correct.
2. The Commission’s statutory function under the Criminal Appeal Act 1995 is distinct from that of the reviewing court. The Commission decides whether the statutory threshold is met and predicts how the Court of Appeal might respond. Even where the threshold is met, it retains a discretion not to refer. The court must not usurp that function or subject the Commission’s reasons to a rigorous audit. It should intervene only on an established public-law ground.
3. There was no proper basis for saying that the Commission misunderstood the law on a submission of no case to answer. The question was whether a reasonable jury could, on one possible view of the evidence, reject all realistic possibilities consistent with innocence and infer the necessary intent. The evidence, including the surrounding circumstances, the claimant’s words after the incident, the CCTV and the sentencing judge’s assessment, provided an ample basis for a jury to conclude that he intended really serious injury.
4. The failure to make a submission of no case to answer was not an exceptional new point. It had been considered by the Court of Appeal, which had concluded that trial counsel was right not to make the submission.
5. The ordinary rule is that a judge should avoid elaborating on intent in a murder trial and leave the issue to the jury’s good sense. A Nedrick direction is exceptional. It is required only where, having regard to the facts and the way the case has been presented, further explanation of foresight is necessary to avoid misunderstanding. The claimant deliberately struck the deceased, and the issue was whether he intended really serious harm. A simple direction was sufficient; a more elaborate direction risked confusion.
6. The court left open the broader question whether a Commission decision could be vitiated by an error of substantive criminal law where its view was not tenable. That issue did not arise because the Commission had applied well-established law to the facts and its conclusions were both tenable and right.

• Court of Appeal (Criminal Division): On 16 December 2013, the claimant’s renewed application for leave to appeal against conviction was dismissed and his appeal against sentence was dismissed.
• High Court (Administrative Court): The challenge to the Commission’s refusal to refer the conviction was dismissed.