Gilfoyle, R (On the Application Of) v Criminal Cases Review Commission (Rev 1)

The Criminal Cases Review Commission’s statutory task is predictive. It must assess whether there is a real possibility that the Court of Appeal would receive fresh evidence and, if so, would not uphold the conviction. The Commission may evaluate the cogency and likely impact of the evidence when making that prediction; it does not thereby usurp the Court of Appeal’s function.

Judicial review is concerned with legality, not whether the Commission’s evaluative judgment was objectively right. A mistake of fact is reviewable only where the relevant fact was established and objectively verifiable, the claimant was not responsible, and the mistake materially affected the reasoning. An immaterial factual error does not justify intervention.

The claimant sought judicial review of the Criminal Cases Review Commission’s decision of 13 July 2016 not to refer his murder conviction to the Court of Appeal. He relied on newly discovered diaries, expert evidence concerning his late wife’s mental state, evidence concerning rope and knot mechanics, and evidence that he had not received prescribed medication during his trial.

The application was a renewed application for permission. Several original grounds were abandoned, while further arguments were advanced concerning the Commission’s treatment of the Court of Appeal’s earlier factual findings and the new evidence. The central questions were whether the Commission had applied the correct statutory test and whether its evaluative conclusions were irrational, legally flawed, or based on a material mistake of fact.

1. The renewed application was dismissed. The Commission’s final decision was not arguably unlawful.
2. Under section 13 of the Criminal Appeal Act 1995, the Commission had to predict whether there was a real possibility that the Court of Appeal would receive the fresh evidence and, if so, that the conviction would not be upheld. It was entitled to assess the evidence and competing factual scenarios in order to make that prediction. That evaluative exercise did not usurp the Court of Appeal’s role.
3. The Commission reasonably concluded that the rope evidence was not sufficiently new, that no reasonable explanation existed for its earlier omission, and that the proposed knot theory was speculative. Its view that the physical circumstances made the theory unlikely was an evaluation of the evidence, not an error of fact.
4. The Commission had made an inaccurate statement about which police officer had attempted to use a bight during a reconstruction. That error was immaterial. The relevant conclusions had already been reached on other evidence, and the error did not materially found the decision.
5. The Commission was entitled to consider the diaries in their historical and evidential context, and to prefer contemporaneous evidence of demeanour and medical evidence over speculative retrospective inferences. It was also entitled to regard the prescription charts as ambiguous and to assess the medication evidence alongside the claimant’s changing accounts, trial counsel’s recollection, and the evidence of his ability to engage with the proceedings.
6. Applying E v Home Secretary [2004] EWCA Civ 49, the court assumed that a material mistake of fact causing unfairness could constitute a ground of review, but found no such material mistake. The late attempt to introduce new grounds was procedurally irregular and could not properly found permission without an application under the Civil Procedure Rules.

This was a first-instance judicial review decision concerning the Commission’s refusal to refer the claimant’s conviction to the Court of Appeal. The court dismissed the renewed application for permission to apply for judicial review.