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

Judicial review of a Criminal Cases Review Commission decision is confined to public law error. The court does not retake the Commission’s judgment or decide afresh whether a conviction should be referred. The Commission must assess whether fresh evidence creates a real possibility that the Court of Appeal would overturn the conviction. It has discretion over how to investigate an application. A failure to pursue further enquiries will invalidate the decision only where the decision not to make them is plainly irrational or amounts to failure to take account of a material consideration.

The claimant had been convicted of murder with his son. The Court of Appeal dismissed their applications for leave to appeal: [2012] EWCA 2631. The claimant later applied to the Criminal Cases Review Commission, relying on further evidence concerning mobile telephones allegedly connected with another possible perpetrator.

The Commission refused to refer the conviction to the Court of Appeal. The claimant renewed an application for permission to seek judicial review, arguing that the Commission had acted irrationally by declining to interview two witnesses and pursue further enquiries.

1. Application refused. The renewed application for permission to apply for judicial review was refused.
2. The court adopted the narrow public law approach summarised in R (Steele) v Criminal Cases Review Commission [2015] EWHC 3724 Admin. The court must not exercise the Commission’s judgment afresh. It asks whether there was an error of law, including irrationality, perversity, failure to consider a material matter, or reliance on an immaterial matter.
3. A referral could be made only if fresh evidence gave rise to a real possibility that the conviction would be overturned. Further questioning of the witnesses could not establish that the telephones concerned were those significant to the case and therefore could not materially advance the referral question.
4. The Commission had discretion over how to deal with a complicated application. In the absence of obvious error, the court would not second-guess its treatment of individual lines of enquiry. The refusal to conduct the proposed interviews was not irrational.
5. The review was intended to determine whether sufficient new evidence satisfied the referral test, not to resolve every doubt held by the claimant.

• Court of Appeal (Criminal Division): applications for leave to appeal against conviction and sentence were dismissed; the judgment is cited as [2012] EWCA 2631.
• Criminal Cases Review Commission: the Commission refused to refer the case to the Court of Appeal.
• High Court (Administrative Court): the renewed application for permission to seek judicial review was refused.