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

A CCRC referral is governed by a predictive assessment of whether there is a real possibility that the conviction would not be upheld. In post-R v Jogee cases, a foresight direction does not automatically make a conviction unsafe. For an out-of-time appeal, the applicant must ordinarily show substantial injustice, assessed principally by asking whether the change in law would probably have made a difference on the evidence.

Conditional intention may be inferred where participants plan to use serious violence if resistance is encountered. The Administrative Court should not substitute its view for that of the CCRC. Intervention is justified only where the CCRC’s decision is irrational, legally erroneous or otherwise untenable.

The claimant had been convicted of murder following a retrial in the Crown Court. He had organised a robbery but was not present when the victim was subjected to fatal violence. The jury was directed under the then prevailing law that foresight of serious injury could establish secondary liability.

After R v Jogee corrected that law, the claimant applied to the CCRC for a referral. The CCRC accepted that the trial direction was erroneous but concluded that there was no real possibility that the Court of Appeal would find a substantial injustice or an unsafe conviction. The claimant sought judicial review, alleging legal error and irrationality. The central issue was whether the CCRC had lawfully assessed the effect of the misdirection on this conviction.

1. The application was dismissed. The CCRC’s provisional and final decisions were to be read together. The court’s function was supervisory and not to decide whether the conviction was safe for itself.
2. Under section 13 of the Criminal Appeal Act 1995, the CCRC had to predict whether there was a real possibility that the conviction would not be upheld. That required consideration of the approach which the Court of Appeal would adopt. The requirement of substantial injustice, recognised in R v Criminal Cases Review Commission, ex parte Pearson, R v Jogee and R v Johnson, was therefore properly incorporated into the CCRC’s assessment.
3. The high threshold for an out-of-time appeal required primary attention to the strength of the argument that the change in law would have made a difference. The nature of the crime, the presence of weapons, the evidence of intended violence and other criminal conduct were relevant considerations. The mere existence of a foresight misdirection did not establish substantial injustice.
4. The evidence supported an inference of conditional intention. There was a material distinction between planning to proceed without violence and planning to use violence if necessary. The weapons taken to the premises, the early and extreme violence, the claimant’s active approval of later violence, and the bad-character evidence together made the case for the necessary intention exceptionally strong.
5. R v Crilly did not develop the law. It applied the established R v Johnson approach to materially different facts. The CCRC had therefore neither misdirected itself nor acted irrationally in concluding that there was no realistic prospect of the conviction being found unsafe or of substantial injustice being established.

• Court of Appeal (Criminal Division): The claimant’s earlier appeal, heard with others and reported as [2010] EWCA Crim 2740, was rejected on different grounds.
• High Court (Administrative Court): Judicial review of the CCRC’s refusal to refer the conviction was dismissed.