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

The CCRC’s statutory decision whether to refer a conviction involves a predictive judgment entrusted to the Commission. It must consider whether there is a real possibility that the Court of Appeal would admit the fresh evidence and would not uphold the conviction. Judicial review is confined to legality. The reviewing court must not substitute its own assessment or subject the CCRC’s reasons to a rigorous audit. The CCRC may consider the whole circumstantial case, rely on parameters established by earlier decisions, and treat substantially repetitive arguments as insufficient to justify a further referral. Scientific developments may warrant reassessment, but their significance depends on the evidence as a whole.

Paul Cleeland sought judicial review of the CCRC’s final decision dated 24 May 2017 refusing to refer his 1973 murder conviction to the Court of Appeal. The challenge principally relied on further reports by Dudley Gibbs concerning the expertise and evidence of prosecution forensic witness John McCafferty, shotgun and ammunition evidence, lead residue, and the evidence of Jonathan Spencer.

The CCRC considered the material but concluded that there was no real possibility that the Court of Appeal would quash the conviction. The claimant also sought to amend the claim shortly before the hearing to rely on a further report concerning shot size. The central issues were whether the CCRC had applied the correct statutory test and whether its decision was irrational or unlawful.

1. Outcome. The application for judicial review was dismissed. The CCRC’s decision was lawful and could not be characterised as unreasonable.
2. Statutory referral test. Under the Criminal Appeal Act 1995, the CCRC had to decide whether there was a real possibility that the conviction would not be upheld if referred. That judgment belonged to the CCRC. Where fresh evidence was relied upon, the Commission had to ask whether there was a real possibility that the Court of Appeal would receive it and, if so, whether there was a real possibility that the conviction would not be upheld. The approach required refinement in light of R v Pendleton [2001] UKHL 66, including the Court of Appeal’s usual consideration of whether the evidence might reasonably have affected the jury.
3. Judicial review. The court was conducting review, not an appeal. It was not permitted to decide whether the CCRC’s conclusion was right or wrong, substitute its assessment of the evidence, or subject the reasons to a rigorous audit. The CCRC retained an important residual jurisdiction and was entitled to assess the new material against the whole circumstantial case.
4. Earlier decisions and repeated arguments. The CCRC was entitled to rely on the Court of Appeal’s 2002 decision and the Divisional Court decisions in 2009 and 2015 as legitimate parameters for considering the renewed application. It could treat arguments substantially reiterating matters already considered by the courts as insufficient, absent a clear or exceptional basis for reopening them.
5. Evidence. Formal qualifications were not essential to the admissibility of expert opinion based on experience. The material did not contradict the limited propositions for which McCafferty’s evidence had been relied upon: that the shotgun could have been used, that the wadding was consistent with Blue Rival cartridges, and that the fatal shots could have been fired from that weapon. The lead-residue evidence remained equivocal, and later developments in firearm-discharge-residue analysis did not materially alter the assessment given the other circumstantial evidence.
6. Amendment. Leave to amend was refused. The CCRC had not been given the further report and had no opportunity to consider it. A claimant could not challenge a CCRC decision for irrationality or illegality on evidence that had not been placed before the Commission.
7. Afterword. The court observed that, in future applications for permission to challenge CCRC decisions, the CCRC should have an opportunity to make representations at an oral renewal hearing before permission was granted.

The judgment describes earlier stages in the same litigation, including the Court of Appeal’s dismissal of the claimant’s appeal against conviction in 2002 and Divisional Court decisions concerning earlier CCRC refusals in 2009 and 2015. Those decisions were treated as parameters for the present judicial review.