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

The Criminal Cases Review Commission’s assessment under section 13 of the Criminal Appeal Act 1995 is a judgment entrusted to the Commission. Judicial review is supervisory: the court must not substitute its own view of the prospects of an appeal. Intervention is generally confined to a clear error of law or an irrational or untenable decision.

Where an argument was available at trial but was not pursued because of a tactical decision, section 13(1)(b) will ordinarily prevent a reference absent exceptional circumstances. The Commission may also assess whether proposed fresh evidence would probably be admitted and whether it could realistically affect the conviction.

The claimant sought judicial review of the Criminal Cases Review Commission’s refusal to refer his convictions for rape and sexual assault to the Court of Appeal under section 9 of the Criminal Appeal Act 1995.

He relied on further medical evidence concerning genital redness observed after the alleged rape, and evidence concerning the complainant’s previous sexual experience. The convictions had previously been challenged before the Court of Appeal, which refused renewed applications for leave to appeal: [2012] EWCA Crim 659.

The central issues were whether the Commission applied the correct real-possibility test and whether it was entitled to conclude that the proposed evidence did not create a real possibility that either conviction would be overturned.

1. Supervisory approach. The Commission applied the correct statutory test: whether there was a real possibility that the convictions would not be upheld if referred. That judgment belonged to the Commission, not the reviewing court. The court therefore had to avoid deciding for itself how the Court of Appeal would respond. It could intervene only for a clear legal error or where the Commission’s decision was not tenable, irrational or procedurally unfair.
2. Conviction relating to CP. By the retrial, the defence knew of the pathology evidence indicating thrush and had its own expert available. The issue could have been explored with Dr Gray, and the expert could have been called. Counsel’s decision not to do so was tactical. The proposed argument therefore fell within section 13(1)(b) of the Criminal Appeal Act 1995. No exceptional circumstances justified a reference.
3. The court also considered the proposed report of Dr Soliman under section 23 of the Criminal Appeal Act 1968. There was no reasonable explanation for failing to adduce comparable evidence at trial, and the evidence was unlikely to provide a ground for allowing an appeal. The Commission was entitled to reach that predictive assessment.
4. The Commission was entitled to consider that Dr Gray’s evidence addressed both redness and an irregular surface, and that Dr Soliman’s criticism focused principally on redness. Dr Gray had acknowledged that infection could cause redness and had qualified her evidence by saying that medical irritation tended to be generalised. Her methodology could not fairly be described as flawed.
5. Conviction relating to TOR. The proposed evidence of previous sexual experience did not contradict or undermine TOR’s trial evidence about her understanding of the events. The Commission was entitled to conclude that the evidence was irrelevant to the facts in issue and that there was no real possibility of its admission or of a successful appeal.
6. The application for judicial review was dismissed. Mr Justice Nicol agreed.

• Court of Appeal (Criminal Division): Renewed applications for leave to appeal against conviction were refused on 2 March 2012: [2012] EWCA Crim 659.
• High Court (Administrative Court): The judicial review challenge to the Commission’s refusal to refer the convictions was dismissed.