Canning v Criminal Cases Review Commission

Judicial review of a decision by the Criminal Cases Review Commission is supervisory, not an appeal or rehearing. The court must review the legality and rationality of the Commission’s decision-making process, without substituting its own assessment of the evidence, legal merits or prospects of success.

The Commission’s statutory judgment under the Criminal Appeal Act 1995 is whether there is a real possibility that a conviction would not be upheld if referred. That judgment remains entrusted to the Commission. A court should intervene only where an arguable public-law error is shown, including irrationality, legal misdirection or failure to take relevant matters into account. A tenable assessment of legal issues is not irrational merely because another view is arguable.

The claimant had been convicted in 1995 of offences involving the keeping for sale and sale of peregrine falcons. His conviction and sentence appeals were dismissed in 1996.

He applied to the Criminal Cases Review Commission in 2015 for a further review and referral to the Court of Appeal (Criminal Division). The Commission refused to refer the conviction in June 2018 and confirmed that decision in October 2018 after considering further submissions.

He sought judicial review, alleging that the Commission had failed to consider his evidence and had acted irrationally. His principal arguments concerned whether the birds were hybrids, whether hybrids were covered by the legislation then in force, and whether other factual and fair-trial complaints undermined the conviction. The issue was whether the claim disclosed an arguable ground of review with a realistic prospect of success.

1. Permission refused. The claimant had not shown an arguable public-law error with a realistic prospect of success. The claim was in substance an attempt to challenge the merits of the Commission’s decision and obtain a rehearing.
2. The statutory task under sections 9 and 13 of the Criminal Appeal Act 1995 is entrusted to the Commission. It must decide whether there is a real possibility that the conviction would not be upheld if referred. That requires judgment about the likely approach of the Court of Appeal, including, where relevant, whether fresh evidence would be received under section 23 of the Criminal Appeal Act 1968.
3. The Administrative Court’s role is confined to review. It must not decide whether the Commission’s conclusion was right or wrong, substitute its own view of the evidence, or conduct a rigorous audit of the Commission’s reasons. The same restrained approach applies where the challenge concerns the Commission’s assessment of a legal issue. If that assessment is tenable, the court should not interfere merely because another interpretation has merit.
4. The Commission had sufficiently considered the claimant’s materials and arguments. It was entitled to treat repeated documents as repetitions and to deal with the substance rather than every individual argument. The volume and repetitious nature of the material did not establish procedural unfairness or irrationality.
5. The Commission was entitled to conclude that there was no real possibility of a successful referral based on the alleged hybrid status of the birds. It could reasonably find insufficient factual evidence that the birds were hybrids and could reasonably regard the legal argument that hybrids fell outside the earlier regulatory regime as tenable but unlikely to succeed. The later express inclusion of hybrids in legislation did not necessarily establish that they had been excluded previously.
6. The Commission was also entitled to reject or give limited weight to the remaining arguments, including that the birds had been gifted rather than sold, challenges to DNA evidence, complaints about evidence concerning birds taken from the wild, alleged disclosure and fair-trial failures, criticisms of prosecution witnesses and general criticisms of the Commission’s administration. None showed that the decision under review was irrational or legally flawed.
7. The claimant was ordered to pay the costs previously ordered for preparation of the acknowledgement of service, subject to the same objection procedure and extended timetable.

Permission to apply for judicial review was refused on the papers by HH Judge Belcher on 10 April 2019. On renewed oral application, the High Court (Administrative Court) again refused permission.