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

The Criminal Cases Review Commission has a wide margin of appreciation when deciding whether there is a real possibility that a conviction would not be upheld on referral. Judicial review will intervene only where its predictive assessment is irrational or legally perverse.

Fresh medical evidence concerning a defendant’s mental condition does not automatically make a conviction unsafe. The Commission may assess its likely practical impact by examining the trial evidence and transcript, including whether identifiable unfairness resulted from the absence of expert evidence or special measures. The possible availability of an intermediary or other measures does not itself make their absence unfair or render the trial unsafe.

The claimant had been convicted of murdering his wife and his appeal against conviction was refused by the Court of Appeal (Criminal Division), which concluded that the conviction was safe: [2015] EWCA Crim 1936.

He later applied to the Criminal Cases Review Commission for a referral based on new medical evidence that he had Asperger’s Syndrome. The Commission accepted much of the evidence, including that expert evidence and special measures might have assisted at trial, but refused to refer the conviction. The claimant sought judicial review, alleging that the Commission’s assessment of the evidence, trial fairness and special measures was irrational. Permission was refused on the papers, and the claimant renewed the application before the Divisional Court.

1. Application refused. The Commission’s decision not to refer the conviction was not arguably irrational.
2. Under section 13(1) of the Criminal Appeal Act 1995, the Commission had to consider whether there was a real possibility that the conviction would not be upheld because of new evidence or argument. Where fresh evidence was relied upon, the Commission had to ask whether the Court of Appeal might receive it and, if so, whether there was a real possibility that the conviction would not be upheld. That approach was subject to the refinement identified in R v Pendleton, [2001] UKHL 66; [2002] 1 WLR 72: the Court of Appeal should ordinarily consider whether the evidence might reasonably have affected the jury.
3. The Commission was entitled to recognise that the claimant’s credibility and presentation were central issues, and that expert evidence might have assisted the jury. It was nevertheless entitled to examine the transcripts for concrete examples of unfairness, communication difficulty or adverse effects attributable to the absence of the new evidence. Its conclusion that the evidence would not create a real possibility that the conviction was unsafe was an evaluative judgment open to it.
4. The same reasoning applied to the allegedly telling circumstantial evidence. The Commission had considered the claimant’s alternative explanations and was entitled to conclude that the strength of the circumstantial case meant that the fresh evidence would not materially affect the safety assessment.
5. The likely qualification for an intermediary, live-link and other special measures did not make their absence automatically unlawful or unfair. Following R v Cox, [2012] EWCA Crim 549 at [29], measures that might improve a trial are not thereby mandatory. The Commission was entitled, after considering the evidence and transcript, to find no apparent unfairness affecting the safety of the verdict.
6. The report was lengthy, considered the further evidence and submissions, and accepted most of the new medical evidence. Mere disagreement with its ultimate assessment did not establish irrationality.

• High Court (Administrative Court): Sir Duncan Ouseley refused permission on the papers on 1 August 2019. The Divisional Court refused the renewed application.
• Court of Appeal (Criminal Division): the claimant’s appeal against conviction was refused and the conviction was held safe: [2015] EWCA Crim 1936.