Cunliffe v Criminal Cases Review Commission

The Criminal Cases Review Commission must apply the statutory “real possibility” test as a predictive judgment. In a conviction challenge based on the change in joint-enterprise law made by R v Jogee, the Commission must separately consider whether there is a real possibility that the Court of Appeal would find both substantial injustice and an unsafe conviction. The substantial-injustice threshold is higher than the safety test. On judicial review, the court must not re-determine the Commission’s decision. In cases of group violence, participation and intention may properly be inferred from the circumstances and the available evidence. A case in which the defendant was present throughout the attack is materially different from one in which the defendant joined after the possibly fatal blow.

The claimant had been convicted of murder following the death of Garry Newlove during a group attack. His conviction and sentence had previously been considered by the Court of Appeal. He later applied to the Criminal Cases Review Commission for a referral, relying principally on the change in the law concerning secondary liability for murder following R v Jogee, and on the timing of his alleged participation in the attack.

The Commission declined to refer the conviction. The claimant sought judicial review, alleging that the Commission had misapplied the statutory test, acted irrationally in assessing the effect of a Jogee direction, and failed to apply R v Childs and Price. The central issues were whether the Commission had applied the correct predictive tests and whether its conclusions were reasonably open to it.

1. The claim for judicial review was dismissed. The court held that the Commission had applied the correct legal approach and had made no error of law.

2. Under section 13(1)(a) of the Criminal Appeal Act 1995, the Commission must decide whether there is a real possibility that the conviction would not be upheld if referred. This is a predictive judgment. The threshold is more than an outside chance or bare possibility, but less than a probability.

3. Where an out-of-time appeal concerns the change in law following R v Jogee, the Commission must consider separately whether there is a real possibility that the Court of Appeal would find substantial injustice and whether there is a real possibility that the conviction is unsafe. The substantial-injustice test is distinct from, and materially higher than, the safety test.

4. The court adopted the approach in R (Davies) v CCRC. It was legitimate for the Commission to predict how the Court of Appeal would approach the case and to take account of the substantial-injustice threshold.

5. On judicial review, the court was not entitled to retake the Commission’s decision. The Commission could consider the rejected defence, eyewitness evidence, alleged admissions, previous group violence, and the proper inferences arising from those matters. In group violence cases, intention will commonly be inferred from the circumstances; that exercise was not speculative.

6. R v Childs and Price was distinguishable. There, the defendant joined the fight after the possibly fatal blow and there was no safe evidence of a prior joint enterprise. Here, there was evidence that the claimant was present and participating from the outset, and the jury had been directed that he had to be party to the joint enterprise when the fatal blow was struck.

The Commission’s conclusion that no substantial injustice could be demonstrated was fully open to it. The claim was dismissed.

First-instance judicial review proceedings. The judgment records earlier Court of Appeal proceedings concerning the claimant’s conviction and sentence, including [2010] EWCA Crim 2483, but this court dismissed the challenge to the Commission’s refusal to refer the conviction.