Paul Cleeland (R on the application of) v Criminal Cases Review Commission

A judicial review challenge to a CCRC refusal to refer a conviction is not a criminal cause or matter merely because it concerns a conviction. The relevant question is whether the proceedings could directly result in the applicant’s trial and punishment for an offence. The Court of Appeal (Civil Division) therefore has jurisdiction to entertain such a challenge. The CCRC must assess whether there is a real possibility that the Court of Appeal, Criminal Division, will admit fresh evidence and regard the conviction as unsafe. The Criminal Division remains the primary decision-maker on safety. Judicial review is supervisory. The court reviews legality and rationality, not whether the CCRC reached the correct conclusion, and must not conduct a rigorous merits audit of its reasons.

The CCRC refused on 25 October 2019 to refer the applicant’s 1973 murder conviction to the Court of Appeal, Criminal Division. His application for judicial review was refused on the papers by Garnham J and, after renewal, dismissed by Lavender J in the Administrative Court on 30 June 2021.

The applicant sought permission to appeal. The Court of Appeal first considered whether it had jurisdiction under the Senior Courts Act 1981. It then considered whether the CCRC had applied the correct referral test under section 13(1)(a) of the Criminal Appeal Act 1995, particularly in relation to fresh expert evidence and alleged misinformation concerning firearms evidence, and whether the CCRC’s decision was unlawful or irrational.

Permission to appeal refused. The Court of Appeal had jurisdiction to entertain the application. The restriction in section 18(1)(a) of the Senior Courts Act 1981 applies only where the proceedings are a criminal cause or matter. The relevant test, identified in Amand v Home Secretary [1943] AC 147 and applied in Re McGuinness [2020] UKSC 6, asks whether the direct outcome of the proceedings could be the applicant’s trial and punishment, or conviction and sentence. A judicial review of a CCRC refusal to refer a conviction does not satisfy that test. R (Saxon) v CCRC [2001] EWCA Civ 1384 had been displaced.

1. Under section 2 of the Criminal Appeal Act 1968, the Court of Appeal, Criminal Division, must allow a conviction appeal if the conviction is unsafe. It may receive fresh evidence under section 23. The ultimate responsibility for deciding safety remains with that court. Pendleton [2001] UKHL 66, Dial v Trinidad and Tobago [2005] UKPC 4 and R v Noye [2011] EWCA Crim 650 did not transfer that responsibility to the jury.
2. Under section 13(1)(a) of the Criminal Appeal Act 1995, the CCRC must decide whether there is a real possibility that the Criminal Division will admit fresh evidence and, in light of it, consider the conviction unsafe. That predictive judgment belongs to the CCRC.
3. No special rule applies merely because fresh scientific evidence undermines evidence heard at trial. The Criminal Division must evaluate the fresh evidence in the context of the whole case. The question is whether the conviction is unsafe, not whether the jury would inevitably have convicted. Barry George [2007] EWCA Crim 2722 was fact-sensitive and did not establish a different test.
4. Judicial review of a CCRC decision is confined to legality and rationality. The court must not decide whether the CCRC was right or wrong, form its own view of the prospects before the Criminal Division, or subject the CCRC’s reasons to a rigorous merits audit. The CCRC had applied the correct test and no arguable basis for intervention was shown.
5. The CCRC should not impose an absolute bar on repeat applications, but repeated applications may become vexatious. It was entitled to prioritise first applications by serving prisoners over further applications by a person long since released.

• Court of Appeal (Civil Division): permission to appeal refused on 11 January 2022.
• High Court of Justice, Queen’s Bench Division, Administrative Court: Lavender J dismissed the judicial review application on 30 June 2021. Permission had previously been refused on the papers by Garnham J on 13 March 2020.