Iverson Herzon Taylor, R (on the application of) v Criminal Cases Review Commission

The Criminal Cases Review Commission alone determines whether the statutory threshold for referring a conviction is met. Judicial review is supervisory, not appellate. The court must avoid substituting its own view or conducting a rigorous audit of the Commission’s reasons.

The statutory test requires a predictive assessment of whether there is a real possibility that the conviction would not be upheld on a further appeal. The Commission must consider potentially admissible new evidence and its likely effect on the appeal, including evidence that might be admitted to correct a false impression. Referral is an avenue of last resort, and the Commission may take account of an available alternative remedy.

The claimant was convicted of assault by beating at Westminster Magistrates’ Court. His appeal to the Crown Court was dismissed, although his sentence appeal succeeded. He later applied to the Criminal Cases Review Commission, which declined to refer the conviction to the Crown Court.

The Commission accepted that the Crown Court had failed to give adequate reasons, but considered that judicial review was the appropriate means of challenging that failure. It also concluded that new bad character evidence did not create a real possibility of a different outcome. Permission to seek judicial review was refused on the papers, and the claimant renewed the application. The issues were whether the Commission had acted unreasonably in assessing the new evidence and in relying on the availability of judicial review as an alternative remedy.

1. Renewed application refused. The claimant’s application for permission to apply for judicial review was dismissed.
2. The court hearing a challenge to a decision of the CCRC sits as a court of review, not of appeal. The court must not substitute its own assessment merely because it might have reached a different conclusion, or subject the Commission’s reasons to a rigorous audit. This approach was stated with reference to R (Pearson) v CCRC [2001] 1 Cr. App. R. 141, R (Charles) v CCRC [2017] EWHC 1219 (Admin) and R (Cleeland) v CCRC [2022] EWCA Civ 5.
3. The central statutory inquiry under section 13 of the Criminal Appeal Act 1995 is predictive. The CCRC must assess whether there is a real possibility that the conviction would not be upheld on a further appeal. That assessment cannot exclude potentially admissible evidence. The Commission was therefore entitled, and required, to consider the possible admission and effect of bad character evidence, including the risk that presenting the claimant as a person of good character and restraint could permit rebuttal evidence under section 101(1)(f) of the Criminal Justice Act 2003.
4. The claimant’s evidence had been rejected at trial and on appeal. The Commission was entitled to conclude that the new evidence and arguments did not create a real possibility of a different result. That conclusion was sufficient to justify refusal of referral, absent exceptional circumstances.
5. The Crown Court appeal was a rehearing. A further appeal would not directly determine whether the first appeal judgment gave adequate reasons; it would rehear the evidence. The adequacy-of-reasons issue therefore did not arise unless the claimant first established a real possibility that the conviction would not be upheld. The CCRC was entitled to regard judicial review as an available alternative remedy and to treat referral as an avenue of last resort.

Permission to apply for judicial review was refused on the papers by Heather Williams J on 5 February 2025. The claimant renewed the application before the Administrative Court, which refused permission.