Interpretation
of the test and depth of investigation
25. As just noted, the extent to which the Commission
is required to be convinced that the Court of Appeal might overturn
a conviction or sentence before deciding to refer the application
is a question for debate. One of the original reasons for the
Royal Commission on Criminal Justice's recommendation for the
establishment of the CCRC was that the Home Office had not in
practice investigated cases in sufficient depth to identify possible
miscarriages.[38] It
was however put to us by several of the lawyers who had had dealings
with the Commission that it was in danger of going too far in
the opposite direction: it was investigating cases in more depth
than was necessary.
26. Mrs Peirce, for Birnberg & Co, summarised
this point of view as follows:
"the concern is expressed
that the CCRC is being meticulous to a fault in preparing and
presenting a case that satisfies it that an appeal would be successful....
I wonder whether it would be appropriate for them to reconsider
the basis on which they are deciding to refer a case; whether,
if there is a clear feeling that something was wrong in a case
and the CCRC can identify perhaps one or two features, it is not
better to make the quantum leap and to refer it back and to consider
that it is the duty of the defence thereafter to research, prepare
and to complete the preparation of a case that will win on appeal."[39]
She went on to suggest that the concern was "that
the CCRC is substituting itself for the Court of Appeal and in
effect having to make a judgement on the case itself".[40]
Mr Clarke and Ms Akester broadly supported this analysis.[41]
Bindmans feared that the "Commission is adopting a restrictive
and legalistic approach and that it is too concerned at the possibility
that the Court of Appeal will turn down cases it refers".[42]
The early track record of the Commission's referrals in the Court
of Appeal—with the conviction or sentence being overturned
in 10 out of the 13 referrals completed so far—suggests
that the Commission has perhaps been cautious in its interpretation.
27. Sir Frederick Crawford in his oral evidence suggested
that it was too soon to tell whether the Commission was setting
too high a threshold for referral, and that he would need to see
direct evidence for this before accepting the criticism at this
stage. Nevertheless, he did accept that it was an issue which
would have to be monitored closely and stated that the possible
performance measures being examined included an assessment of
how many cases had not been referred which should have been as
well as how many were referred which should not have been.[43]
28. The Commission also submitted written evidence
outlining possible problems in the way of leaving more of the
work to defence lawyers. These included the fact that four-fifths
of applicants were not legally represented at the stage they applied
to the Commission, and that the standard of legal representation
varied. In practice, it considered that many of the issues could
not be identified and pursued to the point necessary to form a
proper judgement without a degree of scrutiny going beyond what
some of the lawyers might be suggesting.[44]
It pointed out that it "does not review and investigate all
issues raised or identified as a matter of course. It selects
and investigates the issues that, singly or in combination, may
have an impact on the outcome of the case."[45]
29. The Home Secretary emphasised that the issue
was one on which the Commission itself had to make a judgement
and that it was not his task to second guess their judgement;
he agreed that the position should become clearer as the number
of cases considered by the Court of Appeal increased.[46]
The Government implicitly recognised the difficulty in assessing
this aspect of the Commission's performance in stating that "one
would not expect every referral by the Commission to lead to the
quashing of the conviction or a reduction in the sentence"
but also that "it is also to the Commission's credit that
this has happened in all but one of the ten referrals which the
Court of Appeal has heard to date".[47]
It should be borne in mind of course that it would not necessarily
be desirable for a higher number of cases to be referred from
the Commission to the Court of Appeal if the only result was to
create greater problems for that Court.
30. We note that it is already the case that where
the Commission identifies that an application, while technically
eligible for review, presents on an early examination no grounds
for suggesting that it could be successful, then it already receives
much less examination under the 'short form of review' procedure.
The issue is whether it would be appropriate for the present threshold
for examination and referral to be lowered in other cases, without
risking injustice to the applicant or an irresponsible laxity
in the Commission's discharge of its duties under the statute
and to the Court of Appeal. Subject to monitoring of the outcomes
of a larger number of decisions, we believe that there may be
some force in the proposition that the Commission is interpreting
the test too strictly. The statutory phrase "real possibility",
however interpreted, clearly allows for a fair proportion of referrals
not to lead to a quashing of the conviction.
31. It should be noted that we have come to this
view on grounds of principle, rather than of convenience. Nevertheless,
any move towards lowering the amount of work needed in each case
would have a beneficial impact on the Commission's workload and
the current delays. It is to these issues that we now turn.
29 
