Materials linked to

Chapter 11: "Post-Conviction Procedures"

 


This chapter covers the problems that lead to the setting up of the Criminal Cases Review Commission. The relevant legislative reforms are set out below. The Commission's work has been the subject of a report, "The Work of the Criminal Cases Review Commission" (1998-99 HC 106) by the House of Commons Home Affairs Select Commitee.


CRIMINAL APPEAL ACT 1968

(as amended in 1995)

Grounds for appeal

1 (1) ... a person convicted of an offence on indictment may appeal to the Court of Appeal against his conviction.

Pre-1996 (2) The appeal may be--

(a) on any ground which involves a question of law alone; and

(b) with the leave of the Court of Appeal, on any ground which involves a question of fact alone, or a question of mixed law and fact, or on any other Crime Appeal Act 1968, s1 ground which appears to the Court of Appeal to be a sufficient ground of appeal;

but if the judge of the court of trial grants a certificate that the case is fit for appeal on a ground which involves a question of fact, or a question of mixed law and fact, an appeal lies under this section without the leave of the Court of Appeal.

Post-1995 [(2) An appeal under this section lies only--

(a) with the leave of the Court of Appeal; or

(b) if the judge of the court of trial grants a certificate that the case if fit for appeal.]

 

Grounds for allowing appeal under s.1

2. Pre-1996 (1) Except as provided by this Act, the Court of Appeal shall allow an appeal against conviction if they think--

(a) that the [conviction] should be set aside on the ground that under all the circumstances of the case it is unsafe or unsatisfactory; or

(b) that the judgment of the court of trial should be set aside on the ground of a wrong decision of any question of law; or

(c) that there was a material irregularity in the course of the trial,

and in any other case shall dismiss the appeal:

Provided that the Court may, notwithstanding that they are of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if they consider that no miscarriage of justice has actually occurred.

Post-1995 [(1) Subject to the provisions of this Act, the Court of Appeal--

(a) shall allow an appeal against conviction if they think that the conviction is unsafe; and

(b) shall dismiss such an appeal in any other case.]

(2) In the case of an appeal against conviction the Court shall, if they allow the appeal, quash the conviction.

(3) An order of the Court of Appeal quashing a conviction shall, except when under section 7 below the appellant is ordered to be retried, operate as a direction to the court of trial to enter, instead of the record of conviction, a judgment and verdict of acquittal.

 

Power to order retrial

7. (1) Where the Court of Appeal allow an appeal against conviction and it appears to the Court that the interests of justice so require, they may order the appellant to be retried.

(2) A person shall not under this section be ordered to be retried for any offence other than -

 

Reference by Home Secretary (This section is repealed by the Criminal Appeal Act 1995 as from 1 April 1997).

17. (1) Where a person has been convicted on indictment, or been tried on indictment and found not guilty by reason of insanity, or been found by a jury to be under disability, and to have done the act or made the omission charged against him, the Secretary of State may, if he thinks fit, at any time either -

 

(2) A reference by the Secretary of State under this section may be made by him either on an application by the person referred to in subsection (1), or without any such application.

 

Evidence

23. (1) For purposes of [the purposes of an appeal under] this Part of this Act the Court of Appeal may, if they think it necessary or expedient in the interests of justice--

(a) order the production of any document, exhibit or other thing connected with the proceedings, the production of which appears to them necessary for the determination of the case;

(b) order any witness who would have been a compellable witness in the proceedings from which the appeal lies to attend for examination and be examined before the Court, whether or not he was called in those proceedings; and

(c) subject to subsection (3) below, receive the evidence, if tendered, of any witness.

[(c) receive any evidence which was not adduced in the proceedings from which the appeal lies.]

Pre-1996 (2) Without prejudice to subsection (1) above, where evidence is tendered to the Court of Appeal thereunder the Court shall, unless they are satisfied that the evidence, if received, would not afford any ground for allowing the appeal, exercise their power of receiving it if--

(a) it appears to them that the evidence is likely to be credible and would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and

(b) they are satisfied that it was not adduced in those proceedings but there is a reasonable explanation for the failure to adduce it.

Post-1995 [(2) The Court of Appeal shall, in considering whether to receive any evidence, have regard in particular to--

(a) whether the evidence appears to the Court to be capable of belief;

(b) whether it appears to the Court that the evidence may afford any ground for allowing the appeal;

(c) whether the evidence would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and

(d) whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings.]

(3) Subsection (1)(c) above applies to any [evidence of a] witness (including the appellant) who is competent but not compellable, and applies also to the appellant's husband or wife where the appellant makes an application for that purpose and the evidence of the husband or wife could not have been given in the proceedings from which the appeal lies except on such an application.

(4) For purposes of [the purposes of an appeal under] this Part of this Act, the Court of Appeal may, if they think it necessary or expedient in the interests of justice, order the examination of any witness whose attendance might be required under subsection (1)(b) above to be conducted, in manner provided by rules of court, before any judge or officer of the Court or other person appointed by the Court for the purpose, and allow the admission of any depositions so taken as evidence before the Court.

 

[Power to order investigations] (from 1 April 1997)

23A [(1) On an appeal against conviction the Court of Appeal may direct the Criminal Cases Review Commission to investigate and report to the Court on any matter if it appears to the Court that--

(a) the matter is relevant to the determination of the case and ought, if possible, to be resolved before the case is determined;

(b) an investigation of the matter by the Commission is likely to result in the Court being able to resolve it; and

(c) the matter cannot be resolved by the Court without an investigation by the Commission.

(2) A direction by the Court of Appeal under subsection (1) above shall be given in writing and shall specify the matter to be investigated.

(3) Copies of such a direction shall be made available to the appellant and the respondent.

(4) Where the Commission have reported to the Court of Appeal on any matter which they have been directed under subsection (1) above to investigate, the Court--

(a) shall notify the appellant and the respondent that the Commission have reported; and

(b) may make available to the appellant and the respondent the report of the Commission and any statements, opinions and reports which accompanied it.]

Effect of appeal on sentence

29 (1) The time during which an appellant is in custody pending the determination of his appeal shall, subject to any direction which the Court of Appeal may give to the contrary, be reckoned as part of the term of any sentence to which he is for the time being subject.

(2) Where the Court of Appeal give a contrary direction under subsection (1) above, they shall state their reasons for doing so; and they shall not give any such direction where--

(a) leave to appeal has been granted; or

(b) a certificate has been given by the judge of the court of trial...

(c) the case has been referred to them by the Secretary of State under section 17 of this Act [under section 9 of the Criminal Appeal Act 1995].

 


CRIMINAL APPEAL ACT 1995 Part II

(1 April 1997)

 

Cases dealt with on indictment in England and Wales

9 (1) Where a person has been convicted of an offence on indictment in England and Wales, the Commission--

(a) may at any time refer the conviction to the Court of Appeal, and

(b) (whether or not they refer the conviction) may at any time refer to the Court of Appeal any sentence (not being a sentence fixed by law) imposed on, or in subsequent proceedings relating to, the conviction.

(2) A reference under subsection (1) of a person's conviction shall be treated for all purposes as an appeal by the person under section 1 of the 1968 Act against the conviction.

(3) A reference under subsection (1) of a sentence imposed on, or in subsequent proceedings relating to, a person's conviction on an indictment shall be treated for all purposes as an appeal by the person under section 9 of the 1968 Act against--

(a) the sentence, and

(b) any other sentence (not being a sentence fixed by law) imposed on, or in subsequent proceedings relating to, the conviction or any other conviction on the indictment.

Cases dealt with summarily in England and Wales

11 (1) Where a person has been convicted of an offence by a magistrates' court in England and Wales, the Commission--

(a) may at any time refer the conviction to the Crown Court, and

(b) (whether or not they refer the conviction) may at any time refer to the Crown Court any sentence imposed on, or in subsequent proceedings relating to, the conviction.

Conditions for making of references

13(1) A reference of a conviction, verdict, finding or sentence shall not be made under any of sections 9 to 12 unless--

(a) the Commission consider that there is a real possibility that the conviction, verdict, finding or sentence would not be upheld were the reference to be made,

(b) the Commission so consider--

(i) in the case of a conviction, verdict or finding, because of an argument, or evidence, not raised in the proceedings which led to it or on any appeal or application for leave to appeal against it, or

(ii) in the case of a sentence, because of an argument on a point of law, or information, not so raised, and

(c) an appeal against the conviction, verdict, finding or sentence has been determined or leave to appeal against it has been refused.

(2) Nothing in subsection (1)(b)(i) or (c) shall prevent the making of a reference if it appears to the Commission that there are exceptional circumstances which justify making it.

Further provisions about references

14 (1) A reference of a conviction, verdict, finding or sentence may be made under any of sections 9 to 12 either after an application has been made by or on behalf of the person to whom it relates or without an application having been so made.

(2) In considering whether to make a reference of a conviction, verdict, finding or sentence under any of sections 9 to 12 the Commission shall have regard to--

(a) any application or representations made to the Commission by or on behalf of the person to whom it relates,

(b) any other representations made to the Commission in relation to it, and

(c) any other matters which appear to the Commission to be relevant.

(3) In considering whether to make a reference under section 9 or 10 the Commission may at any time refer any point on which they desire the assistance of the Court of Appeal to that Court for the Court's opinion on it; and on a reference under this subsection the Court of Appeal shall consider the point referred and furnish the Commission with the Court's opinion on the point.

(4) Where the Commission make a reference under any of sections 9 to 12 the Commission shall--

(a) give to the court to which the reference is made a statement of the Commission's reasons for making the reference, and

(b) send a copy of the statement to every person who appears to the Commission to be likely to be a party to any proceedings on the appeal arising from the reference.

(5) Where a reference under any of sections 9 to 12 is treated as an appeal against any conviction, verdict, finding or sentence, the appeal may be on any ground relating to the conviction, verdict, finding or sentence (whether or not the ground is related to any reason given by the Commission for making the reference).

(6) In every case in which--

(a) an application has been made to the Commission by or on behalf of any person for the reference under any of sections 9 to 12 of any conviction, verdict, finding or sentence, but

(b) the Commission decide not to make a reference of the conviction, verdict, finding or sentence,

the Commission shall give a statement of the reasons for their decision to the person who made the application.

Investigations for Court of Appeal

15 (1) Where a direction is given by the Court of Appeal under section 23A(1) of the 1968 Act or section 25A(1) of the 1980 Act the Commission shall investigate the matter specified in the direction in such manner as the Commission think fit.


Go back to the Miscarriages of Justice Main page

Go Back to UK Law Online Table of Contents

Last Updated April 1999

© Clive Walker, Centre for Criminal Justice Studies, 1999