Testing injustices

The body that advises the government on law reform in England and Wales is suggesting a new test for referring suspected miscarriages of justice to the Court of Appeal.

At present, the Criminal Cases Review Commission (CCRC) cannot send a case to the appeal court unless it considers that there is a “real possibility” that the conviction will be quashed. In the absence of exceptional circumstances, there must be also be a new argument or fresh evidence.

In a 700-page consultation paper on criminal appeals, the Law Commission suggests that the CCRC should refer a case to the Court of Appeal if the review body thinks the conviction might be unsafe. Safety is the test currently used by the Court of Appeal itself.

In addition to the consultation paper and the press notice, the Law Commission has published a comprehensive summary of fewer than 40 pages. There is also an easy-read version.

The charity Appeal, which represented Andrew Malkinson in his successful attempt to have his wrongful conviction for rape quashed after he had spent more than 17 years in prison, said:

We welcome the Law Commission's provisional adoption of several reform proposals Appeal has called for, including changes which if implemented will boost the effectiveness and accountability of the CCRC, make it easier for wrongful conviction survivors to get the compensation and support they need and help ensure that vital evidence on cases is not prematurely destroyed.

However, we know from our work on behalf of Andrew Malkinson and many others that our country's failing appeals system needs a complete overhaul.

The government should implement the compensation test change recommended by the Law Commission right away as too many innocent people have been denied the means to rebuild their lives.

For this week’s episode of A Lawyer Talks, I’ve been discussing the commission’s provisional proposals with Professor Penney Lewis, the law commissioner responsible for criminal law. My weekly podcast is a bonus for paying subscribers to A Lawyer Writes. Everyone else can hear a short taster by clicking the ► symbol above.