CCRC - THE COLD HARD FACTS

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The Criminal Cases Review Commission is not intended to replace the normal appeal process.

Ordinarily, before applying to the CCRC, you should first have attempted to appeal your conviction or sentence through the courts in the usual way. The CCRC was established principally to consider cases where the normal rights of appeal have already been used. 

If you have not previously appealed, the CCRC will usually direct you back to the appropriate court to pursue an appeal first.

Importantly, being outside the normal appeal time limit does not, by itself, mean that you can bypass this process. An application for permission to appeal can still be made out of time. Similarly, having previously been advised by a solicitor or barrister that there are no Grounds of Appeal, or being unable to obtain legal representation, does not automatically allow you to bypass the normal appeal route. 

There is an exception.

The CCRC can consider and refer a case where there has been no previous appeal if exceptional circumstances exist. However, the Commission makes clear that such circumstances are very rare and are considered according to the individual facts of the case. 

If your first appeal is currently pending, the CCRC cannot review your case at that stage. 

You will ordinarily need to allow the appeal process to conclude before asking the Commission to review the conviction or sentence.   In simple terms: the CCRC is generally a route to consider after the ordinary appeal process — not instead of it. 

The CCRC cannot refer a case back to an appeal court simply because it believes that something may have gone wrong.  It must apply a statutory test.

Before making a referral, the Commission must consider that there is a “real possibility” that the conviction, verdict, finding or sentence would not be upheld if the case were referred to the appropriate appeal court. 

That does not mean that the CCRC has to be certain that the appeal will succeed.

The threshold can be less than a probability or likelihood, but it must amount to more than merely an outside chance or bare possibility. The CCRC must be satisfied that there is a genuine prospect of the appeal court reaching a different conclusion. 

For a conviction, this will ordinarily depend upon new evidence or a new argument which was not raised at trial or during the previous appeal proceedings.

For a sentence, the legislation refers to an argument on a point of law or information which was not previously raised.  This distinction is important.

The CCRC does not decide whether your conviction is unsafe. Nor does it quash the conviction itself. Its task at this stage is to decide whether the information before it creates a real possibility that the appeal court would do so. 

If the CCRC refers the case, it is the appeal court — not the CCRC — which ultimately decides the outcome.  The question is therefore not simply: “Has something gone wrong?”

It is:  “Could what has gone wrong realistically cause the appeal court to reach a different decision?”

One of the most important requirements of a CCRC application is normally the existence of something new.

In an application concerning a conviction, this will usually mean evidence or an argument which was not raised at the trial, on appeal, or in an application for permission to appeal. 

Simply repeating arguments which have already been considered by the jury, trial judge or appeal court will not ordinarily provide the CCRC with a basis for referring the case.

But “new” does not necessarily mean something which has only recently come into existence.

Evidence may have existed at the time of the original proceedings but never have been placed before the court. There may be previously undisclosed material, a witness who was never interviewed, forensic material capable of examination using techniques which were not previously available, or information which only becomes significant when considered alongside other evidence. Recent CCRC referrals demonstrate that previously undisclosed evidence and advances in forensic techniques can become highly significant. 

Equally, a new legal argument may arise from a subsequent development in the law or from an argument which was never advanced during the original proceedings.  The important questions are therefore:

What is new?
Why wasn't it considered previously?
What does it establish?
And could it realistically make a difference to the outcome?

Finding something new is only the beginning. It must also be sufficiently significant to contribute to the real possibility that the appropriate appeal court would reach a different conclusion.

New does not automatically mean important — and important does not automatically mean sufficient. The evidence or argument has to be examined in the context of the case as a whole.   

The legislation does permit the CCRC to make certain referrals despite the usual requirement for a new argument or evidence where exceptional circumstances justify doing so. This is an exception rather than the normal route and will depend upon the particular circumstances of the case. 

One of the most important advantages of the Criminal Cases Review Commission is its ability to obtain material which an applicant, family member, solicitor or private investigator may be unable to access.

Under section 17 of the Criminal Appeal Act 1995, the CCRC can require public bodies to provide documents or other material which may assist its review. This can include material held by the police, Crown Prosecution Service, courts, local authorities and other public bodies. 

These powers can extend to highly sensitive material, including information which was never disclosed to the defence and material subject to Public Interest Immunity considerations. 

The CCRC also has powers under section 18A to apply to the Crown Court for an order requiring a private individual or organisation to provide access to relevant material which may assist its work. 

Its investigative work can go considerably further. Where the CCRC considers it appropriate, it can interview or re-interview witnesses, arrange forensic testing and obtain new expert evidence, including matters such as DNA testing and psychological reports. 

But having these powers does not mean that the CCRC will automatically use them simply because an applicant asks it to.

The CCRC decides for itself what material it needs to obtain and what investigations are necessary. Its own guidance specifically asks applicants to concentrate on what they believe is new and how it might make a difference. 

This is why a properly prepared application can be so important.

If you believe that undisclosed police material exists, for example, it is considerably more useful to explain what material you believe exists, why you believe it exists, who is likely to hold it and what relevance it may have to the conviction than simply asking the CCRC to obtain the entire police file.

Similarly, if further expert examination is required, the issue should wherever possible be identified and explained: what requires examination, why the existing evidence may be questionable and what a further expert examination could potentially establish.

You may not be able to obtain the evidence yourself.

But you can give the CCRC a properly evidenced reason to look for it.

Every application received by the CCRC is considered. However, submitting an application does not mean that the Commission will automatically embark upon an extensive investigation of everything that may have happened in your case.

The CCRC will initially check matters such as whether you have already attempted to appeal, whether it has the legal power to deal with the case and whether you have previously applied concerning the same conviction. It will obtain the papers it considers necessary to begin considering the application. 

It then considers the issues raised and decides what further work, if any, is required. Where the CCRC considers that issues require further investigation, the case can be allocated to a Case Review Manager for that work.   This distinction is extremely important.

The CCRC has considerable investigative powers, but it decides which enquiries are necessary. It will consider requests for particular investigations, but its own guidance makes clear that it will undertake work where it considers that work relevant and of potential evidential value. 

A CCRC application should therefore do considerably more than simply state:

“I am innocent — please investigate my case.”

Wherever possible, it should identify what is said to be wrong, what is new, what evidence supports the concern, why it could matter to the conviction or sentence and what further enquiries might establish.

You are not necessarily expected to possess every piece of evidence before applying. The CCRC itself says that applicants do not have to present a fully completed evidential case, but they should provide as much information as possible and point the Commission towards where it should be looking. 

That can make the difference between simply identifying a suspicion and presenting a properly reasoned line of enquiry.

If expert examination may be required, explain what needs examining and why.

If undisclosed material may exist, identify what you believe exists, where it may be held and why it matters.

If a witness should be re-interviewed, explain what issue requires clarification and what the witness may be able to establish.

The objective is not to tell the CCRC how to conduct its investigation. It is to give the Commission sufficient evidential reason to consider whether that investigation should be undertaken.

 A properly prepared application does not simply ask the CCRC to find a miscarriage of justice. It shows them where, and why, they may need to look. 

There is no requirement to instruct a solicitor or other representative before applying to the CCRC. The application itself is free, and the CCRC makes clear that applicants can apply without legal representation. 

However, there is an important difference between being able to complete an application form and undertaking a detailed review and investigation of the case before that application is submitted.

A properly prepared CCRC application should begin by establishing the complete history of the case:

• What were you convicted of?
• When were you convicted and sentenced?
• What was the prosecution case?
• What defence was advanced at trial?
• Did you appeal?
• What Grounds of Appeal were previously advanced?
• What did the Court of Appeal decide and why?
• Have you previously applied to the CCRC?
• If so, what issues did it consider and what was its decision?

That history matters because the CCRC specifically considers previous appeals and previous CCRC applications when it receives a case. It also recommends providing as much information as possible about the conviction and previous appeals because missing information can delay the review.  The next question is perhaps the most important:

WHAT IS NEW?

That may involve new evidence, a new witness, previously undisclosed material, developments in forensic science, a new expert opinion, a new legal argument or another issue which was not previously considered. But simply identifying something as “new” is not enough.

A properly prepared application should seek to establish what the new material proves, how reliable it is, why it was not previously considered and how it affects the case when placed alongside the evidence already heard by the court.

The CCRC itself advises applicants to focus on what they believe is new and how it might make a difference. It does not require an applicant to arrive with a completely finished evidential case, but it asks applicants to provide as much information as possible and point it towards where it should be looking. 

This may require substantial work before the application is made: reviewing the original case papers, previous appeal decisions, unused material and legal files; reconstructing chronologies; tracing witnesses; obtaining statements; examining contradictions; identifying expert issues; and establishing what further evidence may exist but cannot presently be obtained without the CCRC's statutory powers.

The objective is not to make the application longer.  The objective is to make every issue raised capable of being understood, investigated and properly assessed.

A hundred allegations that cannot be substantiated may achieve very little.

One properly evidenced issue capable of undermining the safety of a conviction may be considerably more important.