Fresh evidence and the Criminal Cases Review Commission

Fresh evidence and the Criminal Cases Review Commission by David Wells

David Wells, Partner with Wells Burcombe LLP, highlights applications to the Commission and how fresh evidence is interpreted.

The Criminal Cases Review Commission (CCRC) was set up in 1997 and assumes responsibility for investigating possible miscarriages of justice. It receives something in the region of 1,000 applications a year, has an annual budget of just over £6 million, and has approximately 100 staff (including Commissioners). The majority of the applications received by the CCRC focus on fresh evidence and the following article examines how fresh evidence is interpreted and the statutory basis for its admission.

What is fresh evidence? Put simply, fresh evidence is any evidence not adduced in the proceedings from which the application arises. It can include evidence contained in any document, exhibit or other thing connected with the proceedings. It is not restricted to evidence materialising subsequent to the trial and can include matters that were not introduced, but existed, prior to the proceedings. Most commonly, fresh evidence consists of something which undermines the credibility of a prosecution witness, but also includes matters such as advances in medical or forensic science.

Section 23 of the Criminal Appeal Act 1968 governs the receipt and admission of fresh evidence by the Court of Appeal. The overriding test is contained in Section 23 (1) which states that the Court of Appeal can receive any evidence which was not adduced in the proceedings if it is deemed ‘necessary or expedient in the interests of justice.’

When considering whether or not to refer a case to the Court of Appeal based on fresh evidence, the CCRC will be guided by the provisions of Section 23(2), but whereas the test for the Court of Appeal ultimately is whether the conviction is safe, the screening test applied by the CCRC is not the same. The CCRC will refer a case because of any new argument, or evidence, not previously raised and where there exists a ‘real possibility’ that in the event of a referral, the Court of Appeal would find the conviction to be unsafe.

It is important not to misunderstand the CCRC’s function and duty. It considers issues that are ‘new/fresh’. The CCRC is not a body of appeal. It will not interfere with the Jury’s verdict easily. The CCRC receives a number of applications each year who seek to reopen matters that were determined at trial. The complaint often made to the Commission is that … ‘I didn’t do it, I’m innocent … the Jury got it wrong.’ That may be so, but applicants need to focus on new issues - argument or evidence - that the Jury did not hear. Remember also that unless ‘exceptional circumstances’ exist, the CCRC will only consider an application where an applicant has previously appealed.

Furthermore, matters raised and dismissed on appeal cannot simply be re-presented to the CCRC asking for a ‘second opinion.’  So what governs the receipt and admissibility of fresh evidence? When considering the ‘real possibility’ test, the CCRC will consider the issues set out in Section 23(2). Those matters are:

S23(2)

(a) Whether the evidence appears to be capable of belief. Clearly, if the evidence is capable of belief then it is likely to be admitted.

(b) Whether the evidence may afford a ground for allowing any appeal. The ultimate test is whether the evidence provides a basis for concluding that the conviction is unsafe.

(c) Whether the evidence would have been admissible in the proceedings.

(d) Whether there is a reasonable explanation for the failure to adduce the evidence previously (see below).

Of the four considerations, subsection (d) receives the most attention and is the most problematic. The general rule is that evidence that is available at trial should be called at trial. However, the discretionary power of the Court of Appeal to receive fresh evidence represents a potentially very significant safeguard against the possibility of injustice. If the CCRC form the view that any fresh evidence received fulfils the ‘real possibility’ test, then a referral should follow. However, a referral by the CCRC is no guarantee that the Court of Appeal will overturn the conviction.

In R-v-Beresford 56 Cr App R 143, it was held that the question whether or not there is a reasonable explanation for failure to adduce evidence at trial depends on whether the defence has displayed reasonable diligence in its preparation for trial. It is important to bear in mind here that the term ‘the defence’ includes the accused himself. Consequently, the CCRC will look very carefully at what part to play the accused had in the failure to adduce the evidence at trial.

In considering any application based on fresh evidence, the CCRC will seek to predict the reaction of the Court of Appeal, and in particular how the Court of Appeal is likely to address the issues raised under Section 23. This is not an easy task and requires careful consideration of the fresh evidence against the background, quality and strength of other evidence introduced in the proceedings.

Applications to the CCRC require skill. The author would advise applicants to seek representation and assistance in the making of the application, not least because the representative will be better placed to make enquiries of the potential fresh evidence source and make detailed submissions. Funding is often available for such applications. However, perhaps the best advice that can be offered when making this type of application is to focus on the issues listed under S23 and address them in turn and outline how it is felt each of the sections are met, or explain why any of them are not met.