Submitted to Law Commission Consultation on Criminal Appeals (full paper)
Submitted on 2025-06-26 02:43:16
About you
What is your name?
Name: Anna Doherty
If you are responding on behalf of an organisation, what is the name of your organisation?
Name of organisation: Spoken Injustice C.I.C.
We have not provided responses to all of the questions, as some fall outside our current areas of expertise or experience. Additionally, due to limited resources, we are not in a position to fully engage with every issue at this time. As such, we have marked certain questions as “N/A” where we are
presently unable to offer a meaningful or informed contribution.
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Email:
admin@spokeninjustice.net
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No
If you requested confidentiality above, please give reasons for your request.
Reasons for confidentiality:
Chapter 3: The appellate structure of criminal courts
CQ1: We invite consultees’ views as to the appropriate route for appeals in summary proceedings, including whether appeals on a point of law in summary proceedings should go to the Court of Appeal Criminal Division after, or instead of, the High Court, or whether the current parallel arrangements should be maintained.
CQ1: views?:
N/A
CQ2: We invite consultees’ views on the current structure of the appellate courts in respect of criminal proceedings in England and Wales.
CQ2 views?:
N/A
Chapter 4: Principles in criminal appeals
CQ3: In considering whether reform to the law relating to criminal appeals is necessary, we provisionally propose that the relevant principles are:(1) the acquittal of the innocent;(2) the conviction of the guilty; (3) fairness; (4) recognising the role of the jury in trials on indictment; (5) upholding the integrity of the criminal justice system; (6) ensuring access to justice (incorporating the “no greater penalty” principle and
consideration of the needs of particular groups); and (7) finality. Do consultees agree?
Yes (all of the above)
Please expand on your answer::
See below
No
Please expand on your answer::
We fully support the Law Commission’s broad definition of miscarriage of justice and agree that nonetheless the clearest example of miscarriage of justice remains of course the wrongful conviction of those who are factually innocent. However, proving factual innocence is often an extraordinarily difficult, if not impossible, task, particularly when evidence has been lost, witnesses are no longer available, or forensic advancements are not accessible at the time. In many cases, the closest someone maintaining innocence can get to demonstrating their innocence is proving that the legal system has failed to deliver justice, whether through flawed procedures or unreliable evidence. By broadening the definition of a miscarriage of justice, the Law Commission acknowledges that a system committed to justice must correct all wrongful convictions, not just those where absolute innocence can be established beyond doubt. Whilst we agree with the identified principles, we have reservation as to the overriding principle proposed by the Law Commission, namely that “the convictions of those who are innocent or did not receive a fair trial should not stand”. We are of the view that the overriding principle should be broader and should be the “correction of injustice”. Relying solely on the principles of innocence—which, as we previously noted, can be exceptionally difficult to prove—or fair trial, which does not always guarantee a just outcome, makes the framework both restrictive and challenging to apply in practice. An unjust verdict can arise even from a procedurally fair trial, so the focus must be on ensuring that justice prevails. This aligns with the Law Commission’s definition of a miscarriage of justice, which we referenced earlier, as “a failure of a court or judicial system to attain the ends of justice.”
CQ4: We provisionally propose that in principle a person should not be at risk of having their sentence increased as a result of seeking to appeal their conviction or sentence. Do consultees agree?
Yes
Please expand on your answer::
We have nothing to add and we agree with the reasons provided by the Law Commission.
Chapter 5: Appeals from convictions and sentences imposed in magistrates’ courts
CQ5: We provisionally propose that the right to an appeal against conviction and/or sentence by way of rehearing following conviction in summary proceedings should be retained. Do consultees agree?
Not Answered
Please expand on your answer::
N/A
CQ6: We invite consultees’ views as to whether there are any particular categories of offence heard in summary proceedings where it would be appropriate to replace the right to an appeal by way of rehearing with an appeal by way of review. We would invite views particularly on whether this might be appropriate in relation to (i) certain regulatory offences and (ii) specialist domestic violence or domestic abuse courts.
Other
Please expand on your answer::
N/A
CQ7: We provisionally propose that the time limit for appeals from magistrates’ courts to the Crown Court should be the same as the time limit for appeals from the Crown Court to the Court of Appeal Criminal Division. Do consultees agree?
Yes
Please expand on your answer::
We have nothing to add except that it is appropriate in the interest of justice and fairness.
CQ8: We provisionally propose, in order that appellants are not discouraged from bringing meritorious appeals by the possibility of an increased sentence, that the Crown Court and High Court should not be able to impose a more severe sentence as a result of an appeal against conviction or sentence by the convicted person. Do consultees agree?
Yes
Please expand on your answer::
We have nothing to add except that it is appropriate in the interest of justice and fairness.
CQ9: We invite consultees’ views as to the circumstances in which there should be a right to appeal against conviction following a guilty plea in a magistrates’ court.
CQ9 views?:
N/A
CQ10: We provisionally propose that prosecution rights of appeal to the Crown Court by way of rehearing in revenue and customs and animal health cases should be abolished. Do consultees agree?
Please expand on your answer::
N/A
CQ11: We provisionally propose that appeal to the High Court by way of case stated should be abolished. Judicial review would be retained and would be available in respect of decisions which must currently be challenged by way of case stated. Do consultees agree?
Not Answered
Please expand on your answer::
N/A
CQ12: We provisionally propose that a person convicted in a magistrates’ court should retain a right to appeal by way of rehearing where the conviction has been substituted or directed by the High Court in judicial review proceedings (or, if retained, on an appeal by way of case stated) brought by the prosecution, and that the Crown Court should remain empowered to acquit the defendant on the facts. Do consultees agree?
Not Answered
Please expand on your answer::
N/A
CQ13: We invite consultees’ views on whether the route of appeal following a guilty plea by a child should be reformed, even if the route of appeal following a guilty plea in magistrates’ courts is not.
Please expand on your answer::
N/A
CQ14: We provisionally propose that, even if the Crown Court remains able to impose a more severe penalty on appeal from a magistrates’ court, the Crown Court should not be able to impose a more severe penalty on appeal from a youth court. Do consultees agree?
Not Answered
Please expand on your answer::
N/A
CQ15: We provisionally propose that where a person has been convicted as a child and their anonymity has not been lost as a result of an excepting direction or their being publicly named after turning 18, that person should retain their anonymity during appellate proceedings. Do consultees agree?
Not Answered
Please expand on your answer::
N/A
CQ15 views on how to best achieve?:
N/A
Chapter 6: Appeals to the Court of Appeal Criminal Division – general issues
CQ16: We provisionally propose that the time limit for bringing an appeal against conviction or sentence to the Court of Appeal Criminal Division should be increased to 56 days from the date of sentence. Do consultees agree?
Yes
Please expand on your answer::
We believe this change is welcome and agree with the Law Commission that the current time limits are potentially capable of causing injustice. While the importance of legal finality is acknowledged, this must be balanced against the fundamental right to a fair and accessible appeal process, particularly in the interests of justice. As highlighted by other consultees, one major barrier is the withdrawal of Legal Aid at the point of conviction. This often leaves individuals, many of whom lack legal training, struggling to navigate complex legal processes on their own. For appellants without representation, especially those who need to identify or obtain fresh evidence, the current 28-day limit becomes a race against time. Seeking alternative legal advice, gathering supporting materials and drafting proper grounds of appeal under such constraints is, in many cases, simply unrealistic. Moreover, a conviction, especially for someone maintaining their innocence, is a traumatic event that can cause severe emotional distress and disorientation. This psychological impact is compounded when the sentence involves immediate imprisonment. In the early days of incarceration, individuals often face significant practical obstacles: lack of access to legal documents, limited communication with the outside world, unfamiliarity with the prison system and, in some cases, mental health challenges. These factors collectively undermine an appellant’s ability to make informed, timely decisions about appealing their conviction. The decision to appeal is a profound and often complex one, requiring both clarity of mind and access to legal support. Extending the deadline from 28 to 56 days would provide a more realistic and humane window for individuals to assess their case, seek advice and exercise their legal rights without undue pressure. In light of these considerations, the current time frame fails to accommodate the realities faced by many convicted persons. A 56-day limit would still preserve the principle of finality, but with a more balanced and just approach to ensuring fair access to the appellate system.
CQ17: We provisionally propose that the test for admitting fresh evidence in section 23 of the Criminal Appeal Act 1968 should remain “in the interests of justice”, provided that the considerations in subsection (2) are treated as such rather than as criteria which must be met before fresh evidence can be admitted. Do consultees agree?
No
Please expand on your answer::
While we acknowledge the rationale behind this approach and agree that the law clearly intends the considerations outlined in section 23(2) to be treated as considerations, rather than rigid criteria that must be strictly satisfied, leaving them unchanged grants the Court an overly broad discretion. This approach relies too heavily on the judiciary’s willingness to interpret the provisions flexibly. As a result, the current proposal in our view does not sufficiently address the concerns raised by numerous consultees regarding the challenges in admitting fresh evidence. Unless these issues are resolved through legislative reform, they are likely to persist. For these reasons, we propose that the current considerations be removed and replaced with a single, mandatory test: whether the admission of the evidence is in the interests of justice.
CQ18: We invite consultees’ views on whether the Court of Appeal Criminal Division should have a power to appoint its own experts in order to assist it in determining appeals, what the nature of such a power might be and what constraints (if any) there should be on the exercise of such a power.
It should have such a power
Please expand on your answer::
Dr Michael Hall, who was one of Lucy Letby’s expert at trial but who was, regrettably, not called to give evidence, commenting on the misinterpretation of Professor Shoo Lee’s paper, an error that was overlooked by the Court of Appeal, suggested that the Court would have likely recognised the issue had it sought an independent opinion from a suitably qualified expert. We saw merit on his point. Additionally, we see merit in establishing a specialist appellate body or panel to re-evaluate cases involving questionable expert evidence. This would prevent individual judges from acting as unaccountable gatekeepers at trial with no oversight. However, at this point, we have not undertaken a detailed assessment of the scope and constraints associated with a court-appointed expert or an
appellate body.
CQ19: We provisionally propose that the power of the Court of Appeal Criminal Division to make a loss of time direction, ordering that time counted between the making of an application for leave to appeal and its determination not be counted as part of an applicant’s sentence, should be limited to a period of up to 56 days of that time. Do consultees agree?
Not Answered
Please expand on your answer::
N/A
CQ20: We provisionally propose that the CACD should only be able to make a loss of time direction where:(1) the application for leave to appeal has been refused by the single judge as wholly without merit;(2) the applicant has been warned that, if they renew their application before the full court, they are at risk of a loss of time order; and(3) the application is renewed to the full court and rejected as wholly without
merit. Do consultees agree?
Not Answered
Please expand on your answer::
N/A
CQ21: We invite consultees’ views on whether the CACD should no longer be able to make loss of time directions.
Not Answered
Please expand on your answer::
N/A
CQ22: We provisionally propose that the Court of Appeal Criminal Division should have the power to correct an accidental slip or omission in a judgment or order, within 56 days of that judgment being handed down or the order made. Do consultees agree?
Not Answered
Please expand on your answer::
N/A
Please expand on your answer::
N/A
Chapter 7: Sentence appeals in the Court of Appeal Criminal Division, and sentence reviews
CQ23: We provisionally propose no change to the current arrangements for defence appeals against sentence in the Court of Appeal Criminal Division (“CACD”). Do consultees agree?
Not Answered
Please expand on your answer::
N/A
Not Answered
Please expand on your answer and/or give your views on the tests applied by the CACD in appeals against sentences::
N/A
CQ24: We provisionally propose that the Court of Appeal Criminal Division should have the discretion not to quash an unlawful order where to substitute the correct order would breach the rule against imposing a more severe sentence than was imposed at trial. Do consultees agree?
Not Answered
Please expand on your answer::
N/A
CQ25: We provisionally propose including a failure to impose a mandatory minimum sentence as a ground for referring a sentence as unduly lenient to the Court of Appeal Criminal Division. Do consultees agree?
Not Answered
Please expand on your answer::
N/A
CQ26: We invite consultees’ views on whether the following offences should be included within the unduly lenient sentence scheme:(1) offences involving a fatality which are not currently covered, such as causing death by careless driving; and/or(2) animal cruelty offences.
Please expand on your answer::
N/A
Not Answered
Please expand on your answer::
N/A
CQ27: We provisionally propose that there should be a statutory leave test for unduly lenient sentence references. Do consultees agree?
Not Answered
Please expand on your answer::
N/A
Not Answered
Please expand on your answer::
N/A
CQ28: We provisionally propose that the right to refer sentences to the Court of Appeal Criminal Division as unduly lenient should remain with the Attorney General. Do consultees agree?
No
Please expand on your answer::
While this right is rooted in a legal safeguard designed to uphold justice and consistency in sentencing, its application has at times appeared political, particularly in high-profile or emotive cases. It has, at times, been used to signal political alignment or appease public/media outrage, rather than strictly legal reasoning. For example, referrals after public outcry (such as in sexual assault or terrorism cases) can be seen as reactive to headlines, not based on legal inconsistency. We are also concerned that judicial discretion and independence is undermined when political figures intervene in sentencing. We are of the view that this right should be transferred to an independent sentencing body.
CQ29: We invite consultees’ views as to whether the Attorney General should have the ability to refer a sentence to the Court of Appeal Criminal Division as unduly lenient outside of the 28-day limit. If so, under what circumstances might this be permissible, and should there be a maximum period of extension?
The Attorney General should not have such an ability
Please expand on your answer::
For the same reasons provided above.
CQ30: We invite consultees’ views as to whether some types of sentence appeals and references by the Attorney General to the Court of Appeal Criminal Division could be dealt with by a single judge rather than by the full court. Some types of sentence appeals could not be dealt with by a single judge rather than by the full court Please expand on your answer::
N/A
CQ31: We provisionally propose that children serving a sentence of detention for life should have the same right to a review of the minimum term as is available to a child sentenced to Detention at His Majesty’s Pleasure (“DHMP”). Do consultees agree?
Not Answered
Please expand on your answer::
N/A
Not Answered
Please expand on your answer::
N/A
Not Answered
Please expand on your answer::
N/A
CQ32: We provisionally propose that reviews of minimum terms for children and young people on indeterminate sentences should be heard by the Court of Appeal Criminal Division. Do consultees agree?
Not Answered
Please expand on your answer::
N/A
CQ33: We invite consultees’ views on whether the current powers afforded to the Court of Appeal Criminal Division in relation to sentence appeals are sufficient to deal with a change of circumstance post-sentence? This includes a change in law (for example, the repeal of a type of sentence) or a change in the personal circumstances of the defendant.
Not Answered
Please expand on your answer::
N/A
Not Answered
Please expand on your answer::
N/A
Chapter 8: Conviction appeals in the Court of Appeal Criminal Division
CQ34: We provisionally propose that the single ground that a conviction is unsafe should continue to be the test for quashing a conviction, but that the circumstances in which a conviction will be unsafe should be set out non-exhaustively in legislation. Do consultees agree?
“is unsafe” should continue to be the test and the circumstances should be set out in legislation
Please expand on your answer::
So long as the term “unsafe” is understood in the broad term as explained by the Consultation paper, namely as an umbrella term, apt to cover both factual innocence and the possibility of factual innocence, which can also in some circumstances cover serious procedural irregularity or other unfairness, and abuse of process. The Court of Appeal often fails to take a holistic and cumulative view of each appeal point especially in cases entirely based on circumstantial evidence.
Other
Please expand on your answer::
We agree with these non-exhaustive circumstances; however, an additional circumstance 3. should be included, namely 3. Where the Court considers that the evidence, taken as a whole, was insufficient for a reasonable jury to be sure of a defendant’s guilt. We believe that this would represent a vital safeguard against wrongful convictions where fresh evidence or procedural irregularity cannot be adduced.
CQ35: We provisionally propose that where, in an appeal against conviction, the Court of Appeal Criminal Division admits fresh evidence that could have led the jury to acquit, then the Court should order a retrial unless a retrial is impossible or impractical. Do consultees agree?
Yes
Please expand on your answer::
We believe that this would be beneficial as will lead to more convictions being overturned as the Court of Appeal is to often to reverent to jury supremacy. Given the court an almost mandatory direction to retrial should give the court more confidence that it is not stepping the jury’s role.
CQ36: We provisionally propose that the Court of Appeal Criminal Division should continue to be able to find a conviction unsafe if it thinks that the evidence, taken as a whole, was insufficient for a reasonable jury to be sure of a defendant’s guilt. Do consultees agree?
Other
Please expand on your answer::
A mere statement by the Law Commission affirming that the Court of Appeal should retain the ability to find a conviction unsafe where, on the whole, the evidence was insufficient for a reasonable jury to be sure of the defendant’s guilt, without enshrining this in statute, would do little to address the issue. The “lurking doubt” doctrine has been largely abandoned by the Court of Appeal for nearly 15 years. If the Law Commission is serious about preserving or reviving this principle, it must be explicitly set out in legislation, as we emphasised in our response to Consultation Question 34.
CQ37: We provisionally propose that the Court of Appeal Criminal Division’s ability to make a declaration of nullity and to issue a writ of venire de novo should be retained. Do consultees agree?
Not Answered
Please expand on your answer::
N/A
CQ37 how greater clarity?:
N/A
CQ38: We invite consultees’ views on the provisions requiring the Court of Appeal to quash a person’s conviction on an appeal under: (1)section 7 of the Terrorism Act 2000;(2) schedule 3 to the Terrorism Prevention and Investigation Measures Act 2011;(3) schedule 4 to the Counter-Terrorism and Security Act 2015; and(4) schedule 9 to the National Security Act 2023.
CQ38 views?:
N/A
CQ39: We provisionally propose that the law be amended to enable the Court of Appeal Criminal Division to admit evidence of juror deliberations where the evidence may afford any ground for allowing the appeal (which includes the defendant not having received a fair trial before an impartial tribunal). Do consultees agree?
Yes
Please expand on your answer::
We have nothing else to add.
CQ40: We provisionally propose that the Criminal Cases Review Commission should be added to the list of persons in section 20F(2) of the Juries Act 1974 to whom a person may lawfully make a disclosure of the content of a jury’s deliberations. Do consultees agree?
Yes
Please expand on your answer::
We have not further to add.
Chapter 9: Powers of the Court of Appeal Criminal Division when a conviction is quashed
CQ41: We provisionally propose that where the Court of Appeal Criminal Division quashes a conviction, it should have a power to substitute a conviction for any offence of which the jury could have convicted the appellant if it is satisfied that the jury must have been sure of facts:(1) which are not affected by the Court’s findings in relation to the safety of the conviction which it has quashed; and(2) which would prove the appellant to have been guilty of that offence. Do consultees agree?
Not Answered
Please expand on your answer::
N/A
CQ42: We provisionally propose that, where a conviction is quashed by the Court of Appeal Criminal Division following a guilty plea, the test for substitution should be whether the trial judge must have been satisfied of facts (i) which are not affected by the Court’s findings in relation to the safety of the conviction and (ii) which prove that the appellant was guilty of the alternative offence. Do consultees agree?
Not Answered
Please expand on your answer::
N/A
CQ43: We invite consultees’ views as to whether the Court of Appeal Criminal Division should have a power to order a retrial on a broader range of offences than those of which the jury could have convicted appellant “on the indictment”, and how such a provision might be framed.
Not Answered
Please expand on your answer and/or give your views on how such a provision might be framed::
N/A
CQ44: We provisionally propose where the Court of Appeal Criminal Division quashes a conviction, and the jury had, as a result of that conviction, delivered a not guilty verdict on a lesser alternative charge, the Court should have a power to quash that acquittal:(1) in order to enable that alternative charge to be available to a jury in a retrial on the conviction which has been quashed; or(2) so that it might direct a
retrial on the alternative charge. Do consultees agree?
Not Answered
Please expand on your answer::
N/A
CQ45: We invite consultees’ views on whether, where it has ordered a retrial, the Court of Appeal Criminal Division should have the power to give leave to arraign out of time where it remains in the interests of justice for there to be a retrial, despite any failure by the prosecution to act with all due expedition.
Not Answered
Please expand on your answer::
N/A
Not Answered
Please expand on your answer::
N/A
CQ46: We invite consultees’ views on amending the law so that where the Court of Appeal Criminal Division (“CACD”) orders a retrial, a failure to arraign within two months without obtaining an extension from the CACD would not render a retrial a nullity.
Not Answered
Please expand on your answer::
N/A
Not Answered
Please expand on your answer::
N/A
CQ47: We invite consultees’ views as to whether the maximum sentence available to a court at a retrial following a successful appeal against conviction should be limited to that imposed at the first trial, when the sentence at the original trial reflected the defendant’s guilty plea.
Other
Please expand on your answer::
N/A
CQ48: We provisionally propose that where the Court of Appeal Criminal Division quashes a finding of not guilty by reason of insanity, it should have a power to substitute a finding of not guilty of an alternative offence by reason of insanity. Do consultees agree?
Not Answered
Please expand on your answer::
N/A
CQ49: We provisionally propose that where the Court of Appeal Criminal Division quashes a finding that appellant who was unfit to plead did the act or made the omission charged, it should have a power to substitute a finding that the appellant did the act or made the omission amounting to an alternative offence. Do consultees agree?
Not Answered
Please expand on your answer::
N/A
CQ50: We provisionally propose that the Court of Appeal Criminal Division be given a power to order a further “trial of the facts” where the appellant is unfit to stand trial, but the findings of the jury are unsafe. Do consultees agree?
Not Answered
Please expand on your answer::
N/A
CQ51: We provisionally propose that the Court of Appeal Criminal Division should be given a power to order an appellant to stand trial where it finds that the findings of the jury in a “trial of the facts” are unsafe and the appellant is now fit to stand trial. Do consultees agree?
Not Answered
Please expand on your answer::
N/A
CQ52: We provisionally propose that where the Court of Appeal Criminal Division quashes a verdict of not guilty by reason of insanity, it should have the power to order a retrial. Do consultees agree?
Not Answered
Please expand on your answer::
N/A
Chapter 10: The “substantial injustice” test for appeals based on a development in the law
CQ53: We invite consultees’ views on how the law governing appeals based on a development of the law might be reformed, in particular to enable appeals where a person may not have been convicted of the offence (or of a comparable offence) had the corrected law been applied at their trial.
CQ53 views?:
N/A
Chapter 11: The Criminal Cases Review Commission
CQ54: We provisionally propose that, in cases of magistrates’ court convictions, the Crown Court should be able to hear an appeal upon a reference by the Criminal Cases Review Commission when the convicted person has died. Do consultees agree?
Yes
Please expand on your answer::
We have nothing to add.
CQ55: We provisionally propose that the predictive “real possibility” test applied by the Criminal Cases Review Commission for referring a conviction should be replaced with a non-predictive test. Do consultees agree?
Yes
Please expand on your answer::
We agree with the Westminster Commission’s view that the “real possibility” test makes the CCRC overly cautious, leading it to anticipate the Court of Appeal’s response rather than independently assessing potential miscarriages of justice. We also agree with those who view the relationship between the CCRC and the Court of Appeal as misaligned. While the Court of Appeal only requires the ground of appeal to be “arguable” in order to grant leave, the CCRC must apply the much stricter “real possibility” test. In addition, we agree that the “real possibility” test appears to narrow investigations, focusing only on lines of inquiry likely to persuade the Court of Appeal, as it was confirmed by Mr Henley KC report into the case of Mr Malkinson.
CQ56: We provisionally propose that the Criminal Cases Review Commission should refer a case to the appellate court when it considers that a conviction may be unsafe. Do consultees agree?
Other
Please expand on your answer::
See below.
CQ56 other tests?:
We believe that the test must be much broader than that used by the Court of Appeal and we agree with the Law Commission that it should not involve the interest of justice given the non-judicial nature of the CCRC. If the court of appeal test is that the conviction is “unsafe” then we believe that a more appropriate test would be one of doubt, which we have coined as “the real and unresolved doubt test”. A case should be referred to the Court of Appeal if, after a full review of the evidence and trial process, a real and unresolved doubt remains about the safety of the conviction, even in the absence of fresh evidence or new legal arguments. This test would apply where, despite no new evidence or legal development, an objective and impartial review of the case reveals a deep concern that the conviction may be unsafe. This is distinct from speculative doubts; it requires a substantial and rational basis for concern, based on an examination of the whole case. Instead of focusing only on newly discovered flaws, the test allows for a holistic review, considering:
- The quality and reliability of the prosecution’s case.
- The conduct of the trial, including potential bias, ineffective representation, or unfair judicial directions.
- The overall strength of the conviction, even if it met the legal burden of proof at trial.
Examples could be: - A case where the prosecution’s key witness was unreliable or had a motive to lie but no fresh evidence has emerged;
- A conviction that depended heavily on circumstantial evidence, leaving major gaps in the case;
Or Cases Where Trial Fairness is in Doubt, for example where: - A defendant convicted after poor legal representation or inadequate jury directions but no new legal argument is available.
- A trial that may have been affected by implicit bias, even though this was not legally challenged at the time and would also include Historical Convictions
That Do Not Hold Up to Modern Scrutiny; - A case that was accepted as sound at the time but, when viewed with contemporary knowledge (e.g., about forensic reliability, coercive interrogations –
see the case of Peter Sullivan as presented in 2021 to the Court of Appeal), raises significant doubt.
This test allows the CCRC to act where a conviction appears unsafe in substance, even if it remains formally sound in law.
CQ57: We provisionally propose that the current test applied by the Criminal Cases Review Commission for referring a sentence – that there is a real possibility that the appellate court will not uphold the sentence – should be retained. Do consultees agree?
Not Answered
Please expand on your answer::
N/A
CQ58: In order to reflect the independence of the Criminal Cases Review Commission (“CCRC”), we provisionally propose that the power of the Court of Appeal Criminal Division (“CACD”) to direct the CCRC to undertake an investigation on its behalf should be replaced with a power to request an investigation. Do consultees agree?
Yes
Please expand on your answer::
We have nothing further to add.
Yes
Please expand on your answer::
We have nothing further to add.
Yes
Please expand on your answer::
We have nothing further to add.
CQ59: We provisionally propose that the requirement that there must have been a first appeal or an unsuccessful application for leave to appeal before the Criminal Cases Review Commission can refer a case should not apply to appeals against conviction in trials on indictment. Do consultees agree?
Yes
Please expand on your answer::
We welcome this approach and have nothing further to add.
CQ60: We provisionally propose that the replacement for the “real possibility” test applied by the Criminal Cases Review Commission for referring a conviction should not be subject to a requirement for fresh evidence or argument. Do consultees agree?
Yes
Please expand on your answer::
We welcome this approach and have nothing further to add.
CQ61: We provisionally propose that the Criminal Cases Review Commission should retain the discretion not to refer a case. Do consultees agree?
Yes
Please expand on your answer::
As long as the limits of this discretion are clearly defined and the power is exercised with care and restraint and that the applicant is fully involved in the process and being fairly heard.
CQ62: We provisionally propose that the Criminal Cases Review Commission’s powers to seek an order for disclosure and retention of material under section 18A of the Criminal Appeal Act 1995 should be extended to cover public bodies. Do consultees agree?
Yes
Please expand on your answer::
We have nothing further to add.
CQ63: We invite consultees’ views as to whether the restriction on the Criminal Cases Review Commission’s power to obtain material held in relation to the Home Secretary’s former power to refer a case to the Court of Appeal Criminal Division should be revoked.
The restriction should be revoked
Please expand on your answer::
We have nothing further to add.
CQ64: We invite consultees’ views as to whether the law should be reformed to enable the Criminal Cases Review Commission to explain publicly a decision not to refer a case.
It should be reformed as stated
Please expand on your answer::
We particularly agree with Dr Hannah Quirk that publication could offer a useful resource to researchers interested in the area, make the process more transparent and allow for trends in the CCRC’s decision making to be observed and consequently welcome the idea of the CCRC to be allowed to publish statements of reasons appropriately redacted in sensitive cases.
CQ65: We provisionally propose that the requirement for the Criminal Cases Review Commission (“CCRC”) to follow the practice of the Court of Appeal Criminal Division should be replaced with provision that in exercising its discretion to refer a case, the CCRC may have regard to any
practice of the relevant appellate court. Do consultees agree?
Yes
Please expand on your answer::
We have nothing further to add.
CQ66: We invite consultees’ views on whether changes are needed to the legislation governing the qualifications and terms of appointment of Commissioners of the Criminal Cases Review Commission.
Changes are needed
Please expand on your answer::
There have been appointments of individuals with administrative or managerial experience but little direct experience in criminal appeals, policing or investigative journalism. This has weaken the Commission’s ability to rigorously challenge unsafe convictions or spot patterns of systemic failure. We propose that Commissioners should be more diverse including people with lived experience of the Criminal Justice System such as former wrongly convicted individuals, defence lawyers, grassroots legal activists and former investigative journalists. In addition, we are in favour of an independent appointments process, independent from the Ministry of Justice, involving a multi-stakeholder panel in appointments (judges, lawyers, NGOs, Parliament).
CQ67: We provisionally propose that the Criminal Cases Review Commission should be subject to inspection by one of the criminal justice inspectorates. We think there is a strong case for HM Crown Prosecution Service Inspectorate, which inspects the Crown Prosecution Service and the Serious Fraud Office, to take on this role. Do consultees agree?
Other
Please expand on your answer::
Yes, there should be an inspectorate or oversight body that provide annual reviews, recommendations and public reporting, like OFSTED or the Independent Office for Police Conduct (IOPC). However, we do not agree that this should be an existing inspectorate within the current criminal justice framework, who are not equipped to evaluate miscarriages of justice dynamics. Instead, it should be a bespoke, expert-led, publicly accountable body with the courage to challenge institutional failure, just as the CCRC itself was originally meant to do.
CQ 68: We invite consultees’ views on whether applicants to the Criminal Cases Review Commission (“CCRC”) should be able to challenge decisions of the CCRC in the First-tier Tribunal.
Not Answered
Please expand on your answer::
N/A
No
Please expand on your answer::
However, we are unable to expand at this time.
CQ69: We provisionally propose that leave of the Court of Appeal Criminal Division should continue to be required for an appellant to argue any grounds of appeal not related to the reasons given by the Criminal Cases Review Commission for referring a case. Do consultees agree?
No
Please expand on your answer::
However, we are unable to expand this further at this time.
CQ70: We provisionally propose that it should be possible for an appeal to be heard upon a reference by the Criminal Cases Review Commission (“CCRC”) without an appellant, where there does not appear to be any person with a sufficient interest in the outcome to take
forward the appeal, and:
Yes
Please expand on your answer::
We welcome this approach and have nothing further to add.
Chapter 12: Pre-trial, interlocutory and third-party appeals
CQ71: We provisionally propose that the provisions for appeals against so-called “terminating rulings” should be retained but that the uncommenced provisions in sections 62 to 66 of the Criminal Justice Act 2003, which provide for prosecution appeals against evidentiary
rulings, should not be brought into effect and should instead be repealed. Do consultees agree?
Not Answered
Please expand on your answer::
N/A
CQ72: We invite consultees’ views on whether a third party should have the right to appeal against decisions or rulings made in the course of a trial where unless they were to appeal forthwith, they would have no other adequate remedy in respect of the decision or ruling; and the decision or ruling is one: (1) which affects the liberty of the third party; or(2) which would amount to a contravention of their rights under the European Convention on Human Rights.
Not Answered
Please expand on your answer::
N/A
CQ73: We provisionally propose that there should be no right to appeal against: (1) a refusal to impose reporting restrictions; or (2) a decision to lift reporting restrictions. Do consultees agree?
Not Answered
Please expand on your answer::
N/A
CQ74: We invite consultees’ views on the law relating to appeals concerning bail decisions. We invite views particularly on whether the time limit for detaining a person pending a prosecution appeal against a grant of bail should be reduced.
Not Answered
Please expand on your answer and/or give your views on the law relating to appeals concerning bail decisions::
N/A
CQ75: We provisionally propose that the list of prosecuting bodies able to appeal against a decision to grant bail should be reviewed and updated, and that the Post Office should no longer be included. Do consultees agree?
Not Answered
Please expand on your answer::
N/A
Chapter 13: Challenging acquittals
CQ76: We provisionally propose that the prosecution’s ability to challenge an acquittal by a magistrates’ court by way of judicial review be
retained. Do consultees agree?
Not Answered
Please expand on your answer::
N/A
CQ77: We provisionally propose that the prosecution should retain the ability to seek to have an acquittal quashed where there is new and
compelling evidence of the commission by the acquitted person of one of a limited number of serious offences (as currently provided for in the double jeopardy provisions in part 10 of the Criminal Justice Act 2003). Do consultees agree?
Not Answered
Please expand on your answer::
N/A
CQ78: We provisionally propose that the list of offences covered by the double jeopardy provisions in part 10 of the Criminal Justice Act 2003 should be extended to include the following:
Please expand on your answer::
N/A
Please expand on your answer::
N/A
CQ79: We invite consultees’ views on whether, where it has ordered a retrial under the double jeopardy provisions in part 10 of the Criminal Justice Act 2003, the Court of Appeal Criminal Division (“CACD”) should have the power to give leave to arraign out of time where it remains in
the interests of justice for there to be a retrial, despite any failure by the prosecution to act with all due expedition.
Not Answered
Please expand on your answer::
N/A
Not Answered
Please expand on your answer::
N/A
Not Answered
Please expand on your answer::
N/A
CQ80: We invite consultees’ views on whether the existing law permitting the quashing of an acquittal and an order for retrial under part VII of the Criminal Procedure and Investigations Act 1996 works satisfactorily where at that retrial the defendant would be liable to be convicted of an
alternative offence for which they already stand convicted.
Not Answered
Please expand on your answer::
N/A
CQ81: We provisionally propose that appeals to quash a tainted acquittal under part VII of the Criminal Procedure and Investigations Act 1996 should be transferred from the High Court to the Court of Appeal Criminal Division (“CACD”). Do consultees agree?
Not Answered
Please expand on your answer::
N/A
Not Answered
Please expand on your answer::
N/A
CQ82: We invite consultees’ views as to how far the tainted acquittal provisions in part VII of the Criminal Procedure and Investigations Act 1996 and the double jeopardy provisions in part 10 of the Criminal Justice Act 2003 might be consolidated.
CQ82 views?:
N/A
CQ83: We provisionally propose that the right to refer a point of law to the Court of Appeal Criminal Division following an acquittal should remain with the Attorney General. Do consultees agree?
Not Answered
Please expand on your answer::
N/A
CQ84: We provisionally propose that a reference on a point of law following acquittal should be subject to a time limit of 28 days, subject to a
right to apply for leave to make a reference out of time where it is in the interests of justice. Do consultees agree?
Not Answered
Please expand on your answer::
N/A
CQ85: We provisionally propose that the Attorney General and the acquitted person should have the same rights to appeal against the Court of Appeal Criminal Division’s judgment following a reference on a point of law as the prosecution and defendant would have on an appeal against conviction. Do consultees agree?
Not Answered
Please expand on your answer::
N/A
CQ86: We provisionally propose that the prosecution should not have a right to appeal against a defendant’s acquittal in the Crown Court on a point of law. Do consultees agree?
Not Answered
Please expand on your answer::
N/A
Chapter 14: Appeals to the Supreme Court
CQ87: We provisionally propose that appeals to the Supreme Court should continue to be limited to those which raise an arguable point of law of general public importance which ought to be considered by the Supreme Court. Do consultees agree?
Not Answered
Please expand on your answer::
N/A
CQ88: We provisionally propose that the Supreme Court should be given a power to remit a case back to the Court of Appeal Criminal Division or the High Court so that the Supreme Court’s answer to the question of law can be applied to the facts of the case, and so that the lower court can address any outstanding grounds of appeal. Do consultees agree?
Not Answered
Please expand on your answer::
N/A
CQ89: We provisionally propose that the Supreme Court should be able to grant leave to appeal where the Court of Appeal Criminal Division or High Court has not certified a point of law of general public importance. Do consultees agree?
Not Answered
Please expand on your answer::
N/A
Chapter 15: Retention and disclosure of evidence
CQ90: We provisionally propose that retention periods should be extended to cover at least the full term of a convicted person’s sentence (meaning, for a person sentenced to life imprisonment, the remainder of their life). Do consultees agree?
Other
Please expand on your answer::
All evidence related to criminal convictions should be preserved indefinitely, to ensure that individuals have the opportunity to challenge their convictions at any point in the future, especially in light of new developments such as advances in forensic science, the emergence of fresh evidence or concerns about the fairness of the original trial. Doing so safeguards the right to post-conviction review and reflects the ongoing possibility of miscarriages of justice being uncovered years, sometimes decades, after the original verdict. Permanent retention supports transparency, accountability and public confidence in the integrity of the justice system.
Other
Please expand on your answer and/or give your views (if any) on the length of any further extension::
See Above
CQ91: We provisionally propose that the retention period for children should be extended to at least the end of their sentence or at least six years after they turn 18 years old, whichever is longest. Do consultees agree?
Other
Please expand on your answer::
Same as above
CQ92: We provisionally propose that unauthorised destruction, disposal or concealment of retained evidence should be a specific criminal offence. Do consultees agree?
Yes
Please expand on your answer::
We welcome this proposal and have nothing further to add.
CQ92 views on scope?:
We are unable to expand on this point.
CQ93: We invite consultees’ views on whether responsibility for long-term storage of forensic evidence should be transferred to a national Forensic Archive Service.
It should
Please expand on your answer::
We have nothing further to add.
CQ94: We provisionally propose that a statutory regime governing the post-trial disclosure duty should encompass the following principles.
Yes
Please expand on your answer::
We welcome this proposal and have nothing further to add.
CQ95: Where a request is made for material which might afford grounds for an appeal against conviction or sentence, we provisionally propose that the following principles should apply:
Yes
Please expand on your answer::
We have nothing further to add.
CQ96: We invite consultees’ views on whether provision could and should be made to enable disclosure of material for the purposes of responsible journalism to reveal a possible miscarriage of justice.
It should/could
Please expand on your answer::
We have nothing further to add.
CQ97: We provisionally propose that where a person is sentenced to a term of imprisonment, audio recordings and transcripts of their trial should be retained for at least the duration of the sentence (including the time where the person is liable to be recalled to prison). Where a person is sentenced to life imprisonment, audio recording and transcripts of their trial should be retained for the remainder of their life. Do consultees agree?
Other
Please expand on your answer::
See above, retention should be indefinite.
CQ98: We provisionally propose that legal advisers should be able to access audio recordings of the defendant’s trial in order to obtain a non-admissible transcript for the purposes of investigating whether a case is suitable for appeal. Do consultees agree?
Yes
Please expand on your answer::
We have nothing further to add.
Chapter 16: Compensation and support for the wrongly convicted
CQ99: We provisionally propose that the test for compensation following a wrongful conviction should not require an exonerated person to show beyond reasonable doubt that they are factually innocent, but should require them to show on the balance of probabilities that they are factually innocent. Do consultees agree?
Other
Please expand on your answer::
We firmly believe that the Law Commission’s proposal lacks the boldness needed.
As Baroness Kennedy rightly observed: “Requiring individuals to prove their innocence beyond reasonable doubt is an affront to our legal system. It contradicts a fundamental legal principle that recognises the difficulty of proving innocence. This is exactly why our trials are focused on determining Guilt or Not Guilt, rather than proving innocence. For this reason, we strongly believe that compensation should be automatically granted when a conviction is overturned, unless there are clear, specific grounds for denial, such as an admission of guilt or a procedural error where guilt can still be inferred. Compensation should not be subject to an additional adversarial process but should be granted at the same time as the exoneration itself by the Court of Appeal. Such an approach not only ensures fairness but also reaffirms the state’s commitment to justice, accountability and the protection of individual rights. The Court of Appeal should then refer the case to an independent assessor to decide the amount. - We invite consultees’ views on who should decide on compensation.:
See above.
CQ100: We invite consultees’ views on whether compensation for a miscarriage of justice should be available to those whose conviction was quashed on an in-time appeal.
It should be available
Please expand on your answer::
While the law imposes a 28-day deadline for filing appeals, many individuals wait months, or even years, before their cases are actually heard. In the meantime, they are already serving their sentences and living through the harsh, often irreversible consequences of wrongful convictions. It’s important to note that the early stages of a prison sentence are often the most traumatic and damaging. The harm is done regardless of when an appeal is eventually considered. To deny compensation to those who have endured this injustice, simply because their appeal was filed “on time”, is not only illogical, it’s indefensible.
CQ101: We provisionally propose that where a person’s conviction is quashed, and they can demonstrate to the requisite standard that they did not commit the offence, they should be eligible for compensation whether or not this was the reason for the Court of Appeal Criminal Division quashing their conviction. Do consultees agree?
Other
Please expand on your answer::
Where a conviction is quashed, compensation should be always available.
CQ102: We provisionally propose that victims of miscarriages of justice should be entitled to support in addition to financial compensation. Do consultees agree?
Yes
Please expand on your answer::
The state has a moral and legal responsibility to respond comprehensively to wrongful convictions, both to repair the harm done to individuals and to prevent future injustices. A proper response should include:
- Immediate Exoneration and Support
Once new evidence proves someone was wrongfully convicted, the state must act swiftly to exonerate them, rather than delaying justice through
bureaucratic obstacles. Exoneration should come with:
- Official acknowledgment of wrongdoing to clear the person’s name.
- Immediate release without unnecessary legal delays.
- Access to emergency housing, healthcare, and financial assistance to help them transition back into society.
2. Swift Financial Compensation and Restitution.
A wrongfully convicted person has lost years, sometimes decades, of their life. The state should compensate them fairly, considering lost wages, emotional suffering and the life opportunities stolen from them. The compensation should be based on the true impact of wrongful imprisonment rather
than being limited by an arbitrary cap. The compensation process should be automatic upon exoneration rather than requiring victims to go through another legal battle.
3. Psychological and Social Support
Wrongful incarceration causes deep psychological trauma. The State should provide:
- Free mental health counselling and therapy to help individuals cope with PTSD, depression and anxiety.
- Job training and education programs to help them regain independence and reintegrate into the workforce.
- Social services, including assistance with housing and medical care, to address the struggles of returning to normal life.
4. Accountability for Systemic Failures.
The State must investigate what led to the wrongful conviction and hold accountable those responsible, whether it was misconduct by police, prosecutors or experts.
Steps should include:
- Independent reviews of wrongful convictions to identify patterns of errors, such as unreliable forensic methods, false confessions or prosecutorial
misconduct. - Disciplinary action against officials who engaged in misconduct, such as fabricating evidence or withholding exculpatory information.
- Reforming police and prosecutorial practices to prevent future injustices.
5. The State must take proactive measures to identify the root causes of wrongful convictions and implement legal reforms to prevent them, including stricter standards for the admissibility of expert evidence.
6. Restoring Public Trust.
The government must openly acknowledge wrongful convictions and commit to transparency in an effort to restore public trust. This includes:
- Public education on wrongful convictions to ensure people understand the flaws in the justice system.
- Stronger legal protections for defendants, including better access to legal aid.
- Legislation ensuring automatic compensation and post-exoneration support rather than requiring victims to fight for justice again.
CQ103: We provisionally propose that when a conviction is quashed, HM Courts and Tribunals Service should liaise with the relevant police service to ensure that the Police National Computer is updated to remove the relevant conviction. Do consultees agree?
Yes
Please expand on your answer::
We welcome this approach and have nothing further to add.
Chapter 17: Wider criminal appeals issues
CQ104: We provisionally propose that where there is evidence of a widespread problem calling into question the safety of a number of convictions, a review of convictions should normally fall to the Criminal Cases Review Commission, if necessary using its powers to require other public bodies to appoint an investigator. Do consultees agree?
Yes
Please expand on your answer::
We have nothing further to add
CQ104 views on other measures?:
See our response to question 102
CQ105: We provisionally propose there should be greater use of inquiries following a proven miscarriage of justice. Do consultees agree?
Yes
Please expand on your answer::
See our response to question 102
CQ106: We invite consultees’ views on any reforms which might reduce the opportunities for a miscarriage of justice to occur, and, particularly:(1) on the relationship between the test applied on a submission of no case to answer and the test of safety applied by the Court of Appeal Criminal Division; and (2) on whether any particular categories of evidence contribute to the occurrence of miscarriages of justice, and how these problems might be addressed.
CQ106 views on reforms?:
N/A
CQ107: We invite consultees’ views if they believe or have evidence or data to suggest that any of our provisional proposals or open questions could result in advantages or disadvantages to certain groups, whether or not those groups are protected under the Equality Act 2010 (age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex; and sexual orientation), and which those consultees have not already raised in relation to other consultation questions.
CQ107 views?:
N/A
CQ108: We invite consultees’ views in relation to any issues relevant to the criminal appeals project that they have not dealt with in answer to previous consultation questions.
Views on other issues not already dealt with::
N/A