In a 2021 review of the operation of the Criminal Cases Review Commission (the Commission) for England, Wales and Northern Ireland, the Westminster Commission on Miscarriages of Justice had a significant concern that the Commission is at risk of being too deferential to the appeal court. Or, as I would say, stage fright might cause it to miss its cue.
A recommendation was made for change to the criterion for referral of cases to the appeal court.
Other concerns raised in that review included that the Commission was under-funded and over-worked.
Glancing at the online statistics published by the New Zealand Criminal Cases Review Commission (CCRC), in the light of the referral criterion set out in s 17 of the Act, there are currently 136 completed cases, including 1 referral to the court. While there is only one statutory ground for referral (the interests of justice), the published grounds for not referring a case are more informative insofar as they separate out some specific reasons in 70 cases, leaving 65 described as “Not in the interests of justice”. On this approach, the interests of justice are separate from the specific reasons (active appeal on same grounds, appeals process available, applicant deceased, application withdrawn, incomplete application and no criminal conviction). Presumably, then, the interest of justice here means the prospects of the court allowing the appeal (s 17(2)(c)).
So, in 65 out of 135 (48 per cent) of applications that do not progress to the court, the CCRC has concluded that the prospects of the court allowing the appeal are insufficient to justify a referral. When combined with the other reasons for refusing to refer a case, the CCRC has referred 1 in 136 (0.74 per cent) of cases it has completed. But, separating out those cases where there are specific statutory reasons for refusal to refer an application, the 65 occasions where the prospects of an appeal being allowed are the criterion have included one referral, so that is approximately 2 per cent of these “prospects” cases.
Plainly, the prospects of the court allowing the appeal is a very significant consideration when assessing the interests of justice. That is quite sensible, but one can ask whether the CCRC may be being too conservative in making that assessment. Another thought would be that appellate courts set reasonable doubt at too high a standard.
Returning to the experience in England, Wales and Northern Ireland (where the rate of referral to the appeal court is about 3 per cent) and remembering the horrific miscarriages of justice recognised in the Post Office appeal cases, in which inappropriate reliance was placed on a computer accounting system, and more recently in the successful appeal in the Malkinson case (see the article in The Guardian on 27 July 2023) in which the Commission had twice refused to make a referral, not having carried out the necessary investigatory work, we can wonder whether the criterion for referral could be improved. The Westminster inquiry recommended (at p 37) that their criterion could be redrafted:
“the 'real possibility' test should be redrafted to expressly enable the CCRC to refer a case where it determines that the conviction may be unsafe, the sentence may be manifestly excessive or wrong in law or where it concludes that it is in the interests of justice to make a referral. By definition this would include all cases where it finds that a miscarriage of justice may have occurred including 'lurking doubt' cases.”
As funding will inevitably become inadequate, and resources inappropriately limited, the only protection that applicants will have against the CCRC’s wrongful refusal to refer cases will be a referral criterion that avoids the danger of what I have here called stage fright.
The New Zealand CCRC was established on 1 July 2020, so it may be too soon for an accurate calculation of the rate of referrals to be made. It is most unlikely that the New Zealand justice system is about four times more accurate at convicting people than are the courts in England and Wales (needing to refer only 0.74 per cent of applications, compared to 3 per cent for England and Wales). It would be more informative to compare the “prospects” statistics, if one could dig them out of the 2021 review for Engalnd and Wales. In any event, the CCRC should accept an error rate - that is, a rate of referrals which do not result in a successful appeal - as something similar to the rate of unsuccessful appeals that occurs in legal practice, which seems to be about 66 per cent. In a sense the CCRC is acting like counsel for the appellant where fresh evidence has been obtained to challenge a conviction, or where new considerations have been unearthed to call into question the appropriateness of a sentence. Counsel will pursue an appeal in those circumstances, being aware of the likelihood of failure from the point of view of statistics, and the CCRC should too.
In England and Wales the rate of successful referrals has been about 70 per cent (see p 35 of the review) and this has been criticised as indicating that more cases should be referred. One might say that it is the courts' error rate, not the CCRC's, that matters. Judicial blindness to the risk of error was a strong motivator for the establishment of the CCRC.
