Writing in NLJ this week, Professor Graham Zellick KC, former chairman of the Criminal Cases Review Commission (CCRC), traces the tensions surrounding appeals based on changes in the common law.
The Court of Appeal’s ‘substantial injustice’ test can prevent an appeal being heard out of time. Yet the CCRC’s statutory referral test asks whether there is a ‘real possibility’ that a conviction will be found unsafe.
Those different approaches can produce opposite outcomes for cases involving the same legal development.
Drawing on his experience at the CCRC, Zellick recounts litigation over its referral powers and a subsequent judicial intervention he describes as ‘manifestly improper’.
This first instalment explores how procedural barriers can obstruct substantive challenges, setting up scrutiny of the courts’ approach in Part 2.
