Its consultation on criminal appeals, published this week, addresses concerns that the test blocks some miscarriages of justice from being corrected and is too deferential to the appeal court.
Professor Penney Lewis, Commissioner for Criminal Law, said: ‘We received persuasive evidence that the “real possibility” test used by the CCRC may lead the CCRC to focus its investigations too narrowly and so neglect lines of inquiry that might exonerate a person.
‘Rather than focusing on what the appeal court may do, we think the CCRC should first form its own view as to whether a conviction may be unsafe.’
Where the wrongly convicted seek compensation, they must prove their innocence beyond reasonable doubt, which Professor Lewis warned ‘can present an insurmountable obstacle’. The Law Commission suggests a civil standard of proof be used instead.
It also proposes establishing an independent inspectorate for the CCRC. It would also increase the courts’ and CCRC’s powers to investigate claims a conviction is unsafe due to misconduct by jurors, remove the ‘case stated’ procedure in summary proceedings, and abolish the requirement for Court of Appeal certification so more appeals reach the Supreme Court.
Professor Lewis said: ‘As the Post Office scandal has demonstrated, anyone can be a victim of a miscarriage of justice.’
The Law Commission also seeks views on the time limits for lodging an appeal, and the composition and terms of appointment of CCRC Commissioners. It asks whether the Unduly Lenient Sentence scheme should be expanded to cover offences such as causing death by careless driving and animal cruelty, and whether to expand the range of situations where an acquitted person can be retried due to compelling new evidence.
It asks for views on whether it should be lawful to disclose evidence for the purposes of responsible journalism to reveal a possible miscarriage of justice. Finally, it proposes establishing a National Forensic Archive Service for the long-term storage of evidence used in trials. The consultation ends on 30 May.
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