Appeal system to be reviewed

The Law Commission of England and Wales has today announced that it will launch a wide-ranging review of the laws governing appeals for criminal cases.

The Commission has been asked by the Government to examine the need for reforms to the appeals system, to ensure that the courts have the right powers to enable the effective, efficient and appropriate resolution of appeals.

The Law Commission

The Law Commission is a non-political independent body created by the Law Commissions Act 1965 to keep the law of England and Wales under review and to recommend reform where it is needed. The Commission has three principal aims:

• to ensure that the law is as fair, modern, simple and as cost-effective as possible
• to conduct research and consultations in order to make systematic recommendations for consideration by Parliament, and
• to codify the law, eliminate anomalies, repeal obsolete and unnecessary enactments and reduce the number of separate statutes.

The Review

The review of the appeals system (which is described as being comprehensive in nature) follows calls from several leading bodies, including the Justice Select Committee and Westminster Commission on Miscarriages of Justice, for improvements to the law on appeals to be considered.

The review will consider the need for reform, with particular focus on identifying any inconsistencies, uncertainties and gaps in the law that may be hindering the ability of the appeals system to function as effectively and fairly as possible. 

As part of the new review, areas that will be considered by the Law Commission include:

• The powers of the Court of Appeal – the senior court that hears appeals in England and Wales – including its power to order a re-trial of a case or substitute a conviction for another offence.
• Whether there is evidence that the “safety test” – the test used to grant an appeal against a conviction on the grounds that it is “unsafe” (for example, because of a major error in the trial) – may make it difficult to correct any miscarriages of justice.
• The test used by the Criminal Cases Review Commission (CCRC) – the independent body responsible for investigating potential miscarriages of justice – that governs when it can refer a case back to the Court of Appeal for further consideration.
• The Attorney General’s powers to refer a case to the Court of Appeal because the sentence is “unduly lenient”.
• The Crown Court’s sentencing powers for a new trial that is the result of an appeal.
• Laws governing the retention and disclosure of evidence for a case, including after conviction, and retention and access to records of proceedings.

One of the key issues that the Law Commission will explore is whether the law in relation to whether there are grounds for a person to appeal their conviction is clear enough that they can receive clear advice about the prospects of an appeal being successful.

Another key role for the Law Commission is to decide whether it is in the interests of justice for people’s rights to appeal (currently spread across a number of different legal statutes) to be consolidated in one new piece of legislation.

The review will be a tricky task because although the current appeals system has been criticised from a number of different sources, these different criticisms often conflict with each other. A key part of the Law Commission’s work will be the public consultation which will include asking the views of people who have direct experience of the appeals process.

The Law Commission has set out the process it will use for the review which will begin with initial scoping and pre-consultation engagement with stakeholders, followed by a published consultation paper containing provisional proposals for reform, followed by a formal consultation process, before eventually publishing a final report containing recommendations for reform.