Reviewing Finalised Cases
- Introduction
- Triggers for potential review of past convictions
- Deciding whether a review of past convictions or other action is required
- Decision Tree
- ‘Change of law’ cases
- Approach of Court of Appeal
- Referrals by the Criminal Cases Review Commission
- Review of previous decisions not to prosecute
- Level of decision-making
Introduction
This guidance has been prepared to assist the CPS in determining whether or not to conduct a review of past cases. A review may be required as a consequence of a trigger, which requires the reconsideration of the safety of convictions, or decisions not to proceed, and an assessment of whether justice is served by allowing such convictions, or decisions, to stand.
Examples of scenarios where a review of past convictions may be required are set out below.
The re-visiting of sometimes long-concluded cases involves the balancing of competing considerations. Those convicted on the basis of an erroneous understanding or application of law or practice may well have suffered an injustice. However, there is a continuing public imperative that, where possible, there should be finality and certainty in the administration of criminal justice. It is for this reason that the Court of Appeal has always adopted a strict approach to the granting of leave to appeal out of time where the grounds of appeal are based on subsequent changes in the law (see below).
It may be necessary to review past cases where decisions were made not to prosecute.
Decisions as to whether or not to review past cases will require consideration of number of factors, depending on the precise circumstances of the case. This guidance sets out the principles that should be taken into account when making such decisions, and some of the questions which should be considered before reaching a conclusion. The decision tree below illustrates the application of this guidance.
Triggers for potential review of past convictions
The need to consider a review of previous cases in which defendants were convicted may arise for a number of reasons. The following list is a non-exhaustive list of potential triggers that may be relevant to cases:
- Where the competence and/or credibility of an expert witness or the methodology the expert witness has used is in doubt (see Chapter 37, Disclosure Manual for full guidance);
- Where a non-expert witness is discredited, for example a police officer or other witness who regularly gives prosecution evidence;
- Where a new scientific breakthrough raises questions over the safety of earlier convictions;
- Where the courts develop the common law and thus clarify the scope/elements of existing offences or defences;
- As above, but where the courts determine the ambit of a statute, the scope of its application, or clarify the elements of a statutory offence;
- Where procedural irregularities raise questions of the legality or enforceability of domestic legislation, for example, the EU has not approved or been notified of new legislation when required to do so.
- Where technical defects are discovered in the construction or application of investigative equipment.
- Where the law or the public interest is systemically misapplied by prosecutors.
- Where systemic failings in the disclosure process are discovered.
- Where a flaw has occurred in the trial process, for example, proceedings based on defective indictments.
- Where the CPS Legal Guidance for prosecutors is found to have been relied upon despite being legally incorrect.
Deciding whether a review of past convictions or other action is required
It is not possible to provide definitive answers about when a review of past convictions, or other appropriate action, should take place (and if such a review does take place, the parameters of any such review).
However, the decision tree (below) can help to determine whether any action and, if so, what type of action, is appropriate. It may not be necessary to ask more than a few of the questions, as it may be apparent that no further action is required. It is important to bear in mind that these questions will not cover all potential circumstances, nor will they necessarily reflect nuances in different scenarios. The questions are therefore for guidance purposes and are not intended to replace or limit discretion in the decision-making process.
There may be occasions where, whilst in principle it would be appropriate to carry out a full review; in practice there may be reasons why this will not be possible. An example is where all the case papers relating to the affected cases, including those belonging to the police, have been destroyed.
Decisions, and the reasons for the decision, should be recorded in writing.
The following additional points should be noted:
- Where there is a change of law, those representing the defendant will normally decide whether it is appropriate to take action – but special attention will need to be given to defendants who are unrepresented.
- If custodial sentences are still being served or ancillary orders still in force, then any review or action will need to be expedited.
- Consideration should be given to whether to inform the defence/third parties at the outset of the review or to wait until the conclusion of the review this will depend on the likely time that will be required for a full review.
Decision Tree
The triggers for potential reviews are:
- Tainted expert evidence;
- Trained on-expert witness;
- Scientific development;
- Common law change;
- Statutory interpretation;
- Procedural Irregularities;
- Law or Public interest wrongly applied;
- Technical defects;
- Systematic disclosure failure;
- Flawed trial process;
- Legal Guidance incorrect.
- Question: Does the trigger potentially affect finalised or ongoing cases other than the case at hand?
Answer is Yes. Go to 2.
Answer is No. Then no action is required, unless the circumstances of a particular case notice to the defendant and / or third parties.
- Question: May the trigger go to:
- A key issue in the affected cases; or
- Raise a potential new issue; or
- Raise a potential new defence;
and therefore have a significant impact on convictions?
Answer is Yes. Go to 3.
Answer is No. Then no action is required, unless the circumstances of a particular case notice to the defendant and / or third parties.
- Question: Are these changes of law cases?
Answer is Yes. Then no action is required, unless the circumstances of a particular case notice to the defendant and / or third parties.
Answer is No. Go to 4.
- Question: Is the information only known internally at this stage?
Answer is Yes. Go to 5.
Answer is No. Go to 6.
- Question: Are these summary or non-custodial offences?
Answer is Yes. Go to 6.
Answer is No. Go to 7.
- Question: Is there likely to be significant damage to public confidence if no action is taken?
Answer is Yes. Go to 8.
Answer is No. Then no action is required, unless the circumstances of a particular case notice to the defendant and / or third parties.
- Question: Is it likely that custodial sentences are still being served, or that any ancillary orders, such as confiscation Orders, are still outstanding?
Answer is Yes. Then carry out an urgent review of all affect cases. And, inform the appropriate third parties: Law Society; Attorney General's Office; Criminal Cases Review Commission; other prosecutors and Government departments; the rest of the CPS. And, disclose the information / material to the defence.
Answer is No. Go to 8.
- Question: Would it be sufficient to disclose the information / material to the defence?
Answer is Yes. Disclose the information / material to the defence.
Answer is No. Inform the appropriate third parties: Law Society; Attorney General's Office; Criminal Cases Review Commission; other prosecutors and Government departments; the rest of the CPS. And, disclose the information / material to the defence.
‘Change of law’ cases
Approach of Court of Appeal
Where there is a judicial development in the law subsequent to conviction, the Court of Appeal will not usually grant an extension of time for permission to appeal. This practice was affirmed in the cases of R v Cottrell and R v Fletcher [2008] 1 Cr. App. R. 7, where the Court of Appeal examined this line of authority through a number of past cases.
The only exception to this practice is where the appellant is able to demonstrate that he or she has suffered a substantial injury or injustice. This was examined after the case of R. v Jogee (Ameen Hassan) [2016] UKSC 8, [2017] reversed the law set down in previous cases in relation to the doctrine of parasitic accessory liability. In Johnson [2017] 1 Cr App R 136 (12), the Court of Appeal considered a number of applications for exceptional leave to appeal out of time which followed in the wake of Jogee. The Court stated that it would be for the applicant to show that a substantial injustice would be done, and that was a high threshold.
In determining whether that high threshold has been met, the court will primarily and ordinarily have regard to the strength of the case advanced that the change in the law would, in fact, have made a difference - Ordu [2017] 1 Cr App R 319 (21).
Most change of law cases are therefore unlikely to lead to permission to appeal. Moreover, any legal developments are likely to be known to defence solicitors and counsel, who will be in a better position than the prosecutor to assess whether the defendant has suffered a substantial injury or injustice. For these reasons, it will not usually be necessary to take any action in relation to past convictions that may be affected by a change of law.
Referrals by the Criminal Cases Review Commission
For further guidance on this, please see the Legal Guidance chapter on ‘Appeals: Criminal Cases Review Commission’.
Review of previous decisions not to prosecute
Although less likely there may be occasions where decisions not to prosecute require further consideration.
Such scenarios are likely to arise where an irregularity is discovered in either the decision-making process or in the prosecution process overall.
Examples include:
- Where a misunderstanding of the law or an incorrect application of the public interest stage of the Full Code Test by an individual or group of prosecutors leads to an inappropriate decision not to prosecute.
- Where Legal Guidance incorrectly sets out either legal or policy requirements.
- Where decisions not to prosecute result from bad faith within the prosecution team.
- Under the Victims' Right to Review Scheme, victims have a right to request a review of a CPS decision not to prosecute or to terminate criminal proceedings (see Victims' Right to Review Guidance, July 2016)
Level of decision-making
Decisions whether to review past cases should be made at a senior level. Area units should notify the Chief Crown Prosecutor (CCP), Deputy Chief Crown Prosecutor (DCCP) or Head of Division (HoD) as soon as they are aware of any trigger for a potential review. They will consider whether the trigger only affects cases within the Area or whether cases may be affected on a wider level.
For example, where the trigger relates to the credibility of a police officer, if the officer has only given evidence in cases within the Area, only cases within that Area will be affected. In such circumstances, the decision can be taken at Area level. The proposed decision should be notified to the CCP (if not already involved), who will cause a record to be made of the decision.
Where a trigger has a potential for impact beyond Area level, the CCP/DCCP/HoD should notify the Director of Legal Services’ Team of the trigger. In some situations, where the trigger or decision may have a significant impact on public confidence, attract substantial media interest, or relate to a number of serious or high profile cases, the proposed decision should be referred to the DPP.