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22 K.L.J. 1 (2011)

handle is hein.journals/kingsclj22 and id is 1 raw text is: (2011) 22 KLJ 1-26

Fresh Expert Evidence in CCRC Cases
William E O'Brian Jr'
The Criminal Cases Review Commission (CCRC) is an independent public body
established by the Criminal Appeal Act 1995 for the purpose of considering claims of
miscarriages of justice by persons convicted of criminal offences in England, Wales and
Northern Ireland.' Although it possesses broad investigatory powers, the Commission is
not empowered to overturn any criminal convictions. Rather, if it believes a miscarriage
of justice may have occurred, it refers the case to the Court of Appeal, which considers the
appeal and applies its usual standard of 'safety' in deciding to uphold or quash the
conviction in question.2 The Commission also considers appeals against sentence, but in
what follows I will deal solely with referrals of convictions.
As a result of the statutory test that the CCRC must apply, there is a close relationship
between the standard for referrals by the CCRC and the standards for upholding or
quashing a conviction by the Court of Appeal. In particular, section 13 of the Criminal
Appeal Act 1995 sets forth the requirements for a reference by the CCRC:
(1)  A reference of a conviction ... shall not be made ... unless-
(a) the Commission consider that there is a real possibility that the conviction ... Would
not be upheld were the reference to be made,
(b) the Commission so consider-
(i) ... because of an argument, or evidence, not raised in the proceedings which led
to it or on any appeal or application for leave to appeal against it, ... and
(c) an appeal against the conviction ... has been determined, or leave to appeal against
it has been refused.
(2)  Nothing in subsection 1(b) (i) or (c) shall prevent the making of a reference if it appears
to the Commission that there are exceptional circumstances which justify making it.
Associate Professor of Law, University of Warwick, UK. The author wishes to thank Mike Redmayne, Paul
Roberts, John WagstaffAndrew Roberts, Jackie Hodgson and Roger Leng for helpful comments on previous
drafts of this article. Any remaining errors are the responsibility of the author.
T There is a separate commission that operates similarly in Scotland. On the differences between the two
commissions see Peter Duff, 'Straddling Two Worlds: Reflections of a Retired Criminal Cases Review
Commissioner' (2009) 72 Modern Lai Reviewi 693.
2  See generally David Kyle, 'Correcting Miscarriages of Justice: The Role of the Criminal Cases Review
Commission' (2004) 52 Drake Law Review 65 1.


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