Allison Summers KC considers the Andrew Malkinson case and why we need to talk about the Criminal Court of Appeal

The Andrew Malkinson case has rightly prompted calls for a review of the Criminal Case Review Commission’s decisions to refuse applications made in 2009 and 2018 to review and refer the case back to the Criminal Court of Appeal. Some commentators have even called for the review to go further and consider whether the CCRC is fit for purpose at all. I welcome those calls but there is a more fundamental matter we need to talk about and that is the Court of Appeal (Criminal Division) itself.

Since the 1995 Criminal Appeal Act the only ground on which the Court of Appeal can allow an appeal against conviction is that “they think that the conviction is unsafe” (the Royal Commission’s recommendation was that the test should be “they think the conviction is or may be unsafe”). The result of this test is an overly reluctant Court of Appeal to interfere with a properly delivered jury verdict. The test necessarily requires an appellant to meet a high threshold usually to demonstrate a material irregularity or to identify fresh evidence.

The primacy of the jury was set out by Bingham LJ in Pendelton, 2002

“The Court of Appeal is a court of review, not a court of trial. It may not usurp the role of the jury as the body charged by law to resolve issues of fact and determine guilt….Trial by jury does not mean trial by jury in the first instance and trial by Judges of the Court of Appeal in the second. The Court of Appeal is entrusted with a power of review to guard against the possibility of injustice, but it is a power to be exercised with caution, mindful that the Court of Appeal is not privy to the jury’s deliberations and must not intrude into territory which properly belongs to the jury”.

It is this deference to the jury verdict which lies at the root of the problem in approaching potential miscarriages of justice.

The ’lurking doubt’ doctrine which permitted the Court to quash a conviction if there was “some lurking doubt in [its] minds which [made it] wonder whether an injustice has been done”[1] even without fresh evidence or a material irregularity, has long gone. The recommendation by the Royal Commission that the doctrine should be reflected in statue, was ignored and the use of the doctrine has been disapproved of for all but the “most exceptional circumstances”[2] especially if there is no new evidence. 

Giving evidence to the Justice Committee in 2015, Dr Stephen Heaton who has undertaken research as to the CCRC and miscarriages of justice, described the overall performance of the Court of Appeal as a “significant obstacle to addressing miscarriages of justice”. He attributed this in part to the Court’s “atomistic approach”. That is its tendency “to consider the fresh evidence in an isolated fashion rather than review the whole picture in a case”. He has also raised the Court’s jurisprudence more generally which creates difficulties for the CCRC in predicting the Court’s approach”. Like Dr Heaton “I see no evidence that the Court of Appeal has at any point recognised this aspect of responsibility”[3]

At a time when we have relaxed, perhaps for good reason,  the inherent safeguards of the trial process – we now admit more bad character and hearsay evidence than ever before, and we have more restrictions on the cross-examination of certain complaints than ever before – we have done nothing to widen the opportunity to remedy miscarriages of justice. It is time to reconsider the test, not the ‘real possibility’ test applied by the CCRC but the one applied by the Court of Appeal.

Details of the Andrew Malkinson case and ruling by the Court of Appeal are outlined in the BBC News report here.

Allison Summers KC

[1] R v Cooper [1969] 1 QB 267

[2] R v Pope [2012] EWCA Crim 2241.

[3] Stephen Heaton (CCR0015)