The Law Commission announces a review of the criminal appeals system

Press Release – APPEAL – 5 August 2022

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 in England and Wales.

APPEAL wholeheartedly welcomes this announcement, having campaigned for reform of the appeals system since its inception in 2014. We particularly welcome the Commission’s intention to engage those with lived experience of the issues.

APPEAL has supported the findings of the Westminster Commission on Miscarriages of Justice, which echoed our calls for urgent improvements to the law on appeals.

The new project, which is formally beginning a pre-consultation phase expected to last until the latter part of next year, will examine the evidence of 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. 

Most significantly, the areas to be considered by the Law Commission include:

·      Disclosure of evidence by the prosecution to the defence both before and after conviction.

·      Reform of the powers of the Court of Appeal, the only court with the power to quash a conviction.

·      The ‘real possibility’ test used by the Criminal Cases Review Commission (CCRC) in deciding whether to refer to the Court of Appeal– which as currently drafted is far too deferential to the Court.

·      The ‘safety test’ – the test used by the Court of Appeal for deciding whether to quash a conviction – and its effectiveness to safeguard against wrongful conviction.

Emily Bolton, Director and Founder of APPEAL said:

As appeal lawyers we are often asked, “Well just how many innocent people are convicted in this country?” The answer is that the English and Welsh appeal system as currently constructed cannot provide an answer. It is barely a system at all, merely an opportunity to take a shot, in the dark, wearing a blindfold. You have just one appeal of right in this country. If you use up that one shot and lose, after that, you no longer have direct access to a court.

In the US, you can bring you appeal case through multiple levels of appeal courts, using court orders to get access to evidence that you can use to prove your case and if you lose all the way to the top, you just start the process again.  This access to appeal courts is why so many wrongful convictions are getting exposed in the US.

The Law Commission’s decision to review the system is welcomed by APPEAL and the wrongfully convicted people we represent. We are pleased that the terms of reference encompass almost all of our major innocence initiative reform goals including post-conviction disclosure, the tests applied by the Court and the Commission, retention periods and access to transcripts.

We will actively engage with the Law Commission at every stage of the process .We encourage fellow stakeholders to get behind this much needed programme for reform.

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