The Law Commission consultation on criminal appeals reform

The Law Commission opened a consultation recently on potential reforms to the system relating to criminal appeals. The Law Commission was asked by the previous Government to review the law relating to criminal appeals following recent criticism of the criminal appeals process. This has involved high-profile miscarriages of justice including the Post Office Horizon scandal and Andrew Malkinson (see our blog on his case here).

Concerns have been raised around requirements for new evidence in order to pursue an appeal and the tests used by the Court of Appeal Criminal Division (CACD) and the Criminal Cases Review Commission (CCRC), which is the body responsible for investigating miscarriages of justice. It has been argued that the current system makes it extremely difficult for wrongly convicted people to make use of existing evidence to prove their innocence. Concerns were also raised about compensation and support for the wrongly convicted after their convictions have been quashed.

Chronology of the consultation

In July 2022, the Government asked the Law Commission to review the law, with a view to ensuring Courts have powers that enable the effective, efficient and appropriate resolution of appeals.

In July 2023, the Law Commission published an Issues Paper which sought views on potential law reform. They received 158 responses.

In 2024, the Law Commission agreed with the Government to widen the scope of the consultation to include compensation and support for the wrongly convicted.

On 27 February 2025, the Law Commission published a consultation paper and are now undertaking a three-month consultation on proposals for reform.

The 2025 consultation paper

Within the consultation paper, the Law Commission considers:

The principles that should govern the criminal appeals system;
Appeals from “summary proceedings” in magistrates’ courts;
Appeals by children and young people and reviews of some sentences;
Convicted persons’ appeals to the CACD and the “substantial injustice” test applied by the CACD when dealing with appeals based on a change in the law;[1]
The CCRC, and specifically the “real possibility” test it applies when deciding whether to refer convictions or sentences to appeal courts;[2]
The powers of the Attorney General to refer sentences as “unduly lenient” or points of law to the CACD;
The powers of the prosecution to appeal against certain trial decisions and to apply to quash acquittals for serious offences on the basis of new and compelling evidence;
Appeals against bail decisions and decisions on reporting restrictions;
Criminal appeals to the Supreme Court;
Post-trial retention and disclosure of evidence;
Compensation and support for the wrongly convicted;
Dealing with systemic miscarriages of justice; and
Preventing miscarriages of justice.

The Law Commission has provided provisional proposals, which include:

Replacing the “real possibility test” with one focussing on the CCRC’s own view of the case, rather than requiring it to predict the court’s response;
Making the CCRC subject to an independent inspectorate;
Replacing the requirement for the wrongly convicted to prove their innocence beyond reasonable doubt (ie make the decision-maker sure that they are innocent) to receive compensation so that those who can prove their innocence on the balance of probabilities (ie make the decision-maker consider it more likely than not that they are innocent) will receive compensation;
Simplifying appeals to the High Court on a point of law in summary proceedings by abolishing the “case stated” procedure;
Giving courts and the CCRC greater powers to investigate claims that a conviction is unsafe due to juror misconduct; and
Enabling more appeals to be considered by the Supreme Court by removing the requirement of the CACD or High Court to certify that an appeal involves a question of law of general public importance.

The Law Commission is also seeking views on the following:

The core principles that should apply to criminal appeals;
The time limits for lodging appeals;
The law governing the composition and terms of appointment for CCRC commissioners;
Whether the “unduly lenient” sentence scheme should be expanded to cover offences such as causing death by careless driving and animal cruelty;
Whether provisions allowing for a person who has previously been acquitted to be retried when there is compelling new evidence should be extended to cover other offences;
Whether it should be lawful to disclose evidence for the purposes of responsible journalism to reveal a possible miscarriage of justice; and
Establishing a National Forensic Archive Service to take over responsibility for long-term storage of evidence used in trials.

The consultation closes on 30 May 2025, with a view to publishing a final report with recommendations in 2026.

Comment

It is clear that there are issues with the current criminal appeals system, particularly following high-profile cases of miscarriages of justice referred to above. The Law Commission’s proposals are welcomed, as they are trying to make it easier for those wrongly convicted to be able to clear their name. This is important to ensure that such miscarriages of justice are not repeated.

The present system makes it very difficult for someone to clear their name. However there is a risk that if not executed properly a change could result in an unmanageable flood of appeals (many of which may lack merit). A balance will have to be struck.

Notes

[1] The test is that where the conviction was entirely proper under the law as it stood at the time of trial, if there is subsequently a change in the law for which the person would no longer be convicted of the offence, the CACD will grant leave to appeal the conviction out of time only where substantial injustice would be done to the person in question (R v Hawkins [1991] 1 Cr App R 234, CA 240).

[2] This requires the CCRC to conclude that there is a “real possibility that the conviction, verdict, finding or sentence would not be upheld were the reference to be made…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” (section 13(1) Criminal Appeal Act 1995).