From almost my first day as chairman of the Criminal Cases Review Commission (CCRC) in 2003 and throughout my five years in post, I found myself having to defend the statutory test for referral of a case to the relevant appeal court. There was much wrong with the CCRC in those days, to which I put my shoulder, but the referral test was not among the problems, then or now.
The criticisms, however, have persisted, culminating in the Law Commission’s provisional view in its consultation paper on Criminal Appeals (CP 268, 27 February 2025, Chap 11) that it should be replaced, reflecting the views of all but one of the 35 respondents to their earlier issues paper. Only the Crown Prosecution Service (unlikely to want to see any relaxation in the threshold for referral) pronounced the test satisfactory.
The test, found in s 13(1) of the Criminal Appeal Act 1995,
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