Dennis516 argued that the fundamental function of the Court since the enactment
of the ‘unsafety test’ is to review the legitimacy of convictions.517 In particular, this
means that the operation of the test is based upon whether the particular judges hearing the appeal, at the particular time that the appeal is heard, are sure of the factual accuracy of the conviction; its moral authority; and that the conviction is grounded in the rule of law.518 It is only if the Court can answer all of these
questions affirmatively that convictions can be safe.
As can be seen from the history of the Court discussed in the previous section, it has been by design that the Court’s powers have become progressively less explicit and somewhat more vague or open-textured. Under the 1907 Act, the Court was constrained to only allow appeals in the absence of procedural irregularities if there was no evidence upon which a jury could have convicted. Since the jury did convict, it may be understood why this was hardly ever applicable. If the jury convicted when there was insufficient evidence, this may constitute an error of the trial judge for not stopping the case on the basis of no case to answer.
The RCCJ called upon the Court to generally be more ready to reverse jury verdicts than had been previously, and the ‘unsafety test’ was the way chosen to permit the Court the powers to do so whenever it thinks it just.519 Thus, whilst the
‘unsafety test’ was designed to give the Court more general powers, it was done so with a proviso, or a hope / expectation, that it would exercise that discretion in a particular way; namely, in a more liberal way. As will be explained below, this hope appears to have failed, as the test itself does not constrain the judges to deciding cases in a liberal way. The test may be considered so ‘open-textured’ that it is has been necessary for the Court to interpret what it means, and to impose certain rules within its operation. The extent to which the Court then
516 I Dennis, ‘Fair Trials and Safe Convictions’ [2003] CLP 211 517 ibid, 236.
518 ibid.
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follows those rules in the operation of the test, is how the law governing appeals has been measured in this study.
There have been two empirical studies of the Court since the enactment of the ‘unsafety test’. Roberts’s research was structured in ‘the qualitative method in conjunction with a purely descriptive quantitative analysis’.520 She presented a
number of factors which could indicate the approach of the Court. These were: the success rate of appeals; the numbers of applications for leave which were granted; how the Court dealt with fresh evidence and lurking doubt appeals; its approach to procedural irregularity appeals, including issues under the Human
Rights Act 1998; and the use of its powers to order a retrial.521 She found that a
falling overall success rate, and the low number of successful appeals on fresh evidence and lurking doubt appeals to be some evidence of a restrictive approach.522 She found that despite the RCCJ’s view that the Court of Appeal
should be more open to quashing convictions in the absence of procedural irregularities, such appeals were rarely successful.523 Across her sample, only
one appeal was allowed on the basis of the Court finding a ‘lurking doubt’, and only nine were allowed on the basis of fresh evidence.524 She concluded that
attempts to liberalise the Court’s practice had failed, owing to the Court’s function of reviewing convictions rather than retrying appellants.525
Heaton’s study526 reached similar conclusions. He also found that fresh evidence
and lurking doubt appeals were rarely successful.527 He found that the Court
appeared to use the fresh evidence provisions in a restrictive way, ‘thus limiting
520 ibid.
521 S Roberts ‘The Decision-Making Process of Appeals Against Conviction in the Court of Appeal
(Criminal Division) (DPhil Thesis, London School of Economics and Political Science, 2009) 209- 11. (Hereafter ‘Roberts (2009)).
522 ibid. 523 ibid. 524 ibid.
525 S Roberts ‘The Royal Commission on Criminal Justice and Factual Innocence: Remedying
Wrongful Convictions in the Court of Appeal’ (2004) (1)(2) JJ 86. (Hereafter ‘Roberts (2004)).
526 SJ Heaton, A Critical Evaluation of Using Innocence as a Criterion in the Post-Conviction
Process (DPhil Thesis, University of East Anglia, 2013).
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the number of successful appeals’.528 He further contended that the Court of
Appeal ‘explicitly eschews interest in innocence in a significant number of cases. It also, by its reluctance to adopt a less restrictive approach to the receipt and evaluation of fresh evidence, represents a significant obstacle to those asserting innocence’.529
These studies of the Court of Appeal’s decision-making has evaluated the Court from a particular perspective – what may be called the ‘wrongful conviction’ or ‘miscarriage of justice’ perspective.530 Naughton argues that writers from the
miscarriage of justice community can ‘identify the key difficulties … [for] the delivery of justice for innocent victims of wrongful convictions’ and form a ‘counter-discourse on the existing arrangements’.531 In relation to the Court of
Appeal, the difficulty is that it is said to have continued to have adopted a restrictive approach following the enactment of the ‘unsafety test’. Although the Court has been criticised for not adapting its approach following the adoption of the ‘unsafety test’, it was suggested above that it should not have been surprising that the test does not appear to have liberalised the Court’s approach.
This thesis approaches the analysis of the Court of Appeal from a differing perspective to previous studies. This study is embedded in the ELS community. It may be said that this research complements, and is complemented by, previous research, but they ask different questions. Previous studies have sought to discern the Court’s approach to determining appeals; this thesis asks whether the Court has the legitimacy to render decisions at all by holding the Court to a standard of impartiality. Moreover, whilst previous research suggests that a ‘restrictive approach’ is what leads some appeals to be allowed and some to be dismissed, this thesis asks whether there is an association between a range of
528 ibid, 117. 529 ibid, 211.
530 M Naughton (ed), The Criminal Cases Review Commission: Hope for the Innocent? (Palgrave
Macmillan 2009) 13.
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variables and outcomes. It is discussed in Chapter 8 whether the concept of an ‘approach’ is a solid enough foundation for empirical research.
This study is not concerned with the same aspects of the Court’s decision-making as are some previous studies. This thesis is not concerned with analysing decisions of particular cases and determining whether the outcomes of appeals are right or wrong. Moreover, it does not address the question of how well the Court performs in correcting miscarriages of justice, or what its approach to correcting miscarriages of justice is. What is involved in this study is a ‘broadening of the traditional analytical approach’.532 This entails foregoing the
ability to judge the nuances of particular cases in favour of a broad perspective on fact patterns and decision-making.533 It is not necessary to provide a definition
of a miscarriage of justice, because whether a miscarriage of justice occurred or was rectified (or not) in a particular appeal is irrelevant to the analysis conducted here. As such, there is no definition of a miscarriage of justice offered, and this thesis is neutral as to how well the Court performs in correcting miscarriages of justice, and has not sought to directly discern evidence of the Court’s approach.
The previous research on the Court of Appeal is useful in explaining the institutional position of the Court. Studies which analyse courts from the perspective of the ‘institutional model’ are interested in the extent to which the institutional norms of a court mediate judges’ preferences, and also how the law guides decision-making.534 In the Court of Appeal, the law which guides decision-
making is the interpretation of ‘unsafety test’. There has been a considerable amount of jurisprudence from the Court of Appeal as to the meaning of unsafety and its relationship with other concepts, such as unfairness. It is these norms which are captured within the legal variable which is analysed in the binary logistic
532 A Juliano and SJ Schwab ‘The Sweep of Sexual Harassment Cases’ (2001) (86) Cornell L
Rev 548, 553.
533 ibid.
534 See K Weinshall-Margel, ‘Attitudinal and Neo-Institutional Models of Supreme Court Decision
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regression models shown in Chapter 7. The remainder of this chapter analyses the ‘unsafety test’.