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Reviewing Previously Finalised Cases - CPS Policy

Introduction

1. This guidance has been prepared to assist the CPS in determining whether or not to conduct a review of past cases. A review may be required as a consequence of a subsequent trigger, which requires the reconsideration of the safety of convictions, or decisions not to proceed, and an assessment whether justice is served by allowing such convictions, or decisions, to stand.

2. Examples of scenarios where a review of past convictions may be required are set out in paragraph 6 below.

3. The re-visiting of sometimes long-concluded cases involves the balancing of competing considerations. Those convicted on the basis of an erroneous understanding or application of law or practice may well have suffered an injustice. At the same time, there is a continuing public imperative that, where possible, there should be finality and certainty in the administration of criminal justice. It is for this reason that the Court of Appeal has always adopted a strict approach to the granting of leave to appeal out of time where the grounds of appeal are based on subsequent changes in the law (see paragraph 12 below).

4. Occasionally, consideration needs to be given to the reviewing of past cases where decisions have been made not to bring a prosecution.

5. Decisions whether or not to carry out a review of past cases will depend on a number of factors, and will vary depending on the precise circumstances under consideration. This guidance sets out the principles that should be taken into account when making such decisions, and some of the questions which should be considered before reaching a conclusion. The Decision tree below illustrates the way in which a decision may be reached by applying this guidance.

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Triggers for Potential Review of Past Convictions

6. The need to consider taking a fresh look at previous cases in which defendants were convicted may arise for a number of reasons. The following list does not cover all potential scenarios. It does however set out a range of broadly-defined triggers within which future situations that arise may fit either directly or by analogy.

A. Where the competence and/or credibility of an expert witness or the methodology the expert witness has used is in doubt (see Chapter 37, Disclosure Manual for full guidance). 

B. Where a non-expert witness is discredited, for example a police officer or other witness who regularly gives prosecution evidence.

C. Where a new scientific breakthrough raises questions over the safety of earlier convictions.

D. Where the courts develop the common law and thus clarify the scope/elements of existing offences or defences.

E. As above, but where the courts determine the ambit of a statute, the scope of its application, or clarify the elements of a statutory offence.

F. Where procedural irregularities raise questions of the legality or enforceability of domestic legislation, for example, the EU has not approved or been notified of new legislation when required to do so.

G. Where technical defects are discovered in the construction or application of investigative equipment.

H. Where the law or the public interest is systemically mis-applied by prosecutors.

I. Where systemic failings in the disclosure process are discovered.

J. Where a flaw has occurred in the trial process, for example, proceedings based on defective indictments.

K. Where the CPS Legal Guidance for prosecutors is found to have been relied upon despite being legally incorrect.

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Deciding whether a review of past convictions or other action is required

7. It is not possible to provide definitive answers about when a review of past convictions, or other appropriate action, should take place (and if such a review does take place, the parameters of any such review).

8. However, it may be helpful to ask the following set of sequential questions to determine whether any action and, if so, what type of action, is appropriate. In many cases, you may not need to ask more than one or a few of these questions, as it may be readily apparent that no further action is required. Moreover, these questions will not cover all potential circumstances, nor will they necessarily reflect nuances in various scenarios. The questions are therefore for guidance purposes only and are not intended to replace or limit discretion in the decision-making process.

9. There may be occasions where, notwithstanding the conclusion that in principle it would be appropriate to carry out a full review, in practice there may be reasons why this will not be possible - for example, all the case papers relating to the affected cases, including those belonging to the police, have been destroyed.

10. Decisions, and the reasons for the decision, should be recorded in writing.

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Questions to ask

11. The relevant issues to consider are set out below.

A. Does the trigger potentially affect finalised or ongoing cases other than the case at hand? If so, it will be appropriate to ask the following questions in relation to all other potentially affected cases.

B. Might the trigger go to a key Issue in the case or raise a potential new issue or defence, and therefore have a potential significant impact on conviction? For instance, the evidence of an expert witness, which was contested at trial, is now brought into question by a scientific development; or a procedural irregularity is discovered, which raises a new issue. If the trigger does not have a potential significant impact on conviction, it is unlikely that any action on other cases would be required.

C. Is it a change of law case? If so, since appellate decisions are well known in the legal profession, there will usually be no need to take any action, as those who represent defendants can decide whether it is appropriate to take any necessary action. See also paragraphs 12-18 below.

D. Is the information only known internally at this stage? For instance, a disclosure failure is discovered that applies to a number of cases; or legal guidance is revealed to be incorrect or out of date. The defence and third parties would not necessarily have access to this information. If the information is only known internally, the question at E. below should be asked. However, where the information is in the public domain, it will be appropriate to ask the question at (a) below, under potential actions.

E. Are the other cases that we are concerned with summary and non-custodial offences? If so, it will be appropriate to ask the question at (a) below, under potential actions. If not, the question at F. below should be asked.

F. Is it likely that custodial sentences are still being served, or that ancillary orders, such as a Confiscation Order, a Sexual Offences Prevention Order, a Travel Restriction Order, or an Anti-Social Behaviour Order are still outstanding? If so, an urgent full review should be carried out, as set out at (d) below under potential actions. If not, then it will be appropriate to ask the question at (b) below under potential actions.

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Potential actions

a. Is there likely to be any injustice or significant damage to public confidence if no action is taken? For instance, has there been media interest in these cases which in itself provides a compelling reason to take some action? or has there been any relevant correspondence, involving the defence, third parties or other government departments? If it is known that any of the relevant cases involved an unrepresented defendant, and the trigger may have a significant impact on conviction, the defendant should be informed. Where there is not likely to be significant damage to public confidence if action is not taken, action would not usually be required. However, where it is thought that such damage is likely, it will be appropriate to ask the question at b. below.

b. Would disclosure of information/material to the defence, be sufficient and appropriate action? If so, such disclosure to the defence should be made in all relevant cases. In order to answer this question, it may sometimes be necessary to review cases in order to establish what, if any, information/material needs to be disclosed on a case-by-case basis. If such disclosure would not be sufficient, it will be necessary additionally to inform appropriate third parties from the list at c. below, together with any other relevant third parties.

c. Where a decision is made to inform one or more third parties about a trigger, the following third parties should be considered: the Law Society; the Attorney General's Office; the Criminal Cases Review Commission (CCRC); and any other prosecutors and Government departments that may be affected by the trigger.

d. Where it is likely that custodial sentences are still being served, or that ancillary orders, such as Confiscation Orders, are still outstanding, simply informing the defence and third parties will not be sufficient. In these circumstances, an urgent review should be set up in relation to all affected cases. It is likely that relevant disclosure to the defence will need to be made in some or all of the affected cases; and appropriate third parties from the list at c. above will need to be informed, together with any other relevant third parties. Consideration should be given to whether to inform the defence/third parties at the outset of the review or to wait until the conclusion of the review.

e. Where a trigger affects finalised or ongoing cases other than the case at hand, consideration should be given to notifying Areas and Casework Divisions, and issuing appropriate guidance about handling arrangements.

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The approach of the Court of Appeal in "change of law" cases

12. Where there is a judicial development in the law subsequent to conviction, the Court of Appeal will not usually grant an extension of time for permission to appeal. This practice was affirmed in the cases of R v Cottrell and R v Fletcher [2008] 1 Cr. App. R. 7, where the Court of Appeal examined this line of authority through a number of past cases.

13. The only exception to this practice is where the appellant is able to demonstrate that he or she has suffered a substantial injury or injustice.

14. Most change of law cases are therefore unlikely to lead to permission to appeal. Moreover, any legal developments are likely to be known to defence solicitors and counsel, who will be in a better position than the prosecutor to assess whether the defendant has suffered a substantial injury or injustice. For these reasons, it will not usually be necessary to take any action in relation to past convictions that may be affected by a change of law: see paragraph 11C above.

Referrals of change of law cases by the Criminal Cases Review Commission

15. Under section 9 of the Criminal Appeal Act 1995, the CCRC may refer cases of convicted persons to the Court of Appeal. Such a referral is treated as an appeal against conviction, so by-passing the courts usual process of filtering out unmeritorious appeals by way of applications for leave to appeal.

16. In R v Cottrell and R v Fletcher, the Court of Appeal indicated that the CCRC should have regard to the practice of the court when dealing with such cases, indicating that a conviction should not normally be referred on the basis of a change of law.

17. Subsequently, Parliament inserted section 16C into the Criminal Appeal Act 1968, which provides the Court of Appeal with a power to dismiss an appeal following a reference by the CCRC, where the appeal is based on a change of law, and the Court would not have thought it appropriate to grant permission to appeal out of time if the appellant had made an application to the Court.

18. As a result, even where the CCRC refers a change of law case to the Court of Appeal, it may now be dismissed without consideration of the full grounds of appeal. It will therefore not usually be necessary to inform the CCRC about past convictions affected by a change of law.

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Scenarios involving previous decisions not to prosecute

19. Although less likely to occur in practice, there may be occasions where decisions not to prosecute require further consideration.

20. Such scenarios are likely to arise where an irregularity is discovered in either the decision-making process or in the prosecution process overall.

21. Examples include:

    • Where a misunderstanding of the law or an incorrect application of the public interest stage of the Full Code Test by an individual or group of prosecutors leads to an inappropriate decision not to prosecute.
    • Where Legal Guidance incorrectly sets out either legal or policy requirements.
    • Where decisions not to prosecute result from mala fides within the prosecution team.

22. In deciding whether to review cases where decisions were made not to prosecute, the same considerations set out in paragraph 11 above will broadly apply.

Level of Decision Making

23. Owing to the resource implications and the issues of public confidence involved, decisions on whether to embark on a review of past cases should be made at a senior level. When deciding on who should take the decision, and who should be notified of the decision, a staged approach will be appropriate:

  1. Units should notify the Chief Crown Prosecutor (CCP) or Deputy Chief Crown Prosecutor (DCCP) as soon as they are aware of any trigger for a potential review. The CCP or DCCP will consider whether the trigger only affects cases within the Area or whether cases may be affected on a wider level. For instance, where the trigger relates to the credibility of a police officer, if the officer has only given evidence in cases that are prosecuted within the Area, only cases within the Area will be affected. In such circumstances, the decision can be taken at Area level: the CCP/DCCP should decide what action to take or, in appropriate cases, the decision may be delegated to a manager at level E grade. The proposed decision should be notified to the CCP (if not already involved) and to the Director of Strategy and Policy (DSP), who will cause a record to be made of the decision.
  2. Where a trigger has a potential for impact beyond Area level, the CCP/DCCP should notify the DSP of the trigger. In those situations where a review of finalised cases is considered appropriate, or the proposed decision is to inform a third party, the DSP will inform the Principal Legal Advisor (PLA) to confirm the decision. In some situations, where the trigger or decision may have a significant impact on public confidence, attract substantial media interest, or relate to a number of serious or high profile cases, the proposed decision may be referred to the DPP.

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Decision Tree

The triggers for potential reviews are:

  • Tainted expert evidence;
  • Trainted on-expert witness;
  • Scientific development;
  • Common law change;
  • Statutory interpretation;
  • Procedural Irregularities;
  • Law or Public Interest wrongly applied;
  • Technical defects;
  • Systematic disclosure failure;
  • Flawed trial process;
  • Legal Guidance incorrect.

1.  Question: Does the trigger potentially affect finalised or ongoing cases other than the case at hand?

Answer is Yes. Go to 2.

Answer is No. Then no action is required, unless the circumstances of a particular case notice to the defendant and / or third parties.

2. Question: May the trigger go to:

  • A key issue in the affected cases; or
  • Raise a potential new issue; or
  • Raise a potential new defence;

and therefore have a significant impact on convictions?

Answer is Yes. Go to 3.
Answer is No. Then no action is required, unless the circumstances of a particular case notice to the defendant and / or third parties.

3. Question: Are these changes of law cases?

Answer is Yes. Then no action is required, unless the circumstances of a particular case notice to the defendant and / or third parties.
Answer is No. Go to 4.

4. Question: Is the information only known internally at this stage? 

Answer is Yes. Go to 5.
Answer is No. Go to 6.

5. Question: Are these summary or non-custodial offences?

Answer is Yes. Go to 6.
Answer is No. Go to 7.

6. Question: Is there likely to be significant damage to public confidence if no action is taken?

Answer is Yes. Go to 8.
Answer is No. Then no action is required, unless the circumstances of a particular case notice to the defendant and / or third parties.

7. Question: Is it likely that custodial sentences are still being served, or that any ancillary orders, such as confiscation Orders, are still outstanding?

Answer is Yes. Then carry out an urgent review of all affect cases. And, inform the appropriate third parties: Law Society; Attorney General's Office; Criminal Cases Review Commission; other prosecutors and Government departments; the rest of the CPS. And, disclose the information / material to the defence.

Answer is No. Go to 8.

8. Question: Would it be sufficient to disclose the information / material to the defence?

Answer is Yes. Disclose the information / material to the defence.
Answer is No. Inform the appropriate third parties: Law Society; Attorney General's Office; Criminal Cases Review Commission; other prosecutors and Government departments; the rest of the CPS. And, disclose the information / material to the defence.

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