Nicole Keeling
The Law Commission has released proposals for fundamental reform of the way criminal appeals are handled in England and Wales, aiming to remove hurdles that prevent wrongful convictions from being overturned. In its latest consultation paper, the independent legal reform body sets out a series of proposals for reforming the system to make it fairer and more effective (Law Commission).
Recent miscarriages of justice—most notably the Post Office Horizon scandal and the wrongful conviction of Andrew Malkinson—have put the criminal appeals system under intense scrutiny. Critics argue that the process for appealing against unsafe convictions is far too rigid, with many innocent individuals left in prison with no realistic prospect of justice.
Professor Penney Lewis, the Criminal Law Commissioner, said the proposals are intended to make the appeals system more efficient and accessible. “As the Post Office scandal has demonstrated, anyone can fall victim to a miscarriage of justice. Our proposals aim to ensure that those who have been wrongly convicted have a fair chance to challenge their convictions” (Law Commission statement).
Among the most important suggested reforms is the ‘real possibility’ test, which controls whether the Criminal Cases Review Commission (CCRC) can refer a case for appeal. Currently, the CCRC can only do so if it believes there is a ‘real possibility’ that the Court of Appeal will overturn the conviction. This test is criticised by most lawyers as rendering the CCRC too cautious, often preventing it from acting even when there are strong reasons to doubt a conviction’s safety. The Law Commission suggests shifting the focus, allowing the CCRC to arrive at its own decisions regarding whether or not a conviction is unsafe.
Another key proposal is extending the time limit for filing an appeal from 28 days to 56 days. Many people—especially those in prison—struggle to secure legal advice and gather evidence within the current short window, making it virtually impossible for them to lodge an appeal in time.
Wider Access to the Supreme Court
Under the current system, the Supreme Court can only hear criminal appeals if the Court of Appeal or High Court certifies that the case involves a point of law of general public importance. The Law Commission argues that this certification process creates unnecessary obstacles and should be abolished. If this reform is implemented, the Supreme Court would be able to decide for itself which cases it will hear, potentially opening the door for more appeals to reach the UK’s highest court.
Compensation for the Wrongfully Convicted
Another controversial issue the Commission addresses is compensation for miscarriages of justice. At present, people who have been wrongly convicted must prove their innocence beyond reasonable doubt to qualify for compensation. Critics say this is an unfairly high bar, given that the courts originally failed them. The Law Commission proposes lowering the standard to the ‘balance of probabilities’—the test used in civil cases—making it easier for the wrongfully convicted to receive financial redress (Justice Committee Report).
Other Key Proposals
Additional suggested reforms include:
- Scrapping the ‘case stated’ procedure for summary cases, which is widely seen as outdated and overly complex.
- Introducing an independent inspectorate to oversee the CCRC, ensuring greater transparency and accountability.
- Expanding the Unduly Lenient Sentence scheme to include offences such as causing death by careless driving and animal cruelty.
- Creating a National Forensic Archive Service, ensuring crucial evidence from trials is preserved for future appeals.
The Law Commission’s consultation runs until 30 May 2025, giving legal professionals, campaigners, and the public an opportunity to provide feedback on the proposals. If adopted, these reforms could mark the most significant overhaul of the criminal appeals system in decades.
With political pressure mounting in the wake of high-profile miscarriages of justice, the coming months will be crucial in determining whether these proposals gain the necessary support to become law.