The Safety of Convictions in the Court of Appeal: Fresh Evidence in the Criminal Division Through an Empirical Lens

Date01 December 2019
Published date01 December 2019
Subject MatterArticles
The Safety of Convictions
in the Court of Appeal: Fresh
Evidence in the Criminal Division
Through an Empirical Lens
Paul Dargue
Northumbria University School of Law, UK
An academic consensus exists that the England and Wales Court of Appeal (Criminal Division)
determines appeals against conviction in a narrow or an unduly restrictive manner. This
consensus has developed through observation and empirical study of the Court over several
decades. It is said in particular that the Court adopts a narrow approach when considering
appeals which raise primarily factual issues, especially fresh evidence or ‘lurking doubt’ appeals.
This article discusses two new empirical studies of the Court, one of which is a replication of
Roberts’s recent study which featured in the Journal of Criminal Law in 2017. The empirical
evidence in support of the allegation of a restrictive approach is explored in this article from a
theoretical and methodological perspective. It is argued that the question of the Court’s
approach is difficult to study empirically, and so suggestions of empirical support for a
restrictive approach overreach the limits of the methods employed. This is not to suggest that
the Court of Appeal does not make mistakes, nor even is it to suggest that the Court is not
narrow or unduly restrictive. Rather, it is suggested that the empirical findings offered as
evidence of the restrictive approach, which gives rise to the consensus position, are weak and
should be treated with caution, especially in the light of the author’s two new empirical studies
of the Court.
Court of appeal, criminal appeals, fresh evidence, empirical legal studies, judicial decision-
Corresponding author:
Paul Dargue, Northumbria University School of Law, City Campus East, Newcastle upon Tyne, NE1 8ST, UK.
The Journal of Criminal Law
2019, Vol. 83(6) 433–449
ªThe Author(s) 2019
Article reuse guidelines:
DOI: 10.1177/0022018319877982
Empirical legal studies (ELS) is a field of legal study which aims, through systematic data collection and
observation, to answer legal research questions.
One area of the England and Wales legal system which
has faced some empirical scrutiny is the Court of Appeal (Criminal Division). Empirical studies since
Knight’s in the 1970s have disclosed evidence of the Court having an allegedly unduly restrictive
approach to determining appeals which raise factual issues.
This is in contrast to appeals which raise
largely legal or procedural irregularities. Empirical studies have shown that the Court is more likely to
quash convictions due to errors of legal process than due to fresh evidence.
Malleson’s research
conducted on behalf of the Royal Commission on Criminal Justice (RCCJ),
and Roberts’s recent study,
provide apparent empirical evidence of the approach of the Court and its apparent resistance to liberal-
ising its approach to fresh evidence appeals.
Partly as a result of Malleson’s research, and the academic consensus
that the Court appeared unduly
restrictive in its approach, the RCCJ recommended what became the ‘unsafety test’. The Court of Appeal
has operated this test since 1995, following the enactment of the Criminal Appeal Act 1995 via an
amendment to the Criminal Appeal Act 1968.
The ‘unsafety test’ means that the Court must quash a
conviction on appeal if it thinks that the conviction is unsafe, and it must dismiss the appeal otherwise.
There is no further definition of the meaning of an unsafe conviction given in the Act, and so the Court’s
past jurisprudence remains relevant.
The key pre-amendment decisions include R v Cooper,
created the doctrine of ‘lurking doubt’, and DPP v Stafford
where the House of Lords considered how
the Court of Appeal should determine fresh evidence appeals. A key provision is s 23 of the Criminal
Appeal Act 1968, as amended, which gives the Court the power to receive ‘fresh evidence’ if it thinks it is
in the interests of justice to do so. The 1995 Act also created the Criminal Cases Review Commission
(CCRC) which has the power to refer cases to the Court of Appeal for a full appeal hearing.
The results of an empirical study focusing on the Court was recently published by Stephanie Roberts
(hereafter ‘Roberts’).
Roberts used ‘both qualitative and quantitative empirical research [to] try to
determine what the Court’s approach is in fresh evidence appeals’.
Roberts argued that the Court does
not appear to have adopted a more liberal approach to its powers under the ‘unsafety test’, despite the
intention of the RCCJ when that test was recommended.
While more fresh evidence appeals were
surmounting the hurdle of obtaining permission to appeal, evidence potentially of a more liberal
1. WH Van Boom, P Desmet and P Mascini, ‘Empirical Legal Research: Charting the Terrain’ in WH Van Boom, P Desmet and
P Mascini (eds), Empirical Legal Research in Action: Reflections on Methods and their Applications (Edward Elgar, Chel-
tenham 2018) 8.
2. M Knight, Criminal Appeals (Stevens and Sons,: London 1970).
3. K Malleson, Royal Commission on Criminal Justice: Review of the Appeal Process Research Study No. 17 (HMSO, London
4. Ibid.
5. Report of the Royal Commission on Criminal Justice (RCCJ) Cm 2263 (HMSO, London 1993).
6. See most recently S Roberts, ‘Fresh Evidence and Factual Innocence in the Criminal Division of the Court of Appeal’ (2017)
81 J Crim L 303 (hereafter ‘Roberts’).
7. See also for evidence of consensus, R Pattenden, English Criminal Appeals 1844–1994 (Clarendon,: Oxford 1996); R Nobles
and D Schiff, Understanding Miscarriages of Justice: Law, the Media, and the Inevitability of Crisis (Oxford University Press,
Oxford 2000); S Roberts and L Weathered, ‘Assisting the Factually Innocent: The Contradictions and Compatibility of
Innocence Projects and the Criminal Cases Review Commission’ (2009) 1 OJLS 43.
8. Criminal Appeal Act 1995, s 2.
9. Criminal Appeal Act 1968 (as amended), s 2.
10. JC Smith, ‘Legislative Comment’ (1995) Crim LR 920.
11. (1969) 53 Cr App R 82.
12. [1974] AC 878.
13. Roberts (n 6).
14. Ibid 305.
15. Ibid 325.
434 The Journal of Criminal Law 83(6)

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