Legal background
- Convictions within the scope of the Act were quashed directly by legislative means when the Act came into force.
- This is an unprecedented and wholly exceptional legal solution to a miscarriage of justice of unparalleled scale and impact.
- The approach to quashing convictions in the Act does not set any constitutional precedent.
- The criteria set out in the Act for defining the category of convictions within its scope are intended to be unambiguous and capable of being applied without any element of judgment or discretion on the part of those whose job it is to notify those within scope that their convictions have been quashed. This is to ensure that the Executive is not empowered to interfere with judicial decisions.
- Notification under Section 4 of the Act of the convictions that have been quashed will provide legal certainty, resulting in the convicting court entering in its records the fact that the relevant convictions have been quashed by the Act.
- By way of further legal background, the law in respect of criminal appeals is set out in the Magistrates’ Court Act 1980 ("MCA 1980"), Criminal Appeal Act 1968 ("CAA 1968") and the Criminal Appeal Act 1995 ("CAA 1995").
- Convictions in the criminal courts can be appealed by an appeal to a higher court by the individual, or reference by the Criminal Cases Review Commission ("CCRC"), whether on application by an individual, or of its own volition. The two are not mutually exclusive and, ordinarily, a matter will only be referred by the CCRC where an appeal by the individual has been unsuccessful.
- Section 108 of the MCA 1980 provides that a person convicted by a magistrates’ court may appeal to the Crown Court either against their sentence if they pleaded guilty or against their conviction or sentence if they did not plead guilty. The right of appeal against conviction following summary trial is automatic, meaning that there is no requirement to obtain leave to appeal. There is no right, automatic or otherwise, to appeal against a conviction following a guilty plea in the magistrates’ court. However, a referral may be made by the CCRC regardless of plea.
- An appeal against summary conviction lies to the Crown Court. Appeal against conviction can be on points of law or fact and appeal is by way of a full rehearing of the case in the Crown Court. If a decision of the magistrates’ court is confirmed or varied by the Crown Court, or if the Crown Court substitutes its own decision, the decision of the Crown Court has "effect as if it had been made by the magistrates’ court against whose decision the appeal is brought" (section 110 MCA 1980). Rule 34.8(3) of the Criminal Procedure Rules ("CrPR") requires the Crown Court officer to serve decision of an appeal on various persons including the magistrates’ court officer and Rule 5.4 requires the court officer to record acquittals, convictions etc. The combined effect of these provisions is that once a person is acquitted on appeal in the Crown Court, the court records must be updated to reflect that fact.
- A person convicted of an offence on indictment in the Crown Court may appeal to the Court of Appeal against their conviction either with the leave of the Court of Appeal or where the judge of the court of trial grants a certificate that the case is fit for appeal within 28 days from the date of the conviction (section 1 of the CAA 1968). The process is therefore a two stage one: first, leave must be obtained, then the appeal is heard and either allowed or dismissed. Leave to appeal may be granted by a single judge in the same manner as by the Court of Appeal and subject to the same provisions, as provided for by section 31 of the CAA 1968.
- The grounds for allowing an appeal are set out in section 2 of the CAA 1968. Section 2(1) provides that the Court of Appeal "shall allow an appeal against conviction if they think that the conviction is unsafe" and "shall dismiss such an appeal in any other case". Per section 2(2), if an appeal is allowed, the Court of Appeal must quash the conviction. Section 2 also provides that an order by the Court of Appeal quashing a conviction shall, in all cases except where the Court of Appeal also orders retrial, be a direction to the court of trial to enter a judgment and verdict of acquittal in place of the record of conviction. As noted above, Rule 5.4 of the CrPR places duties on court officers to ensure this happens.
- The powers of the CCRC are provided for by section 8 of the CAA 1995. Under section 11(1) CAA 1995, the CCRC may "at any time" refer a summary conviction to the Crown Court. In contrast to the right of the individual to appeal, the CCRC is not prevented from referring a conviction following a guilty plea. Section 11(2) provides that a reference under section 11(1) "shall be treated for all purposes as an appeal by the person under section 108(1) [of the MCA 1980] against the conviction", regardless of whether the conviction followed plea or trial. Provision for referral by the CCRC of convictions in the Crown Court is made by section 9. The CCRC may "at any time" refer the conviction to the Court of Appeal. By virtue of section 9(2), a reference is treated "for all purposes" as an appeal under section 1 of the CAA 1968.
- The conditions for the making of a reference by the CCRC are set out at section 13. The Commission must consider that there is a "real possibility that the conviction would not be upheld" if the reference were to be made (section 13(1)(a)). Ordinarily, a reference may only be made when an appeal against the conviction has been determined, or leave to appeal has been refused (section 13(1)(c)), and where there is an argument available that has not previously been raised in relevant proceedings (section 13(1)(b)(i)). However, section 13(2) provides an exception ensuring that neither of those requirements prevents the making of a reference "if it appears to the Commission that there are exceptional circumstances which justify making [the reference]". Section 14(1) provides that the CCRC may make a reference either upon application by the individual to whom it relates, or on its own volition. Section 14(2) sets out the matters to which the Commission shall have regard in considering whether to make a reference of a conviction. Essentially it must consider any representations made to it, whether by the person concerned or otherwise, and "any other matters which appear to the Commission to be relevant."
- Legislative provisions in respect of criminal records are set out in Part V of the Police Act 1997. The process relies on information about "convictions" (see s.112(3) of the Police Act 1997 which refers to the definition in s.1(4) of the Rehabilitation of Offenders Act 1974) The processes needed to remove criminal records when a conviction is overturned are carried out between the courts and the police.
- The Act also makes separate provision as regards cautions, which are not judicial in character and so do not raise the same issues noted in paragraph 20ff above.
- The Act also includes power for the Secretary of State to make by statutory instrument such consequential provision as may be needed. The affirmative procedure is to be used for any such instrument that amends primary legislation.
