The applicant was convicted of murder and her application for leave to appeal against conviction was dismissed. She later asked that her case be referred to the court of appeal on the ground of diminished responsibility, a ground not put forward earlier but now supported by a psychiatric report. In due course her case was transferred to the CCRC. Under section 9 it was not permitted to refer a case to the court of appeal unless it considered there was a ‘real possibility’ that the conviction would not be upheld. The CCRC declined to refer on the ground that there was no likelihood of the court of appeal receiving the new evidence. The applicant sought judicial review.
Held: The CCRC had rightly sought to anticipate whether there was a real possibility of the court of appeal receiving the new evidence, that there were no grounds for impugning its decision and that the application would therefore be dismissed. Lord Bingham referred to previous cases in which fresh evidence from the applicant himself had been considered.
Lord Bingham CJ said: ‘Thus the Commission’s power to refer under section 9 is exercisable only if it considers that if the reference were made there would be a real possibility that the conviction would not be upheld by the Court of Appeal. The exercise of the power to refer accordingly depends on the judgment of the Commission, and it cannot be too strongly emphasised that this is a judgment entrusted to the Commission and to no one else. Save in exceptional circumstances, the judgment must be made by the Commission, in a conviction case, on the ground of an argument or evidence which has not been before the court before, whether at trial, on application for leave to appeal or on appeal. In the absence of such exceptional circumstances, the Commission cannot therefore invite the court to review issues or evidence upon which there has already been a ruling. Resort to the Commission must ordinarily follow and not precede resort to the Court of Appeal.’ and ‘The ‘real possibility’ test prescribed in section 13(1)(a) of the 1995 Act as the threshold which the Commission must judge to be crossed before a conviction may be referred to the Court of Appeal is imprecise but plainly denotes a contingency which, in the Commission’s judgment, is more than an outside chance or a bare possibility but which may be less than a probability or a likelihood or a racing certainty. The Commission must judge that there is at least a reasonable prospect of a conviction, if referred, not being upheld. The threshold test is carefully chosen: if the Commission were almost automatically to refer all but the most obviously threadbare cases, its function would be mechanical rather than judgmental and the Court of Appeal would be burdened with a mass of hopeless appeals; if, on the other hand, the Commission were not to refer any case unless it judged the applicant’s prospect of success on appeal to be assured, the cases of some deserving applicants would not be referred to the Court and the beneficial object which the Commission was established to achieve would be to that extent defeated. The Commission is entrusted with the power and the duty to judge which cases cross the threshold and which do not.’
Lord Bingham of Cornhill CJ
 3 All ER 498,  1 Cr App R 141
Criminal Appeal Act 1995 9
England and Wales
Cited – Gibson, Regina v CACD 11-Jan-2006
The defendant renewed has application for leave to appeal against his conviction for the murder of his daughter-in-law. The principle evidence against him was that of an accomplice. She had received letters to say that no further action would be . .
Applied – Dowsett v Criminal Cases Review Commission Admn 8-Jun-2007
The claimant had been convicted in 1993 of involvement in a murder. He had complained that the police had failed to disclose material which would have been of assistance to him. He had requested the Commission to take examine and pursue his appeal. . .
These lists may be incomplete.
Updated: 21 May 2021; Ref: scu.237576