The criminal appeals system in England and Wales performs a vital constitutional function. It provides a mechanism to challenge wrongful convictions can be challenged, correct legal errors corrected, and maintain public confidence in the justice system maintained. Yet in recent years, the system has faced increasing scrutiny, particularly after several high-profile miscarriages of justice cases.
Against this backdrop, the Law Commission has undertaken a wide-ranging review of criminal appeals, prompting renewed debate about whether the current framework adequately protects the innocent.
Why the Current System Is Under Scrutiny
The review follows concerns raised by organisations including the Justice Select Committee and the Westminster Commission on Miscarriages of Justice, both of which questioned whether existing appeal procedures are fit for purpose. Central to these concerns is the test applied by the Court of Appeal (Criminal Division), which generally asks whether a conviction is "unsafe". Critics argue that this approach places excessive emphasis on procedural fairness rather than factual innocence, making it difficult for genuinely innocent individuals to overturn convictions.
Reforming the Criminal Cases Review Commission
A key focus of the Law Commission's review is the role of the Criminal Cases Review Commission (CCRC), the independent body that investigates potential miscarriages of justice. Currently, the CCRC may refer a case to the Court of Appeal only where there is a "real possibility" that the conviction will not be upheld. Critics argue this threshold is overly restrictive because it requires the Commission to predict how the Court of Appeal will respond, rather than conduct a broader assessment of whether a miscarriage of justice may have occurred. As a result, some potentially meritorious cases may never reach the appellate courts.
Fresh Evidence and Barriers to Appeal
The reviews also examine how fresh evidence is treated. Under existing law, appellants may face significant hurdles when evidence was available at the time of trial but the defence did not rely on it. This can be particularly problematic in cases involving advances in forensic science or where new expert analysis emerges years after conviction. The Commission has recognised concerns that the current framework may prevent courts from fully considering evidence that casts doubt upon guilt, even where that evidence was technically available earlier.
Another notable aspect of the consultation concerns support and compensation for the wrongly convicted. Individuals whose convictions are quashed often face considerable challenges reintegrating into society after years of imprisonment. The Commission's decision to examine compensation and post-conviction support reflects a growing recognition that correcting a miscarriage of justice involves more than simply overturning a conviction. Meaningful redress may also require practical answers, such as financial assistance for those affected.
Balancing Finality and Justice
Nevertheless, reform proposals must balance competing interests. The criminal justice system depends on the principle of finality, ensuring that litigation does not continue indefinitely. Excessively broad appeal rights could undermine certainty for victims, witnesses and the wider public. On the other hand, an appeals system that prioritises finality over accuracy risks eroding confidence in the rule of law. The Law Commission's challenge, therefore, is to create a framework that remains efficient while offering an effective safeguard against wrongful conviction.
The review represents one of the most significant examinations of criminal appeals in decades. Whether it ultimately produces legislative reform remains to be seen. However, as public attention is increasingly focused on miscarriages of justice, the Commission's work raises important questions about fairness, accountability, and the legal system's ability to correct its own mistakes. If reform is implemented successfully, it could strengthen confidence in criminal justice and ensure that the appeals process remains a meaningful safeguard against wrongful conviction in the 21st century.