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Scenario:

Bob was convicted of murder in a trial that hinged on scientific evidence. The prosecution and defence had each instructed their own expert witnesses in respect of the science. Although the defence's expert witnesses served reports to the defence before and during trial, the defence experts were not called to give evidence in court and their reports were not entered into evidence. Therefore their opinions were not made known in any form to the jury.

Bob applied to the Court of Appeal for leave to appeal but the court refused it. Subsequently, Bob consults with a second set of experts and then applies to the Criminal Cases Review Commission (CCRC) to send the case back to the appeals court. Bob is submitting his application on the basis of "fresh evidence".

In this scenario, Bob isn't using the opinions of the first set of experts.

Question:

Must Bob disclose to the CCRC the reports supplied by his original expert witnesses?

FD_bfa
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Lag
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2 Answers2

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No, but the CCRC will investigate thoroughly

Bob is only asked to provide information to speed up the process. Before proceeding with any application, there will be a very detailed investigation. In particular, they can (subject to the CAA 1995, discussed below) compel the production of any relevant material from any relevant party, including the defence, prosecution, police, experts, etc. For context on how thoroughly they investigate, the CCRC themselves note that it can sometimes take years to reach an outcome.

The guidance given by the CCRC emphasises that you should give them as much information as possible to speed up the process, but they will investigate your case very carefully before making a decision. Here are some relevant quotes from the page on the application site regarding what you should disclose:

... it is helpful if you can tell us as much as you can about your case, and point us towards where we should be looking ...

... everything you tell us in your application will be fact-checked and reviewed objectively ...

... we can obtain any material we consider to be relevant to your application ...

... holding important information back that may be adverse to your case will not help you

Provided you aren't lying, you can be as vague with your application as you like. With that said, the more vague you are, the longer the investigation will take.

The next page on how they use the evidence you provide reiterates this:

We strongly recommend that you include as much information about your conviction and past appeals as possible – it will slow the investigation down if you do not do this.

Under section 17 of the Criminal Appeal Act 1995, the scope of the CCRC's powers to obtain information are vast. For example, the FAQ page details some of these powers:

... we can get any information that we need from any public body in England, Wales and Northern Ireland ...

... we can obtain material that the police and the prosecution did not have to disclose to the defence (including Public Interest Immunity or PII material) and information from the Criminal Injuries Compensation Authority and others

We will use our special legal powers to get the information we think we need to review a case

Additionally, Section 18A allows the CCRC to seek a Crown Court order to obtain material from a private individual or organisation.

Whether any of the makes a material difference would depend on more facts. A difference of opinion between two experts will not, in isolation, constitute new evidence. However, it could meet this threshold, for example, if this difference is based on some new scientific development.

FD_bfa
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0

You can’t appeal your trial strategy

You are free to run your case any way you like. You chose not to introduce relevant evidence for … reasons. You live with the consequences of that decision.

To be “fresh and compelling”, the evidence must not have been available at the time of the trial. You had this evidence.

Further, even if you had consulted no experts, you could have. If the expert now would have given the same report as the expert then, it’s not “fresh and compelling”. You would need to show that there have been advancements in the field such that expert consensus has shifted in a material way.

Dale M
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