The Importance of Litigation Strategy

Pursuing a post conviction appeal is not just about digging up a new piece of evidence and putting it in front of a court.  There are complex strategic decisions which need to be taken to ensure that an appeal has the greatest chance of success.

Knowing when to apply to the CCRC

The risk of applying too early

Every day lost to an unfair conviction is an injustice.  However, launching a premature appeal can throw away perfectly good opportunities to overturn miscarriages of justice.

Where grounds of appeal have been identified based on fresh evidence, it is almost always worthwhile to spend the time to ensure that the evidence stands up to scrutiny, and is as complete as it can be.  For example, launching an application to the CCRC based on a fresh expert’s report which ignores a point of evidence from the case, rather than going back to the expert to ask for a more informed opinion, can lead to that expert being discredited.  This is particularly the case if the CCRC instruct an expert of their own who identifies what your expert has overlooked.

Further, a well-prepared application seriously reduces the risk that an application will be misunderstood or rejected out of hand by the CCRC.  Taking the time to ensure that not only has all evidence been gathered, but that it has been presented in the most favourable light, will often make the difference between a case where the CCRC refers to the Court of Appeal, and where a judicial review is needed to ensure that the CCRC looks again at your application.

The risk of applying too late

Equally, it is possible to make an application too late.  The longer that you wait to bring forward new evidence, the less credible it will appear to the CCRC and to the Court of Appeal.  New evidence is already looked upon with suspicion.  You will be asked to explain why evidence which is now available was not presented at trial.  If you then sit on evidence for too long you are likely to raise suspicions that the evidence has been fabricated, or that the delay is caused by some tactical consideration on your part.  You also run the risk of witnesses’ recollections fading, forensic evidence degrading, or people deciding that they do not want to be involved in your case.

Knowing when to show your hand

In any attempt to overturn a miscarriage of justice you can expect to face opposition.  If your case is considered by the CCRC, the CCRC may exercise its powers to investigate your case.  This can lead to other state bodies, or interested parties, passing it information which is unhelpful to you.  At the Court of Appeal your appeal will almost certainly be contested by the CPS, who will seek to maintain your conviction, or at a minimum push for a re-trial.  If you apply to judicially review the CCRC, they will almost always contest your claim.  Therefore, in almost all cases you will need expert advice on when to make your arguments, and in what way.

For example, in a judicial review of the CCRC it may be apparent from their Acknowledgment of Service that they have misunderstood the nature of the grounds for judicial review.  It is a question of fundamental strategic importance whether to challenge this immediately before a decision is taken by the court on the “permission” stage, or to avoid showing your hand and seek to deploy the point later when it has become apparent that the CCRC has overestimated the strength of their case.  Such decisions can make the difference between a case which ends quickly, and one which drags on for months or even years.

Knowing when to give up – and when not to

Sometimes a case really does reach its end.  Giving up the process of ever finding justice can be a terrible prospect.  However, it is sometimes better than clinging onto false hopes.

Sometimes though, giving up isn’t the right thing to do.  The rejection of a case by the CCRC is considered the end of the road by most clients.  However, it needn’t always be.  There can be evidence or argument which has still been overlooked.  Further, in a surprising number of cases the CCRC’s decision is open to judicial review on the ground that they have not complied with fundamental principles of public law in their decision-making process.

Finally, in some cases people have given up hope only for a change in the law years later to bring the safety of their conviction back into doubt.  This is what happened in the case of R v Jogee, when the Supreme Court reversed a mistake in the law which had existed for three decades, and called into question the convictions of a great number of people tried under “joint enterprise” principles.

In all cases, expert advice will help you understand when to accept your situation, and when to keep fighting.

Before relying on any matter set out in this article, make sure to consult an expert to check that it is still up to date and how it applies to your case.