The Safety of Convictions in the Court of Appeal: Fresh Evidence in the Criminal Division through an Empirical Lens

An academic consensus exists that the England and Wales Court of Appeal (Criminal Division) determines appeals against conviction in a narrow or an unduly restrictive manner. This consensus has developed through observation and empirical study of the Court over several decades. It is said in particular that the Court adopts a narrow approach when considering appeals which raise primarily factual issues, especially fresh evidence or ‘lurking doubt’ appeals. This article discusses two new empirical studies of the Court, one of which is a replication of Roberts’s recent study which featured in the Journal of Criminal Law in 2017. The empirical evidence in support of the allegation of a restrictive approach is explored in this article from a theoretical and methodological perspective. It is argued that the question of the Court’s approach is difficult to study empirically, and so suggestions of empirical support for a restrictive approach overreach the limits of the methods employed. This is not to suggest that the Court of Appeal does not make mistakes, nor even is it to suggest that the Court is not narrow or unduly restrictive. Rather, it is suggested that the empirical findings offered as evidence of the restrictive approach, which gives rise to the consensus position, is weak and should be treated with caution, especially in light of the author’s two new empirical studies of the Court.