The tolerability of risk in the Court of Appeal (Criminal Division): an empirical study of appeals against conviction 2015-2021

In light of the ongoing Law Commission’s consultation into reform of the criminal appeal process, this article offers a conceptual and empirical evaluation of decision-making in the Court of Appeal (Criminal Division) in appeals against conviction. Drawing upon the concept of risk-assessment and the Health and Safety Executive’s Tolerability of Risk (TOR) framework, it is argued that conceptually some degree of tolerability of injustice is both necessary and acceptable in the appeal system. This view is supported by empirical analysis of a unique dataset of 931 appeals against conviction decided between 2015 and 2021. The result is a timely and topical contribution to discourse on the appeal system, supported by a robust and empirically-supported evidence base.