Iverson Herzon Taylor, R (on the application of) v Criminal Cases Review Commission

THE HONOURABLE MR JUSTICE PEPPERALL:

1. This judgment concerns a renewed application for permission to apply for judicial review. The case is not particularly complex but unfortunately it was necessary to reserve judgment both because of the weight of my list on the day of the hearing and because some key documents had been filed late and had not been put before me in advance of the hearing.

2. On 5 September 2019, Iverson Taylor was convicted of assault by beating his former partner, Vivia Richards, following a trial at Westminster Magistrates’ Court. The prosecution principally relied on Ms Richards’ evidence and medical evidence confirming some of her injuries. Mr Taylor appealed against conviction to the Crown Court sitting at Southwark. On 29 November 2019, his appeal was heard by His Honour Judge Gledhill QC and two lay justices. The Crown Court dismissed Mr Taylor’s appeal against conviction. The court did, however, allow Mr Taylor’s appeal against sentence.

3. On 23 January 2020, Mr Taylor applied to the Criminal Cases Review Commission (“the CCRC”) to review his conviction. The CCRC reviewed Mr Taylor’s case, including an examination of the trial and appeal transcripts, the evidence presented, further evidence obtained from HMCTS and the police, and new information provided by Mr Taylor. On 26 June 2024, the CCRC issued a final decision declining to refer Mr Taylor’s conviction to the Crown Court on the grounds that the CCRC concluded that there was no real possibility that the Crown Court would quash the conviction. While the CCRC considered that the Crown Court had failed to provide adequate reasons for dismissing Mr Taylor’s appeal against conviction, it noted that the appropriate vehicle to challenge such failure was by judicial review proceedings in the High Court. It suggested in March 2023 that Mr Taylor and his lawyers should consider making such application and noted that there had been no response. Citing R (Crown Prosecution Service) v. Crown Court at Preston [2023] EWHC 1957 (Admin) , [2024] K.B. 348 , it reasoned that it should not in any event allow a referral to the CCRC to circumvent the usual procedure for challenging a failure to provide adequate reasons for dismissing an appeal.

4. By this claim, Mr Taylor seeks permission to apply for judicial review of the CCRC’s decision arguing that the CCRC erred in its assessment and that the decision not to refer the case was unreasonable. Heather Williams J considered the application on the papers and, on 5 February 2025, refused permission to apply for judicial review. Mr Taylor now seeks to renew his application for permission to apply for judicial review.

5. Mr Taylor pleads two grounds for seeking judicial review: 5.1 First, he argues that it was unreasonable for the CCRC to refuse to refer his conviction on the basis that he could have brought a claim for judicial review of the decision of the Crown Court. 5.2 Secondly, having accepted that the Crown Court did not give sufficient reasons for dismissing the appeal, he argues that it was unreasonable for the CCRC to speculate upon the outcome of a hypothetical bad character application and to conclude that there was no real possibility of acquittal. THE APPLICATION TO ADJOURN

6. When the case was called on, Mr Taylor applied to adjourn the hearing of his renewed application for permission. He had been notified on 28 April 2025, some nine days before the hearing, that he would not have representation. In any event, he was not happy with the grounds that had been settled by counsel. He indicated that there had been disclosure problems in the underlying criminal proceedings and he challenged the competency of his defence counsel. He said that he had not had an opportunity to research these matters and that an adjournment would allow him to seek help from family members and investigate the possibility of free legal representation. Further, he argued that he was at a significant disadvantage in these proceedings by reason of his mental health.

7. Philip Rule KC, who appeared for the CCRC, resisted any adjournment. He submitted that if Mr Taylor had fresh material or arguments that might undermine his conviction, he could reapply to the CCRC but that the focus of this judicial review claim had to be whether the CCRC’s 2024 decision to refuse to refer the case back to the Crown Court was irrational.

8. After hearing argument, I indicated that the hearing would not be adjourned and proceeded to hear argument on the merits of the renewed application for permission. I now explain briefly my reasons for refusing an adjournment: 8.1 This is a claim for judicial review of a decision taken on 26 June 2024. Such claims are required to be brought promptly and in any event within three months. In this case, the claim was issued at the end of the three-month period in September 2024. 8.2 The paper decision refusing permission to apply for judicial review was made on 5 February 2025 although I note that the judge’s order was not sealed until 21 February. 8.3 Mr Taylor lodged his grounds for renewal on 27 February 2025. Had he wished to advance new grounds or arguments, that was the time to do so. Failing that, he should at the latest have been ready to present his new arguments at the hearing over two months later. 8.4 There is significant pressure on the Administrative Court and there is real public interest in ensuring that the permission stage of judicial review proceedings is conducted efficiently. It is not ordinarily acceptable on the short listing provided for renewal hearings simply to seek an adjournment, without any prior notice, in order to investigate and potentially argue new grounds ten months after the decision under challenge and seven months after the longstop date for bringing the claim. 8.5 The late withdrawal of counsel was no doubt a blow, but it appears that Mr Taylor did not in any event have confidence in his former barrister’s approach to his case. If he wanted to arrange alternative legal representation for the renewal hearing then I am satisfied that he had time to do so. In any event, Mr Taylor had no concrete plan for being able to fund and instruct new lawyers and there was no reason to think that a short adjournment would suffice. 8.6 While Mr Taylor suffers from mental health difficulties, such health issues have not prevented him from formulating complex legal arguments. While the statement of facts and grounds had been settled by counsel, Mr Taylor drafted his own application for renewal and lodged his own skeleton argument for the renewal hearing. 8.7 Furthermore, Mr Taylor made no application to vacate the hearing before the day with the consequence that judicial time was spent both preparing for and hearing Mr Taylor’s case and thereby preventing other cases that were ready for hearing from being brought forward. 8.8 In any event, it appeared that Mr Taylor was not so much seeking to formulate new grounds for challenging the CCRC’s 2024 decision but rather to identify new evidence and arguments that might be referred to the CCRC for its further consideration. As Mr Rule observed, there is nothing to prevent Mr Taylor from reapplying to the CCRC if he considers that there are new grounds for appeal but the possibility of such further application is not a proper basis for adjourning the renewed application for permission to challenge the 2024 decision. PERMISSION TO APPLY FOR JUDICIAL REVIEW REFERRING CONVICTIONS TO THE APPEAL COURT

9. Section 13 of the Criminal Appeal Act 1995 provides: “(1) A reference of a conviction, verdict, finding or sentence shall not be made under any of sections 9 to 12B unless— (a) the Commission consider that there is a real possibility that the conviction, verdict, finding or sentence would not be upheld were the reference to be made, (b) the Commission so consider— (i) in the case of a conviction, verdict or finding, because of an argument, or evidence, not raised in the proceedings which led to it or on any appeal or application for leave to appeal against it, or (ii) in the case of a sentence, because of an argument on a point of law, or information, not so raised, and (c) an appeal against the conviction, verdict, finding or sentence has been determined or leave to appeal against it has been refused. (2) Nothing in subsection (1)(b)(i) or (c) shall prevent the making of a reference if it appears to the Commission that there are exceptional circumstances which justify making it.” GROUND 2: UNREASONABLE SPECULATION

10. Like Heather Williams J, I consider it convenient to take ground 2 first. By this ground, Mr Taylor argues that it was unreasonable for the CCRC to speculate upon the outcome of a hypothetical bad character application and to conclude that there was no real possibility of acquittal.

11. The proper approach to a challenge to the CCRC’s decision not to refer a case back to the appeal court is settled. It is for the CCRC and not the court to determine whether a case satisfies the threshold conditions in s.13 and should be referred to the appeal court. While the commission’s decision not to refer a case is open to challenge through judicial review proceedings, the court must be astute not to usurp the CCRC’s statutory function simply on the basis that it would have reached a different conclusion or by subjecting the CCRC’s reasons to a rigorous audit. The court hearing such a judicial review claim sits as a court of review and not of appeal. See generally R (Pearson) v. CCRC [2001] 1 Cr. App. R. 141, at pp.169 and 171; R (Charles) v. CCRC [2017] EWHC 1219 (Admin) , [2017] 2 Cr. App. R. 14, at [47]; and R (Cleeland) v. CCRC [2022] EWCA Civ 5 , [2022] 4 W.L.R. 8 , at [15]-[19].

12. The fundamental difficulty with Mr Taylor’s argument in this case is that the very basis of the CCRC’s discretion to refer conviction cases back to an appeal court is its assessment as to whether there is a real possibility that the conviction would not be upheld. The essence of that test involves a predictive exercise as to the likely outcome of any further appeal. Such exercise cannot properly be conducted by shutting out part of the potentially admissible evidence. Accordingly, on discovering bad character evidence in this case, the CCRC was bound to consider the consequences of that evidence for the likely success of any further appeal. Necessarily that involved a careful judgment as to the possibility that the evidence might be admitted into evidence and, even if it was not, as to the likely impact on Mr Taylor’s appeal of not being able to present himself as a man of good character and restraint for fear of then allowing the prosecution to call the bad character evidence by way of rebuttal in order to correct a false impression pursuant to s.101(1)(f) of the Criminal Justice Act 2003 .

13. Here, Mr Taylor’s evidence has been rejected twice; first by the magistrates and then on appeal by the Crown Court. The CCRC was right to consider the potential impact of the new evidence on the prospects of a further appeal and entitled to conclude that there was no fresh evidence or argument that would assist Mr Taylor such that there was no real possibility that on a third outing there would be a different outcome. That conclusion, absent exceptional circumstances, was sufficient to justify its decision not to refer this case. GROUND 1: THE AVAILABILITY OF JUDICIAL REVIEW OF THE CROWN COURT’S DECISION

14. While the CCRC criticised the Crown Court’s failure to give sufficient reasons for dismissing Mr Taylor’s appeal, it concluded that Mr Taylor had an alternative remedy in that he could have sought to challenge the dismissal of his appeal through judicial review proceedings. Mr Taylor argues that the CCRC’s reliance on the availability of such alternative remedy was misplaced given that he was unrepresented and unaware of this option at the relevant time. He contends that his lack of legal representation and knowledge of the judicial review process should not be held against him. He argues that any application for judicial review would now inevitably be ruled to be out of time.

15. In refusing permission on this ground, Heather Williams J said: “The CCRC’s reliance on the availability of an alternative remedy was justified. The Claimant had the opportunity to challenge the Crown Court’s decision through judicial review and failed to do so. The CCRC was entitled to consider this in its decision not to refer the case.”

16. She added that Mr Taylor’s failure to pursue judicial review at the appropriate time was not a valid reason to undermine the CCRC’s decision and that the availability of an alternative remedy was a significant factor that the CCRC had to consider in exercising its discretion. Heather Williams J emphasised that Mr Taylor’s lack of legal representation and knowledge of the judicial review process did not absolve him from the responsibility to pursue available legal remedies.

17. An appeal against conviction to the Crown Court proceeds as a rehearing rather than a review of the decision of the Magistrates’ Court. Were this case to be referred back for a second appeal, the Crown Court would not embark on an analysis of the adequacy of the reasons for the dismissal of Mr Taylor’s first appeal. Rather the evidence against and for Mr Taylor would be heard afresh. Accordingly, any failure to give adequate reasons does not directly assist in answering the fundamental question under s.13 of the Act as to whether there is a real possibility that the conviction would not be upheld were the case to be referred back to the Crown Court. I therefore accept Mr Rule’s submission that ground 1 does not arise unless ground 2 is made out and there is for some other reason a real possibility that the Crown Court would not uphold the conviction. Given my conclusions on ground 2, I can therefore take the matter shortly.

18. I agree with Heather Williams J that there is no merit in this further ground for the reasons that she gave. The CCRC was entitled to conclude that the availability of an alternative remedy was a proper ground for refusing to refer Mr Taylor’s case. Referral by the CCRC is an avenue of last resort and the commission was entitled to conclude that Mr Taylor should first exhaust other remedies that were open to him to challenge the Crown Court’s dismissal of his appeal. OUTCOME

19. I therefore refuse Mr Taylor’s renewed application for permission to apply for judicial review.

20. While it has no impact on the outcome of this application, I expressed concern in the course of argument as to the very long time taken by the CCRC to complete its review in a relatively straightforward case. While the CCRC must be thorough, defendants seeking to challenge their convictions should not in simple cases be waiting for nearly 4½ years for a final decision.