Ashish Magu v Criminal Cases Review Commission

The Claimant seeks permission for judicial review of the decision of the Defendant, the Criminal Cases Review Commission, dated 27 February 2025. The decision was not to refer his conviction pursuant to s.13(1)(a) of the Criminal Appeal Act 1995 (hereafter “the 1995 Act”). That conviction was for assault by beating contrary to s.39 of the Criminal Justice Act 1988 in respect of an assault by the Claimant on his wife on 10 June 2016.

The Defendant set out its reasons for declining to refer the Claimant’s conviction in its provisional statement of reasons of 18 September 2024 and its final statement of reasons of 27 February 2025. The Claimant seeks to challenge the Defendant’s decision on the grounds of error of law and irrationality in relation to the admissibility of bad character evidence; error of fact and irrationality; failure to consider relevant submissions; bias; and failure to investigate. Permission was refused on the papers by Collins-Rice J on 24 March 2026.

In considering and determining the renewed application for permission, I have had the benefit of written and oral submissions from Mr Stephen Knight on behalf of the Claimant and Mr Christopher Coyle on behalf of the Defendant. I have been further assisted by a bundle filed with the claim and a bundle of authorities.

On 10 January 2017, the Claimant was convicted with his father of an assault by beating. The complainant was the Claimant’s then wife. The Claimant was sentenced to imprisonment for a term of twenty weeks.

The Claimant appealed against his conviction and sentence, as did his father. On 30 November 2017, the appeal was heard by way of a rehearing before HHJ Tain and two lay justices at the Crown Court at Hove. The Crown Court refused the appeals against conviction and sentence. However, the Claimant was released because he had already served the sentence on a qualifying curfew between conviction and appeal. The Claimant’s father had his conviction quashed on the basis that the Court could not be sure that the contact complained of amounted to a criminal assault.

The Defendant received the Claimant’s application on 24 August 2023. Following consideration of the submissions, the Commission issued a provisional statement of reasons on 18 September 2024. In that document, the Defendant set out why it was not minded to refer the conviction. The Claimant was provided with an opportunity to make further submissions.

The Defendant received a pre-action letter dated 23 September 2024. The Defendant suggested to the Claimant that it would be appropriate for it to treat the matters raised as further submissions rather than them forming the basis of litigation. The Claimant agreed to this course. The Defendant’s final statement of reasons was provided on 27 February 2025. In that document, the Defendant again set out why it was not minded to refer the Claimant’s conviction.

The Claimant’s Summary Facts and Grounds is dated 28 April 2025. The Claimant’s grounds are as follows:

Permission was refused on the papers by Collins-Rice J on 24 March 2026. Collins-Rice J certified the Claimant’s Ground 4 as ‘totally without merit’. The Claimant renewed his application for permission on Grounds 1, 2, 3 and 5 on 31 March 2026.

For the Claimant to succeed in obtaining permission for judicial review, the court must be satisfied that there is an arguable ground for judicial review having a realistic prospect of success and that there is no discretionary or other bar to bringing the claim (see Sharma v Brown-Antoine [2006] UKPC 57, [2007] 1 WLR 780). In determining in this case whether the Claimant has an arguable ground for judicial review having a realistic prospect of success, it is important to recall the proper ambit of the Administrative Court’s role in the present context.

Section 13(1)(a) of the 1995 Act provides as follows regarding the power of the CCRC under s.9 of the 1995 Act to refer a matter:

“13 Conditions for making of references.

(1)

A reference of a conviction, verdict, finding or sentence shall not be made under any of sections 9 to 2B 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.”

In R (Pearson) v Criminal Cases Review Commission [2000] 1 Cr. App. R. 141 at [150], the court made clear that in determining whether to make a reference the Defendant is required to ask itself a “double question”:

“… the Commission must ask itself a double question: do we consider that if the reference is made there is a real possibility that the Court of Appeal will receive the fresh evidence? If so, do we consider that there is a real possibility that the Court of Appeal will not uphold the conviction? The Commission would not in such a case refer unless it gave an affirmative answer to both questions”

The role of the Administrative Court in a judicial review of a decision made by the Defendant was set out by Lord Bingham CJ in the Divisional Court’s judgment in R (Pearson) v Criminal Cases Review Commission.The following passages from R (Pearson) v Criminal Cases Review Commission fall to be noted. At [149] the Court noted that:

“...the Commission's power to refer under section 9 is exercisable only if it considers that if the reference were made there would be a real possibility that the conviction would not be upheld by the Court of Appeal. The exercise of the power to refer accordingly depends on the judgment of the Commission, and it cannot be too strongly emphasised that this is a judgment entrusted to the Commission and to no one else”

And at 171G:

“The Divisional Court will ensure that the Commission acts lawfully. That is its only role. To go further would be to usurp the function which Parliament has, quite deliberately, accorded to the judgment of the Commission.”

With respect to the latter passage, Lord Woolf CJ again emphasised in R (Mills) v Criminal Cases Review Commission [2001] EWHC Admin 1153 at [14] that:

“It is important that this court does not fall into the trap of forming a view as to how the Court of Appeal would react and then concluding that that is what the Commission should necessarily have concluded, since this would be to usurp the Commission’s function. Decisions of the Commission cannot be quashed merely because a court on judicial review might have or indeed would have come to a different view of the significance of the material or the prospects of success.”

After reviewing the relevant case law, the key principles governing the role of the Administrative Court in the present context were synthesised by Gross LJ in R (Charles) v Criminal Cases Review Commission [2017] EWHC 1219 (Admin), 2 Cr. App. R. 14 at [47]:

“[47] Pulling the threads together from these authorities:

(i)

the CCRC exercises an important residual jurisdiction in the interests of justice;

(ii)

the decision whether or not a case satisfies the threshold conditions and is to be referred to the CACD is for the CCRC and not the court; it is not for the court to usurp the CCRC’s function;

(iii)

the judgment required of the CCRC is unusual, carrying with it the predictive exercise as to the view the CACD might take;

(iv)

the threshold conditions serve as an important filter, not least in preventing the CACD from inundation with threadbare cases; they also assist in striking the right balance between the interests of justice on the one hand and those of finality on the other;

(v)

even if the threshold conditions are satisfied, the CCRC retains a discretion not to refer a case to the CACD; and

(vi)

though the decisions of the CCRC, whether or not to refer cases to the CACD, clearly are subject to judicial review (see recently, R. v Neuberg (Karen) [2016] EWCA Crim 1927 at [52]–[53]): (1) the CCRC should not be vexed with inappropriate applications impacting on scarce resources; the court’s scrutiny at the permission stage is thus of importance; and (2) on a judicial review, CCRC reasons should not be subjected to a “rigorous audit” to establish that they were not open to legal criticism.”

The foregoing summary was adopted by the Court of Appeal in R (Cleeland) v Criminal Cases Review Commission [2022] EWCA Civ 5 at [19].

With respect to the reasons provided by the Defendant, Mr Coyle drew the attention of the court to R (El Heri) v Criminal Cases Review Commission [2009] EWHC 3558 (Admin) in which Openshaw J said at [7]:

“They [the CCRC] are required to give sufficient reasons to justify that conclusion, but they are not required to deal with each and every point raised by an applicant, let alone one given to prolixity, and their decision not to do so is not a ground for judicially reviewing their decision.”

With respect to the manner in which the Defendant conducts its investigations, in R (Jones) v Criminal Cases Review Commission [2018] EWHC 1798 (Admin)Davis J observed as follows at [22]:

“As the single judge observed when refusing permission on the papers, the CCRC has a measure of discretion as to how it deals with applications made to it. This was a complicated case. There were many lines of inquiry. In the absence of obvious error it is not for this court to second guess the way in which the CCRC dealt with individual strands of the case.”

The overall approach to an application to review the decision of the Defendant was set out by Lord Bingham in R (Pearson) v Criminal Cases Review Commission, as echoed in R (Charles) v Criminal Cases Review Commission, as follows:

“It is not, however, in our judgment appropriate to subject the Commission’s reasons to a rigorous audit to establish that they were not open to legal criticism. The real test must be to ask whether the reasons given by the Commission betray, to a significant extent, any of the defects which entitle a court of review to interfere.”

Having considered carefully the competing submissions made on each of the Claimant’s grounds, in the context of the foregoing legal principles, I am not satisfied that any of those grounds constitute an arguable ground for judicial review having a realistic prospect of success. Accordingly, I am satisfied that permission for judicial review must be refused. My reasons for so deciding are as follows.

In his application to the Defendant, the Claimant asserted that evidence of alleged statements by the complainant inconsistent with her evidence at trial and re-trial are admissible pursuant to section 98(a) or 98(b) of the Criminal Justice Act 2003 (hereafter “the 2003 Act”) i.e. that the statements were not bad character evidence. The Defendant concluded, however, that it is not reasonably arguable that the alleged inconsistent statements would fall within the scope of section 98(a) or 98(b) of the 2003 Act, and therefore their admissibility fell to be considered under section 100 of the 2003 Act as non-defendant’s bad character. The Defendant further decided that an application to admit the bad character evidence under section 100, specifically section 100(1)(b), would not be successful.

On behalf of the Claimant, Mr Knight submits that the Defendant made an error of law in adopting an overly narrow interpretation of s.98 as referring only to the specific charge faced by the Claimant rather than spanning different charges, matters and jurisdictions. In this regard, he submits that the new material could be seen to have “had to do with” the alleged facts of the offence for the purposes of s.98(a) or was “evidence of misconduct in connection with the investigation or prosecution of” the alleged offence with which the Claimant was charged for the purposes of s.98(b). Alternatively, Mr Knight submitted that if the alleged inconsistent statements were bad character evidence, the Defendant’s conclusion that they would not have been admitted was unreasonable.

Mr Coyle submits on behalf of the Defendant that it is clear that the Defendant considered the new material relied on by the Claimant, made a decision that it did not have to do with the facts of the offence for which the Claimant was prosecuted for the purposes of s.98(a) and did not show misconduct in connection with the investigation or prosecution of the offence for which the Claimant was convicted for the purposes of s.98(b). He submits that the reasons further demonstrate that the Defendant decided that the new evidence did not have substantial importance in the context of the case as a whole, considered against a number of factors, including whether the material demonstrated misconduct. In circumstances where the Defendant had thus determined that the new evidence would be inadmissible, Mr Coyle further submits that the Defendant was entitled to conclude that there was not a real possibility that the conviction would not be upheld where the evidential matrix against the Claimant would be unaltered.

Mr Coyle submits the foregoing process of reasoning evidences the application of the “double question” enumerated in R (Pearson) v Criminal Cases Review Commission. Namely, if the reference is made is there is a real possibility that the Court of Appeal will receive the fresh evidence and, if so, is there is a real possibility that the Court of Appeal will not uphold the conviction.

As noted, it is not appropriate for this court to subject the Defendant’s reasons to a rigorous audit to establish that they were not open to legal criticism but, rather, the court must ask, in the present context, whether it is arguable with a reasonable prospect of success that the reasons given by the Defendant betray, to a significant extent, any of the defects which entitle a court of review to interfere.

Section 98 of the 2003 Act provides as follows regarding the nature of ‘bad character’ evidence:

“98 ‘Bad character’

References in this Chapter to evidence of a person’s “bad character” are to evidence of, or of a disposition towards, misconduct on his part, other than evidence which—

(a)

has to do with the alleged facts of the offence with which the defendant is charged, or

(b)

is evidence of misconduct in connection with the investigation or prosecution of that offence.”

Section 100 of the 2003 Act provides as follows regarding the gateways for the admissibility of a non-defendant’s bad character evidence:

“100 Non-defendant’s bad character

(1)

In criminal proceedings evidence of the bad character of a person other than the defendant is admissible if and only if—

(a)

it is important explanatory evidence,

(b)

it has substantial probative value in relation to a matter which—

(i)

is a matter in issue in the proceedings, and

(ii)

is of substantial importance in the context of the case as a whole,

or

(c)

all parties to the proceedings agree to the evidence being admissible.”

The task of this court is a narrow one focused on seeking to identify whether there is an arguable ground for judicial review having a realistic prospect of success. I am satisfied in respect of Ground 1 that it is not arguable with a realistic prospect of success that the Defendant applied the wrong standard of review when applying the legal tests for whether the evidence (a) met the test for bad character and (b) would be admissible as bad character evidence.

The Defendant evaluated the new material in accordance with the double question enumerated in R (Pearson) v Criminal Cases Review Commission. The Defendant evaluated the new evidence by reference to s.98. The Defendant satisfied itself that the material did not have to do with the facts of the offence for which the Claimant was prosecuted for the purposes of s.98(a) and did not show misconduct in connection with the investigation or prosecution of the offence for which the Claimant was convicted for the purposes of s.98(b). The Claimant cites no authority to suggest that the Defendant’s analysis in this regard was based on an erroneous interpretation of the terms of s.98 of the 2003 Act. Having concluded that there was not a real possibility that the appellate court would receive the fresh evidence, the Defendant determined that there was no real possibility that the appellate court would not uphold the conviction.

As the authorities make clear, decisions of the Defendant are not amenable to judicial review merely because the Administrative Court might or would have come to a different view of the significance of the material or the prospects of success. Whilst another court may have reached a different decision, where the assessment of the legal issues (and therefore the likely outcome of a reference) taken by the Defendant is a tenable one, the court should not interfere. In this case, the Defendant’s assessment is tenable.

It is likewise not arguable with a realistic prospect of success that the Defendant’s determination that the evidence was not arguably admissible was irrational.

The test for irrationality remains whether the decision is so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it (see Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 at 410).

As made clear in Pearson, the Defendant must make a judgment how, on all the facts of a given case, the court is likely to resolve an application to adduce the evidence in question. The Claimant’s submissions, ultimately, demonstrate that the Claimant disagrees with the Defendant’s judgment that there was not a real possibility that a court would admit the alleged inconsistent statements pursuant to s.100 of the 2003 Act. They do not demonstrate that it is arguable with a realistic prospect of success that that judgment was so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.

In the circumstances set out above, ground one it is not arguable with a realistic prospect of success.

By Ground 2, the Claimant contends that Defendant applied the wrong standard of review when making factual conclusions and, further, the factual conclusions which the Defendant came to were irrational.

On behalf of the Claimant, Mr Knight submits that, when read holistically, the reasons given by the Defendant incorrectly suggest that the burden is on the Claimant to prove that the complainant lied in the criminal proceedings. Mr Knight further submits that in light of the fresh evidence, the Defendant’s conclusion that the complainant did not lie was irrational.

On behalf of the Defendant, Mr Coyle submits that Ground 2 is not distinct from Ground 1 and, in particular, the Claimant has not pleaded any specific error of fact on the part of the Defendant. Further, Mr Coyle submits that nothing in the conclusions drawn by the Defendant in respect of the complainant evince an error of fact or the application by the Defendant of an incorrect test or standard.

With respect to the first limb of Mr Knight’s submissions on Ground 2, the Claimant has not identified any parts of either Statement of Reasons that, when pieced together, could reasonably be read as suggesting that the Defendant improperly reversed the burden of proof. I am satisfied that the Statement of Reasons does not disclose an arguable error of law in relation to the burden of proof.

With respect to the second limb of Mr Knight’s submissions on Ground 2, Mr Knight laid out for the court a number of items of fresh evidence that he submitted render the Defendant’s factual conclusion that the complainant did not lie irrational. However, when the provisional statement of reasons of 18 September 2024 and the final statement of reasons of 27 February 2025 are read together, it is clear that the Defendant addressed directly the key alleged inconsistencies from the various proceedings and explained its reasons, going as far as to provide specific quotations to support its conclusions. The Defendant also took into account in the provisional statement of reasons that other inconsistencies in the complainant’s account had already been raised as an issue at trial and on appeal.

Once again, the test for irrationality is whether the decision is so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. Once again, the Claimant’s submissions, ultimately, amount to disagreeing with the Defendant’s judgment on matters of fact and do not demonstrate that it is arguable with a realistic prospect of success that its judgment on those matters was irrational or perverse.

In those circumstances, I am not satisfied that Ground 2 is arguable with a realistic prospect of success for the reasons set out above.

By Ground 3 the Claimant contends that the Defendant failed to consider relevant submissions. On behalf of the Claimant, Mr Knight submits that the Defendant failed to address the Claimant’s submission that the complainant had a motive to lie in the criminal proceedings, in order to place herself in a better position in relation to divorce proceedings and that the complainant’s motive to lie would be highly relevant to the admissibility of bad character evidence under section 100(1)(b) of the 2003 Act as a matter in issue of substantial importance.

Mr Coyle accepted that the final statement of reasons did not address expressly the issue of the complainant’s alleged motive to lie. However, he submits that the provisional statement of reasons evidences that the Defendant considered this submission and in some detail. Mr Coyle highlights the fact that the preliminary decision considered in detail the documentation in support of the English divorce petition, the decisions of HHJ Oliver, the Indian divorce proceedings and the Indian Dowry proceedings. Mr Coyle points out that, having considered that material, in the provisional statement of facts and reasons the Defendant set out its conclusion as follows:

“You suggest that the complainant’s motive for making the allegation of assault against you was to put her in a better position in the divorce proceedings. You have provided no evidence to support this assertion and we have not found any evidence to support it during our review”

Mr Coyle further relies on the fact that the final statement of reasons referred back to the analysis of the material summarised in the foregoing paragraph, made clear that both the inconsistencies and their significance were considered as part of the review process and referred to the Defendant’s conclusions about them as set out in the provisional decision.

I accept that, in circumstances where the Claimant’s application centred on the complainant’s credibility, her alleged motive to lie was relevant and required to be addressed by the Defendant. Further where, as in this case, the Defendant decides not to make a reference, it must give sufficient reasons to justify that conclusion.

The Defendant is not, however, required to deal with each and every point raised by an applicant and its decision not to do so is not a ground for judicial review (see R(El Heri) v CCRC [2009] EWHC 3558 at [7]). Whilst Mr Knight submitted that the principle that the Defendant need not deal with each and every point advanced by an applicant arose where the applicant had been particularly prolix, it is clear from R (El Heri) v Criminal Cases Review Commission that that principle applies to all cases considered by the Defendant, Openshaw J simply making the point that the principle will apply with even greater force to applicants given to prolixity.

Reading both the provisional and final statement of reasons together, I consider that it is not arguable with a realistic prospect of success that the Defendant did not sufficiently address the Claimant’s submissions as to alleged motive. This is plain from the fact that in its provisional statement of reasons the Defendant expressly rejected that submission on the basis that it lacked any evidential foundation, indicating that the Claimant considered the Claimant’s submission on the complainant’s alleged motive to lie.

In the foregoing circumstances, I am not satisfied that Ground 3 is not arguable with a realistic prospect of success.

Mr Knight properly conceded that Ground 5 was contingent upon the granting of permission for one of the first three grounds. In circumstances where I have refused permission for the first three grounds, it follows that permission is refused on Ground 5 also.

In conclusion, for the reasons set out above I am satisfied that it is not arguable with a realistic prospect of success that the decision of the Defendant betrays, to a significant extent, any of the defects which would entitle a this court to interfere. In the circumstances, I refuse permission to the Claimant for judicial review. I will invite counsel to draw an order accordingly.