Making Sense of Decision-making

This chapter examines decision-making and the use of discretion within the Criminal Cases Review Commission using socio-legal analysis, with particular emphasis on the application of the real possibility test at screening, investigation, and referral back to the Court of Appeal. It also describes the theoretical framework used in the review of the Commission's discretion and decision-making. The chapter begins with a discussion of how the Commission decides whether there is new evidence and whether that evidence gives rise to a real possibility that the Court of Appeal will find the conviction to be unsafe. It then considers the legal and socio-legal literature on discretion, highlighting the key features of discretionary behaviour and how it is facilitated and constrained in practice. Finally, it explores three concepts proposed by Keith Hawkins in the context of legal decision-making: ‘surround’, ‘field’, and ‘frame’.