Does the Commission have to refer a case if it thinks the real possibility test is met?
No. We have a discretion whether to do so or not. In the great majority of cases the finding of a real possibility will result in a referral without any need to consider the exercise of discretion not to refer. In a small number of cases, however, it is appropriate for us to determine whether there would be any real benefit to the applicant (or his family in the case of a deceased applicant) or to the criminal justice system as a whole.
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