How many times have I heard a friend or family member of a convicted person say “X was let down by his previous solicitor, they did not listen to instructions, they did not give appropriate advice…”
I am often instructed to Appeal against conviction in sexual offence cases, often where the now convicted person has received many years in prison by way of a sentence.
Appeals are notoriously difficult to win. The figures suggest that only 1 in 10 would be Appeals are granted leave (permission) by the Court of Appeal and of those that reach the stage of a full hearing before the Court, approximately only 1 in 3 succeed.
Leave to Appeal to the Court of Appeal is required in all cases (be it conviction or sentence) and there is a time limit of 28 days from sentence within which a Judge at the Court of Appeal (Single Judge) may grant a Certificate and give permission to Appeal.
However, the Court of Appeal will not deny an Appellant the chance to represent his/her case before them purely because more than 28 days has elapsed.
If the trial solicitors and Counsel have advised that there are no grounds to Appeal and a second opinion is sought, provided the solicitors dealing with the second opinion act promptly and efficiently and prove this to the Court of Appeal, if there are reasonable grounds to proceed, the Single Judge, and indeed the Full Court, will allow this.
The Court of Appeal shall allow an Appeal against conviction if they think the conviction is unsafe and shall dismiss an Appeal in all other cases.
As of 1 October 2018, the way Appeals are commenced will change and there will be “direct lodgement” which means applications must be lodged directly with the Court of Appeal.
The Prosecutors are then able to provide a written response to the Grounds of Appeal. This is to assist a Single Judge in making the decision and determining the merit in the application.
However, there is a lot of work to be done before one can get to this stage.
The case papers have to be obtained and read, sometimes there is a need to obtain a copy of the transcripts of the Court case, be it examination in chief and/or cross examination of witnesses, the Judge’s summing up and the Judge’s rulings on interim applications such has bad character or section 41 (previous sexual history) applications.
There is then the consideration of what is “new evidence”. The Court of Appeal may hear new evidence that was not produced before the original Court if:
• it appears capable of belief;
• it may afford any ground for allowing the Appeal;
• it would have been admissible in the original proceedings;
• it is an issue which is the subject of the Appeal; or
• there is a reasonable explanation for the failure to bring it to the attention of the original Trial Court.
The Court of Appeal can also call persons who are not called at the trial to give evidence, provided that that evidence is relevant. They can also call jurors and lawyers.
The Court has the power to compel the production of documents and the attendance of witnesses.
Sometimes leave is refused and if it is, the Appellant has a right to renew his application and ask a “Full Court” of two or three Judges to grant permission.
However, if the Court believe your application is frivolous, they may impose a “Loss of Time” Order which means that the prisoner will serve an extra amount of days on top of the sentence so that the release date will be extended by the number of days that the Court of Appeal suggest is the Loss of time Order (for example, 60 days).
If you win an Appeal, your conviction may be overturned or sentence reduced (or both). However, the Prosecution may wish to reinstate the case against you meaning that you are the subject of a re-trial.
If you lose your Appeal, your original sentence or conviction will not change, but you may have to face any Court costs and you could be asked to restart your sentence from the beginning although the latter is rare.
Expert Criminal Conviction Appeals Lawyer
Criminal Appeals against conviction often fall into one of three broad areas:
1. Have the jury come to a wholly and proper verdict on the evidence (a perverse verdict)?
2. Has the Judge erred in law or misdirected the jury?
3. Have the Defendant’s lawyers been negligent in advancing the Defence case or testing the Prosecution case?
It is rare that the jury would come to a wholly improper verdict on the evidence and these days the Judges more often than not give the jury a written “pathway to verdict” that has been agreed by both the Prosecution and Defence barristers before it is handed to the jurors.
Therefore, the chance of a misdirection by the Judge is unlikely.
Therefore, more often than not, the only way to get Leave to Appeal is to show that the trial solicitors and barristers have been negligent (which is effectively a miscarriage of justice on any grounds) or have not presented all the appropriate evidence that was available to the Court which includes what is called “new evidence” (see above).
All hearings are heard at the Royal Court of Justice, The Strand, London where those Appellants who are fortunate enough to get leave have their cases aired in front of the Full Court by their barrister.
Where the trial barrister/solicitor has indicated that there are grounds for Appeal, and where the Defendant, as he was, had Legal Aid or his trial, Legal Aid is often extended through the Crown Court Representation Order to allow for the Appeal forms to be drafted.
However, where a second opinion is sought or where the Appellant is disappointed with the work that has been done by his trial solicitors/Counsel, no Legal Aid is available at that stage and private funds must be found to pay a solicitor to review the case and, together with a barrister, formulate an opinion as to whether there are grounds for Appeal having gone through the process of reading the papers etc, as set out above.
The purpose of a conviction Appeal is not to re-try the case.
If an error of law has been made, and this can be established, your conviction may be set aside, for example, the wrongful admission of evidence, a misdirection by the Judge, a decision by the Judge to allow or not to allow certain evidence to be presented before the jury and the misdirection by the Judge in his summing up are all examples of this.
There are some very well known cases that have resulted in a miscarriage of justice which include, Timothy Evans who was accused of the murders that were carried out by John Christie. Evans was sentenced to hang, yet he had done nothing wrong.
Stefan Kizko who was accused of sexually assaulted and killing an 11 year old girl in 1975.
New forensic evidence that was brought before the Court in 1992 secured his release.
Sally Clark who was accused of a “baby shake” murder of her two sons.
She spent 5 years in prison before new evidence revealed that one of her sons had died of natural causes.
Barry George who was convicted of killing the TV Presenter, Gill Dando, who was subsequently released on Appeal.
This is a case where the verdict was considered unsafe at the time by some observers.
However, on the 7th November 2007 the Court of Appeal reversed the Judgment and quashed the conviction.
George was re-tried in 2008 when he was acquitted.
On the 11th May 2011, the Supreme Court defined “miscarriage of justice” as evidence, “so undermining that no conviction could possibly be based upon it”.
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