Monday, January 06, 2020
How to appeal a criminal conviction or sentence.
Individuals or families of individuals who have been convicted of a criminal offence often feel aggrieved at the result of their case and consider that they would like a lawyer to examine the circumstances of their conviction or sentence to see if a valid appeal can be launched. The legal landscape for the launching of an appeal is not a simple one and can seem bewildering to those who are not legally qualified. In this article leading appeals Barrister Quentin Hunt explains the law and procedure in respect of launching an appeal against conviction or sentence in a Criminal case.
Which Court was the original conviction in?
Firstly, it will need to be ascertained which court the appeal will need to be launched from. This article examines appeals from the Crown Court. In a complementary article Quentin Hunt examines appeals from decisions of the Magistrates Court. In appeals from the Crown Court the only Court with jurisdiction to hear appeals is the Court of Appeal (Criminal Division).
‘Leave’ to appeal
In order to start the appeal process a lawyer will need to apply to the Single Judge of the Court of Appeal for leave to appeal a conviction - this is permission to launch the appeal. If leave is not granted the appeal cannot go ahead. Where leave is granted the matter will then go to be argued before the Full Court. If leave to appeal is not granted, then a lawyer may go to the Court of Appeal to argue that Leave should be granted. Where leave to appeal is specifically limited to one or more ‘grounds’ of appeal, the Court will not permit argument on any other grounds without leave.
Pursuant to s1(1) Criminal Appeal Act 1968 (“CAA”), a defendant may apply for leave to appeal to the Court of Appeal against any conviction on indictment. Applications for leave must be made either to the Crown Court judge, or the Court of Appeal, within 28 days of the date of conviction (r39.2(1)(b)(i) CrimPR); or must have appended an application to extend the time limit, with reasons (r36.4 CrimPR). If the lawyers launching the appeal are not the original lawyers in the case then applications to extend are normally granted fairly easily. Appeals against sentence must be submitted within 28 days of the sentence being passed.
The tests on appeal
The test for whether an appeal against conviction should be granted is a simple one: an appeal against conviction shall be allowed if the conviction is judged to be ‘unsafe’ (s2(1)(a) CAA 1968. The test for whether an appeal against sentence will be allowed is similarly simple: an appeal shall be allowed if the sentence is ‘manifestly excessive’. The tests give the Court a great deal of latitude in order get a ‘feel’ of the case to see if an injustice has been done.
‘Grounds’ of appeal
Appeals need to be brought on specific ‘grounds’. In any trial on indictment in the Crown Court, the jurors, acting together as one body, are the sole arbiters of fact. The determination of the facts is entirely the responsibility of the jury. Therefore, if a jury is sure that a defendant is guilty of an offence, it is not possible to appeal that conviction on the basis that there was evidence put before the jury that was capable of supporting a not guilty verdict. In other worlds an appeal cannot be launched on the ground that ‘The jury got it wrong’.
Instead, appeals can be launched on a number of recognised ‘grounds;’ these will normally involve a failure in law or procedure. Some examples of these in an appeal against conviction are:
- A legal ruling by the trial judge that was defective
- A procedural problem with the jury
- A problem with jury selection or conduct
- A misdirection by the judge to the jury
- Prosecution misconduct
- Disclosure failings by the prosecution
- Failures in representation by defence lawyers
- A defective indictment
- Fresh evidence
In an appeal against sentence some example of grounds of appeal are:
- That the judge failed to take into account a relevant factor
- That the judge took into account an irrelevant factor
- Failure to grant appropriate credit for a guilty plea
- Failure to properly apply sentencing guidelines
As stated above the grounds of appeal must satisfy the Court of Appeal that the correct test has been satisfied. In the case of an appeal against conviction this is that the conviction is unsafe, in the case of an appeal against sentence this is that the sentence was manifestly excessive.
Your lawyers will need to carefully examine all the facts of the case and circumstances of the trial to see if such grounds exist. Each case is factually, legally and procedurally different; so particular care should be taken to examine the case to see if such grounds exist. Lawyers who originally conducted the trial or sentencing exercise will often be in the best position to judge if grounds of appeal exist, however, often a ‘fresh set of eyes’ can uncover grounds that have not been spotted by original representatives. In addition, if the grounds of appeal relate to a criticism of the conduct of the trial or other matters relating to the competence of legal representatives, then Appellants should consider instructing a new lawyer to give an objective view.
It is always a huge disappointment to be convicted of a criminal offence or be made subject to a sentence that feels excessive. If this occurs, it is natural to want to challenge the decision that has been made. If done properly and upon the correct grounds this can be done successfully. Quentin Hunt is a criminal appeals Barrister with a wealth of experience and a track record of success. If you would like a second opinion on appeal Quentin has written a separate article to help guide you on the procedures and steps that can be taken. If you wish to pursue an appeal against either a conviction or sentence you can contact Quentin for a free, no obligation conversation about your case.