Friday, March 27, 2020
Second opinion advice on Appeal or review of conviction
A conviction for a criminal offence can be one of the worst things that can happen to an individual. The effect of conviction upon the defendant and those that they care for are enormous. The potential loss of liberty are immediate concerns coupled with the the stigma of the conviction and the potential effects upon future prospects. It is no surprise that I find a lot of individual come to me, either to review the circumstances of their convictions to see if there is an avenue of appeal or to give a second opinion where their current legal team have told them that there is no prospect of appeal.
The advantage of seeking a second opinion on appeal is that the case and the circumstances of conviction are seen through a fresh set of eyes. Those not previously involved can spot avenues of appeal that may not have been apparent by those who were conducting the original litigation. Also where there has been a failure by the original team, that team may not consider that they have made a mistake or may not be willing to admit that a mistake has been made and as such a second set of eyes upon a case can be very useful.
For example, a client who was unhappy with his conviction recently approached me. His current lawyers had told him that there were no grounds for him to re-open matters and he came to me for a second opinion. I reviewed the circumstances of the conviction and noticed a procedural flaw in the proceedings in the Magistrates Court. Upon my application the Divisional Court accepted that there had been a fatal flaw in proceedings and declared the proceedings a nullity. This had the effect of cancelling the Defendant’s conviction.
A review of a conviction
A second opinion or review of a conviction will involve a comprehensive review of all of the circumstances of the defendant’s case, both evidential and procedural. The lawyer conducting the review will gather and analyse the evidence in the case and gather information from all those concerned to and conduct an independent review of the case in this detailed exercise. As the lawyer conducting the review was not present at the original proceedings they are untainted by any preconceptions about the case, the evidence or the persons involved.
As the lawyer conducting the review is often not able to give an answer as to whether grounds for appeal exist or not until after the whole of the review has been conducted as a complete review of the evidence and procedure is often needed before a final answer can be given.
The first step in any review is to gather information from the Defendant and anyone else who witnessed the proceedings in order to ascertain whether there are any immediate concerns that the defendant has about his proceedings, the evidence in the case, the procedure or the way in which they were represented. This is essential in order to gain a steer on potential appeal issues.
The lawyer conducting the review will then need to gather all of the case papers from the lawyers who conducted the original proceedings. This will be both the evidence in the case as well as notes of any conferences and meetings as well as communications between the prosecution and defence and other material generated in the course of proceedings.
The next step will be to gain transcripts of the relevant parts of the trial from the Court, this can be transcripts of legal argument, evidence, speeches by counsel or the summing up of the judge. Sometimes these transcripts need only be for important parts of the trial or parts of the trial where it is feared that problems may have occurred.
The lawyer conducting the review may also wish to ask questions of those who previously represented the defendant to see what their take on proceedings were or to see whether they agree with assertions made by the defendant about the conduct or standard of their representation. The protocol for this is called the McCook protocol and is a mandatory procedure laid down by the Court of Appeal.
Following the conduct of the review the lawyer will draft an advice on appeal in writing outlining the facts of the case, the issues in any potential appeal and whether grounds for appeal exist or not. If an appeal is available, the advice will contain grounds of appeal. The appeal will then be submitted to the Court of Appeal (Criminal Division) for consideration.
What you are paying for
It is important that clients understand that in a second opinion or review of conviction they are paying for the time spent reviewing the conviction and giving advice on appeal. A review and second opinion does not guarantee an appeal and even the best Barristers cannot make grounds of appeal exist where there are none. The client pays for a detailed, comprehensive and expert review of the paperwork to see if grounds for appeal exist, not for a guaranteed submission of an appeal
In order to appeal to the Court of Appeal a barrister must provide a written advice or opinion that there are properly arguable grounds for appeal either against the conviction sentence or both. There are strict rules and procedures as to which documents need to accompany the advice and which must be lodged with the Court of Appeal Registrar.
Criminal appeals can be complicated and require care and precision. If you or someone close to you was convicted and you would like an experienced criminal barrister to pursue your appeal or give a second opinion on your case call now to discuss the options available to you.