Criminal Appeals - What You Need To Know
Following a criminal conviction and/or sentence in a Magistrates Court, Appeals are generally heard by the Crown Court. There are some further and additional routes by which
Magistrates’ Court matters can be appealed but this is very rare.
The application to Appeal a Magistrates’ decision must be made within 21 days of that decision. The Crown Court will consider an appeal of a Magistrates’ Court via a full re- hearing. The Court will comprise of a High Court Judge, Circuit Judge or a Recorder (as the presiding Judge), plus between two and four Magistrates who were not concerned with the original case.
At the Appeal hearing, the Magistrates sit as Judges of the Crown Court and will participate fully in the decision-making, however they must follow the presiding Judge on matters of law.
Following a criminal conviction and/or sentence in a Crown Court, Appeals are heard by the High Court also known as the Criminal Court of Appeal or specifically, the Court of Appeal - Criminal Division. The application must be made to the High Court within 28 days from your conviction/sentence. As you do not have an automatic right of Appeal from the Crown Court, an application for ‘Leave to Appeal’ must be made.
The leave application is considered by a ‘Single Judge’ of the Court of Appeal in what is known as a ‘paper- based’ review. He or she decides whether or not the application has a reasonable chance of succeeding. In other words, the single Judge is there to filter out all of the applications that will probably (in his/her view) end up being unsuccessful anyway. All applications will go through this process and the Single Judge will always provide reasons (although basic) for the decision in writing.
If leave is refused, a renewed application for ‘Leave’ can be submitted within 14 days and this will then be determined by the full Court. This is made up of two or three Judges who will read the papers and announce the decision in open Court.
If leave for Appeal is granted, the Appeal is heard by the full Court of Appeal in public. The appeal can be heard by two or three Judges. The Appellant has the right to attend the hearing from custody, in person or via video-link.
The Appeal does not take the form of a re-hearing (unlike an Appeal heard in the Crown Court) but is rather a consideration of points and any new materials being submitted. Witnesses can be called to give evidence in support of the new evidence to be relied upon.
Following your Hearing at the Crown Court, the solicitor and/or barrister should provide Advice as to whether or not, he/she feels that a successful Appeal can be put forward to the Appellate Courts. If there are no Grounds for an Appeal then that Advice will generally be verbal. If it is felt that there are Grounds for an Appeal against either the conviction, sentence or both, then the barrister (referred to as Counsel) will prepare such an Advice in writing along with those grounds.
The solicitor will complete the relevant forms (Form NG) and will submit all the paperwork to the convicting/sentencing court. The Court will then forward the Appeal application to the Appellate Court.
Any Crown Court Appeal application must usually be submitted within 28 days after sentence. There are exceptions to this rule where a request can be made for the Court to allow an Appeal ‘out of time’ (this is known as ‘Leave to Appeal out of Time’). This type of application must be justified and the full reasons why the application is out of time must be explained.
What if the Advice is Negative?
What happens when the barrister or solicitor Advises that there are no grounds of Appeal against conviction or sentence? There are several choices open to you. Firstly, if you feel strongly that you have Grounds to Appeal, you can make an application yourself. You will need to obtain a an application form (Form NG) and fully set out your reasons.
Alternatively, a person who has been convicted can seek a second opinion from another lawyer.. The client’s reasons can be explored and he/she will receive a second opinion in writing.
If a solicitor thinks that the Appeal may have a chance, then he or she will begin to prepare and investigate the Appeal properly, and also prepare justification for the application being out of time if it is longer than 28 days since sentence. This will be the same process whether it is out of time by a week or out of time by a year or longer.
In the case where Grounds of Appeal have been rejected at the first stage (the Single Judge Stage) there is an option available to request that the application is renewed. However, this option needs to be considered very carefully as it can carry harsh penalties if the Appeal is ultimately refused. Such penalties include the potential for any time already spent in custody (up until the point of the refusal by the Court of Appeal) to not be counted as part of the sentence. In other words, there is a risk that you would have to start your sentence again from scratch.
This is very unlikely to be the case if Counsel advised that your application should still be put forward despite a rejection by the Single Judge. Please note the Single Judge also has this power in any event.
Full Court of Appeal Refusals
If an application reaches the Full Appellate Court and is not successful (or indeed is not successful at an earlier stage) there are still options available should you disagree with the Court’s decision. One such avenue is to submit an application to the Criminal Cases Review Commission (C.C.R.C) who will then appoint a case worker to investigate your concerns. In the United Kingdom, this is generally the only way that you can have your case referred back to the Appellate Courts. You cannot generally make an application to the C.C.R.C until you have first been rejected by the Court of Appeal.
The Criminal Cases Review Commission (CCRC) is the public body with responsibility for investigating alleged miscarriages of justice in England, Wales and Northern Ireland. It was established on 31 March 1997. The CCRC has the power to send, or refer, a case back to an Appeal Court if it considers that there is a real possibility the Court will quash the conviction or reduce the sentence in that case. It is an independent body from the Court of Appeal but it relies upon the same rules and regulations as the Court of Appeal. The CCRC will reject (as will the Court of Appeal) any applications where the ‘issues’ raised have already been dealt with by the ‘Lower’ Courts. i.e., if the matter was dealt with at your trial, neither the Court of Appeal or the CCRC will address it again. (see separate heading - Rules)
Why Should I Use C.A.S.E Ltd?
Following a conviction or sentence Hearing, your first reaction should be to seek the Advice of your solicitor or Barrister (Counsel) as to whether or not there are any Grounds of Appeal. In the first instance, these individuals are best placed to Advise you, as they will already have an encyclopaedic knowledge of all of the issues surrounding your case. If they determine that Grounds of Appeal do exist, they will prepare (Draft) the appropriate paperwork and application and (with your agreement) they will submit it to the Court accordingly. However, what happens if they Advise you that (in their opinion) there are no Grounds of Appeal or simply fail to Advise you at all? Anyone in that position would clearly not be happy and should always attempt to obtain a second opinion, but a second opinion from whom?
You could probably contact every criminal solicitor firm in the UK and they would undoubtably accept your case for Appeal along with your money. As far as most firms are concerned, applying to Appeal directly to the Court of Appeal or indirectly via the Criminal Cases Review Commission (CCRC) is a relatively straightforward matter and if the application fails, at least you’ve tried and no harm done, right?
Not quite. If you’re in Custody when you put forward an application to the Court of Appeal, they can Order you to start your sentence again either in part or in whole, if they think that the application is frivolous and a waste of their time. If you’re not in Custody at the time of such an application, the Court can order you to pay costs for the same reasons. In addition to the above, you only have one opportunity to submit an application to the Court of Appeal and so it is important that the opportunity itself is not wasted.
There are literally only a handful of Solicitor Firms in the UK that have a Criminal Appeals Department and Lawyers that deal specifically with Criminal Appeals. All other firms will be happy to take your case and some will be competent and successful with your application but, they will also be dealing with Magistrates and Crown Court matters as well and have very little or no experience in Criminal Appeals.
What about going back to the same solicitors that represented you at your trial/hearing and asking them to take a second look at your case and Advise you on an Appeal ? Look again at the final paragraph of ‘who we are’ (above). ‘We inspect the preparation of the defence case along with its implementation’ If your solicitors have failed you in any way, they certainly won’t be admitting to it even if their actions have directly or indirectly placed you in you current position. You need a completely fresh set of eyes and ones that will look at everything.
C.A.S.E Ltd is a company dealing specifically and only with Criminal Appeal related cases. Ultimately, we will be expanding to other Countries within the European Union and engaging staff with the required skill sets relating to the laws of their own Country. At this point in time however, C.A.S.E only accepts instructions relating to convictions and sentences within England and Wales.
In order for you to be in your current position, you will have already have had the experience of using solicitors for your trial/hearing. How many times have you been frustrated throughout that process? Trying to get hold of that specific individual when he/she is out at Court or it’s the weekend/out of office hours can be annoying and leave you fed up and angry, especially if you are in custody and your telephone availability is limited in any event. When instructing C.A.S.E Ltd, you/your family will be provided with your case worker’s mobile phone number.
This means that you can call at any time, even at the weekends. Occasionally, your case worker will be unavailable but it will only be occasionally. In addition, your family/friends can contact us as well and provided that we have your written permission to speak with a particular individual, they will be treated as if they themselves were the Client.
Following your/your family’s initial enquiry with us, we will make arrangements to attend upon you or your family to discuss the process involved and answer any and all questions.
Should you or your family then decide to instruct us to deal with your Appeal/CCRC case, we will then obtain all material from your previous solicitors including their working/correspondence file. This is the file containing all of their notes and information as to precisely what was and what was not undertaken on your case.
We will look carefully at the Prosecution’s case against you in conjunction with your solicitor’s file and we will seek to identify any issues that were incorrectly addressed or simply not addressed at all. For example: Should you have had an expert witness at your trial? What could he/she have said? Would it realistically have made a difference before the Jury? etc..
It may have been the case that you had been Advised and felt pressured into entering a guilty plea and you may have been told that you therefore have no right of Appeal. This is not true.
There are many instances that allow for an Appeal in such circumstances but the important factor here is to accurately identify them and obtain the necessary evidence in support.
When you instruct C.A.S.E Ltd, you become an important and personal Client. You are not treated as one of many clients but you are treated as the main and very important Client. Your case is not given a number, it is referred to by your name and we will do everything within our power and the Law to reach our mutual goals. Whether that is a reduction in your current sentence or the overturning of your conviction, we will work closely with you and attempt to reach those goals together.
Who Can Appeal?
And on what Grounds?
Nobody wants to be incarcerated or convicted of any particular offence and it is therefore a natural reaction to want to Appeal that conviction and/or the sentence imposed. Even those who are actually guilty of the offence will quite naturally wish to Appeal. Whilst we are not here to ensure that actual offenders can overcome the rightful punishments that society imposes, we are here to ensure that the scales of Justice are evenly balanced and as such, that every individual has been afforded their absolute rights under the same system that has been used to prosecute and convict them.
When convicted or sentenced in a Magistrates Court, every individual in England and Wales, has the right the challenge his/her conviction and/or sentence. There is no such automatic right from a Crown Court conviction or sentence. In that case, you need to seek the permission of the Appeal Court to do so. This is called seeking ‘Leave to Appeal’.
You do not have the right to challenge a conviction or sentence just because you are not happy about it. There must be a factual and legal basis for doing so. This is applicable even if you pleaded guilty (see separate heading).
Regardless of whether you were convicted following a trial or whether you pleaded guilty to the offences, you are still entitled to Appeal providing that you have a good reason to do so. In order to determine whether this reason may exist, there are a few simple points that you should consider:
You cannot appeal if the any of following examples apply:
• You didn’t agree with the Jury’s decision.
• You didn’t like the Judge’s Comments or Summing Up.
• You were nervous and you would like to give your evidence again.
• You didn’t like the way your defence case was presented.
2) You may have Grounds to Appeal if the any of following examples apply:
• Your legal team did not follow your instructions.
• New and strong evidence has since come to light that was not previously available.
• Your defence case was not prepared properly.
• You believe that the prosecution’s case against you was wrong according to the law.
• You have strong reasons for believing that your legal team did not act in your best interests.
Can I Appeal my Sentence?
When sentencing, a Judge is generally guided by the sentencing guidelines as set out in law, along with precedents (previous sentences handed out in similar cases). However, he/she will also be influenced by a number of other factors which are specific to each individual case.
1 Whether or not you pleaded guilty or you were convicted after a Trial.
2 If you pleaded guilty, at what stage you entered that plea. (At an early stage such as a Plea and Directions Hearing or at a later stage such as the first day of your trial).
3 The content of a Pre-Sentence Report by the Probation Service
4 Your antecedents (Criminal History), especially if the convictions were for the same type of offence.
Because most sentences are handed out after the above have been considered, there is no simple method of deciding whether or not you have Grounds to Appeal your sentence, and it will require an examination of the circumstances of your case in order to know this.
But I Pleaded Guilty?
Generally, either at the Magistrates or Crown Court, a guilty plea can be made under the pressure of the situation or even through bad (wrong) Advice. Realising your mistake early enough can often secure it’s reversal. This is what is known as an Application to ‘Vacate’ the Plea. The application will be heard by the Judge and providing the explanations given are reasonable, there should be no difficulty in ‘vacating’ that plea.
However, the Judge will want to hear evidence (probably from your legal team) as to whether or not proper Advice and due consideration was given prior to entering that plea. This could lead to your application being refused and so this needs to be carefully considered.
The circumstances of your Guilty Plea will need to be looked at carefully and it should be done in conjunction with all of the evidence that could have been put forward on your behalf, should you have ultimately had a Trial. It may very well be that such evidence may have provided you with overwhelming support of your innocence but your guilty plea had in effect prohibited that evidence on your behalf and you remain convicted. If such evidence exists, a fresh application to ‘Vacate’ your plea would need to be made to the Court of Appeal as part of your Grounds of Appeal.
What are the Dangers?
If you Appeal from a Magistrates Court, your sentence could be increased and you could be ordered to pay £250 towards Costs. You only have one opportunity to Appeal from the Magistrates Court although an application can also be made to the CCRC.
The Magistrates Court only has the power to sentence an individual to a maximum of 12 months in Custody and so whilst the Crown Court could increase your original sentence when dealing with your Appeal, they can not increase it more than the sentencing powers of the Magistrates. In other words, if you received an eight month sentence before the Magistrates Court and then unsuccessfully Appealed to the Crown Court, the maximum that they could increase your sentence to would be twelve months.
If you Appeal from the Crown Court, the High Court could does not have the power to increase your sentence but they can manipulate it. For example, if you received a sentence which included a period to be spent on licence, the Court could increase the time spent in custody and reduce the time spent on licence. They can not however, increase the total sentence given by the lower Court. The only exception to this rule is where the prosecution or other interested parties ask the Attorney General (AG) to make a reference to the Court of Appeal regarding what they consider to be an unduly ‘lenient’ sentence.
In addition to the possibility of a manipulated sentence, you could also be ordered to pay costs and you could receive what is known as a ‘loss of time’ order. This is generally where the Single Judge has refused your application for ‘Leave to Appeal’ and you have renewed the application to the full Court regardless.
If the full Court agrees with the Single Judge and feels that your application has no merit and is a waste of their time, they can order that the period already spent in custody (or a part of it) should not count towards your sentence. In effect, you could start your sentence. The single Judge also has the power to make such an Order.
If you Appeal to the High Court via a referral from the CCRC, the Court does not have the power to make a ‘loss of time’ order should your application be unsuccessful. Similarly, the Court cannot make a loss of time order if Leave to Appeal was ‘granted’ by the Single Judge.
How Long Will it Take?
This all depends on the complexity and seriousness of your case. The volume of paperwork and obtaining further defence related evidence also plays a key role in the length of time it takes to prepare and submit a strong application. To attempt to ‘rush’ the preparation of a case could lead to significant errors and a failed/wasted application. Following the initial preparation, Counsel will also need to be instructed to prepare Advice and Grounds of Appeal.
Once the preparation has been undertaken and all of the evidence is in place, you can expect an average wait of around 3 months before the Single Judge makes his/her decision on your case. If the matter goes through to the full Court, a further 3 months or more can be expected prior to a hearing date.
If your case is going to the CCRC, there appears to be no average waiting time prior to the matter being allocated to one of their case workers. We have had matters dealt with within 2 months following our submissions and as long as 3 years prior to receiving their decision. We do know that the CCRC will give priority to those cases where the Appellant is in custody.
What will it Cost me?
The first thing to explain here is that every case is different. Each case will have distinctive issues, varying volumes of material to consider and pleas of guilty or the running of a trial along with many other concerns. It is therefore not possible to place any distinctive figure on a case without an initial evaluation of the matters to be undertaken.
Following your initial enquiry with us, arrangements will be made for a representative to attend upon you/your family and once the issues are known, a ‘fixed fee’ will be offered to undertake the work required. Even at that stage, you will be under No Obligation to instruct or continue with C.A.S.E Ltd.
As we are based in the Greater Manchester Area, all initial meetings within a 50 mile radius are undertaken free of charge. All initial meetings outside this radius are charged (in advance) at £300 to cover our costs. This figure is fully refundable should you thereafter continue to instruct us.
Can I get Legal Aid?
Many years ago, there was no difference in undertaking an Appeal related case regardless of whether it was being paid for privately or undertaken on legal aid. If the initial assessment of a case suggested a fee of £20,000, an application would have been made to the Legal Services Commission (LSC) and provided that the work was justified, an authority for that amount would generally be granted.
Of course that is no longer the case. The exact same application today would be rejected and would struggle at every step. The LSC grants a maximum of £300 to solicitors for Criminal Appeals and £500 for any CCRC related work. It is possible to apply for an extension to these amounts but it is a difficult task to achieve.
In addition, each firm of solicitors undertaking any kind of legally aided work, are obliged to agree and sign a franchise contract with the LSC.
That contract severely restricts what a solicitor can do when undertaking such cases. i.e., he/she can not undertake a case outside their catchment area, they can not instruct Counsel on a CCRC related matter and they are not allowed to examine all of the material in the case. In addition, they are not allowed to Advise the Client on possible areas of Appeal and can only address the issue/s raised by the client him/herself.
The restrictions in place with legal aid are further protected by the criteria in place regarding eligibility. If you have assets or savings, you will not be entitled to legal aid on Appeals. If you have a disposable income of £400 per month, again you will not be eligible. When considering your eligibility for legal aid, you should be aware that even if you’re in Custody, the criteria is jointly inclusive of your partner/spouse.
The answer is therefore ‘yes’, you maybe entitled and you will no doubt find solicitors who will take on your case under the legal aid conditions.
The following is simply a general guideline of just two of the rules which are in place when submitting an application to either to the Court of Appeal or the CCRC.
As mentioned previously, if you (or your legal team) have already raised an issue at your Trial/Hearing, you will not be able to address the same issue again. The same is applicable if there was simply an opportunity for you to raise the issue at Trial. The Court of Appeal will say that ‘the evidence was available at the time and should have been addressed then’. To rely on such evidence now, it must either be ‘fresh’ (new) evidence or a significant argument must be put forward to explain why it was not used previously.
In R-v-Doyle (Court of Appeal), the client had been charged with exaggerating his fees to his client (British Telecom) regarding printing services and he was subsequently found guilty following a trial in Manchester. On Appeal, he relied upon a full set of accounts produced by his (chartered) accountants, something that his legal team failed to obtain at his trial.
The Court of Appeal (and this was upheld by the CCRC) stated that even though his legal team failed to enquire about those accounts, they had been available at the time and did not therefore fall under the ‘Fresh’ evidence rule. Despite the accounts establishing that no offence had occurred, the Appeal was refused and the subsequent CCRC application was dismissed.
The same rule applies (as above) as to whether or not the witness was available at the time of your trial/hearing. However, to call a witness at the Court of Appeal, an application needs to be made detailing what the ‘new’ witness would say.
In R-v-Hardy (Court of Appeal), the client had been convicted of Conspiracy to import Class A drugs from The Netherlands. The importation had never actually occurred but the drugs were recovered following a search of a hotel room in Rotterdam. At trial, the defence argued that the search (without warrant) was illegal and therefore the evidence seized could/should not be used. The case hinged on whether or not the search was illegal. The trial Judge in Manchester found that it was not.
On Appeal, Paul Hagan had secured the help of the most senior Magistrate in the Netherlands who had in turn, located documented evidence to clearly establish that the search was indeed illegal. Under Dutch law, the drugs could not be used as evidence.
An application was made to the Court of Appeal providing details of the Witness along with the evidence which he intended to give. The Court of Appeal refused to allow the witness to give evidence as they stated that they were better placed to interpret ‘British’ law.
The Court of Appeal is not in place to undermine the decisions of the ‘Lower’ Courts (Crown or Magistrates) as they feel that the Trial Judge and the Jury are best placed to hear and determine the evidence. They are not a second trial and they will only accept specific applications that contain significant fresh evidence that undermines the safety of the conviction.
Applications to the Court of Appeal and the CCRC are difficult applications that must be prepared thoroughly and professionally and supported by solid and indisputable evidence. Every avenue of possible rejection must be explored and countered but even this will not guarantee a successful application. There are too many variables to guarantee success but at C.A.S.E Ltd, we will seek to eliminate any obstacles that may cause an application to fail/be rejected.
Such applications cannot be undertaken alone. The entire process is undertaken as a team effort between C.A.S.E Ltd and the client and the Client’s family. Their input is important and crucial to a successful application. Please note however that we operate within the law and we can only progress your case to the Court of Appeal or the CCRC, if you have a valid application. You would be in danger of financial or other sanctions by the Court if a frivolous application was made.