Every defendant in the Crown Court is entitled to be advised on whether they can appeal against their sentence and/or their conviction. “Can I appeal?” is a question which is often asked before anything else has happened.
As well as providing a high-quality first instance criminal defence service, the lawyers at Conspiracy Solicitor and Bird and Co Solicitors LLP are also experienced appellate lawyers.
If you think you or a family member may have grounds for appeal you should initially discuss it with the legal team which handled the case. All Crown Court representation orders include provision for advice on appeals so no-one should go without advice.
We are always happy to advise our own clients about appeals, so if we represent you throughout the criminal or Crown Court proceedings you will be advised whether there is a potential appeal at the end of the case.
If you were not represented by us, and are dissatisfied with the advice you were given by the original legal team, you may be able to come to us for a review. In some circumstances we can obtain funding to give you a second opinion.
Appeals against Sentence
This is the most common kind of appeal, and relates to situations where the sentence imposed by the Crown Court is either unlawful or is too long. These factors are commonly expressed as:
- The sentence was wrong in principle or wrong in law, or
- The sentence was manifestly excessive.
A sentence will be wrong in principle if it is one which the Judge had no power to impose, such as where a Judge imposes a sentence of 12 months’ imprisonment for an offence which carries a maximum of 6 months. Usually these sorts of cases will be clear cut.
There are some kinds of appeals on law which are a little more complicated. An example of this might be where someone is arguing that a Judge’s approach to confiscation proceedings was wrong in law.
Arguing that a sentence is manifestly excessive is a little more nuanced. This is an argument that the sentence so far exceeded the proper range of sentences for an offence that the Court of Appeal must intervene to reduce it. It is therefore harder to show than just that the Court of Appeal might have imposed a different sentence.
If the Court of Appeal agrees with the submissions made it will reduce the sentence to an appropriate level, although this will often not be to the level which was originally expected. Rather it will represent a reduction on the sentence but still an increase on what had been hoped for.
Appeals against Conviction
Appeals against conviction are much harder to describe briefly. Broadly speaking there are three main types:
- Appeals based on new evidence
- Appeals based on incorrect rulings on the law, e.g. admission of evidence or definitions of the offence
- Appeals based on irregularities during the trial, such as problems with the jury, or incorrect statements in the summing up.
Appeals against conviction can be very difficult and complex, and need the most careful handling. If you think you may have a potential appeal against conviction then the best thing to do would be to discuss it with us.
Procedure in Appeals
This can only be a brief description of the process but in general the procedure is as follows:
The first stage is for us to obtain all the paperwork we need. Clearly we would need to see all the documents which made up the prosecution case, and your defence documents too. If there was a judgment in the lower court we’d also need to see that.
We would then consider the documents and advise you of your prospects. If necessary we might refer the papers to a senior barrister who would advise you further.
If we consider there are good prospects for an appeal we may lodge a written document setting out the Grounds with the Court of Appeal in London.
These Grounds are then considered by a Single Judge of the Court of Appeal, usually a High Court Judge, who will express a view in writing as to whether there are reasonable prospects of success. If the Judge considers the case to be arguable, they will grant permission to appeal and will usually also grant a Representation Order for a barrister to present the appeal to the Full Court.
On the other hand, if the Single Judge does not consider the appeal to have merit they will refuse permission. Funding is also refused at this stage.
A refusal by the Single Judge means the applicant has to decide whether to bring the case on an application for permission before the Full Court. There three judges of the Court of Appeal will decide whether the case should go further. They may decide that the case can have permission and be heard on another day, they may hear the full appeal there and then, or they may refuse permission, in which case the case is at an end.
If permission is granted by the Single Judge there is then a full hearing before (usually) three Judges of the Court of Appeal. The Court may allow the appeal and quash the conviction or sentence, direct a retrial, or alter the sentence to another which is no harsher than the previous one. Alternatively they may dismiss the appeal in which case things stay as they were.
There are two risks in appealing:
- You may be ordered to pay costs of the appeal. This is unlikely if you are in custody.
- You may be ordered to serve some of the time you have spent in custody before the appeal again. This is very unusual and would usually only happen in cases where the Court thought the appeal was extremely unwise and hopeless. If we consider you are at risk of this we will advise you.
Other Potential Appeals
These are unusual, but we should mention that there are also in some cases the possibility of bringing a case before the Criminal Cases Review Commission, or even judicially reviewing a decision. In some cases appeals may go further, e.g. to the Supreme Court or one of the European Courts. If you think you may be in this situation contact us for more information.
Above all the process of appealing may take a significant amount of time and a great deal of work. If you need advice get in touch.