Those who have fought to clear their names or the name of a loved one know the process takes time, can be complex and frustrating. Often those who have had to fight for so long, in a complex system lose faith but they are not alone and ultimately the criminal justice system is meant to ensure that if a miscarriage of justice has taken place it can be corrected.
If you or a loved one has been convicted or sentenced, advice should be sought on what routes are open to appeal. Below is a short guide through the mechanisms the criminal justice system has in place to overturn wrongful convictions.
Appeals from the Magistrates Court
If a person has been convicted before the Magistrates’ Court they have the right to appeal the conviction to the Crown Court. The appeal will be before a Crown Court Judge sat with two lay Magistrates and will be a complete rehearing of the trial.
A Magistrates’ Court’s decision can also be reviewed by way of stating a case or judicially reviewing the decision to the Administrative Court, which is part of the High Court. These options are available if the Magistrates’ Court made an error in the law, acted outside of their jurisdiction or there was procedural irregularity. However, the appropriateness of undertaking such reviews requires legal advice and simply seeking a rehearing before the Crown Court is the most common route of appealing the finding of guilt.
If there has already been an unsuccessful appeal to the Crown Court of the Magistrates’ Court decision, a defendant can consider whether the decision made is suitable for review by way of being case stated or Judicially Review. Alternatively, they can ask the Criminal Case Review Commission (CCRC) to review the case, which is dealt with below. Once a Magistrates’ Court decision has been appealed to the Crown Court, there is no further right of appeal to the Court of Appeal, Criminal Division.
If you’ve been sentenced by the Magistrates’ Court and feel the sentence was wrong or manifestly excessive you can appeal this too. The Crown Court will consider the sentence afresh.
Appeals from the Crown Court
The appellant Court (the Court that hears appeals) for convictions from the Crown Court is the Criminal Division of the Court of Appeal, which is again part of the High Court. The Court of Appeal will only allow an appeal against a conviction if they think that the conviction is unsafe. In all other cases they will dismiss the appeal.
There is no automatic right to appeal a conviction from the Crown Court (which is different to an appeal against a Magistrates’ Court decision). A defendant or his lawyers can submit “grounds” (an application) for permission to appeal and only if permission is granted will the Court of Appeal hear the application to appeal the conviction.
“Grounds” are legal reasons setting out why the conviction is unsafe. There is no rehearing of the trial. There is no definition as to what makes a conviction “unsafe”. However, common arguments heard in the Court of Appeal relate to new evidence, errors that occurred during the trial process or misdirections of law.
If grounds are identified a written application is submitted to the Court of Appeal. Initially a Single Judge will make the decision if permission to appeal is granted by considering the written grounds. If the Single Judge refuses permission an application can be made for an oral hearing before the Court to essentially ask them to overrule the Single Judge’s decision. If the Single Judge refuses permission to appeal your lawyers will advise you if there is merit is seeking an oral hearing.
The Court of Appeal is quick to act on those appeals they feel are frivolous or vexatious (i.e. without merit). Lawyers can only draft and submit positive grounds of appeal if they believe there are arguable grounds. You should always seek legal advice on the merits of the case. The Court of Appeal has the power to make “loss of time orders” if they feel the application made is without merit. This means they have the power to order some of the time the person has served in custody as an appellant (whilst appealing) will not count to the time that needs to be served. The Court rarely orders a loss of time order to be made, but the person who is seeking to appeal must be advised of this power before any grounds are submitted.
Your Solicitor and Advocate at trial are duty bound to advise you after the conviction if there are in their opinion grounds to appeal. However, if you are advised there are no grounds to appeal you can seek a second opinion.
A second opinion will involve new Solicitors obtaining the case papers and the transcripts of the trial. They will need to consider the papers and your instructions in order to provide an advice on appeal.
Time limits apply to lodging notices to appeal therefore it’s always best to seek advice quickly. However, simply because a time limit has expired doesn’t in itself mean the appeal will not be considered. Sometimes arguments can be put forward to ask the courts to deal with appeals that haven’t been lodged within the time limits. This is not an uncommon application if for instance, new evidence took longer to come to light or a second opinion was sought.
In the Magistrates’ Court any application to appeal a conviction must be lodged no later than 21 days of the sentence being passed.
With regards to the Crown Court, permission to appeal a conviction must be sought and the notice lodged not more than 28 days from the date of conviction. If you’re appealing the sentence again the rule in the Crown Court is for an application to be lodged within 28 days of the sentence hearing.
IMPORTANT POINT – The rules for the Magistrates’ Court and Crown Court are different. If you’re ever unclear simply seek legal assistance.
It is always important to try and get advice or a second opinion on an appeal as soon as you can. Delay can often make it harder for Solicitors to get hold of those papers they need to help you.
Routes of Appeal if the Court of Appeal has already dismissed your appeal
Simply put if your appeal to the Court of Appeal has been dismissed either by the Single Judge or the full Court, you have exhausted your rights of appeal to the Court of Appeal. That said, there are still routes available.
Depending on the nature of your case one route of further appeal could be to ask the Court of Appeal to certify a point of public importance that arose from the Appeal Court hearing so the matter can be referred to the Supreme Court. If the Court refuses to certify a point of law, that is the end of the matter.
Another route of appeal would be to the European Court of Human Rights if all domestic options have been exhausted and if article rights have been engaged. Generally speaking the only other way the Court of Appeal can consider a further appeal in relation to the same conviction is if the Criminal Case Review Commission (CCRC) refers the matter back to the Court of Appeal.
Criteria for Referral by the CCRC
The CCRC is an independent and impartial body aimed to bring justice to those wrongly convicted. Anyone who believes they have been wrongly convicted of a criminal offence can ask the CCRC to review their case if they were convicted in a criminal court in England, Wales or Northern Ireland. Any application must be in writing and lawyers acting for those seeking to overturn their conviction are often responsible for submitting applications but anyone can refer the case to the CCRC, there is no requirement the person referring the case has to be legally trained.
The purpose of the CCRC is to review the case. They can also investigate and have significant powers to obtain documents held by public bodies. In order for them to refer a case back to the Court of Appeal they must consider that there is a “real possibility” that the conviction would not be upheld were they to refer this matter back. In the case of a conviction, this consideration is because of an argument or evidence not raised at trial or on appeal. That said, the commission can where “exceptional circumstances” exist refer a conviction case to the Court of Appeal where the “real possibility” test is satisfied but where the criteria regarding new argument or evidence is not met.
Who can appeal?
The person who can appeal is the person that was convicted. In the event they have died, an approved person can take over the right of appeal that the deceased person would have had. This includes any reference to the CCRC.