Appeals from the Crown Court against conviction and/or sentence

Appeals procedure by David Wells

David Wells, Partner with Wells Burcombe LLP, highlights the procedure for appealing against a conviction and/or sentence from the Crown Court to the Court of Appeal, Criminal Division.

Appeals from the Crown Court against conviction and/or sentence are heard by the Court of Appeal, Criminal Division. Such Appeals are based on a point of law, on a point of fact, or on mixed law and fact. The ultimate question for the Court of Appeal, when considering an appeal against conviction, is whether the conviction is unsafe. An appeal against sentence will be upheld where the sentence is regarded as either wrong in principle or manifestly excessive. In either case, the Court has in place a filtering process where applications are screened by a Single Judge. To those appeals that pass this initial threshold, leave is given to appeal and the case is referred to the Full Court where a hearing is set down and the appeal heard in open Court, usually before three Judges. The Single Judge sometimes, although not often, may simply refer the case to the Full Court of Appeal without passing comment on the merits of the application.

Where an appeal is to be lodged, the process is commenced by completing and submitting to the Crown Court within 28 days a form NG (meaning notice of grounds). The form NG must be signed either by the applicant or on his/her behalf by the legal representatives. Where fresh lawyers are instructed to pursue any appeal, the court may extend the 28 day time limit.

Upon receipt of the form NG, the Registrar will obtain all the relevant documentation, which is then passed to the Single Judge. If the Single Judge takes the view that an Appeal has merit, leave to Appeal will be granted; otherwise it is refused. The Single Judge will also consider at this stage any ancillary applications, e.g. an application for bail.

It is impossible to list all the potential grounds of appeal that may be advanced, but commonly they include: misdirection of law; non-direction on the law; failure to refer to a defence; misdirection on the facts; inappropriate comment by the judge; wrongful admission or exclusion of the evidence; defects in the indictment; rejection of no case to answer; jury irregularities; irregularity in relation to verdict and those relating to prosecution responsibilities such as non-disclosure or late change in nature of the case.

Where an applicant’s representatives advise there are no grounds for appeal, it may be possible to be given further public funding to get advice from or have enquiries made by new legal representatives.

There is limited funding available in these circumstances. If in doubt as to your eligibility for further funding, write to a Solicitor who specializes in appeal work.

Appeals vary in the time they take to be determined. For appeals against sentence, cases with a shorter sentence are generally dealt with more quickly than cases with longer sentences. If a case is very complicated, or linked to another Appeal(s), it will usually take longer. The Criminal Appeal Office may also take into account an applicant’s old or tender age and health. If leave to appeal is granted, Appellants will be granted public funding to be represented (usually by Counsel only). If additional enquiries and investigative work is required to be carried out the Registrar may, upon written application, consider extending the legal aid to cover Solicitor representation also.

Where leave to appeal is granted, and prior to any hearing before the Full Court, a case summary will be prepared to assist the judges, a copy of which will be sent to Counsel instructed (or the Appellant if unreprsented). At this stage, all the papers will be copied for the judges and the case details sent to the List Office for a hearing date. The Appellant has the right to be present at the appeal hearing.

Where leave to appeal is refused by the Single Judge, a copy of the decision will be sent to the applicant. Where the applicant disagrees with the decision, and wishes to renew the application before the Full Court, notice must be returned within 14 days. Where this occurs, no right to public funding for representation by a Barrister exists. However, the Barrister who drafted the grounds will usually agree to appear before the Full Court on a pro bono basis, unless private funding has been arranged.

When contemplating any Appeal, there is one very important matter to consider. Whilst the Court of Appeal cannot increase sentence in the event of an unsuccessful appeal, there is one way the Court of Appeal can penalise unmeritorious appeals and that is for the Full Court to direct that some or all the time the applicant has spent in custody between the submission of the grounds of appeal and the dismissal of the application for leave to appeal shall not count (as it normally would) towards service of any custodial sentence imposed by the Crown Court. This is known as the ‘loss of time provision.’ Such a direction is more likely to be made in cases which are plainly without merit, but less likely (although still possible) where Counsel has advised that arguable grounds exist and where Counsel has advised that an application be renewed. In recent times there has been an increase in the use of this provision. Those contemplating an appeal without the benefit of legal advice should perhaps reconsider and instead seek specialist legal advice from lawyers dealing with this complex area.