Appealing to the Court of Appeal

Appealing Decisions of the Crown Court to the Court of Appeal

The only Route of Challenge to a conviction or sentence from the Crown Court is to argue your case before the Court of Appeal.

There are two main stages to this. The first is to draft an advice on appeal, if there are arguable grounds to appeal the sentence or conviction then these can be lodged with the Court of Appeal.

Once this has been done, the matter will be considered by a 'Single Judge'. The Single Judge considers the case on paper and decides whether the application to appeal is arguable. If the application is arguable, then they will refer the matter to the 'Full Court'. This is an oral hearing where three Justices will hear the appeal and make a ruling.

Appealing Against Conviction

The test that the Court of Appeal (COA) applies when deciding whether to allow an appeal against conviction is whether the conviction is “unsafe” (section 2 Criminal Appeal Act 1968). 

The court is therefore not directly concerned with the guilt or innocence of the appellant in that they will not allow a rehearing of the trial before them. We have a ‘one-trial’ principle in this jurisdiction and that means that the COA are very slow to allow evidence to be introduced for the first time at the trial stage that could have been called at trial. The position is equally strict when it relates to arguments, absent negligence on behalf of the previous legal team, which could have been made at the trial being raised for the first time on appeal.

Fresh Evidence

Often, evidence will have become apparent after the trial has concluded before the Crown Court. The Court of Appeal will sometimes allow fresh evidence to be admitted as part of the appeals process. Their willingness to do so is limited and significant hurdles must be overcome before a defendant is permitted to breach the one trial principle. One of the most important is whether the evidence could reasonably have been called at the trial. 

The best explanation for a defendant wishing to rely on fresh evidence is that the material was not known about at the time of the trial and could not reasonably have been expected to be discovered. If this is not the case, then the evidence must be considered very carefully.

Legal Errors

The most common way to challenge a conviction is if there was an error of law that took place. This can relate to evidence that was admitted where it shouldn't have been, or alternatively where evidence was not permitted to be used. The wrongful exclusion of admissible evidence or wrongful inclusion of inadmissible evidence will lead to the quashing of a conviction if the error means that the conviction is unsafe. That remains true even if the appellant's advocate failed to object to the admission of the evidence when it was adduced. 

There can often be legal errors in a Judge's summing-up or directions to the jury. Rhys is regularly instructed to advise on the potential for a legal error. The prospects of an appeal succeeding in relation to a matter in the judge's discretion are much improved if there has been a failure to exercise the discretion or a failure to take relevant factors into account, or the judge has taken irrelevant factors into account in the exercise of his discretion 

In order to challenge a conviction, it is important to instruct a legal representative that is experienced in obtaining transcripts of legal directions and analysing these extremely closely.

Negligence of Previous Legal Team

Claims of negligence against previous lawyers is a ground that many Applicant’s want to explore. It is however a very difficult ground to succeed on. The COA will not intervene merely because it can be shown that a defendant may have been better represented or that the tactical decisions made at trial were not the best possible choices, unless those failings can be argued to have rendered the conviction unsafe. The COA will look only to see if the representation was adequate it will not allow an appeal simply because the representation was no more than adequate or could have been better. 

However, it is still important to challenge decisions that were made and understanding whether they were correctly made. Rhys is experienced in drafting what are known as 'McCook Questions' which are sent to previous representatives to establish where errors may have occurred.

Appealing Against Sentence

The test that the Court applies in respect of sentence is whether or not the sentence imposed was 'manifestly excessive'. This means that it is insufficient that the sentence is simply harsh, it must be particularly so. It is also possible to seek an appeal against sentence where there is fresh evidence, such as assistance provided to the prosecution or a change in personal/medical circumstances.

In respect of whether a sentence is manifestly excessive, the following are the areas that should be considered.

Credit for guilty plea

Where a guilty plea is entered, a Defendant should receive credit in line with the over-arching guidelines and the case of R v Plaku. Credit can make a substantial difference to the length of time that an individual is required to spend in custody. It is generally considered a sliding scale but tailored submissions can often be advanced.

Sentencing Guidelines

It is common for there to be differing views taken in a sentencing exercise regarding the sentencing guidelines to be applied. This can be particularly pertinent in cases with strict guidelines regarding categorisation of role and harm. 

Totality Principle

Often, Defendants fall to be sentenced for multiple offences. The totality principle means that the sentence imposed for all offences should be commensurate and proportionate with the offending as a whole. 

The above are just brief examples of the potential arguments that should be pursued, Rhys is able to analyse transcripts and case summaries to give an initial indication of potential prospects.