Where a court has made a decision that you disagree with it is often possible to appeal that decision to a higher court for a second opinion. Where the point is very important you can appeal beyond the court of appeal to the Supreme Court and in certain cases to the European Court of Justice or the European Court of Human Rights.
This document is aimed specifically at people appealing from the Crown Court to the Court of Appeal against either conviction or sentence. If you are interested in appealing from the magistrates’ court to the Crown Court or High Court then you should read our guide to magistrate court appeals.
Appeal against conviction
What is the Court of Appeal looking for?
Many clients come to us looking to fight their Crown Court trial over again in the Court of Appeal. Understandably, they are upset at being convicted and wish to go over the evidence to prove their innocence. The first thing to understand about appeals to the Court of Appeal is that they are not there to re-hear your trial and to an extent they are not there to consider whether you are guilty or innocent.
The Court of Appeal’s sole job is to consider whether your conviction is safe.
There are two general headings under which an appeal may be brought. These are:
- New evidence; and
- Procedural irregularity.
New evidence must be something that was not available to the defence at the time of the trial. Where new evidence is produced the court will then consider whether that evidence could have caused the jury to reach a different verdict. If it could have you are likely to win your appeal. If not then you lose your appeal.
A procedural irregularity means that something happened at your trial that should not have happened. This could be almost anything from evidence being excluded or admitted unfairly to the judge making an error in his summing up. Once you have shown the court that there was a procedural irregularity the court will consider whether the jury would have reached a different verdict had the mistake during the trial not occurred.
What is the procedure?
Appealing a conviction is not straight forward and there is a lot of red tape to be gone through before your case reaches a full Court of Appeal hearing.
It is first necessary to obtain the advice of a barrister of solicitor-advocate in favour of appealing. In the case of a barrister, this means instructing a solicitor who specialises in appeal court cases first and then allowing the solicitor to instruct the barrister for you. This is because most barristers are unable to accept instructions direct from members of the public.
Once you have your positive advice on appeal your solicitor-advocate or barrister will prepare your grounds of appeal. This is a document that formally sets out why you say your conviction is unsafe.
The grounds of appeal and advice on appeal are sent to the court that convicted you along with a form that tells the court you are appealing your conviction. The Crown Court will forward your appeal documents along with some records of their own to the Court of Appeal.
At the Court of Appeal your case will be allocated to a lawyer employed by the court who will examine the documents and prepare a summary. At this stage he is also likely to identify various documents that the court will require, such as the transcript of the trial judge’s summing up to the jury.
Once the case summary is finished it is passed to a senior judge who is usually either a High Court judge or a Lord Justice of Appeal. This is called the Single Judge stage. The Single Judge will either grant you leave to appeal or will refuse leave according to whether he thinks that your appeal has a chance of succeeding.
If leave is refused by the Single Judge you can renew your application before the Full Court of Appeal. It is important to take advice before doing this as the Full Court can direct that some of the time you have spent in prison will not count toward your sentence, which means you can end up spending longer in prison than you would have done. Also, you must remember that this is a renewal of your application for leave to appeal. It is not a final appeal hearing.
If leave is granted your case will be listed before the Full Court of Appeal for them to decide whether you win or lose your appeal.
What happens after my appeal?
The Court of Appeal is unlikely to overturn your conviction without ordering a re-trial. It does happen, but it is the exception rather than the rule.
The Court of Appeal has three options when deciding your appeal. It can:
- Uphold the conviction – this means you lose
- Quash the conviction
- Quash your conviction and direct a retrial
If a retrial is ordered then you may be released on bail if you had bail before your original trial.
How long will it take?
The time taken to prepare your appeal will depend upon the amount of work that needs to be done before seeking the advice of a barrister or solicitor-advocate. For obvious reasons, a case that requires your solicitor to employ experts to investigate and report back will take much longer than a case that turns on an error by the trial judge in his summing up.
The process at the court of appeal usually takes between 4 – 8 months depending on how busy the court is and how important they deem your appeal to be.
Typically speaking an appeal can take up to a year from start to finish, although it may take as short a time as six-months. Exceptional cases can be much faster.
If you need a very fast service then it is worth paying privately as this removes the bureaucracy involved in obtaining funding from the Legal Services Commission, which can add months of delay to a case. See below for more information on funding.
Appeal against sentence
When you appeal your sentence the one question the Court of Appeal will ask is whether your sentence is “manifestly excessive”. This means that the sentence imposed is either unlawful or is so harsh as to be unjust.
The procedure is similar to that described above for appeals against conviction.
At the end of the appeal, the Court of Appeal can either refuse your appeal, which means that the original sentence imposed stands, or the judges can allow your appeal and substitute an alternative sentence in its place.
How much will an appeal cost me?
Legal aid is available for criminal appeals. However, it is subject to a means and merits test, thus you must prove to the Legal Services Commission that your case is important enough for it to fund and that you do not have the ability to pay privately.
Legal aid in appeal cases is different from legal aid in pre-trial cases. At the appeal stage your solicitor must apply to the Legal Services Commission for permission to undertake each and every piece of work on your case. This is a slow process that means your solicitor wastes much of his time dealing with the LSC and waiting for permission to be granted. It also places restrictions on how often you can meet with and talk to your solicitor. This is particularly true if you wish to instruct an expert solicitor who happens not to be based close to you because the Legal Services Commission will not pay for your solicitor to visit you. This means visits will take place when the solicitor can find a gap in his paid work. Obviously, good solicitors are busy meaning that you may have to wait for a visit if you are a large distance from your solicitor’s office.
You can speed up your appeal considerably by paying privately. The cost of this will vary depending on the complexity of the case and whether it is necessary to employ any experts to produce evidence for you. EPD Solicitors are happy to provide a no obligation estimate. For the best accuracy it will be necessary for us to speak with you about your appeal and for us to see the papers or at least know how much paperwork there is for us to go through.
If you or somebody you know needs help appealing a conviction then don’t hesitate to contact us on 020 8533 7999 and speak with one of our friendly, experienced solicitors.
