Our Latest


Peter Large reflects on the routes of appeal in the criminal justice system

I believe that bearing an injustice is one of the hardest things any of us might ever have to deal with.

Few memories from childhood stay with us longer than the stinging feeling of unfairness if ever we got into trouble for something we did not do.

Imagine then, the intense thoughts and emotions which must occupy the minds of those falsely convicted before the Courts, and facing sanctions including imprisonment, social disapproval, loss of livelihood and terrible family upheaval.

Add to this the impact of isolation, fear and misery of living in prison.

Heap on the feelings of confusion and lack of understanding if English is not your first language or if lack of education or mental illness are challenges.

Finally mix in the impact of believing that the wrongful conviction might in whole or in part be because of your race, religion or social position.

An innocent person caught up in a miscarriage of justice must feel that forces entirely beyond their control may have grabbed hold of their life and turned it in a devastatingly wrong direction.

For these reasons alone it is vital to any civilised society, no matter how proud of its legal system it may be, that it has a robust and accessible appeals system.

The question is, can we truly say that we are in that position?

For those convicted of relatively minor offences before the Magistrates’ Court, then the procedure is straightforward. In the vast majority of cases, a person unhappy with a finding of guilt, simply has to lodge a notice of appeal and is entitled to a re- hearing of his case by a Crown Court Judge flanked by two independent Magistrates from the locality. The appeal hearing is treated as a fresh trial of the case.

For those who are convicted at the Crown Court, usually of the more serious types of cases, and for who the penalties are likely to be far greater, the situation is entirely different.

It is important to understand that the modern law of Criminal Appeal in England and Wales does not provide for an automatic ‘second bite at the cherry’ in relation to cases where the conviction was in the Crown Court.

In the first place, permission to appeal must be granted, and then at a full hearing of the appeal, a person needs to convince the Court of Appeal, that the conviction was unsafe.

 It seems that the appellant must do this essentially by explaining to the Court that something has gone badly wrong in the preparation for or conduct of. his trial, or that something is now known about the case, which was not put before the original jury, so as to render the conviction unsafe. It is not enough that the person convicted simply feels that the ‘jury got it wrong’ and would like another tribunal to take a look.  In other words, the appellant must provide the Court with ‘Grounds of Appeal’ upon which to base their decision. Although there is no finite list of these grounds, common examples are that the appellant’s original legal team got things badly wrong, or that the judge was biased or made errors in his conduct of the case, or that some fresh evidence has come to light at a later date. There are plenty of other examples, but the whole point is that whatever the appellant says, it is essential to convince the Court that the grounds relied on are enough to render the conviction unsafe.

Obtaining permission to appeal is not a straightforward procedure either. In the majority of cases a short argument stating grounds of appeal is made in writing to a single judge who will look at the case and determine whether it has sufficient merit to grant leave to appeal. If so, all to the good; but if not, an appellant may renew his application for leave to appeal to the full court, but is warned that if unsuccessful, then the Court has the power to disallow some, or all of the time spent in custody pending from counting towards the sentence. This means that for many people, if they fail to get permission from the single judge, then they are put off from carrying on with their appeal because of the risk of it ending in failure and their having to spend even longer in prison than they first thought. Prisoners have an agonising balance to strike between the solid principle of their being certain that they are innocent, and the practicality of wanting to get out of prison as soon as they can.

Even if an appellant gets this far, it is by no means certain that the Court of Appeal will simply quash his conviction and leave it at that. Although ‘quashing the conviction’ (cancelling it out altogether) is the starting point following every finding that a conviction was unsafe, the Court may order a fresh trial or may substitute a conviction for an alternative offence. A prisoner, especially the sort of isolated and disadvantaged prisoner I was thinking of in the earlier part of this article , who has got  as far as persuading a Court that his conviction was unsafe and should be quashed , might well be devastated to learn that he has to undergo another trial in the same system that ended in conviction the first time. Especially if they have to languish in prison until that fresh trial takes place.

Once an appeal is heard and the decision given, of course, the various outcomes will provoke very different emotions. If after a full hearing, the outcome is entirely favourable, then appellants are relieved and overjoyed. I am sure we have all seen scenes on TV from London where successful appellants, lawyers, family and friends jubilantly face the waiting press.

Adverse outcomes are, of course, an entirely different kettle of fish.  Even on the most generous reading of the statistics, only 11 % of appellants are successful. Please for a moment place yourself in the shoes of a prisoner, getting over all the hurdles and finally getting a full hearing, knowing that so many never get that far, learning the news that they have lost their appeal. Amongst the hundreds of questions running through their mind, there will no doubt be ‘Is this it, or can something more be done?’

Fortunately, the answer is a qualified ‘yes’. In rare cases, a further appeal to the Supreme Court can be contemplated, but for the vast majority, the only way to get the Courts to look at their case again is via an application to the Criminal Cases Review Commission. This is a government funded body which investigates potential miscarriages of justice.

The CCRC was set up by the Criminal Appeal Act 1995.  It is essentially put forward as a safety net to catch any of the (presumably) 89% of unsuccessful appellants whose cases ought really to have succeeded. The CCRC is (barring intervention form the Supreme Court) the route back to the Court of Appeal for those unhappy with the outcome of their first visit.  (In fact, applicants can also apply to the CCRC, in exceptional cases, without first applying to the Court of Appeal).

The CCRC has many plus points. It is an independent organisation, it has really very wide ranging powers to investigate cases, obtain evidence from just about anywhere and if the CCRC find that there is a ‘real possibility’ of success before the Court Of Appeal, they will refer the case back to them, and the Court of Appeal have no choice but to at least hear the case again.

It will come as no surprise to learn, however, that the CCRC is underfunded and can be slow. Applicants need patience in abundance, which is difficult if you are in prison.  Moreover , the success rate of cases being referred back to the Court of Appeal is approximately 3%. Of those referred, about two thirds will be successful. Lawyers and statisticians will analyse these figures and come up with their own conclusions, but from the point of view of a prisoner desperately trying to establish their innocence and get released, the figures are quite stark. The message is clear; once you are convicted, then your chances of getting the conviction overturned are small.

A further problem is funding. Although Legal Aid can be available in Appeals cases, obtaining this is not straightforward, and even once obtained, funding is meted out in stages. Together with the shortage of solicitors seeking to take on this type of work, I think that a colleague of mine who recently described the situation as a ‘legal aid desert’ was not far wide of the mark.

SHU Law is a not-for-profit ‘teaching law firm’ fully regulated by the Solicitors Regulation Authority and associated with Sheffield Hallam University. We have an enthusiastic team comprising experienced professionals and eager law students who work, without charging fees, to look into cases where a miscarriage of justice is claimed. We can take on cases, obtain original case papers and analyse the issues raised by people who have already been through the Court of Appeal process (and who may even have already tried the CCRC) without success. In appropriate cases we can go on to assist in the making of applications to the CCRC. We provide a further avenue of hope for those who maintain their innocence but find themselves without help or guidance. We receive enquiries from all over the country and do all we can to assist those who feel that the system has let them down.




< Back to News