Appeals - How the Process Works

Following a criminal conviction and sentence in a Magistrates or Crown Court, the solicitor and/or barrister will normally provide Advice as to whether or not, he/she feels that a successful Appeal can be put forward to the Appellate Courts. If there are no Grounds for an Appeal, then that advice may sometimes be verbal. If it is felt that there are Grounds for an Appeal against either the conviction, sentence or both, then the barrister (referred to as Counsel) will prepare such an Advice in writing and will set out those Grounds.

The solicitor will complete the relevant forms (Form NG) and will submit all the paperwork to the convicting/sentencing Court. The Court will then forward the Appeal application to the Appellate Court in London (where someone is Appealing from the Crown Court, this will be the Criminal Court of Appeal otherwise known as The Court of Appeal (Criminal Division) or The High Court). If Appealing from the Magistrates Court, the Appeal is generally dealt with at the Crown Court.

Any Crown Court Appeal application must usually be submitted within 28 days after sentence. There are exceptions to this rule where a request can be made for the Court to allow an Appeal ‘out of time’ (this is known as ‘Leave to Appeal out of Time’). This type of application must be justified and the full reasons why the application is out of time must be explained.

The above application to Appeal either the conviction and/or sentence is known as an application for ‘Leave to Appeal’ and that application is considered by a single Appeal Judge. He or she decides whether or not the application has a reasonable chance of succeeding. In other words, the single Judge is there to filter out all of the applications that will probably end up being unsuccessful anyway. All applications will go through this process and the single Judge will always provide reasons for the decision in writing.

If an application for Leave to Appeal is granted (by the single Judge) the application will go on to the ‘Full’ Court’. This is where the application will be heard in full, witnesses can give evidence and the reasons (known as arguments) can be advanced. The full Court will then make its decision and the application will be granted or refused.

If the application/Appeal is granted, there are a number of options open to the Appellate Court:

• In the case of an Appeal against sentence, a reduction of sentence can be made.
• In the case of an Appeal against conviction, the Court can ‘quash’ (overturn) the conviction completely but they can also order a re-trial.

No Grounds of Appeal

So what happens when the barrister or solicitor Advises that there are no Grounds of Appeal against conviction or sentence? There are several choices open to you. Firstly, if you feel strongly that you have Grounds to Appeal, you can make an application yourself. You will need to obtain a copy of the application (Form NG) and fully set out your reasons.

Alternatively, a person who has been convicted can seek a second opinion from another lawyer. The client’s reasons can be explored and he will receive a second opinion in writing. If a solicitor thinks that the Grounds of Appeal do exist, then he or she will begin to prepare and investigate the Appeal properly, and also prepare justification for the application being out of time, if it is longer than 28 days since conviction/sentence. This will be the same process whether it is out of time by a week or out of time by a year or longer.

Single Judge Rejections

In the case where Grounds of Appeal have been rejected at the first stage (The Single Judge Stage), there is an option available to request that the application is still put forward to the full Court regardless. However, this option needs to be considered very carefully as it can carry harsh penalties if the Appeal is ultimately refused. Such penalties include the potential for any time already spent in custody (up until the point of the refusal by the Court of Appeal) not to be counted as part of the sentence. In other words, there is a risk that you would have to start your sentence again from scratch. Please be aware that the Single Judge also has this power and any submissions to the Court of Appeal must therefore be carefully prepared.

Full Court of Appeal Refusals

If an application reaches the Full Appellate Court and is not successful, there are still options available should you disagree with the Court’s decision. One such avenue is to submit an application to the Criminal Cases Review Commission (C.C.R.C) who will then appoint a case worker to investigate your concerns. In the United Kingdom, this is generally the only way that you can have your case referred back to the Appellate Courts.

Unless there are exceptional circumstances, you cannot make an application to the C.C.R.C until you have first exhausted all avenues in the Court of Appeal.

Can I Appeal my Criminal Conviction

Regardless of whether you were convicted following a trial or whether you pleaded guilty to the allegations, you are still entitled to Appeal providing that you have a good reason to do so. In order to determine whether this reason may exist, there are a few simple points that you should consider:

1) You cannot Appeal simply because:

• You didn’t agree with the Jury’s decision.
• You didn’t like the Judge’s Comments or Summing Up.
• You were nervous and you would like to give your evidence again.
• You didn’t like the way your defence case was presented.

2) You may have Grounds to Appeal if the any of following examples apply:

• Your legal team did not follow your instructions.
• New and strong evidence has since come to light that was not previously available.
• Your defence case was not prepared properly.
• You believe that the prosecution’s case against you was wrong according to the law.
• You have strong reasons for believing that your legal team did not act in your best interests.

Can I Appeal my Sentence?

When sentencing, a Judge is generally guided by the sentencing guidelines as set out in law, along with precedents (previous sentences handed out in similar cases). However, he/she will also be influenced by a number of other factors which are specific to each individual case. These include:

• Whether or not you pleaded guilty or you were convicted after a Trial.
• If you pleaded guilty, at what stage you entered that plea. (At an early stage such as a Plea and Case Management Hearing or at a later stage such as the first day of your trial).
• The content of a Pre-Sentence Report by the Probation Service.
• Your antecedents (Criminal History), especially if the convictions were for the same type of offence.

Because most sentences are handed out after the above have been considered, there is no simple method of deciding whether or not you have Grounds to Appeal your sentence, and it will require an examination of the circumstances of your case in order to know this.

Am I entitled to Legal Aid or Should I Pay Private ?

If you approach another firm other than your trial solicitors, the legal aid is significantly restricted and the criteria in respect of eligibility is quite harsh. In a case of an Appeal, legal aid is restricted to just £300 and for the CCRC, it is limited to £500. Whilst this can be extended in justified circumstances, it is getting ever more difficult to achieve. In addition to the financial restrictions (under what is known as CDS 1 & 2 legal aid), other physical restrictions are in place such as prison visits are not generally allowed along with a full examination/analysis of the case history.

Under this type of legal aid, a solicitor can not Advise you on what possibilities could lead to Grounds of Appeal and must only deal with the issues put forward by you. Due to these conditions and the frustration that generally follows, Nikolich & Carter Solicitors do not undertake such Appeal work on Legal Aid. We do however offer a very practicable and affordable alternative to the CDS 1 & 2 legal aid. This is known as a ‘fixed fee’.

This will be an agreed price in advance and will include all work from start to finish. It will include as many attendances on you/your family as is required, all administrative work, all examinations and analysis of your case inclusive of the submissions to Counsel (Brief to Counsel). In most cases, Counsel’s fee’s can also be built into that fixed fee arrangement. The only costs that are not included are any disbursement costs such as Transcripts or the instruction of any expert witnesses. If required, such disbursements will need to be paid for separately.

Each and every case is different and we treat each and every case on a very personal basis. In offering a fixed fee price, we consider the specific circumstances relating to the type of offence, the length of trial and the potential undertakings involved in successfully achieving our objectives.

When receiving an enquiry, we will make arrangements to attend upon you/your family (a deposit of £500 is usually required)at which point we will address the issues concerned and provided you with our fixed fee price. Should you wish to proceed, the above mentioned deposit will form part of that fixed fee amount.

Why should you choose Nikolich & Carter Solicitors ?

Most criminal law solicitors will undertake Appeal cases and most will probably undertake such cases under legal aid as described above. At Nikolich & Carter Solicitors however, we understand fully the process and very real difficulties involved. We know the obstacles involved but more importantly, we have the knowledge and experience along with the dedication to overcome such difficulties. We consider ourselves to be specialists in this area of law and as such, we have our own dedicated Criminal Appeal department. That department is dedicated to criminal Appeal related work each and every day. It has acquired a vast amount of experience and a wealth of knowledge that can be adapted into a great many similar cases.

In addition, once you have become our Client, you/your family will have your case workers mobile telephone number and you therefore have the ability to speak directly with that case worker out of hours. This significantly decreases the frustration that so often occurs when you simply can’t get hold of your solicitors.

Finally, we believe that we can offer the best, most affordable, professional and dedicated service currently available. We listen, we act and wherever possible, we get results.

To speak to a specialist in criminal appeal law solicitor, contact us on 0161 831 7044 or alternatively complete our contact form.