Despite what many might think, miscarriages of justice do happen and there are probably more unsafe convictions than the criminal justice system is keen to accept. People who experience this are left wondering what they can do?
Those who have fought to clear their names or the name of a loved one know the process takes time, can be complex and frustrating. But the criminal justice system is meant to ensure that if a miscarriage of justice has taken place it can be corrected.
If you or a loved one has been convicted or sentenced, advice should be sought on what routes are open to appeal. Below is a short guide through the mechanisms the criminal justice system have in place to overturn wrongful convictions.
How do you appeal a Magistrates’ Court conviction or sentence?
If you’ve been convicted before the Magistrates’ Court you have the right to appeal the conviction to the Crown Court. The appeal is, in fact, a complete rehearing of the trial. It is, in essence, another chance to contest the case and persuade the court they cannot be sure of the prosecution case. The case will be heard before a Crown Court Judge sat with two lay Magistrates (not a jury).
A Magistrates’ Court’s decision can also be reviewed by way of stating a case or judicially reviewing the decision to the Administrative Court, which is part of the High Court. These options are available if the Magistrates’ Court made an error in the law, acted outside of their jurisdiction or there was procedural irregularity. However, the appropriateness of undertaking such reviews requires legal advice. The most common route of appealing a finding of guilt in the Magistrates’ Court is to simply seek a rehearing in the Crown Court.
If there has already been an unsuccessful appeal to the Crown Court of the Magistrates’ Court decision, you can consider whether the decision made is suitable for review by way of being case stated or Judicially Review.
Alternatively, you could ask the Criminal Case Review Commission (CCRC) to help. Once a Magistrates’ Court decision has been appealed to the Crown Court, there is no right of appeal to the Court of Appeal, Criminal Division.
If you’ve been sentenced by the Magistrates’ Court and feel the sentence was wrong or excessive you can appeal this too and the Crown Court will consider the sentence afresh.
Any application to appeal a conviction from the Magistrates’ Court must be lodged no later than 21 days of the sentence being passed (and this time limit also applies to any appeal against sentence).
If you want to appeal but the time limit has expired you can still lodge an appeal, but the court will consider the reasons as to why it was out of time.
Unlike applications to the Court of Appeal, the appeal notice for a rehearing of your Magistrates’ trial is relatively straightforward and so it is easier to comply with the time limit.
How do you appeal a conviction from the Crown Court?
The appellant Court (the Court that hears appeals) for convictions from the Crown Court is the Criminal Division of the Court of Appeal, which is part of the High Court.
The Court of Appeal will only allow an appeal against a conviction if they think that the conviction is unsafe. In all other cases they will dismiss the appeal.
There is no automatic right to appeal a conviction from the Crown Court (which is different to an appeal against a Magistrates’ Court decision). A defendant or his lawyers can submit “grounds” (an application) for permission to appeal and only if permission is granted will the Court of Appeal hear the application to appeal the conviction.
“Grounds” are legal reasons setting out why the conviction is unsafe. There is no rehearing of the trial. There is no definition as to what makes a conviction “unsafe”. However, common arguments heard in the Court of Appeal relate to new evidence, errors that occurred during the trial process or misdirections of law.
If grounds are identified a written application can be submitted to the Court of Appeal. Initially a Single Judge will make the decision as to whether to grant permission to appeal. If the Single Judge refuses permission the appeal has ended. However, an application can be made for an oral hearing before the Court to essentially ask them to overrule the Single Judge’s decision and for them to give permission to appeal.
If the Single Judge grants leave to appeal the next stage is for there to be a full hearing before the Court of Appeal who will consider the grounds and whether the sentence or conviction should be overturned.
The Court of Appeal is quick to act on those appeals they feel are without merit. Lawyers can only draft and submit positive grounds of appeal if they believe there are arguable.
The Court of Appeal has the power to make “loss of time orders” if they feel the application made is without merit. This means they have the power to order some of the time the person has served in custody as an appellant (whilst appealing) will not count to the time that needs to be served. Historically these orders have in fact been very rare but are being utilised more.
The Solicitors and Advocate who represented you in the Crown Court are duty bound to advise after any conviction and sentence as to whether there are any grounds to appeal. If you have been advised there are no grounds you can seek a second opinion.
A second opinion will involve new Solicitors obtaining the case papers and the transcripts of the trial. They will need to consider the papers and your instructions in order to provide an advice on appeal. It may be that the area of concern is relatively straightforward but it might also be that you don’t know how the miscarriage happened but you know it did. There is no quick fix to overturning a miscarriage of justice, it takes a great deal of hard work and determination.
An application for permission to appeal a conviction from the Crown Court to the Court of Appeal must be lodged no more than 28 days after the date of conviction. If you’re appealing the sentence, again the rule in the Crown Court is for an application to be lodged within 28 days of the sentence hearing. The time limits are different from the Magistrates’ Court.
If there are good reasons why the application could not be lodged in within the 28-day time limit the court can still consider the appeal. This is not an uncommon application if for instance, new evidence took longer to come to light or a second opinion was sought.
It is always important to try and get advice or a second opinion on an appeal as soon as you can. Delay can often make it harder for Solicitors to get hold of those papers they need to help you.
Routes of Appeal if the Court of Appeal has already dismissed your appeal
Simply put if your appeal to the Court of Appeal has been dismissed either by the Single Judge or the full Court, you have exhausted your rights of appeal to the Court of Appeal. That said, there are still routes you can consider.
Depending on the nature of your case one route of further appeal could be to ask the Court of Appeal to certify a point of public importance that arose from the Appeal Court hearing so the matter can be referred to the Supreme Court. If the Court refuses to certify a point of law, that is the end of the matter.
Another route of appeal would be to the European Court of Human Rights if all domestic options have been exhausted and if article rights have been engaged. Generally speaking the only other way the Court of Appeal can consider a further appeal in relation to the same conviction is if the Criminal Case Review Commission (CCRC) refers the matter back to the Court of Appeal.
Referral by the CCRC
The CCRC is an independent and impartial body aimed to bring justice to those wrongly convicted. Anyone who believes they have been wrongly convicted of a criminal offence can ask the CCRC to review their case. This only applies to those convicted in a criminal court in England, Wales or Northern Ireland.
Any application must be in writing and lawyers acting for those trying to overturn their conviction are often responsible for submitting applications but anyone can refer the case to the CCRC, there is no requirement the person referring the case has to be legally trained. However, you are not asking the CCRC to represent you, you are asking them to look into your case independently. The CCRC set out clearly that there must be something new and important in your case for them to be able to help.
The purpose of the CCRC is to review the case but they can also investigate and have significant powers to obtain documents held by public bodies. After reviewing a case they have the power to refer it back to the Court of Appeal if they consider there is a “real possibility” that the conviction would not be upheld because of an argument or evidence not raised at trial or on appeal. That said, the commission can where “exceptional circumstances” exist refer a conviction case to the Court of Appeal where the “real possibility” test is satisfied but where the criteria regarding new argument or evidence is not met.
Asking the CCRC to review a case is not a quick process and there is no guarantee they will be able to help. The CCRC was set up 20 years ago after a series of high-profile miscarriages of justices made it clear there were weaknesses in the criminal justice system which needed addressing.