By Correna Platt, partner and head of the Appeals team at Stephensons.
This blog was first featured on the Inside Justice UK website - Be involved
I can not stress how important it is that a client is involved in their own case. Many queries that we receive in respect of an appeal say the same.
“I left my lawyer to deal with it.”
“My lawyer did not call the witnesses I asked him too.”
“Questions were not asked of witnesses.”
“I did not get to see my legal team.”
The same theme is apparent that clients either feel that they can not ask their solicitors to do certain things or they simply are not made aware of steps which can be taken until it is too late and they are convicted.
In preparing a defence case it is imperative that all relevant material is considered
- Often material appears on an unused material schedule and is not requested by a legal team
- Social service and educational records may be of assistance
- Medial records and hospital notes can highlight the behaviour and character of a victim at the hospital
- Expert evidence to rebut the prosecution case
- Witness statements need to be obtained
- Previous convictions of prosecution witnesses need to be considered as this may result in bad character applications of the prosecution witnesses
- Character references obtained
The list is not exhaustive and preparation for each case depends on the facts.
It is clear that a great cause of concern is that a client will feel that there were many things that could have been done during the preparation of his defence which were not done.
As the partner responsible for criminal appeals at Stephensons, I review hundreds of cases post-conviction every year. I cannot say that in those cases where a prisoner feels more could have been done by his/her trial team, the outcome would have been any different but at least if it had, they would feel they’d had a fair trial with no stone left unturned.
It can be hard for some people to speak up and be heard, particularly if you’re not used to the criminal justice system and are a lone voice in a room full of experienced lawyers but if motivation or confidence is needed remember this: once the guilty verdict is handed down, it is extremely difficult, if not impossible to raise an appeal point on something which was known at the time of the trial. It’s too late. The time for putting evidence known at trial is at the trial.
Section 23 of the Criminal Appeals Act 1968 stipulates the matters that the Court of Appeal should have regard to in their consideration of whether to accept a fresh evidence application. The Court is unlikely to accede to the application if the evidence:
- is not capable of belief (23(2)(a));
- cannot afford a ground of appeal (23(2)(b));
- would not have been admissible at trial (23(2)(c));
- and there is not a reasonable explanation for the failure to adduce it at trial (23(2)(d)).
It is therefore vital that clients are proactive in their cases and co-operate fully with their legal team.
Much has been said regarding the reduction in the legal aid fees of criminal lawyers. The concern being that such cuts would result in experienced legal aid lawyers being driven out of business leaving low paid unqualified lawyers to deal with criminal cases, unless one is rich enough to afford a private lawyer.
It is important that you instruct an experienced criminal lawyer in who you trust and who is professional and will explain your case to you. You are placing your future in their hands.
Whilst this may seem obvious we do receive files in which clients have instructed their family solicitor because they instructed them to buy a house or write a Will regardless of the fact that they are not experienced criminal lawyers. Research your solicitor and ensure that you do instruct one experienced in criminal law.
I have read through files and have been concerned in many cases with the lack of preparation by a legal team. There may be steps which are not taken however you do need to make sure that such decisions are taken for the right reasons and not based on pure economics.
You may have obtained a number of witnesses who are willing to give evidence on your behalf as to character who were not called at trial. There can be a number of reasons why this was the case and each case depends on the facts.
- to purport oneself as a good character would allow the prosecution to invite the Court to hear any bad character evidence if in existence
- often character references are read
- calling a small number may have more impact
- unreliable/non credible witnesses
If the reasons are explained fully a client will understand the position and not be left with the question “what if?”
Do not sit back and think that everything will be fine or that if I ignore it this case will go away. A trial is the one opportunity to advance your case, once convicted it is extremely difficult to find grounds to appeal. The statistics show that in 2011, 1535 applications to appeal convictions were received at the Court of Appeal. Only 196 were allowed.
The CCRC as at April 2014 had received 17,839 applications, of that number 554 were referred and 362 were quashed.
The trial process requires a client’s involvement. It is your case and your life. If you do have any concerns as to how your trial is progressing speak to your lawyer!