Appeals - how the process works
Following a criminal conviction in the Crown Court, the solicitor and/or barrister will provide advice as to whether or not, they feel that a successful appeal can be put forward. If there are no grounds for an appeal then that advice will generally 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 along with 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 is usually the Criminal Court of Appeal, The Court of Appeal (Criminal Division) or The High Court).
A Crown Court appeal application usually has to be submitted within 28 days after the date of conviction or 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 proceed 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 or they can 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. They need to write to a solicitor who will then send you some forms to sign called CDS1 and CDS2. Once the solicitor has these forms back, he or she will review your case
The client’s reasons can be explored and he will receive a second opinion in writing.
If a solicitor thinks that the appeal may have a chance, 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 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.
Clients must be advised that all work undertaken under the advise and assistance scheme must be justified and satisfy both the financial eligibility test and the sufficient benefit test
Single Judge Rejections
In the case where Grounds of Appeal has 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) to not be counted as part of the sentence. In other works, there is a risk that you would have to start your sentence again from scratch. This is very unlikely to be the case if Counsel advised that your application should still be put forward despite a rejection by the Single Judge.
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 (CCRC).