It is important that adequate routes of appeal from the Crown Court exist and that appeals not only protect the defendant from a miscarriage of justice, but also to allow the law to develop over time.
A defendant can also appeal against conviction and/or sentence to the Court of Appeal (Criminal Division) from the Crown Court. So at the end of a trial where the defendant has been found guilty, his lawyer should advise on the possibility of appeal. This can either be done verbally at the court or in writing within 14 days of the trial end; this is intended to make sure that each defendant receives advice within the time limits for making an appeal. In order to appeal, a notice of appeal must be filed at the Court of Appeal (Criminal Division) within 28 days of conviction. The rules on appeals are set out in the Criminal Appeal Act 1995 and in all cases the defendant must get leave to appeal from the Court of Appeal or a certificate that the case is fit for appeal from the trial judge. The idea of having to get leave is that cases, which are without legal merit, are filtered out and the courts’ time saved. A single judge of the Court of Appeal in private first considers an application for leave to appeal. If refused it is possible to apply to the full Court of Appeal for leave however, it is difficult to get leave to appeal. In the year 2000, as many as 7,348 applications were considered by a single judge, but leave to appeal was granted in only 2,105 cases (about 28 per cent). Even when a defendant gets leave to appeal that does not mean that the actual appeal will be successful.
The Criminal Appeal Act 1995 simplified the grounds under which the court can allow an appeal. The Act states that the Court of Appeal ‘shall allow an appeal against conviction if they think that the conviction is unsafe and they shall dismiss such an appeal in any other case.’
Since the European Convention on Human Rights has been incorporated into our law by the Human Rights Act 1998, the Court of Appeal has taken a broad approach to the meaning of ‘unsafe’. In particular, a conviction has been held to be ‘unsafe’ where the defendant has been denied a fair trial.
The Criminal Appeal Act also changes the criteria under which new evidence can be produced at an appeal. The new evidence must appear to be capable of belief and would afford a ground for appeal. This has to be considered together with whether it would have been admissible at the trial and why it was not produced at that trial.
The Court of Appeal can allow a defendant’s appeal and quash the conviction. Alternatively it can vary the conviction to that of a lesser offence of which the jury could have convicted the defendant. So far sentence is concerned the court can decrease, but not increase it on the defendant’s appeal. Where the appeal is not successful, the court can decide to dismiss the appeal.
The Court of Appeal also has the power to order that there should be a re-trial of the case in front of a new jury. The power was given to it in 1988, but initially was not often used, for example in 1989 only one re-trial was ordered. However, its use has increased with over 200 re-trials being ordered in the last 3 years.
Originally the prosecution had no right to appeal against either the verdict or sentence passed in the Crown Court. Gradually, however, some limited rights of appeal have been given to them by Parliament.
With one small exception, the prosecution cannot appeal against a finding of not guilty by a jury. The exception is for cases where the acquittal was the result of the jury or witnesses being ‘nobbled’, i.e. where some jurors are bribed or threatened by associates of the defendant. In these circumstances, provided there has been actual conviction for jury nobbling, the Criminal Procedure and Investigations Act 1996 allows an application to be made to the High Court for an order quashing the acquittal. Once the acquittal is quashed, the prosecution could then start new proceedings for the same offence. As yet this power has never yet been used.
However, the prosecution have a special referral right in cases where the defendant is acquitted. This is under s36 of the Criminal Justice Act 1972, which allows the Attorney General to refer to a point of law to the Court of Appeal, in order to get a ruling on the law. The decision by the Court of Appeal does not affect the acquittal but it creates a precedent for any future case involving the same point of law.
Under s36 of the Criminal Justice Act 1988 the Attorney General can apply for leave to refer an unduly lenient sentence to the Court of Appeal for re-sentencing. This power was initially available for indictable offences only, but was extended in 1994 to many triable either way offences, provided that the trial of the case took place at a Crown Court. This power has been used successfully in a number of cases, including one where a boy of 15 had been given a supervision order for three years for raping a girl (and his parents ordered to pay £500 compensation to her). His sentence was increased to a two years’ custodial sentence in a Young Offenders institution.
Whenever a case is sent to the Attorney General he will look through the papers on the trial and decide whether to refer the case to the Court of Appeal.
Both the prosecution and defence may appeal from the Court of Appeal to the House of Lords, but it is necessary to have the case certified as involving a point of law of general public importance, and to get leave to appeal, either from the House of Lords or from the Court of Appeal. There are very few criminal appeals heard by the House of Lords. In 2000 there were 18 petitions for leave to appeal to be considered, but leave was granted in only four of these.
Where a point of European law is involved in a case it is possible for any court to make a reference to the European Court of Justice under Article 177 of the Treaty of Rome. However, this is a fairly rare occurrence in criminal cases, as most of the criminal law is purely ‘domestic’ and not affected by European Union Law.
B) The Criminal Cases Review Commission (CCRC) was established to replace the old section 17 procedure contained in the Criminal Appeals Act 1968 and repealed in 1995. Under this procedure, the Home Secretary could refer a case that had been previously heard in the Crown Court to the Court of Appeal, despite the fact the normal time limit for appeals had expired or an unsuccessful appeal had already been heard. The Home Secretary had considerable discretion whether or not to make this referral: the statute simply required a reference to be made ‘if he thinks fit’.
There were serious difficulties with the section 17 procedure. The Home Secretary only usually referred cases where new evidence had come to light, and which were continuing to attract media comment and public concern long after the trial had taken place. Each year there were about 730 applications to the Home Office but only about ten to twelve of those cases were actually referred to the Court of Appeal.
Problems with the process were highlighted by such cases as the Birmingham Six and the Tottenham Three, where references were only ordered after years of persuasion and publicity. The original appeal of the Birmingham Six was rejected in 1976. It was not until 1987 that the Home Secretary referred their case back to the Court of Appeal though the appeal was rejected. Three years later, he again referred the case back to the Court of Appeal and this time the Director of Public Prosecutions (DPP) did not resist the application so that the court had little choice but to allow the appeal and quash the convictions.
It has been hoped that the CCRC will mark a considerable improvement on the only s17 procedure, but concerns have already been expressed about the new arrangements. One problem with the Commission is that, while it is predicted that more cases will reach the Court of Appeal than they did under the s17 procedure, one of the weaknesses with that procedure was that even when the case was referred to the Court of Appeal the convictions were often upheld, even though later it was acknowledged that there had been a miscarriage of justice.
The pressure group, Justice, has criticized the fact that the CCRC has no power to assign in-house staff as investigating officers. It has argued that without this power the commission could not guarantee the independence of an inquiry. The CCRC has no independent powers to carry out searches of premises, to check criminal records, to use police computers or to make an arrest. To do this they would have to appoint someone who had these powers, usually a police officer. The fact that investigations carried out on behalf of the CCRC will be by police has caused concern. Many allegations of a miscarriage of justice involve accusations of malpractice by the police. Experience of police investigations into the high profile miscarriages of justice suggests that these are not always effective, with a tendency for the police to close ranks and try to protect each other. Justice has also questioned the independence of the organization, as its members are government appointees.
The CCRC issued its first annual report in June 1998. This states that it received a total of 1,380 applications in its first year and only completed its consideration of 308 of them. Twelve of these were referred to the Court of Appeal, of which three appeals were successful. One of the first referrals made by the CCRC concerned Derek Bentley. He had been involved with a friend in an unsuccessful burglary. This had resulted in a police chase when his friend pointed a gun at a police officer and Derek Bentley said ‘let him have it’, at which point the friend shot and killed the officer. Derek Bentley was convicted as an accomplice to the murder. He appealed but his appeal was rejected and he was hanged in January 1953.
The circumstances of his conviction gave rise to a long campaign by his family and numerous representations were made to the Home Office. He was given a royal pardon in 1993 but this was in respect of the sentence only. The family continued their campaign for the conviction itself to be quashed and in 1998 the CCRC referred the case to the Court of Appeal, which quashed the conviction. They found that the conviction was unsafe because of a defective summing-up by the trial judge to the jury, which had included such prejudicial comments about the defence case that Bentley had been denied a fair trial. This was a notable high profile success for the CCRC, but it remains to be seen whether the Commission will have success with lower profile referrals.
The biggest problem facing the CCRC since its instalment is a growing backlog of cases waiting to be considered. In 1998 there were 1,020 waiting to be examined with a waiting time of two years and the backlog is growing. There are currently 26 Case Review Managers. In January 1998, the Commission submitted a bid for £1.3 million of additional funding, which would allow the number of Case Review Managers to be increased to 40, the bid was rejected.
There is also a problem of funding submissions to the Commission. At the moment the Green Form Scheme only pays for two hours of a solicitor’s time, which is insufficient for the preparation such as an application.
