One of the most common questions I get is “can I appeal against my conviction”?
This is an overview of the process, and a couple of pointers. As always, this is for general information and is not, and should not be taken as, legal advice.
How do I appeal?
I have written an overview of the procedure here. It’s important to remember that you cannot just ‘appeal’ – you need to have some reason, something that went wrong in the case that you can point to that would have made a difference.
If you have had a trial in the Crown Court and been found guilty (of some or all of the charges) then the advocate who did your trial should give you a formal (written) advice on appeal. This is presumably negative, or you wouldn’t be here.
Even if they have told you after the hearing that there are no grounds of appeal, you are still entitled to ask for a written advice. If you haven’t had one, then ask for it.
You have 28 days to lodge grounds of appeal against conviction from the time that you are found guilty. If you are within that time period then you have to act very quickly.
If that time has passed then you should still be as quick as you can, but you will have to give reasons as to why you were late with the application.
How could you help me?
In reality, you will probably need transcripts of parts of the trial, or at least the summing up. It may be that I can give you an initial view on less than that (possibly just from the papers), but this would probably be a provisional one.
Be aware that it is very difficult to appeal a conviction. Anyone that tells you otherwise should be approached with caution. Sadly there are plenty of people out there who will happily give false hope, at a price of course.
If I think that there are grounds of appeal, then I will draft them for you to ‘lodge’. Please note that I can only draft grounds if I think that they are sufficiently arguable. That means that I think that there is something that went wrong that would lead the Court of Appeal to allow an appeal. In any event, it is not fair on you to get your hopes up with grounds that are going nowhere.
If the Single Judge gives permission to appeal, then s/he will also grant legal aid. From then on, the case will proceed as an ‘ordinary’ appeal against conviction and I normally would carry on representing you under the legal aid order.
If the Single Judge says no, then you can renew the application. At that point we would have to discuss what to do. Again though, you have only a limited amount of time – 14 days – to lodge a renewal application.
Can I get legal aid?
Possibly. It’s a complicated area. It will depend on your financial position (and your spouse’s, even if you are in prison), when you have had advice from another solicitor, and how strong your case would appear to be.
If you want to investigate the availability of legal aid, then it’s probably best to contact me to discuss it, or approach a solicitor with a legal aid contract (it will be an application on a CDS/1 & 2. You can find some details about means testing here.
You can use a barrister on public access even if you are, or may be, eligible for legal aid. But that is only if you make an informed choice to do so.
Is there any risk in appealing my conviction?
The Court of Appeal have got a lot ‘tougher’ on what they consider to be unmeritorious applications, and are much more inclined to use their powers to stop this. For someone in prison, they can order a ‘loss of time’ – a direction that some of the time spent inside before the appeal doesn’t count.
There is also the power to make you pay towards the costs of the appeal. It’s important to remember this – there is always a risk in trying to appeal.
Is this the same if I want to appeal my sentence?
In essence, yes.
The test for an appeal against sentence is that there is an error of law, or the sentence is ‘manifestly excessive’. Although it is not enough that the sentence is a bit harsh, in practice this is a bit more flexible than the test for an appeal against conviction.
What about appealing a magistrates’ court conviction?
Different considerations apply, but here is an overview of how the process works.
Whether it is an appeal against the conviction, the sentence, or both, it is a re-hearing of the original case. This means that you don’t have to have specific ground – reasons as to why you shouldn’t have been found guilty.