This post will give you an overview of the life of an appeal in an application for the review of a criminal conviction. Each case is unique and calls for a tailored approach, but the steps that they can go through are broadly as follows.
Appeal to the Court of Appeal
If you are convicted in the Crown Court your first route of appeal will be to the Court of Appeal. This will normally consider the obvious issues that may have arisen in your case. For example, errors with the judge’s summing up, or the admission of inadmissible evidence, are often obvious during the course of the trial and can be appealed straight away. The time limit for an appeal is 28 days from the date of conviction (even if you are sentenced later) unless the Court grants an extension. Your lawyers will apply to the Single Judge at the Court of Appeal for permission to appeal. If you obtain permission, then your appeal will go straight to the full Court of Appeal. If you don’t obtain permission to appeal then you can renew your application to the full Court of Appeal; if the full Court of Appeal does not then give you permission then the appeal itself will not be heard.
If you have permission to appeal then the full Court of Appeal (usually a panel of 3 members) will consider whether your grounds of appeal render your conviction “unsafe”. If they find that your conviction is safe then your conviction will be upheld. If they find that your conviction is unsafe then your conviction will be overturned. The Court of Appeal can in some circumstances then order a re-trial.
This appeal will normally be carried out by your trial lawyers unless your appeal is based in whole or in part on their negligence. They are almost always the best-placed people to carry out the appeal, as they have the greatest knowledge of your case, its weaknesses, and its strengths.
If you have not previously appealed to the Court of Appeal and you later find that you may have grounds to appeal, then you may be able to make an application for an extension of time to appeal to the Court of Appeal. Even in these circumstances it is often better to continue to be represented by the lawyers who represented you at trial, if possible. However, if your relationship with them has broken down, or the trial was a long time ago, you may wish to seek fresh representation.
Apply to the Criminal Cases Review Commission (“CCRC”)
If you have applied unsuccessfully to the Court of Appeal and fresh grounds of appeal appear at a later date, then your only chance of overturning your conviction will normally be an application to the Criminal Cases Review Commission (“CCRC”). The CCRC is the public body responsible for reviewing claims that there has been a miscarriage of justice. It is independent of the courts, the prosecution, and the government. However, it does not simply rubber-stamp applications for reviews of convictions.
A well-prepared application to the CCRC is essential. The application will need to consider not just why any new evidence or argument makes your conviction unsafe, but also why the evidence or argument would even be considered by the Court of Appeal so long after the trial took place. Every year hundreds of people make applications to have their convictions reviewed but only a small proportion are referred to the Court of Appeal. A well-prepared, well-researched application can make all the difference between an application given serious consideration by the CCRC, and one which is discarded out of hand. You do not need legal representation to apply to the CCRC. However, an application by a lawyer with a proper grasp of the relevant procedure is considerably more likely to allow the CCRC to fully understand every aspect of your submissions.
Sometimes the CCRC will have questions about an application. Rather than rejecting it out of hand they will either refer back to your representatives, or will give a Provisional Statement of Reasons in response to which your representatives can make further representations. The CCRC also has investigative powers, and can decide to use those powers to perform more research on your case on its own. In many cases that research will be shared with your representatives to allow them to make the “best possible case” to the CCRC.
If your application to the CCRC is successful you will be granted permission to appeal to the Court of Appeal, along with an automatic extension of time in which to make the appeal. The case will then be considered by the Court of Appeal as above.
Judicial Review of the CCRC in the High Court (“JR”)
The CCRC is seriously underfunded, with large pressures on its time and resources. Its case workers and commissioners try their hardest, but sometimes make mistakes, in particular making decisions without proper consideration of the applications made to them. Unfortunately, far too often this leads to the CCRC making “irrational” or “Wednesbury unreasonable” decisions, or decisions which fail to consider all elements of the application, or consider irrelevant material.
Such decisions of the CCRC are open to challenge in the High Court by way of judicial review. There is a time limit of 3 months from the date of the CCRC’s decision for you to serve a claim form, although applications must be made “promptly”.
The process for judicial review starts with a pre-action protocol letter (a “PAP letter”) being sent by your representative to the CCRC. The PAP letter will set out the reason that you think the CCRC’s decision is wrong. The CCRC will then respond to the PAP letter explaining whether they accept that they are wrong, or whether they will oppose a JR claim. If they accept they are wrong then they will make a fresh decision. If they deny they are wrong then you will need to continue the claim by filing a claim form with the High Court, along with grounds of review. The CCRC will then serve an Acknowledgment of Service which sets out the reason that they are opposing your claim. In certain limited circumstances your representatives may then advise you to file a response to the CCRC’s Acknowledgment of Service.
A single High Court judge will consider whether to grant you permission to continue with your claim. If permission is not granted you will normally be able to renew your application for permission in an oral hearing at the High Court.
If permission is granted either on the papers by the single judge or at an oral hearing then it will continue to a full hearing of the claim, usually in front of three High Court judges. If they grant your application for judicial review then the CCRC will have to re-make their decision. If they refuse your application, then the CCRC’s decision will remain in force.
Before relying on any matter set out in this article, make sure to consult an expert to check that it is still up to date and how it applies to your case.