The Court of Appeal has very strict rules about evidence that was not used at trial. This fact sheet looks at those rules and considers how you should prepare an application to produce “fresh” evidence.

The Application Form

If you want to rely on fresh evidence in your appeal you will need to fill out an application form called Form W. On the form you will need to (1) name the witness giving the evidence, (2) say what evidence the witness can give, and (3) explain why the evidence was not given at trial. The evidence should be in the form of a witness statement, which you can attach to the form.

If the fresh evidence is a written document, there should still be a statement should be from somebody to “exhibit” (produce) the evidence. For example, if person A has sent messages to person B on facebook, and person C wants to use them in his appeal, there should be a statement from person B confirming the fact that s/he received those messages

The Criteria

The Court will consider 4 things when deciding whether or not to “receive” fresh evidence. They are set out in the Criminal Appeal Act, which uses some quite technical language. In Plain English the 4 things amount to this: (1) is the evidence believable? (2) could the evidence be a reason for allowing the appeal, (3) could the evidence have been used in the trial? (4) is there a reasonable explanation for the evidence not being used at the trial?

Is the evidence believable?

The way in which the Court decides whether the fresh evidence is “capable of belief” (believable) depends upon what type of evidence is involved. For example: if the evidence is from an expert witness (let’s say a fingerprints expert) then the Court will probably accept that it is believable. In such cases this first hurdle is likely to be crossed quite easily.

If, however, you are looking to rely on “evidence of fact” (somebody saying that something happened, or that it did not happen) then the Court will look very closely at whether it is believable. If it is obviously not believable then the Court will probably reject it without giving it a  hearing. If it is unsure then the witness might need to come to Court to answer questions.

Could the evidence be a reason for allowing the appeal?

The way in which you answer this question is really important. It is all very well if the fresh evidence is believable if it could never be a reason for allowing the appeal. You need to explain to the Court of Appeal why the fresh evidence makes the conviction “unsafe”.

In doing so you need to think about how the fresh evidence is relevant to the issues in your case. What were the issues between the prosecution and the defence at the trial? Is this evidence relevant to those issues? If so, why and how? Might the jury might have reached a different verdict if they had heard the evidence? These are the sorts of questions that the Court of Appeal will be asking itself, so answer them at an early stage.

Could the evidence have been used at your trial?

Some types of evidence are “inadmissible”, i.e. they cannot be used in Court. For example: “hearsay” evidence (what someone heard), or evidence about someone’s sexual history, might be inadmissible. It can be difficult to say whether evidence is admissible so it is best to try and get some advice from a lawyer if  possible. If that isn’t possible you should still do your very best to say why you think that the evidence could be used.

Is there a reasonable explanation for the evidence not being used at your trial?

Even if you have got over all of the previous hurdles, this one can be the trickiest of all. The court will want to know whether the person giving the fresh evidence was spoken to at the time of your trial. If they weren’t, why not? If they were, why was the evidence not used? If a decision was taken not to use that witness, then you almost certainly cannot use them now, although that is not to say that you cannot try. 

If the witness was not spoken to at the time of the  trial the Court will look very closely at whether – with reasonable efforts – you might have been able to find it. You therefore need to set out very clearly why you say you could not have found the evidence. 

© Appeals Barrister

What is the CCRC?

The Criminal Cases Review Commission (CCRC) is an independent body that investigates possible miscarriages of justice. It has powers to investigate cases and to refer (send) cases to the Court of Appeal.

Can I apply to the CCRC?

The CCRC can look at convictions from the Crown Court or the Magistrates’ Court. In most cases you will have to exercise your appeal rights before the CCRC will look at your case. If you were convicted in the Magistrates’ Court this means first appealing to the Crown Court. If you were convicted in the Crown Court this means appealing to the Court of Appeal.

This fact sheet focuses on convictions from the Crown Court, which are much more likely to result in applications to the CCRC.

As I explain in the how do I appeal my conviction fact sheet, an application to the Court of Appeal usually has 2 stages. The first is a look at the case “on the papers” by a single judge. The second is asking the “full court” to consider your case. Before applying to the CCRC your case will usually need to have been considered (and rejected) by the full court.

There are some exceptions. The CCRC will sometimes accept cases where you have not already had an appeal. But it will only do so in “exceptional circumstances”.

What is meant by exceptional circumstances?

There is no easy answer to this question. The CCRC guidance say that exceptional circumstances might include cases where:

(1) There is sensitive information involved. This might include, for example, evidence that was not disclosed to you because it was withheld under “public interest immunity” (PII) procedures;

(2) There is new scientific, medical or expert evidence that the CCRC should analyse;

(3) The CCRC might be able to get hold of material that you could not get hold of yourself.

If you are in any doubt about whether there are exceptional circumstances in your case you have nothing to lose (but your time) by making an application to the CCRC. But if you choose to do that you should spell out clearly why you say your case should be looked at by the CCRC rather than the normal route of you making an application to the Court of Appeal.

If the CCRC thinks that there are no exceptional circumstances you will need to make an application to the Court of Appeal.

When will the CCRC refer a case to the Court of Appeal?

The CCRC can refer a conviction to the Court of Appeal if:

1. There is a real possibility the conviction would be overturned; and
2. This real possibility arises from evidence or argument not put forward at trial or appeal (or there are exceptional circumstances); and
3. You have already appealed (or there are exceptional circumstances).

The CCRC can also refer a sentence to the Court of Appeal if:

1. There is a real possibility that the sentence would be reduced if it were referred; and
2. This real possibility arises from information or argument on a point of law which was not put forward at trial or appeal; and
3. You have already appealed or applied unsuccessfully for permission to appeal (or there are exceptional circumstances).

What is meant by a “real possibility”?

This means a real possibility that the conviction will be overturned. The conviction will only be overturned in the Court of Appeal is satisfied that the fresh evidence or argument might have resulted in the jury taking a different decision (the “jury impact” test).

The “real possibility” test has been criticised because it involves speculation on speculation. In other words, it involves the CCRC speculating about what the Court of Appeal might think about how the new evidence/arguments might have influenced the jury.

How should you approach your application to the CCRC?

You should approach an application to the CCRC in much the same way as you would an application to the Court of Appeal. The CCRC has a form that you will need to complete with your application. But it’s usually best to put your arguments in a separate document. You can then simply write “see attached” on page 11 (“what went wrong with your case”).

In telling the CCRC what you think went wrong with your case you might want to follow the suggestions I have set out in the “drafting grounds of appeal” fact sheet. The CCRC deals with a large volume of cases and if you set out your case more clearly it will help them to understand your arguments and increase the chances of a successful outcome.

Your application might contain minor differences in style from a grounds of appeal document. For example your “grounds” section might become a “proposed grounds” section.

Another example might be if you are asking the CCRC to use its powers of investigation. If you have suggested lines of enquiry then you should say what they are. You might then want to have a separate heading for that.

It might look like this:

What if the CCRC rejects my application?

The vast majority of applications are rejected. If the CCRC rejects your application it will issue a “provisional” statement of reasons and allow you an opportunity to make further arguments. It is important that your make your arguments clear and coherent; responding to the Commission’s reasons and not just re-hashing points that you have already made.

If the CCRC still rejects your application the only way of challenging its decision is through an application for judicial review. You can apply again if fresh evidence comes to light, and in fact you can apply to the CCRC as many times as you like. But if you want to challenge a decision and there has been no change in circumstances you can only do so through a judicial review claim.

What is a judicial review?

Judicial review is a process by which the courts have the power to “supervise” decisions taken by public bodies like the CCRC. If the CCRC makes an error of law then you can ask a court to “quash” its decision. If it quashes the decision then the CCRC will have to look at your case again.

It is very difficult to win a judicial review case. You cannot ask the courts to review a decision just because you disagree with it. It has to be wrong in law. There are lots of ways that a decision can be wrong in law, and I won’t set them all out here. But in very general terms you will usually need to show that the decision was “unreasonable”. This means that either (i) the person making the decision has not taken into account something that was relevant, (ii) that s/he has taken into account something irrelevant, or that (iii) the decision is illogical.

A rare example of a successful judicial review is the Ben Geen case. In that case the judge granted “permission” for a judicial review, after which the CCRC agreed to look at the case again. If you are considering a judicial review you should seek legal advice as the law in this area can be very complex.

© Appeals Barrister

This might be the most important fact sheet for people making an application for leave to appeal “in person” (without a lawyer). It should also be useful to students working at miscarriage of justice projects. Most of the hints and tips will also be relevant when making applications to the Criminal Cases Review Commission (CCRC).

Why are the Grounds of Appeal Important?

Your grounds of appeal are a massively important part of your case. If you prepare your grounds of appeal badly then the judge (or the CCRC) will not know what your arguments are. This puts you at a disadvantage. The judge will be less likely to grant you permission to appeal if you have not told them why you have a good case. So persuade them.

The Golden Rules

1) Start from the beginning. Always write your grounds of appeal as if the person reading them knows nothing about your case. It is very likely that the judge won’t know much about it anyway. So explain your case from the very beginning.

2) Make sure that your grounds are: (a) as clear as possible, (b) as brief as possible, and (c) as persuasive as possible.

(a) Be clear. The Plain English Guide includes a number of helpful tips. For example:

• Keep sentences short (usually 15-20 words);
• Use lists where it helps (like this one!);
• Be professional, not emotional.

(b) Be brief. The Court of Appeal does not like grounds of appeal to be too long. If they are too long it makes it harder for the Court to understand your case. You do not want that to happen. In a conviction appeal your grounds might be no more than 10-15 pages. As a rule of thumb, if your grounds are much longer than 20 pages you have probably gone on too long.

(c) Be persuasive. The Court does not know your case. It has not lived it with you. It is not there to decide if you are innocent. It is there to decide if your conviction should be “quashed”. It will assume that you were rightly convicted. Your job is to persuade it that you weren’t. Make your best points loudly, but without emotion. If you are emotional it will get in the way of your arguments. Do not use capital letters. Ever.

A good example: “My case is that the judge’s direction was wrong in law and so I was wrongly convicted.”

A bad example: “The judge messed up the law and misled the jury. It was a STITCH UP! I am innocent”.

Style

You can write your grounds in whatever style you like. I often choose to do it under these headings:

1. Summary
2. The Facts
3. The Law
4. Grounds of Appeal

Use whatever headings you like, but do make sure that you use headings. This helps the reader (the judge) to know when you are moving on to a new topic. It will also help you organise your thoughts as you write your grounds.

Summary of the Application

This is your chance to introduce your case. Where were you convicted? Who was the judge? What were the offences? What are the grounds that you will be relying on? (you can develop these later on).

It could look something like this:

The Facts

This section must be balanced. That means explaining the case against you as well as the case for you. Of course you will be putting your own spin on the evidence, and there is nothing wrong with that. But the judge cannot understand the case for you without understanding the case against you. And if s/he thinks that you are trying to avoid the evidence it won’t help you.

You will want to cover at least the following areas: (i) what was the prosecution case? (ii) who were the prosecution witnesses and what did they say? (iii) what was the defence case? (iv) who were the defence witnesses, and what did they say?, (v) How did the judge direct the jury?

You should not repeat everything that the witnesses said. A summary will do. Perhaps a few paragraphs about what the complainant said, and one or two paragraphs about the rest.

Where you can “marry up” an allegation with the indictment then do so. For example: “Miss C said that the applicant touched her under her clothes in the bedroom (count 3)”.

Do not start making “submissions” (argument) at this stage. There is time and space for that later on.

Your summary of the facts might look like this:

The Law

If you are appearing “in person” you are not expected to say anything about the law. You could ignore it entirely and nobody would criticise you. But if you are able to get legal advice, or to do some research of your own, this will help you to set out the legal context of your arguments.

For example: in a “joint enterprise” case you might want to include a short summary of what was said in Jogee and in Johnson because they are the “leading” (important) cases on that issue.

This section might look something like this:

Grounds

This section is very important. But you have already laid the groundwork so by now the judge should have a good idea of what your arguments will be. You have said in section A what your grounds will be. In section B you have explained the facts. In section C you have set out the law. This is your opportunity to hammer home your arguments by piecing together the jigsaw.

Remember: keep it brief. A few paragraphs for each ground of appeal is usually plenty. Sometime a single paragraph might be enough. Your arguments won’t benefit from repetition. A good point can often be explained quite briefly. Do not “over egg” it. If the judge was wrong, the judge was wrong. There is no need to say that s/he was “hopelessly wrong”, “plainly wrong”, or “obviously wrong”. Wrong is wrong, and adverbs won’t help you.

 Your grounds might look like this:

To Recap:

Postscript: Uncle Bulgaria’s conviction was quashed. Mr Parker and Mr Worth are currently on desk duties.

© Appeals Barrister

If you qualified for legal aid in the Crown Court this will cover an application for leave to appeal if (and only if) your solicitor or barrister thinks you have grounds to appeal. If so they will issue the appeal for you on those grounds. If they don’t think that you have grounds to appeal you should ask them to explain why – in writing. You might need this later if you try to appeal using another legal team or ‘in person’ (without a lawyer).

If you think that your barrister is wrong  in his/her advice, legal aid might still be available but only in limited circumstances. This includes (a) where there has been a change of circumstances since the first advice, (b) where the first advice is obviously wrong and (c) where there is some fresh evidence. In those situations  you might still qualify for legal aid. Sometimes legal aid can also be available through another firm of solicitors where you are dissatisfied with your previous legal team.

If you qualify for legal aid and you think that you might be eligible for another advice, you  should first contact a specialist appeals solicitor. If you qualify for legal aid your case will be unsuitable for the “direct access” scheme (instructing a barrister directly). In such cases your solicitor can instruct a barrister later if it’s right for your case.

If you did not qualify for legal aid in the Crown Court, or if you have been told by a solicitor that you do not qualify for legal aid, then it might be possible for you to instruct a barrister directly. If you have a query about whether your case is suitable for direct access, please contact the practice team at Garden Court North who will be glad to assist you.

© Appeals Barrister

“Can I appeal my conviction?” is the first question on most defendants’ lips after they are convicted. This fact sheet looks at the process for bringing an appeal against conviction. Below you will find a flowchart setting out the process that I am about to explain.

If you have been convicted by a jury* then your appeal will be considered by the Court of Appeal (CA), which usually sits in London. An “application for leave to appeal” must be sent to the Crown Court using form NG. It should be lodged within 28 days of the conviction. This is really important, as it can mean preparing to appeal the conviction before you have been sentenced. The time limit does not run from the date on which you were sentenced.  In some cases the CA can extend the 28-day time limit, but you should never take this for granted.

After the CA receives your paperwork it will collect together any documents that it thinks the judge will need to see. This will include the indictment, a case summary, and it may include transcripts of the evidence and the trial judge’s “summing up”.

Your case then will be considered “on the papers” (without a hearing) by a single judge. This is known as “the permission stage”. If the judge thinks you have an arguable case then s/he will grant permission to appeal and send the case to “the full court”. This means a hearing before 3 judges at the CA. That is known as “the appeal hearing“. In some cases the judge might not be sure whether to grant permission, but will send the case to the full court anyway. In many others, permission will be refused.

If permission to appeal is refused you can renew your application before the full court. This is sometimes called a “renewal hearing“. Applying to renew an application for permission can be risky. If the CA thinks that the application is hopeless it can make what is called a “loss of time order”. This means that some of the time you have served in prison will not count towards your sentence. In other words, you will serve longer in prison. Alternatively, it can sometimes order you to pay the costs of the hearing.

The possibility of such an order makes it all the more important that wherever possible you seek legal advice before renewing an application, and ideally before making one at all. In other posts I will discuss the availability of legal aid for appeals and give some hints and suggestions for the benefit of those appearing “in person” (without a lawyer).

If you win your appeal then you might face a retrial, although it will depend upon the circumstances. I will discuss this more in another fact sheet. If you lose your appeal then you cannot appeal to the Court of Appeal again (ever) unless the Criminal Cases Review Commission (CCRC) sends your case back. The CCRC will be also covered in a separate fact sheet.

© Appeals Barrister

(Header photo: the Guardian)

*I will be preparing a separate fact sheet dealing with appeals from the magistrates’ court.