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June 1, 2017

Appeals are the lifeblood of a functioning criminal justice system, but we may need a transfusion

No system gets everything right, however well intentioned those involved. Our system of underfunded courts and lawyers, with thousands of unrepresented defendants, definitely gets a lot wrong. Only this week Matthew Scott wrote of a shocking case where a woman narrowly escaped years of imprisonment because the key witness made a small mistake, and a police officer was willing to believe he had been wrong.

The only way of correcting a wrong in the justice system is through appealing – you can appeal your sentence and/or your conviction. And if you lose, you can still try going through the Criminal Cases Review Commission. But the path is fraught with difficulty and those difficulties are increasing:

1) More and more people are trying to appeal unrepresented. This week a court of appeal judgment hit the legal headlines because all the appellants had used “McKenzie friends” or free help since they did not have lawyers.  The judges made short shift of the applications to appeal, and were pretty scathing about some of the help that had been given.  The judges said an increasing number of their cases were from unrepresented defendants. The whole legal system is fiercesomely complicated, appeals even more so. No wonder appellants seek help.  6% of those appealing from the magistrates’ court are unrepresented. Impressively, they are as successful as those with lawyers, but access to justice is compromised if people have to challenge the legal system without advice.

2) When you appeal a conviction from the crown court, you need to prove the conviction was “unsafe” – a very tall order, which usually requires fresh evidence. Its not enough to suggest that testimony should not have been trusted, or the trial was badly managed or your advocate semi competent. All that may be have been the case, but is usually dismissed and, if you are late appealing, the defendant may then be punished with extra time in prison – two of the poor unrepresented appellants to the court of appeal were given four weeks extra on their sentence, while the appellant who had a pro bono lawyer was not.

3)  If you appeal your sentence, you are up against the sentencing guidelines. In the old days, there were few hard and fast rules about sentencing, as long as it abided by primary legislation. But now a lawyer will advise that there is no point appealing a sentence, however harsh it appears, as long as it comes within the guidelines. Criminal appeals to sentence heard in the crown court have dropped through the floor – the number has reduced by a third, while criminal appeals to conviction have risen. This is unlikely to reflect a reduction in the number of people who feel they got too harsh a sentence. Rather the beginning of the drop coincides with the publication of the first sentencing guidelines on assault in 2011, so the finger points there.

4) Probably the biggest barrier to appealing is cost, or risk of incurring costs, both in money and sentence. The likelihood of a sentence being increased as a result of an appeal is small, but the possibility creates fear. Anyone who appeals their sentence from the magistrates court is theoretically at risk of having it increased, and of incurring prosecution and court costs. A much higher proportion of criminal appeals are launched by defendants who are privately funded (64%) than is typical of defendants in a magistrates’ court. This suggests that those who can afford a private lawyer are more likely to appeal.

Does it matter if the poor are put off appealing their sentence or conviction, or if sentence appeals have nose-dived? Maybe it just indicates judgments are getting better and convictions more safe?  If only. In fact, appeals against conviction in the magistrates’ court are becoming more successful – 44% in 2015 compared to 37% in 2007 – and the success rate of appeals against sentence in the magistrates court (46%) has not changed since the advent of sentencing guidelines. We need to save our appeal system. It corrects minor and major miscarriages of justice for the individual, but also provides a important way of combating the seemingly unstoppable march of sentence inflation.