A Guide to Starting a Miscarriage of Justice Case
A Guide on Appealing a Wrongful Conviction or Sentence written by Mark Newby , Solicitor Advocate at QS Jordans.
A Guide to Appealing a Wrongful Conviction or Sentence By Mark Newby QS Jordans
You will be reading this guide because you or a loved one has found themselves on the wrong end of a conviction or sentence from the Court and you may not know where to start in putting this right.
This guide will offer you the basics of what to do and the process you are in, however you should always consider obtaining the earliest possible expert advice.
How do I appeal?
You appeal by submitting what are known as grounds of appeal to the Court that convicted you. For the purpose of this guide we will assume it is a Crown Court conviction or Sentence you want to challenge.
You would send to the Court an Appeal Form known as an “NG” form and this will need to be fully completed with Grounds of Appeal against your conviction or sentence.
If unrepresented the more information you can give the Court the better.
Are there any time limits for appealing?
Yes. You would be expected to appeal within 28 days of conviction. This is not 28 days from sentence and so if convicted at an earlier date then this is the date you must calculate your deadline from.
What happens if I miss that deadline?
If you are appealing outside the 28 days then the Court will have to apply for an extension of time to appeal and the Court may not grant that extension if there are not good reasons for the delay. In some exceptional cases the delay can be quite a long time but the Court will still consider granting an extension if there are very good reasons why it should.
The onus is on you however to show you have acted as quickly as you could.
Does My Trial Barrister have to appeal for me?
No. If your Barrister thinks you do not have a good prospect of success he does not have to appeal. However your Barrister should provide you with an advice and you are entitled to ask the Barrister through your Solicitor to advise you in writing.
Sometimes it may be difficult to use the same barrister you had at trial especially if you are going to blame them for what went wrong.
What is the test for quashing my conviction?
The Court of Appeal is not a Re-Trial Court and you cannot simply ask it to consider everything that you think was not done at your Trial.
You must satisfy the Court of Appeal that the Conviction was unsafe. This means that you must be able to show through Fresh Evidence (Evidence Not available at your Trial) that your conviction is unsafe or that serious errors have occurred or that there is some other substantial reason that the Court should not consider the conviction is safe.
The law can become very complex when you are looking at such grounds and you would be well advised to find a solicitor with a strong track record in the Court of Appeal.
What is the test for reducing my sentence?
In order for the Court to interfere with the sentence imposed by the Judge who sentenced you it must be satisfied that the sentence was manifestly excessive. So for example the fact that the sentence was harsh will not be enough.
These days Judges sentence in accordance with stringent guidelines and any appeal lawyer will look at those guidelines to see whether the Judge went too far. If the judge applied the guidelines fairly but gave you a heavy sentence then you are unlikely to have a successful appeal.
However if the Judge got the sentence wrong or didn’t follow the guidelines then you may be able to appeal.
I’ve heard the Court can make a loss of time order against me?
In certain circumstances if the Court thinks your appeal has no merit it can make a loss of time order. Such orders are still rare and the Single Judge who considered the case first would usually indicate there was no merit before you proceeded.
In any event such orders are fairly modest in duration between 7 – 28 days.
If you have a proper appeal argument you should not worry about such orders.
How can I fund an appeal?
Currently the Legal Aid Agency will provide funding for advice and assistance if you meet the relevant means test.
If for any reason you do not qualify for Legal Aid then you should speak to a lawyer about Private Fees. Quality Solicitor Firms should undertake the work for Fixed Fees, which can be agreed.
You should be very wary about certain firms who take large sums of money of appellants or their families with little prospect of success. When finding an appeal lawyer be certain who you are dealing with and check them out.
My Appeal is Lodged what happens next?
The Crown Court will transfer the case to the Court of Appeal where it will be allocated to a Single Judge to review. These Judges are High Court Judges.
After a number of weeks a decision will come through from that Judge indicating whether you have been given permission to appeal or not.
If you have then the case will be listed for a full hearing and in the meantime your Barrister will be given legal aid to represent you if you are eligible.
If the Single Judge refuses you, then you can consider in light of the reasons whether this should be renewed to the full court for a decision. No funding is available for the renewed hearing and it may be necessary to fund the hearing unless you were receiving legal aid in which case the Barrister will have to decide if he or she will appear pro bono.
My Appeal Hearing – What Happens?
At your appeal hearing the Court will hear arguments from both your Barrister and the Prosecution. They will have already received written arguments called “Skeleton arguments “.
At the conclusion of those arguments the Court will consider its decision. Sometimes it will give the decision straight away but on other occasions it can reserve judgment and give it at a later date.
If you win your appeal the original verdicts will be quashed along with any orders made against you. The Crown may apply for you to face another trial and the Court will decide whether this is in the public interest.
If you lose you then must apply to the Criminal Cases Review Commission if you wish to continue your fight to clear your name. This is subject to a separate guide from us.
Any queries over this note please contact us on 01302 365374.