When we think of the Court of Appeal we tend to automatically think of their powers to either overturn convictions or reduce the sentences of those who successfully appeal. For those Defendants found guilty in a criminal crown court, either by virtue of pleading guilty or being found guilty by a jury following a trial, there is a right to appeal to the Court of Appeal in limited circumstances. It is worth noting that this right of appeal is not automatic and that the Court of Appeal must first grant a Defendant permission to appeal before the appeal itself can be heard. So, what might a Defendant be seeking to appeal? An appeal can be against conviction i.e. the fact that the Defendant has been found guilty (not of course an option for those that have pleaded guilty) and/or an appeal against sentence, which in the majority of cases (but not all) would be an appeal against the length of the prison sentence imposed. In order for the Court of Appeal to grant a Defendant permission to appeal against conviction, they must be satisfied that the conviction is unsafe. A conviction may be unsafe for a variety of reasons, such as:
- The Judge made an error of law during the trial;
- The Judge misdirected the jury in law or fact in his summing up;
- There was otherwise a procedural irregularity during the trial;
- The verdicts were inconsistent;
- There is now material and credible fresh evidence which was unavailable during the trial which casts doubt on the jury’s verdict or the safety of the conviction.
Bottom line, a Defendant can’t appeal against conviction just because they think the jury got it wrong and they don’t like it!
In respect of an appeal against sentence, the Court must consider that any sentence imposed was either wrong in law (the Judge did not have the power to imposes the sentence s/he did), wrong in principle (e.g., a prison sentence was imposed when only a community order was warranted) or manifestly excessive (far too long and outside of the sentencing guidelines). This does not mean that a Defendant can appeal simply because s/he considers their sentence to be harsh.
If an appeal is successful, this may result in the conviction being overturned and in some cases a re-trial ordered, or in a sentenced being reduced.
However, the Court of Appeal’s powers are not limited to hearing appeals from Defendants. It has been reported in the news recently that the Court of Appeal increased the sentence of a man convicted for kidnapping his girlfriend. You may have seen the dramatic CCTV footage showing the Defendant bundling his girlfriend into a van as she tried to walk away from him following an argument. She was later found lying on the carriageway of the A6 and remains in hospital a year later with catastrophic brain injuries. The Defendant was convicted after trial of kidnapping, coercive and controlling behaviour and perverting the course of justice, and was sentenced to 7 ½ years imprisonment. This sentence was made up three years and three months for kidnap, two years for coercive and controlling behaviour, and two years and three months for perverting the course of justice – after he put pressure on his mother to withdraw her police statement. These sentences were consecutive, meaning they were all added up to a total of seven and a half years.
You may wonder how the case came before the Court of Appeal, as it certainly wasn’t the Defendant asking for his sentence to be reviewed. Well, equally, it is open to the Attorney General to refer a case to the Court of Appeal should they consider that a sentence is “unduly lenient”, which is what happened in this case. Anyone can ask the Attorney General to consider whether a sentence should be referred to the Court of Appeal as being unduly lenient, including a victim, a relative of a victim or a member of the public. Now, this power cannot be used simply in cases where a sentence is lenient, it must be unduly lenient. A sentence will be unduly lenient where it falls outside the range of sentences which the judge, applying his or her mind to all the relevant factors, could reasonably consider appropriate. In this case, the Court of Appeal ruled that the sentence imposed for the kidnapping offence failed to reflect the seriousness of the kidnap and the harm caused to the victim; she is likely to be severely disabled, mentally and physically, for the rest of her life, and will be dependent on others for all aspects of her care. The Court of Appeal added that the kidnap had been the “culmination of a pattern of abuse at the hands of the Defendant. As such, the Judges have now changed the Defendant’s sentence for kidnap to 12 years, but the sentences for the other charges are concurrent, meaning they all run at the same time. Evidence, some might say, of the Court of Appeal using their powers for good, and not just evil.
For any further information or advice please contact our Criminal Defence team via the contact form below or by phone on 01702 662963 (Essex) 020 35537115 (London).
