The appeal of crime

In the latest instalment of a continuing series, we offer advice on the issues which face solicitor-advocates

Whatever your skill as a criminal trial advocate, the fact that you failed to prevent a disastrous outcome in the court below should not undermine your confidence in your ability.

The skills needed in the Court of Appeal are much more straightforward.

The big advantage you have as an appeal advocate is that, at least in principle, you set the difficult questions for the court to answer rather than the other way round.

Q Where do I go for basic information?

A The court's criminal jurisdiction derives from the Criminal Appeal Act 1968 - to remedy convictions that are unsafe, and sentences that are excessive or unlawful.

The court's functions are administered by the Registrar of Criminal Appeals through the Criminal Appeal Office.

Two key documents to obtain are the Blue Book - the office's own guide to the court's procedures (see www.courtservice.gov.uk; or Archbold 2002 at 7-163) and the guide produced by the civil liberties organisation, Justice, How to appeal (2.50 via www.justice.org.uk).

You might also read Criminal Appeal Reports (available as part of Sweet and Maxwell's CD based 'Crime Desktop'), and Criminal Appeal Reports (Sentencing) (available as part of the 'Sentencing Service') to get a feel for the type of questions advocates ask the Court of Appeal and the kind of answers they often get.

Q What should go in my advice and grounds?

A The grounds of appeal identify the deficiencies of the decision below and will, of course, be reasonable, with a real prospect of success, and such that the advocate would personally argue them before the court.

They should be supplemented with an advice.

Be aware that in practice the advice is a semi-public document, available to the registrar, the appeal judges and even (unless stipulated) the Crown.

Accordingly, adverse advice should never be sent, and care may be required in formulating positive advice.

Do not forget that your client will be a 'defendant' for the purposes of the advice, an 'applicant' for the application for leave and will only become an 'appellant' once leave to appeal has been granted.

Q They want me to perfect my grounds - what was wrong with them?

A In due course you may be asked to 'perfect' your grounds.

This is not impertinence on the part of the office, but an invitation to cross-reference your grounds to a document - usually transcript - which has been obtained.

Of course you may also want to refine or abandon individual grounds in the light of the new material.

Note also that when the office serves its own case summary on you, errors of fact or interpretation should be challenged straight away.

Although formally neutral, this document does much to inform the eventual outcome and it will be too late to start quibbling over its content in open court.

Q How is my application dealt with?

A Applications for leave to appeal, and bail, are usually considered on the papers by a single judge, although an oral hearing can be requested.

If leave is refused, the client will need to decide within 14 days whether to renew an application to the full court.

Have careful regard to the terms on which leave was refused and be prepared to provide a swift supplementary advice that respectfully considers whether the single judge's comments should properly dispose of the matter.

A conscientious advice will usually be an obstacle to the possibility of the appellant losing credit for time served, and also to a costs penalty against the advocate for pursuing a hopeless appeal.

In a short sentence case, the office should be pressed for speedy consideration at every stage.

Q How should I prepare for the full hearing?

A A skeleton argument reflecting your researched and considered position should be served by the appellant within 14 days of the grant of leave to appeal.

The Crown should reply within a further 14 days.

Let the office know well in advance of the hearing if the court will need to see any particular documents, transcript, or exhibits.

Make contact with your opponent and, on the pretext of agreeing an accurate time estimate (essential for the court), sound out how the argument is likely go.

Your list of authorities should be served before the hearing, and should also be faxed to the head usher on 020 7936 6668 so that the relevant reports will have been collected from the library in triplicate for the court itself.

If you need to refer to anything else, bring sufficient copies for everyone.

You might prepare yourself for the tone and pace of full hearings by sitting in the public gallery on otherwise idle afternoons.

Q What about the advocacy at the hearing itself?

A The Court of Appeal can be daunting.

No doubt it can, in theory, be warm and welcoming but it can also resemble the viva voce from hell on a subject the advocate has already mucked up once in the court below.

There will be a constitution of three bright judges, well-informed on the case and with half a century of trial advocacy experience at their collective disposal.

Expect each of them to chip in at will.

Contributions may be robust.

The advocate aspiring to constructive engagement will find that precision, restraint, and brevity are most likely to earn a respectful hearing.

Always be prepared to answer the question 'What is your best point?' in a single sentence.

While you will wish to stick to your guns, do not close your mind to a potentially winning new angle that had never occurred to you until one of the judges suggested it.

Q The judgment went against me.

Am I as alone as I feel?

A Of course it is possible that you will be successful, in which case you must be prepared to deal immediately with representations as to whether there should be a re-trial, alternative verdicts, defendant's costs and other consequential directions.

If, on the other hand, you find yourself on the wrong end of a withering judgment, you might cheer yourself up by seeing how others, incomparably your seniors, have been kicked around before you.

You might enter the search terms 'hopeless' and 'quite unarguable', in Casetrack's excellent on-line subscription service of all Court of Appeal cases since 1996 (www.casetrack.com) and find these phrases have been used before.

Q Should I try the House of Lords?

A The Court of Appeal will not always have the last word.

Consider whether a point of law of general public importance arises and, if so, prepare a draft of the question and apply (either at the full hearing or in writing within 14 days) for a point to be certified and leave to appeal to the House of Lords.

Be prepared for quibbling over the terms of the question.

By convention, the Court of Appeal almost invariably refuses leave, leaving the appellant to apply to the House of Lords directly for leave.

Q How much will I get paid?

A The graduated fee in the Crown Court is deemed to cover negative advice on appeal.

Positive advice is usually remunerated by the office on a discretionary basis even if leave is never granted and no legal aid order will have been granted.

Whether pursuant to a legal aid order in the Court of Appeal, or following a discretionary payment by the office, solicitor advocates, unlike counsel, are paid hourly rates for all preparation, advocacy, travel and waiting.

This column is prepared by committee members of the Solicitors' Association of Higher Court Advocates.

For details of SAHCA or for a membership application form, contact Sandra Dawson, tel: 020 7837 0069.

E-mail your advocacy questions to: sandra@admin4u.org.uk