The first thing many people who find themselves at the wrong end of a Crown Court sentence will ask their lawyers is, 'can I appeal'. The short answer will always be that appeals are possible but only in certain circumstances. Luckily the circumstances for appealing a sentence are set out in clear rules, and so is the route to doing it. Below we explain the basic principles to help you understand this sometimes daunting process.
Appeals: How the Process Works
Following a criminal conviction and sentence at the Crown Court your lawyers will provide advice as to whether or not they think that a successful appeal can be made. The most common ground for appealing a sentence is that your lawyers thought the sentence was 'manifestly excessive' i.e. too long for the offence committed. Other common grounds include:
1. The sentence was wrong in law or wrong in principle i.e. where the judge increased the sentence incorrectly from the usual starting point or failed to take account of mitigating factors.
2. Failure to honour a legitimate expectation - this could mean where a judge has already said he or she will give a non-custodial sentence but does not follow through on that without giving a good reason.
3. Failure to distinguish between two defendants - where two people convicted of exactly the same offence are given different sentences without the correct consideration. On the opposite side of the coin, where there should have been a difference in sentence but the judge failed to do so.
4. Sentencing remarks of the judge - whether the judge has made an error in reaching their decision which is set out in their remarks.
5. Lack of a pre-sentence report where it would have been the right thing to have one. Once the grounds of an appeal against sentence are finalised the lawyers will send the application to the Court of Appeal.
The general rule when making an application to appeal against a sentence is that it must be submitted within 28 days after a sentence is passed. There are exceptions to this rule where a request can be made for the court to allow an appeal ‘out of time'. This is most often used when someone has changed legal teams and the new lawyers need time to understand the case and the reasons given by the judge when he passed the sentence. This extension of time is usually achieved without much trouble.
The application to appeal against a sentence is known as an application for ‘Leave to Appeal'. The first hurdle to overcome in that process is the review of the grounds by a single Appeal Judge. They are the gatekeepers who decide if an application has a reasonable chance of succeeding. They are there to filter out all of the applications that they think will end up being unsuccessful. All applications go through this process and the single Judge will always provide reasons for their decision in writing.
If an application for Leave to Appeal against sentence is granted (by the single Judge) the application will go on to what we call the ‘Full Court'. This is where the appeal against the sentence will be heard in full. The full Court will then make its decision and the application will be granted or refused
No Grounds of Appeal
So what happens when the lawyers advise that there are no grounds of appeal against a sentence? If you feel strongly that you have grounds to appeal you should seek a second opinion from another lawyer.
If you instruct new lawyers to advise you on appealing a sentence your reasons can be explored and you will receive a second opinion in writing. If a lawyer thinks that the appeal may have a chance, then they will begin to prepare and investigate the appeal properly, and also prepare justification for the application being out of time if it is longer than 28 days since sentence. This will be the same process whether it is out of time by a week or out of time by a year or longer.
Single Judge Rejections
In the case where Grounds of Appeal against sentence has been rejected at the first stage (The Single Judge Stage) there is an option available to request that the application is still put forward to the full Court. However, this option needs to be considered very carefully as it can carry harsh penalties if the appeal is ultimately refused. Such penalties include the potential for any time already spent in custody (up until the point of the refusal by the Court of Appeal) to not be counted as part of the sentence. In other words, there is a risk that you would have to start your sentence again from scratch.
Full Court of Appeal Refusals
If an application for an appeal against sentence reaches the Full Court and is not successful, there are still options available if you disagree with the Court's decision. One option is to submit an application to the Criminal Cases Review Commission (C.C.R.C) who will then appoint a caseworker to investigate your concerns. In the United Kingdom, this is generally the only way that you can have your case referred back to the appeal court.
You cannot make an application to the C.C.R.C until you have first been rejected by the Court of Appeal.