The criminal appeal system is not concerned with the justice of a conviction. The Court of Appeal will only intervene where a decision can be said to be ‘unsafe’, and this technical concept is far removed from whether an appellant is innocent or guilty. The Court of Appeal will not rehear the original case, or re-evaluate the evidence, or revisit the merits of a jury’s decision. Nor will the Court of Appeal entertain arguments that the defence could have argued the case better; or that the jury never grasped the significance of that point or this – which may well be true; or even that so-and-so lied – which may well be true too. The core point is that the Court of Appeal is not concerned with whether the decision reached by the jury was right or wrong, only that the conviction can be regarded as ‘safe’.
The Court of Appeal’s stance derives from a bedrock assumption that a case properly put to the jury is properly decided by that jury. The system has tremendous strengths but imposes onerous constraints on the right of appeal. If a jury chooses to believe the flakiest witness, and chooses to discard solid and sober truth, that is the jury’s right.
Hence the essence of the appeal system revolves around the word ‘properly’. Was the case properly put to the jury? Avenues for appeal are severely limited by another major assumption. Over the centuries, our system of justice developed to allow the defence a full opportunity to state its case. The Court of Appeal proceeds on exactly this footing. It assumes that the defence team did, or most definitely should have presented all relevant evidence at the main hearing. After the case, it is too late. And, because we have a proper, all-seeing system of justice, there is very little that occurred during the trial itself that constitutes a ground of appeal. This includes almost any argument along the lines of incompetence.
So what are the things that might render a jury’s decision unsafe?
In practice, there are just two major possibilities. Firstly, an appeal may be granted if there has been a “material irregularity” in the conduct of the trial. Such an irregularity might be the introduction of inadmissible and prejudicial evidence or the failure of the judge to give correct directions to the jury in his summing-up. But once again, even if a judge’s direction is not as clear and precise as it might be, it does not render the conviction unsafe. Broadly speaking, a judge will discharge his duties in the eyes of the Court of Appeal if he gives the appropriate ‘directions’. The best-known is the requirement for the prosecution to prove its case so that the jury are sure before they convict. Here the essence of the jury system is visible: the judge makes the appropriate enjoinder to the jury (“you must be sure”), and, provided he does so, the jury is properly directed on the burden of proof. In a trial of any complexity, there will of course be numerous other directions. But the judge’s task boils down to using the standard form-of-words on maybe half a dozen issues: say, good character; the duty not to speculate; the effect of delay; inferences to be drawn from lies to the police; and the interlinked questions of bad character evidence, collusion, contamination and cross-admissibility. In addition, the judge has a general duty to summarise the main planks of the case, both for the prosecution and the defence. But this does not extend to summarising its detail.
There is certainly scope for judicial error here. But, if there is no defect in the summing up or other material irregularity in the trial, the remaining way to undermine the decision of a properly-directed jury is with fresh evidence.
There are restrictions here too. The Court of Appeal takes the view that everything which should have been put in evidence was put in evidence – and that every witness with something to say was called and did give testimony. Hence a quest for fresh evidence is primarily limited to events arising after the conviction. If the evidence was available at the time of the hearing in the sense that theoretically it could have been put forward, even if it was not a compelling reason is required to explain its omission. In addition, this fresh evidence must have weight – and, after a finding of guilt, this weight becomes dauntingly heavy. Those who have been wrongly convicted know that all sorts of slender peripherals can be produced at the main hearing – anything, in fact, that makes guilt more probable. But, once a conviction is made, the Court of Appeal does not simply require evidence that suggests innocence. Its requirement is far higher: evidence that either establishes innocence, or comes very close to it, or demolishes the prosecution evidence (such that it is ‘unsafe’ to rely on it).
This means that it does not matter how many ‘lesser’ arguments are put forward. Lesser arguments of the kind which fail do not acquire a culminative power that eventually tips the balance. They simply fail, one by one, piecemeal. A single strong point is worth a hundred weak ones.
As appeal lawyers, we are interested in the guilt or innocence of our clients. But our job is to identify and develop arguments that satisfy the Court. There may be a defect in the summing-up. The judge may not have grasped or conveyed the essence of the defence. A mistake of law, whether elementary or complicated, may emerge. The propensity to do X may be wrongly extended to embrace a propensity to do Y. Bad character propensity evidence in the form of previous convictions may be muddled up with allegation evidence. Perhaps the good-character direction was left out, or improperly put. There may be fresh evidence a later retraction, or an admission, or a letter, unobserved at the bottom of a file or actively concealed. New witnesses may come forward, perhaps with proof that A did in fact collude with B. Even DNA evidence can be the subject of misdirection. All these things are unlikely. But, importantly, all these things happen. Sometimes the key point has always festered in the mind of the accused. In other cases, the ground of appeal that eventually emerges has lain unremarked, “hidden in plain view”, for years. The patterns are often complicated, but a good place to start is with an appellant alert to where the main possibilities do and do not lie.
*Chris Saltrese is a solicitor at Chris Saltrese Solicitors in Southport
Telephone: 01704 535512