Appeal against conviction
(on the issue of guilt):
an overview of recent cases based
on error or irregularity of procedure
1. Statute
The right of appeal against conviction on indictment is contained in S.1 Criminal Appeal Act
1968 as amended. Appeal lies only with the leave of the Court of Appeal or by certificate by
the trial judge that the case is fit for appeal1.
S.2 of the Act (as amended by the CAA 1995) states that an appeal against conviction will
be allowed if the Court thinks that the conviction is unsafe and that in any other case, the
appeal shall be dismissed. The Court of Appeal has said that the intention is to concentrate
attention to one question only, namely the single ground of whether the conviction is unsafe.
The wording is succinct, but the use of the word “unsafe” seems deliberately wide. The
effect appears to be that the Court of Appeal is able to take a very wide and, if necessary,
case specific, approach when considering such applications.
2. How is the question of “unsafe” addressed:
For appeals based on a contention that the conviction should be quashed because there is a
doubt about a defendant’s guilt of the offence of which he/she was convicted, there are two
categories upon which grounds of appeal can now be based:
a) error or irregularity of procedure
b) lurking doubt
R v. Bieber (aka Coleman) 2006 150 S.J.1427 C.A: the Court made it clear again, that a
ground of appeal would only have merit if it gave rise to doubt about the safety of the jury’s
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verdict. A potential ground will not assist unless the court is of the opinion that, had there
been no such “wrongdoing”, the outcome might have been different.
3. Error or irregularity of procedure
The vast majority of cases will allege that the conviction (after trial) is unsafe because a
procedural error or irregularity means that a court cannot be satisfied that, had the error or
irregularity not occurred, the jury would still have convicted. The cases in this category are
many and varied but fall generally into the following groups.
a) Misdirection/Non-direction
A conviction will be considered unsafe in such circumstances unless the Court of Appeal is
satisfied on the whole of the facts, and with a correct direction, the only reasonable and
proper verdict would have been one of guilty.
Zakowski [2011] EWCA Crim 173428 the appellant was provided with the services of an
interpreter. Those services ended shortly after the beginning of the summing-up. The
acoustics in the court caused the two voices -- that of the judge summing up and that of the
interpreter interpreting the summing up to the appellant -- to echo. The judge considered
that to be distracting for the jury and shortly after the summing-up began he asked the
interpreter to stop interpreting "for the time being". He added, "You can tell him all about it
later". Both counsel expressed concern that the appellant was probably entitled to have the
full proceedings interpreted as they occurred. The judge indicated that he would make
available a tape-recording of his summing-up which could be interpreted for the appellant.
This offer was not followed up. The conviction was safe.
•
lack of proper direction on the proper approach the jury should take, for example,
on issues of identification
R v. Smith (Patrick) and Mercieca The Times February 17 2005: where the judge, after
complaint of alleged misbehaviour in the jury room, failed to refer to the need for the jurors to
reach verdicts on their own conscientious judgement without bargaining over them and had
not reminded them that they had to follow his directions on matters of law, the resulting
convictions were unsafe.
•
improper withdrawal of an issue from a jury
R v. H (2006) 150 S.J. 571 CA: 51: where the appellant was charged with a sexual offence
and the defence was that it had not happened at all and where the judge had properly directed
the jury as to the ingredients of the offence, including consent, the Judge could not be said to
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have withdrawn from the jury the question of consent or the question whether the appellant
might reasonably have believed that E consented. We cannot believe that the jury would not
have appreciated that they should only do so if they were sure that E did not consent to oral
penetration and that the appellant did not reasonably believe that he had consented.
•
improper comment by the trial judge in such a way as to make the summing
up fundamentally unbalanced or to suggest a lack of impartiality on the part of
the judge.
R v. Dickens 2006 Crim L.R 267: Before the jury were empanelled but in the presence of
the defendant the judge used such intemperate and peremptory language in relation to the
defence that any reasonable observer would have been left with the impression that the
defence was a waste of the court’s time and that the judge was not entirely neutral.
R v. Zarezadeh (2011) Crim. L.R 588 C.A: Where a judge had intervened in the
prosecution’s cross examination of the defendant on nine separate occasions to ask
questions of the appellant and where some of the interventions amounted to cross
examination, though unfortunate, the judge did not cross the line so as to render the trial
unfair. See also R v. Cole The Times, March 16,2009, Michel v. The Queen 2009, R v.
Copsey & Copsey (2008) 152(38) S.J.29.C.A, Randall v. The Queen 2002 1 WLR 2237 and
R v. Nelson 1997 Crim.L.R 234 where it was held in all cases that excessive intervention
can render a conviction unsafe.
R .v. Tedjame-Morty April 5th 2011 C.A (unreported): where the judge, without warning,
and immediately before he gave evidence ,harangued the defendant in a rude and sarcastic
way about speaking to a person in the public gallery the day before, the judge’s conduct may
have led to the defendant not doing himself justice when he gave evidence. The quality of
his evidence could have been affected and the conviction was unsafe.
b) Inconsistent verdicts
R v. S (2011) 1 Archbold Review 1,C.A: a conviction on one count was not rendered
unsafe by reason of the jury’s failure to agree on other counts
R v. Burke (2007) 1 Archbold News: it did not automatically follow from the acquittal of a
particular individual at a separate trial by a different jury that the appellant’s conviction (in a
related case) was unsafe.
c) Wrongful admission or exclusion of evidence:
R v. Purdy (2007) 151 S.J. C.A: the court of Appeal was of the view that the conviction was
safe, notwithstanding that the trial judge had inadvertently disclosed a matter to the jury in
the course of his summing up, which would not otherwise have been put before them. The
fact that the prosecution were not resisting the appeal made it problematical for the court to
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conclude that the conviction was safe, it was difficult to judge the atmosphere of the trial
without having attended trial: accordingly, notwithstanding the apparent weight of the
evidence against the appellant, the conviction was quashed.
d) Defects in the Indictment
R v. Hodgson & Pollin, The Times, April 30, 2008: the defendants pleaded guilty to an
Indictment which was defective but not a nullity. Their convictions were safe as everybody
concerned knew what they were intending to plead guilty to.
R v. Ptitchett (2008) Crim L.R. 214 CA: where an Indictment produces an “irregularity” it
must still be decided whether that irregularity renders the defendant’s conviction unsafe.
e) No case to go to the jury:
R v. Broadbent unreported June 23 2006, it is not proper where the ground of appeal is
that a rejection of a submission of no case to answer was erroneous, for the Court of Appeal
to have regard to evidence subsequently given in the course of the trial: an erroneous ruling
must be considered to render the conviction unsafe because it follows that, but for the ruling,
the judge would have directed an acquittal.
R v. H (2006) 150 S.J. 571 CA: whilst there may be exceptional cases in which a judge
should withdraw the case from a jury....the judge was in a much better position that the Court
of Appeal to decide whether the case was an exceptional one.
f) Bias:
Attorney-General of the Cayman Islands v. Tibbetts (2010)3 AER 95 P.C. It will only be
in the rarest of cases that it will be permissible for a defendant to be convicted where a
prosecution witness knew (had been on holiday with) a juror, however here, the judge had
carefully directed the jury on the issue where the bias was seen to possibly arise and most
importantly the witnesses evidence had been unchallenged. Conviction not unsafe.
R v. G.C. 2008 Crim LR 984 CA: the verdict was safe where a serving police officer
working in a unit investigating child abuse was a juror in a case alleging sex abuse on
defendant’s daughter, defendant also a police officer, and part of case involved criticism of
conduct of police interviews of the complainant.
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g) Inadequacy of legal representation:
R v. Iqbal The Times April 21, 2011: where a defendant applied for a change of
representation but did not give details as to why he asserted a breakdown in the relationship,
the refusal to grant a change of representation did not make his trial unfair.
Ebanks v. United Kingdom, 51 E.H.R.R. 78(2) E.C.H.R: where inadequacy is complained
of, all will depend on whether taking the proceedings as a whole, the legal representation
may be regarded as practical and effective. It is the responsibility of the defendant to select,
with the advice of counsel, which case he wishes to put before the court.
Campbell v. The Queen (2011) 2WLR 983 PC: where the only plausible explanation for
there being no evidence before the jury of the defendant’s lack of previous convictions was
the incompetence of defence counsel, it was necessary to assess the impact of the omission
on the trial. Bearing in mind that at the first trial, the jury had been unable to agree, the
omission in these particular circumstances, rendered the conviction unsafe.
1. S 1(2) Criminal Appeal Act 1968.
Nicola Devas
ONE PAPER BUILDINGS
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