Appeal

Acquittals and Enhanced Record Checks

If I’m acquitted will the alleged offence show on a DBS check?

An ordinary DBS (Disclosure and Barring Service) check reveals convictions and cautions. An enhanced check, required for many jobs, may reveal ('non-conviction') information held by the police such as intelligence, arrests, prosecutions and acquittals.

Surely an acquittal shouldn’t be on the check?

This was challenged in Court by “AR”, a qualified teacher, who had been working as a taxi driver when he was accused of rape.

His defence was that there had never been any sexual contact with the complainant, although she had been in his taxi. He was acquitted. When he applied for a job as a lecturer the enhanced check revealed the acquittal and the details of the allegation.

What did the Court say?

AR's appeal was unsuccessful.

The Court said that in certain circumstances such information could be included on enhanced checks and in “AR’s” case it was correct to do so.

Why?

The Court said “in principle, even acquittal by a criminal court following a full trial can be said to imply no more than the charge has not been proved beyond reasonable doubt. In principle, it leaves open the possibility that the allegation was true, and the risks associated with that.”

Who makes the decision?

 In the first instance, the police decide whether the information should be included on an enhanced check (although in practice many matters are ‘filtered’ and removed automatically from consideration).

They can disclose non-conviction information that may identify a potential risk to the vulnerable; the test is based on relevance, truth/substantiation and proportionality.

It is not automatic, therefore, that an acquittal would be disclosed, as the circumstances of the acquittal need to be considered and consideration given as to whether the offender may have committed the alleged offence.

It is vital that if there is any positive evidence that the offender did not commit the offence, for example because the complainant admitted lying, that this is brought to the attention of the police.

 

A decision to include information on an enhanced check can have devastating effects on your livelihood. Such decisions can be objected to, and representations made to the police. If unsuccessful, this can also be appealed to the Information Governance Unit. If you would like to discuss any aspect of this article or your case, please contact me on 07766001774 or via email (contact@crimelawyer.co.uk). 

 

 

A Matter of Character

A Matter of Character

In criminal law, we talk a lot about character, but mainly in the context of 'bad character', or previous convictions that the prosecution will try to put before a jury to persuade them of the defendant's guilt. After all, if he's done it before, he is more likely to have committed this crime too, is the general thrust of the argument.

But of course, not all defendants facing criminal trial have previous convictions, and in those circumstances, the issue of 'good character' arises.

This is, of course, the reverse of the Prosecution argument - he is a man of good character and is, therefore, less likely to have committed the crime charged.

It is in fact much more complicated than that, and we believe it is an aspect of case preparation that is often overlooked, to the detriment of the person standing trial.

What is the purpose of establishing good character?

For centuries, it has been accepted that evidence of the accused’s good character is admissible in criminal trials.

In the modern era, the courts have accepted that good character evidence may be admissible:

(i) to bolster the accused’s credibility and

(ii) as relevant to the likelihood of guilt.

How is good character established?

In most cases, good character is a matter of fact, in that if a person has no previous convictions they will by definition be of good character.

But even then, a person may be deprived, at least in part, of their good character status depending on the nature of any evidence they have given.

Likewise, a person may not start off with good character but may be able nonetheless to obtain a good character direction. This is often referred to as 'qualified or effective good character'. A common scenario is where any convictions are either so old or so irrelevant to the matter before the court, that it would be unjust to take them into account.

An essential part of establishing good character is also to consider carefully whether character witnesses should be called on your behalf. These are people who know you well and who will speak positively about you.

In choosing character witnesses, it is preferable to try and find people who will be highly credible themselves in the eyes of the court or jury, people who would not be willing to lie about a person's character and qualities simply out of an allegiance to that person.

Do I have to do anything?

It is critical that good character or qualified good character is not overlooked during case preparation. It is for the defence to formally establish good character and ensure that the issue is properly before the court for consideration.

If defence advocates do not take a point on the character directions at trial and/or if they agree with the judge's proposed directions which are then given, these are good indications that nothing was amiss. This means that attempting to cure any defect on appeal is unlikely to meet with success.

The Court of Appeal has held:

“...as a matter of good practice, if not a rule, defendants should put the court on notice as early as possible that character and character directions are an issue that may need to be resolved. The judge can then decide whether a good character direction would be given and if so the precise terms. This discussion should take place before the evidence is adduced. This has advantages for the court and for the parties: the defence will be better informed before the decision is made whether to adduce the evidence, the Crown can conduct any necessary checks and the judge will have the fullest possible information upon which to rule. The judge should then ensure that the directions given accord precisely with their ruling."

What is the content of a 'good character' direction?

The actual direction to the court or jury depends on the exact circumstances of the case, but this is a typical full direction:

'You have heard that the defendant is a man in his middle years with no previous convictions. Good character is not a defence to the charges but it is relevant to your consideration of the case in two ways. First, the defendant has given evidence. His good character is a positive feature of the defendant which you should take into account when considering whether you accept what he told you. Secondly, the fact that the defendant has not offended in the past may make it less likely that he acted as is now alleged against him.

It has been submitted on behalf of the defendant that for the first time in his life he has been accused of a crime of dishonestly. He is not the sort of man who would be likely to cast his good character aside in this way. That is a matter to which you should pay particular attention.

However, what weight should be given to the defendant's good character and the extent to which it assists on the facts of this particular case are for you to decide. In making that assessment, you may take account of everything you have heard about him'.

In the Magistrates' Court, the Defence advocate should ensure that the Court Clerk advised the Magistrates' correctly on this direction.

How I can assist

I believe in proactive defence work, not merely responding to the Prosecution case, but at the same time doing everything possible to build a strong Defence case.

Considerations about character, both good and bad, is just one aspect of that case preparation, albeit a significant one.

To discuss your case, please contact me on +447766001774 or email me on contact@crimelawyer.co.uk. 

 

 

Appeals Against Sentence

Appeals Against Sentence

In this article, we consider appeals against sentence from the Crown Court to the Court of Appeal. The appeal process can be complicated depending on the individual case, but the basics are outlined below. 

Early Indications

All Clients should be given an early indication of the likely sentence range, depending on whether there is a guilty plea or conviction after trial.

In some cases, I can be relatively precise as to what might be expected. In others, the range can be quite broad.

But, things do not always go to plan. The evidence may change during the case making it a lot more serious than originally thought (and it can go the other way as well), or the Judge may take a different view of the case, or, and this happens a lot, the Judge falls into error and makes a mistake when sentencing.

First Steps

In all cases, following sentence, there should be clear advice on appeal. This will normally be given verbally, but you can have it in writing if you request that. In more complex cases it is usual for the advocate to set out in writing why an appeal is or is not appropriate.

If an appeal is advised, we will discuss this with you and take the next steps. Likewise, if an appeal is not thought to be viable.

What are the grounds for appeal?

There is a margin of appreciation in sentencing, which means that the Court of Appeal will not interfere merely because it would have sentenced differently.

There are 13 distinct grounds for appeal, but they conveniently break down into two broad labels. For the court to intervene the sentence must be either

  • Wrong in principle, or
  • Manifestly excessive

All appeals are considered initially by a Single Judge, who decides whether the case has merit or not. If that Judge refuses leave to appeal, then we will discuss the next steps with you.

If I am told not to appeal, can I ignore that advice?

Yes, you can. However, this should be discussed with us in advance because there are risks in proceeding with a meritless appeal. A court can impose costs, and also in some cases make a 'loss of time' direction, which means that release from prison will be delayed (14-42 days normally).

How long does an appeal take?

This depends on the complexity of the case and the listing requirements of the court, but appeals are typically heard within six months of being lodged with the court. If a person has received a short prison sentence, there is a procedure to expedite an appeal, and in some cases, they can be heard within a few days.

Can I get bail pending an appeal?

Only in rare cases will the Court grant bail pending appeal, the usual remedy it to expedite the hearing in those cases where this approach is merited.

Where is the appeal heard?

Most appeals are held at the Court of Appeal in London, although occasionally the court sits at regional Crown Court centres. If you are in custody, you will typically be present via video-link, or if on bail you can attend the hearing in person.

Court of Appeal judges will hear the case, and you will be represented by an advocate at the hearing. In some cases, the prosecution is also present, but not always.

When will I find out the result?

In most cases, the result is announced at the end of the hearing. If complex issues are involved, then the decision might take a few weeks longer.

If you didn't represent me, can you advise on appeal?

Yes, I would be happy to discuss your case.

For all criminal law related advice please contact me on +44(0)7766001774 or email me: contact@crimelawyer.co.uk

Appealing your conviction

Convicted Before A Magistrates' Court - Can I Appeal?

Many people convicted at the Magistrates' Court feel aggrieved at the outcome, and wish to consider an appeal.

A grievance may arise because they think that their case was not prepared correctly, or that the Court reached the wrong result.

For many people, a conviction could be a major barrier to employment or travel overseas, even where the offence itself is relatively minor.

The Court process is far from perfect. If you have a grievance, it is only right and proper that you consider your options.

So, what can I do about it?

The first thing to remember is that you must act quickly as you only have 21 days from the date of sentencing to appeal your conviction.

If more than 21 days have passed, then get in touch as soon as possible as I will be able to advise on 'out of time appeals'.

I will also be able to consider whether other avenues of appeal, namely Judicial Review and appeal by way of case stated (both to the High Court) are more suitable.

I pleaded guilty, can I appeal?

You might be able to appeal against 'conviction' if you pleaded guilty, but only if your plea is 'equivocal'. In this instance, there are two remedies that I can explore with you.

Do I need permission to appeal?

An appeal against conviction from the Magistrates' Court to the Crown Court is what is termed 'an appeal as of right', which means that you do not need any permission to appeal. You are automatically entitled to appeal although there are some other issues, such as sentence and costs (see below) that you should consider first.

Is sentence suspended pending an appeal?

Your sentence is not suspended pending appeal, although:

  • We can apply for bail if you are in custody; and
  • Apply for any driving disqualification to be suspended.

If you have been made subject to a Community Order, this will need to be complied with, although we will take steps to try and expedite the hearing.

What happens at the appeal hearing?

The Crown Court, presided over by a Judge and Lay Magistrates (not a jury), hears the case afresh.

We do, however, have a valuable opportunity to review what might have gone wrong at the first trial and take steps to remedy any failures.

We can also examine what other evidence ought to the gathered on your behalf, or what lines of attack we might usefully deploy against the prosecution case.

If I lose the appeal, what happens?

If that happens, you will be re-sentenced by the Crown Court, and be liable for Prosecution Costs. I will discuss the Costs implications with you in detail before any decision to appeal is made.

It is important to note that the Crown Court is not restricted to the same sentence imposed by the Magistrates' Court, so, you may receive a higher penalty.

This is one of the risks that you need to balance - and one of the reasons why we will at an early stage examine the other avenues of appeal with you (judicial review and case stated).

 

If you would like assistance with an appeal against conviction and/or sentence, please give me a call on +44(0)7766001774 or email me: contact@crimelawyer.co.uk