An overview of the appeal process in general. All things that happen in the process of appeals and all things surrounding appeals.
Under the Criminal Procedure (Scotland ) 1995 t the sole ground of appeal is that there has been a miscarriage of justice in the proceedings. This concept of miscarriage of justice was recognised in the pre-existing law.
Under the former s.454 (2) of the Criminal Procedure Scotland Act 1974 it was a ground of appeal that the accused had been misled as to the true nature of the charge against him, or had been prejudiced in his defence on the merits. The Court could not, however, interfere on either of these grounds unless it was of the opinion that there had been a miscarriage of justice.
What amounted to a miscarriage of justice before the Criminal Justice Scotland Act 1980, has continued to amount to a miscarriage of justice. It occurs when a prosecution results in a substantial failure to do justice to the accused person in a matter either of conviction or of sentence.
As regards conviction there is a miscarriage of justice, not merely in cases where it can be demonstrated that the accused has been found guilty of an offence which he did not commit, but also in those cases in which the conviction is vitiated because of some mistake, irregularity or unfairness in the proceedings. Where such impropriety is such as to render subsequent procedure incompetent, the conviction will be set aside on that ground,5 but, otherwise, the test is whether and to what extent the accused has suffered prejudice.6 If the Court considers that the impropriety in question was capable of influencing, and might have influenced, the inferior judge to the prejudice of the accused, it will intervene,7 for a conviction cannot be allowed to stand unless the Court is satisfied that no substantial injustice has been done.
Firstly Summary Appeals:
All summary appeals are heard now in the Sheriff Appeal Court. The Sheriff Appeal court has assumed all powers and jurisdiction of the High Court for this.Firstly dealing with the process of Summary appeals against conviction or conviction and sentence:
An application must be made by way of stated case. This must be done within one week of the final determination of the case. This sets out the issues and gets lodged at the Sheriff Court where the case was determined unless the appeal is out of time.
- Within 3 weeks of the final determination of the proceedings the Sheriff or Justice will prepare a draft stated case.
- Within 3 weeks of this being issued the parties must transmit adjustments proposed to the draft. However, if this period expires and the appellant does not intimate adjustments or there are no adjustments then the appellant is deemed to have abandoned the appeal.
Once adjustments have been made a hearing will be set this is usually 1 week after the 3 week adjustment period this is to allow for the adjustments to be considered.
- Within two weeks of the adjustment period a Judge will state the case and sign it.
After the appellant/ the appellant’s agents have received the signed stated case this must then be lodged with the Clerk of the Sheriff Appeal Court. If this is not done then the appeal is deemed to be abandoned.
When considering leave to appeal the Appeal Sheriff will look at the stated case: if leave to appeal is granted then a hearing will be set.
If leave to appeal if not granted at first sift then this can be appealed to the second sift. This has to be done within 14 days of receiving intimation that the appeal was refused at first sift.
If the appellant decides that they want to abandon the appeal this can be done prior to the lodging of the signed stated case. This is done by signing a minute of abandonment and lodging same with the clerk. This minute can be signed by the appellant’s solicitor.
Moving on to Summary appeal against sentence only
This process is slightly different, as it is not done by way of stated case. This is done by lodging a note of appeal and it must be lodged within one week of the sentence being imposed. This must be lodged at the sheriff court where the case was determined. Unless it is out of time.
The clerk will then obtain a sheriff’s report from the sentencing sheriff. Within 2 weeks of the sentence being imposed the clerk will then send the note of appeal and the report of the sentencing sheriff to the clerk of the sheriff appeal court.
Leave to appeal will then be considered by the appeal sheriff;
- If leave to appeal is granted then a hearing will be set for the appeal to be heard.
- If leave to appeal is refused then appeal to the second sift can be lodged within 14 days of receiving the intimation that leave was refused at first sift.
If at any time prior to the appeal hearing the appellant states that he wants to abandon his appeal this can be done by the appellant signing a minute of abandonment. If the note of appeal has not yet been sent to the Sheriff Appeal Clerk then this can be lodged at the local court. However, if it has already been sent then it must be lodged at the Sheriff Appeal Court.
Moving on to solemn appeals
Decision of the High Court of Appeal are final and the are subject only to the power of the Scottish Criminal Cases Review Commission. Which I am not going to deal with particularly but what I will say is the when an application is made to them and it has been investigated by them if they think there is a point the Commission will refer back to the High Court for their consideration.
Appeal Against conviction or conviction and sentence
Provided that leave to appeal has been granted in accordance with s. 107 of the 1995 Act, a person convicted on indictment may appeal to the Court under s. 106 of the 1995 Act against his conviction alone3 or his conviction and sentence. The procedure is initiated by the appellant lodging with the Clerk of Justiciary written intimation of intention to appeal, followed by a written note of appeal containing a full statement of all the grounds of appeal.
Intimation of intention to appeal must be lodged with the clerk of Justiciary within 2 weeks of the final determination of the case.
The note of appeal must then be lodged with the Clerk of Justiciary within 8 weeks of the intention being lodged.
The court after having received the note of appeal will instruct the Judge who presided over the case to prepare a report. When considering leave to appeal the Judge will consider the note of appeal, and may only part grant leave to appeal or may grant full leave to appeal.
- If leave to appeal is granted either in part or in full then a hearing for the appeal will be set.
- If they refuse leave to appeal then this can be appealed to the second sift within 14 days of this intimation.
- If at anytime before the appeal hearing the appellant wants to abandon an appeal this is done by lodging a minute signed by the appellant to the clerk of Justiciary.
Appeal against sentence
This is done by lodging a note of appeal within 14 days of the final determination of the sentence. This must be lodged at the Justiciary office in Edinburgh
After this the same process as that of a solemn appeal against conviction takes place.
Appeal against sentence
Where an accused person is convicted and sentenced to a period of imprisonment and he intends to appeal his conviction or sentence or both, it is open to him, in both solemn and summary proceedings, to apply to be liberated pending determination of the appeal.
In solemn proceedings, the application is made to the High Court under section 112 of the 1995 Act. The application must set out the reasons why bail should be granted, and, where a note of appeal has not been lodged, the proposed grounds of appeal.
If a single judge refuses bail, the convicted person may appeal that decision to a full court but he must indicate his intention to do so immediately.
If bail is granted by a single judge the Crown can appeal this decision. Intimation of such an appeal must be given at the initial hearing immediately after the judge has indicated that bail is to be granted. Where the Crown intimates an intention to appeal, the grant of bail will be suspended until the hearing of the full court, which must take place within 7 days.
In summary proceedings, an application must be made to the court of first instance, under section 177 of the 1995 Act.
The Crown has no right of appeal in relation to a decision made in terms of section 177 of the 1995 Act, but at all stages of applications for interim liberation in both solemn and summary proceedings, the Crown has a right to be heard.
An application for interim liberation under section 112 of the 1995 Act must be intimated in writing to the Crown Agent and the application must be heard not less than 7 days after that intimation.
When this intimation is received in Crown Office, it will be passed to the Appeals unit, who should already be in receipt of the case papers in relation to the appeal. The papers will be passed to a member of qualified legal staff who will prepare a report for Crown Counsel.
The report must contain the following information: -
- The charges on which the accused was convicted;
- A note of anything special or unusual about those charges;
- The sentence imposed;
- The procedural history;
- The nature of the appeal pending;
- Any reasons for opposing interim liberation;
- The suitability of the bail address offered;
- Victim issues;
- Any special conditions of bail, which should be considered by the court.
an application for interim liberation in solemn proceedings is made at an early stage
An application for interim liberation under section 177 of the 1995 Act must be disposed of by the court before the end of the day after the day on which the application is made.
Where an accused person makes an application for interim liberation in summary proceedings, the sheriff clerk will immediately notify the Procurator Fiscal of that application by telephone, followed up by e-mail. The question of whether or not to make representations must then be considered by the Procurator Fiscal. The interest of the victim along with the general public interest must be assessed, along with any other relevant information of which the Crown is aware.
After reaching a decision on whether representations should be made, the Procurator Fiscal will notify the sheriff clerk of this decision, again by telephone and then followed up by e- mail. Should the Procurator Fiscal wish to be heard, the sheriff clerk will fix a hearing in chambers, at which parties can make representations. This must be done before the end of the day after the day on which the application is made.
If the Procurator Fiscal does not wish to be heard, the interim liberation application will be processed by the sheriff in chambers, with representations from the defence if required. The sheriff clerk will then notify the Procurator Fiscal of the outcome of the application.
When considering the grant interim liberation, a judge of sheriff will take into consideration if the appeal has passed the sift yet, if it has not then they can refuse the application in Hoc Statu pending this result. However, the granting of leave to appeal does not automatically mean that interim liberation will be granted. The sheriff or judge will consider the ground of appeal, the report by the sheriff or the judge and the interest of justice when considering whether to grant interim liberation. If the appellant was remanded pending trial the it is highly unlikely, they would be granted interim liberation as they were deemed not suitable for bail.
In terms of section 32 of the 1995 Act, where bail is refused the may appeal to the High Court.
Under the same section, where in any case bail is granted or, in summary proceedings, an accused is ordained to appear, the prosecutor may appeal to the High Court if dissatisfied with the decision to grant bail
Where the prosecutor appeals to the High Court in relation to the initial bail decision, the accused shall not be liberated until the appeal is disposed of. However, such appeals must be heard within 72 hours from the granting of bail. If the appeal is not heard within 72 hours, the accused shall be liberated.
The High Court should interfere with the decision of a sheriff only if it considers that the sheriff has exercised their discretion wrongly. Accordingly, an appeal should only be marked if the Procurator Fiscal is satisfied that the sheriff exercised their discretion wrongly – either by failing to take particular factors into account, or by wrongly taking into account particular factors.
Procurators Fiscal will always make clear on the case papers at the time of marking whether an appeal is to be marked by the court depute if bail is granted by the sheriff, or special conditions sought by the Crown not imposed. The depute in court, however, has the final responsibility in such a situation, and they will assess whether an appeal should be marked.
If it is clear at the time an accused person is remanded that a defence appeal is to be lodged, a report in relation to such an appeal should again be prepared by the person conducting the proceedings and sent to Crown Office.
The draft roll for the bail appeal court is sent by Justiciary to the High Court unit in Crown Office. The draft roll contains details of cases due to call in the bail appeal court 2 days later. Upon receipt of the draft roll, High Court Registry will send an e-mail to offices with cases appearing on the roll.
Once the bail appeal and report has been received by the clerk at the appeal court, a diet will be fixed for the hearing of the bail appeal. Before the hearing the clerk of the appeal court should send a copy of the report which has been provided to the accused himself or his solicitor/agents and to the crown agent.
The hearing itself usually will take place in the bail court in the High Court of Justiciary, by usually one sheriff.