The nature of the appeal process
It may help to explain how the appeal system works. It is an unforgiving system. The Court of Appeal is not there to step in when the jury gets things wrong. A primary objective of the appeal system is to protect the role of the jury – right or wrong – as the sole arbiter of a defendant’s guilt or innocence.
The appeal-process flows from this jury system-of-justice. It is predicated on the proposition that the jury’s decision is right. That is how the verdict is reached.
It follows that an appeal against the decision of a jury can only be made if there were unusual circumstances surrounding the trial that make it unsafe to rely on that jury’s decision.
In the absence of a “ground of appeal” of this type, it is not possible to have a conviction favourably reviewed. Hence the issue for the Court of Appeal’s proper attention is not whether the jury’s decision was right: the issue by law is whether the jury’s decision is “safe”. The two things are very different. A jury’s decision may well be wrong – but, if the decision is “safe”, there will be no ground of appeal, meaning that the verdict cannot be appealed.
“Safe” decisions
Logic dictates what the law upholds: it cannot be safe to rely on a jury’s decision if either –
[i] its verdict was reached without knowing newly-discovered facts that are vital to the case
or
[ii] there was a serious mistake in the trial process eg jury was misdirected by the judge.
Thus the appeal process goes not to the jury’s decision itself – guilty/not guilty – but to the possibility of defects in procedure (in two particular respects itemised in the previous sentence) which might have rendered the decision unsafe. In this vein, Section 2 of the Criminal Appeal Act 1968 (as amended) provides that “….the Court of Appeal – shall allow an appeal against conviction if they think the conviction is unsafe: and shall dismiss such an appeal in any other case”.
The criterion on appeal is that the jury’s decision is “safe” in the sense that the jury were safely in a position where they could get their decision right – not that they actually did get it right (when they ruled on innocence or guilt). There is another important point that flows: once a jury have decided a case, the verdict on that case has been reached. It is settled. That same case, about the same offence, cannot be taken back to the Court of Appeal for a second try. In the absence of a ground of appeal (again, as defined at [i] and [ii] above) the case is over.
Hence it is a fallacy to assume that all persons convicted by a jury have a right to appeal their conviction. This is not accurate. Every convicted person has a right to ask for permission to appeal but that permission will be granted only if arguable grounds are presented.
And an appeal will be allowed only where:
[i] new evidence comes to light which persuades the Court of Appeal that the conviction is unsafe or
[ii] something of fundamental importance has happened (or not happened) during the course of the trial which renders the subsequent conviction unsafe. A “material irregularity” of this type is typically located in the trial judge’s Summing Up, where the judge gives standard indications to the jury on how the evidence should be approached.
Over and above any defects in the Summing Up (which are rare) there will also be limited room to revisit intermediary decisions and the like made by the judge in the course of a trial. However, a judge generally has considerable latitude in how he runs his court and in the applications he accepts and rejects in the course of a trial.
The upshot is that if the original jury was in a position to get things right, broadly speaking, their decision is final. This is both the weakness and the strength of the jury system: the Court of Appeal will not interfere with the decision of a properly-directed jury in the absence of new evidence.
This means that the two primary questions on appeal are whether the jury was in fact properly directed by the judge, and, whether there is now available new evidence. The rationale is clear. If a misdirection of substance can be identified in a judge’s Summing Up, then the original conviction could be “unsafe”, because, a properly-directed jury might have arrived at a different decision. Similarly, if significant new evidence comes to light after the conclusion of the original trial, a jury in possession of this evidence might have arrived at a different decision.
However it is important to bear in mind that “new evidence” does not subsist in information that could have been put before the trial court at the time, but was not; new evidence is primarily restricted to information that was not available at the time in the sense that the events from which that information derives had not yet happened.
A consequence of these considerations is that a distinction must be made between “trial points” and “appeal points”. Trial points should or could have been made at the original trial and, accordingly, are points that cannot be raised with the Court of Appeal. They are spent. The role of trial-points is to persuade the jury at the original trial, and, if they did not do so at the original trial, they are not persuasive.
The Court of Appeal is not there to hear, and will not hear, points that could have been made at the original trial, or points that were made but could have been better made, or points which should have been made but were not.
Appeal points are matters that can be argued with the Court of Appeal in the attempt to get the conviction overturned. As discussed at the head of this note, appeal points primarily flow either from new evidence or defects in the Summing Up. Defects in the Summing Up (which only occur infrequently) are subject to the rider that the Court of Appeal expects that any such flaws will be drawn to its attention expeditiously.