I am frequently asked to take an appeal against conviction, sentence or both in circumstances where no appeal can be taken. It is clearly not understood what can, or cannot, be done and this brief and incomplete account of what is permissible may be of value.

A frequent demand is for a "retrial." There is simply no provision for the defence to even seek a retrial. Only the Crown can get a retrial and that in very limited circumstances. It follows that any defence appeal has to relate, and is limited, to the trial that actually took place.

The next misunderstanding is that there is an appeal on the basis that the judge should have believed the defence witnesses and not the Crown witnesses. There isn't. Decisions on credibility are a matter entirely for the original judge deciding the case. The Appeal Court will not overturn his original view of the witnesses.

Extremely rarely can there be appeals against conviction on the basis of additional evidence or grossly inadequate representation. The additional evidence has to be something that was not, and could not reasonably have been expected to be, known at the trial and that had it been put before the trial judge the result would have been different. An example might be that someone reading a newspaper report of a trial later comes forward to say they had been passing in a car, seen what happened and can give a credible version of events supportive of the defence case. That passing car had not been observed at the time and there was no way the occupant could have been traced before the trial. An appeal is not possible where the additional evidence was, or should have been, known about before the trial but either the witness was not asked to give evidence or the material was not led in that trial.

Grossly inadequate representation, commonly known as an "Anderson" appeal, is another possible basis for appeal. These rarely succeed for two reasons. First of all there is rarely evidence that the lawyer was specifically told to do something in the trial that he then failed to do and secondly the lawyer is entitled to use his professional judgement in deciding how to defend his client. Only if it can be said that what he did, or didn't, do was so extraordinary will this ground of appeal be considered.

Appeals on conviction are effectively limited to arguments that evidence was improperly admitted or excluded, that there was insufficient evidence to convict or that the judge was wrong in law.

It is not a ground of appeal against sentence that in some other similar case someone else received a different sentence. The basis has to be that the sentence is so excessive that no other judge properly advised of the circumstances would have passed it. That is a very high obstacle to overcome.

The next problem is one of timing. In general terms an appeal has to be taken within one week of the conclusion of the case. Only with the express permission of the Appeal Court, having been persuaded that there is good reason for failing to appeal in time, will late appeals be allowed. Ignorance of the time limit, like any other aspect of law, is not a valid reason.

Add to this the question of "acquiescence" which is where the sentence has been served to a significant degree and then a request is made for an appeal. It is likely to be refused on the basis that you accepted the validity of the sentence by allowing it to be served to that extent.

I hope you will now understand why the great majority of requests to take an appeal simply cannot be acted upon.