In the recent case R v James [2018] EWCA Crim 285, three applications for leave to appeal were joined together because they all shared a similar feature that had nothing to do with fresh evidence or the nature of the crimes the applicants were convicted of – all the lawyers were ‘fresh lawyers’, in the sense that they hadn’t represented the accused at trial or in relation to an initial application to appeal, and were looking to renew these refused applications by lodging new grounds.

Although the court acknowledged that fresh lawyers have prevented, and do prevent, miscarriages of justice by identifying things trial lawyers have missed, it was scathing of criminal defence lawyers who make and renew applications that have no chance of success. These lawyers take up the precious time and resources of the staff and judges of the Court of Appeal Criminal Division, which delays consideration of the appeals that need to be heard.

This is serious. As the famous maxim goes, justice delayed is justice denied, and the consequences are particularly acute for those wrongly convicted. It is also worth pointing out that the law only grants us one right of appeal. This right must be treated with respect, diligence and care, because once it is gone, it is gone.

In this blog post, I provide an overview of the court’s judgment, highlighting some of the things the court said on what fresh lawyers should and should not do. If you are concerned about the way your case or appeal is being handled, contact me as soon as possible. The earlier you get the right legal advice, the better the outcome is likely to be.

Criminal appeals – guidance on applications to renew and extensions of time

In its judgment, the court set out two ways of deterring the ineffectual and damaging practice of making and renewing unmeritorious applications. First, it urged courts sitting on a renewal of an entirely unmeritorious application to consider using their powers to make a loss of time or costs order. This could have costly consequences for those who instruct fresh lawyers on a private basis but do not realise what little chances they have of a retrial.

Secondly, and more importantly, the court recapped the key factors fresh lawyers should consider in order to assess whether an application has sufficient merit to justify their client’s application being renewed and advanced. If a lawyer fails to follow this guidance, their client’s chances of having their application to appeal granted, and subsequent possibility of having an unsafe conviction overturned, are almost reduced to nothing.

The general principles

  • As a general rule, all the grounds of appeal an applicant wishes to advance should be lodged with their initial application

  • The consideration of an application by a single judge is an important filter mechanism that should not be ‘bypassed’ solely on the basis that lawyers instructed post-conviction would have done or argued things differently from the trial lawyers. Fresh grounds advanced by fresh counsel must be particularly convincing

  • If an applicant wishes to advance fresh grounds that were not considered by the single judge, they must get permission from the court by making an application to vary

  • Counsel should address, in writing, the relevant factors which the full court is likely to consider in determining whether to allow fresh grounds to be advanced and any extension of time for the renewal if it is needed

  • In deciding whether to allow fresh grounds, the court will take into account the following:

  • The extent of the delay in advancing the new grounds

  • The reason for the delay in advancing the new grounds

  • Whether the issues and/or facts giving rise to the new grounds were known to the defendant’s lawyer at the time they advised on the grounds of appeal

  • The overriding objective of acquitting the innocent and convicting the guilty and dealing with the case efficiently and expeditiously

  • The interests of justice

  • Although an application to vary does not require ‘exceptional leave’ (by demonstrating substantial injustice), the hurdle is a high one. Counsel should remind themselves not to settle grounds unless they consider that they are properly arguable, make sure the grounds they decide to advance are carefully drafted and bear in mind their duty to the court

  • The rules relating to time limits are fundamental. Leave will not be given to renew out of time unless the court can be persuaded that very good reasons exist – which ordinarily means that the client would otherwise suffer significant injustice. If the application to renew out of time is accompanied by an application to vary the grounds, the hurdle is even higher

  • Assuming that the applicant received advice and assistance on appeal from their trial lawyer, fresh lawyers must comply with the duty of due diligence

  • The Registrar should obtain, in advance of the full court hearing, transcripts relevant to the new grounds and (where required) a respondents’ notice relating to the new grounds.

All criminal defence solicitors and barristers should be fully aware of the approach set out above and be following it accordingly. But it’s important to remember that this is only one small part when it comes to launching and advancing a strong and successful appeal against conviction.

Mark Kelly Criminal Defence Barrister in London, UK

My clients benefit from representation by a trusted professional and highly experienced barrister who is known for his strategic thinking, transparency and unwavering attention to detail. With a reputation and track record that is second to none, you can be sure you are in safe hands.

I regularly assist clients in Manchester, Birmingham, Leeds, London, Bristol and the rest of the UK. If you have any queries about issues raised in this blog, or if you want to discuss your case or appeal, please do not hesitate to get in touch with me directly on 020 8108 7186, or fill out the contact form and I will get back to you as soon as possible.

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