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Out of time criminal appeals & second opinions

As most readers will know, there is a 28-day time limit in which to lodge an appeal against either conviction or sentence.

This article examines the position of convicted and sentenced inmates who have been told that no appeal grounds exist and who wish to consider the merits of an appeal outside the 28 day limit. Two questions arise. Can these inmates appeal out of time? Should they seek an advice on appeal for a second opinion? The answer is categorically yes to both questions.

The vast majority of enquiries my firm receives are from inmates who are well beyond the 28 day period and who are seeking a fresh consideration of their case because their original lawyers said that no appeal grounds could be found.

What are the prospects of an out of time appeal? How does the Court of Appeal treat such appeals?

The Court of Appeal are very often quick to criticise appeals which are out of time. I believe that this approach is unfair. The reality is that many enquires I receive do in fact have merit, and in some cases considerable merit. For such cases the issue of delay whilst a hurdle to overcome should not be the main consideration. What is important is whether the appeal has arguable merit. If it does, the Court of Appeal will, in my experience, go on to consider the appeal irrespective of any perceived delay. An example of this occurred just earlier this month. In an appeal lodged by Wells Burcombe on behalf of an IPP inmate who received his sentence in 2008 and who was considerably over tariff, the Single Judge granted leave and hinted that the appeal was partly strengthened by virtue of the fact that it was so out of time. This was a remarkable thing for a Single Judge to say although is by no means a precedent to be followed. My view is that this particular Judge is, like most people, appalled by the nature of the IPP sentence and the utter devastation it creates. But the major point is this; the Single Judge has clearly considered that the merit of the appeal should override any issue of delay.

In my view this is entirely the correct approach.

Working, as I do frequently, with leading sentencing Barristers Robert Banks (author of the leading sentencing textbook ‘Banks on Sentence’) and Jason Elliott has proven that sentencing law is far from straightforward and barristers and solicitors, and even sentencing Judges, often get things wrong. Robert Banks has told me that when he looks at and reviews the written advices defendant’s receive following sentence there is some legal mistake in the majority of them. In many of the cases that both Robert and Jason advise on, they disagree with the advice originally received, either because the law has been wrongly interpreted, misapplied completely, or because they feel that there are generally arguable points which ought to be made.

Wells Burcombe have enjoyed considerable success at the Court of Appeal. In the last 6 months alone we have shown that original lawyers who advised against an appeal do not always advise correctly or boldly enough. We have shown that appeals which are out-of-time will be considered by the Court of Appeal regardless of any perceived delay. Examples are too numerous to list in full, but include:

R v MH (Sexual offences) Extended licence removed;
R v AF (Fraud) Determinate sentence reduced – immediate release ordered;
R v AR (Robbery) IPP substituted with determinate sentence- immediate release ordered; R v RC (Various offences) Sentence deemed unlawful – reduced to 6 months = imminent release; R v WM (Murder) Life tariff reduced;
R v LW (Robbery) Sentence reduced from 9 years to 7 years;
R v A (DJ) 2015 EWCA Crim 88 (Murder) whole life tariff wrongly imposed- minimum term of just over 11 years imposed instead;

These appeals cover a wide spectrum of offences and sentencing law.

These cases demonstrate that out-of-time appeals can be successful subject to merit and instruct- ing the right legal ream.