CRIMINAL APPEALS - THE COLD HARD FACTS

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There can be considerable value in having a conviction examined by somebody who was not involved in the original proceedings.  A fresh reviewer approaches the evidence independently of the decisions and assumptions previously made during the preparation and conduct of the trial. .  But there is an obvious difficulty - They have to learn the case first.

A new representative does not have the accumulated knowledge of the original defence team. Before they can responsibly determine whether realistic Grounds of Appeal may exist, they may need to understand years of investigation, thousands of pages of evidence, the prosecution case, the defence case, what happened at trial and what has happened since.

That brings us back to the question of funding. Legal Aid funding can be extended where appropriate, but an extension is not automatic. Anyone seeking a substantial legally aided review should therefore establish exactly what work the proposed solicitor intends to undertake and what will happen if the initial funding limit is reached before that review is complete.

Private funding does not guarantee a successful appeal. Nor does paying privately automatically guarantee that a solicitor, barrister, investigator or anybody else will provide a competent service.

What private funding does provide is the ability to agree the extent of the investigation and review according to the requirements of the case, rather than beginning with a Legal Aid funding ceiling.

This can be particularly important in serious or complex Crown Court cases. A proper review may involve hundreds or thousands of pages of material, examination of the previous defence preparation, unused evidence, further witness enquiries, expert evidence and the investigation of matters which may never have been pursued before trial.

At Principle 7 Global, wherever practicable, we agree a clearly defined scope of work and fixed fee for our investigative and case-review services. This means that you know from the outset what work we have agreed to undertake and what our fee covers.

Separate expenditure may be required for matters such as official transcripts, forensic examination, expert witnesses and specialist legal advice, together with solicitors' or Counsel's fees where their services are required. Wherever practicable, these costs will be discussed with you before they are incurred.

Not every potentially unsafe conviction results from new evidence suddenly appearing years later. Sometimes the important question is much more fundamental:

Was the defence case properly investigated and prepared in the first place?

There are many excellent and conscientious criminal solicitors and barristers. Equally, there are cases where necessary work has not been undertaken. Important witnesses may have been identified but never interviewed. Statements may not have been obtained. Relevant records may never have been requested. An appropriate forensic or other expert may not have been instructed. Potentially important unused material may not have been pursued, or enquiries requested by Counsel may never have been completed.

Other issues can include important inconsistencies not being investigated, relevant lines of enquiry not being followed, evidence capable of supporting the defence not being obtained, or incorrect or materially incomplete advice being provided to the defendant.

The existence of a mistake does not automatically make a conviction unsafe. Trials involve tactical decisions and lawyers are entitled to exercise professional judgement. The fact that another lawyer might subsequently have approached something differently does not, by itself, establish incompetence.

The important question is whether an identified failure was sufficiently serious and material that it is capable of affecting the safety of the conviction.

Serious failures by previous solicitors or Counsel can, in appropriate circumstances, form part of Grounds of Appeal. However, simply alleging that your former representatives were incompetent is not enough.

The allegation has to be capable of being substantiated.

Where criticism of previous representatives is relied upon, the factual basis of that criticism must be properly investigated. The former solicitor or barrister will ordinarily need to be given an opportunity to explain what happened.

Their account may confirm the appellant's concerns. It may provide a perfectly reasonable explanation for what occurred. Alternatively, it may directly contradict the appellant's account and require further investigation or independent evidence to establish the true position.

This is why Principle 7 Global considers the contemporary records so important. Wherever possible, allegations should be tested against the file, attendance notes, correspondence and other available evidence, rather than relying solely upon recollection years after the event.

One of the most misunderstood areas of criminal appeals concerns fresh evidence.

Evidence does not automatically become “fresh” simply because it is discovered or obtained after conviction.

Under section 23 of the Criminal Appeal Act 1968, the Court of Appeal has power to receive evidence where it considers it necessary or expedient in the interests of justice. In deciding whether to receive that evidence, the Court will have regard to matters including:

• whether the evidence appears capable of belief;
• whether it may afford a ground for allowing the appeal;
• whether it would have been admissible at the original trial; and
• whether there is a reasonable explanation for the failure to adduce it at trial.

That final consideration can be extremely important.

Evidence which existed and could potentially have been obtained at the time of trial does not automatically become fresh evidence simply because the original defence team failed to obtain or use it.  The Court may therefore ask:

Why wasn't this evidence placed before the jury in the first place?

A failure by previous representatives may form part of the explanation, but it does not automatically mean that the Court of Appeal will receive the evidence. The circumstances surrounding the failure may themselves need to be investigated.

This can create two connected questions:

1. Is the evidence sufficiently significant that it is capable of affecting the safety of the conviction?

2. Why was that evidence not obtained or presented at the original trial?

Where the answer to the second question potentially involves a serious failure by the original defence team, that failure may itself require investigation.

Finding favourable evidence is therefore only part of the job. Establishing why the jury never heard it can be equally important.

An appeal against conviction or sentence from the Crown Court is made to the Court of Appeal, Criminal Division.

Before an appeal can normally proceed, permission to appeal must be obtained. The application is made using the appropriate Form NG, accompanied by properly formulated Grounds of Appeal and the relevant supporting material.

The time limits are strict:

• Appeal against conviction – normally within 28 days of conviction, even if sentence took    place later.
• Appeal against sentence – normally within 28 days of sentence.

If that period has already expired, it does not necessarily mean that an appeal is impossible. An application for an extension of time can be made.

However, the delay must be properly explained. Current Court of Appeal guidance requires cogent reasons covering the whole period of delay. Simply instructing somebody new to examine the case does not, by itself, automatically provide a sufficient explanation.

Cases have reached the Court of Appeal many years after conviction. The important issues will include why the application is late, what has happened during the intervening period and the merits of the proposed Grounds of Appeal.

An old conviction is therefore not necessarily beyond challenge — but the passage of time cannot simply be ignored.
 

This reflects the current March 2026 Court of Appeal guidance and the current GOV.UK instructions.

Where permission to appeal is required, the application will normally first be considered on the papers by a Single Judge.

The Single Judge will consider the Grounds of Appeal and supporting material and may grant leave, refuse leave or refer the application to the Full Court for determination.

If leave is refused, that does not necessarily bring the application to an end. The applicant can ordinarily seek to renew the application before the Full Court.

However, renewal should never be treated as an automatic next step simply because the applicant disagrees with the Single Judge.

An applicant who continues with an application which has no merit can be at risk of a loss-of-time order. This can result in some or all of the time spent in custody awaiting determination of the application not counting towards the sentence. The Court can also order costs. 

The decision whether to renew should therefore be taken carefully and with a proper understanding of why the Single Judge refused leave and whether that refusal can realistically be challenged.