By Asif Chaudhery - Associate Solicitor MG Solicitors
As most people will be aware the current legal aid system is under a lot of strain and has been a hot topic for a while now.
One reason is due to the amount of work that has to be undertaken by criminal solicitors and barristers, who I must say work very hard and deserve a lot of credit for what they do.
Appeals is an area of work where legal aid funding can be very restrictive. Your original barrister will draft an Advice on Appeal however said barrister may feel there are no grounds for pursuing an appeal.
But does this mean it is the end for the client?
Not necessarily. Why? It is simple, it may be worth getting a second opinion. Now, I appreciate this may not be possible for all. However, for those that are able to, it may be worth trying to pursue the matter via a private route.
I was involved in one very matter. A client was referred to me after being told by their legal aid solicitors that there were no grounds for appealing a sentence.
After hearing about the circumstances and details involved in this matter it was clear to me that something had to be done and it was worth a try. Thankfully, Claire Mawer, counsel at 15 New Bridge Street, was of the same view.
It is important to mention there are many grounds upon which an appeal against sentence may be lodged. A few examples are:
- Sentence not justified by law – The Court of Appeal will intervene when a sentence is passed which could not legally be passed.
- Judges sentencing remarks – The Court of Appeal may allow an appeal where it forms the view that the sentencing judge had taken into account irrelevant factors when deciding the appropriate sentence – this, of course, dependent on the facts that particular case.
- Matters improperly taken into account – Errors of fact or reliance on inadmissible evidence may justify an appeal being lodged. Similarly, the Court of Appeal can admit new evidence/fact relevant to the issue of sentence such as new expert evidence for example.
- Sentence wrong in principle or manifestly excessive – A sentence will be generally regarded as being wrong in principle if the sentence was one which could be seen as not being in the appropriate form, for example the defendant was not eligible for a prison sentence. The most common ground advanced by way of appeal against sentence is the argument that a sentence is ‘manifestly excessive’. The fact that a sentence is merely severe will not ordinarily be sufficient. An appeal is only likely to be successful if the sentence passed is one considered to be outside the range for the offence and the offender.
Whilst Counsel and I considered and used the relevant ‘conventional’ grounds of appeal above, it was clear to us that in this particular case the line of argument which was going to work above all others was clear, it was mercy.
I must state that all cases are based on their own specific facts and no two cases are the same.
This one was no exception. My client was sentenced to three years imprisonment despite being terminally ill with cancer. I am sure there are many in a similar situation however this particular client would have died in prison had we not give an appeal a chance.
As some may be aware the purpose of being sentenced is to restrict one’s liberty. In this circumstance it was clear that this was already the case with the client’s health.
There were other factors in play of course but the point is sometimes it may be worth seeking a second opinion.
The end result was that we managed to get the sentenced reduced to one of 18 months, which when other factors were taken into account effectively meant that the client was released from prison two weeks after the appeal hearing and will be able to spend the little time left with the family.
If you need some advice in relation to an appeal against sentence or conviction please do not hesitate to call us on 0207 936 6329 or email info@monangozzett.com
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