From a very young age Kristian has been a gentle person whom everyone liked. When he was a baby he was so cuddly that people kept wanting to pick him up and cuddle him. Like his brothers Kristian has been brought up to be honest and considerate to others as well as motivated and dedicated to duty.

Appealing a Criminal Case in the Courts of England & Wales

Believing that you have the basic right to a fair trial in the courts of England and Wales would probably be your first mistake. Believing that there is a right of appeal would be the second. The television shows of Rumpole of the Bailey, Judge John Deed and many others imply that the court system is there to right the wrongs, uphold the principles eschewed by Lady Justice and to protect the innocent.

Nothing frankly could be further from the truth.

In a legal system that dates back to the Norman invasion of 1066, the traditions and procedures which govern the English legal system have little changed. It is with this statement in mind that I ask you to join me in considering the appeals process of England and Wales. Throughout this article, any references to the court system, should be taken as meaning the court system of England and Wales only. Those of Scotland and Northern Ireland differ in process and jurisdiction, and do not really concern us here.

To understand the appeals process, you must first understand the different levels of courts that exist in the criminal court system. Naturally there are a selection of different courts for other areas such as the family division and the employment sector; and as such this article concerns the criminal court system only.

The Courts

There are essentially 4 levels of court, of which most criminal cases will only see 3. These are:

1. Magistrates Court
2. Crown Court
3. Court of Appeal
4. House of Lords

The lower two courts are the Magistrates and Crown Courts. All cases start in the Magistrates courts, where it is decided which court will continue to deal with the case. The severity of the offence will determine where the case continues to and the more serious cases including murder, manslaughter and many sexual offences must be dealt with in the Crown Court.

The other two courts are the Court of Appeal and the House of Lords. The Court of Appeal is exactly as it is called, and the House of Lords is the final level that you will find in the court system.

NB. It is worth nothing that there is a Criminal Cases Review Commission, which is a body run independently of the court system, and allows a review of the cases. Whether this body is wholly independent of the process is a question yet to be answered, but it exists nonetheless. Then again we have heard about independent review bodies before haven't we? IPCC Cough Cough.

The Appeal Process

For the purposes of this website, the original case was dealt with in the Crown Court. The appeal is therefore made to the Court of Appeal. The request for an appeal can be made in two ways:

1. In the courtroom before the judge trying the original case.
2. Lodging an Appellant's Notice directly to the higher court (in this case the Court of Appeal)

The first option can be exercised, but has not been in the case of Kristian. Throughout the trial, the judge seemed to have greater concern for keeping to some sort of predetermined time plan rather than actually seeing justice done. It is self-evident that this particular judge would have been unlikely to permit an appeal. Of course the presiding judge could never make a mistake could they? Being more intelligent than everyone else seems to prevent them from making mistakes; or so we are led to believe.

Instantly the second option for appeal becomes the most apparent.

The application is then heard, as previously sate to decide whether the case should progress to the appeal. Why is this the case you might ask? Why should not an appeal be lodged and then fought?

On the one hand you might suggest that this little service station stop on the road of justice is to ensure that vexatious claims don't progress through the courts against the public interest, and I'm sure the establishment would agree with you. Given the appeals that were permitted for the killers of Gary Newlove and the most recent appeal lodged by the killer of Rhys Jones, it does make you wonder.

On the other hand, this little procedure might be suggested to be an opportunity to quell the proles (see George Orwell's rather prophetic novel 1984), and stop true justice from happening. Given the experience so far for Kristian, it is not beyond the realm's of possibility.

So, the judge considers the merits of the case. If it is deemed worthy of appeal, then it will progress to a full trial or a single hearing.

The Grounds

The grounds for appeal do vary and include:

1. That new evidence has been brought to light.
2. That the defence was ineffectual and therefore the defendant didn't receive a fair trial
3. That the verdict was unsafe

New Evidence

Item 1 is probably most clearly demonstrated in the case of the murder of Lesley Molseed, where the innocent man Stefan Kiszko spent 16 years behind bars for a murder he did not commit. It is only when new evidence was brought to light (using more recent DNA methods) that his innocence was pronounced. New evidence tends not to be found in the vast majority of cases, as the initial investigation tends to have been conducted thoroughly. As the cases of both Stefan and Kristian both prove; this isn't always the case.

Ineffectual Defence

Item 2 seems to be one which the legal profession seems unwilling to use. The legal training that is instilled into most aspiring legal professionals stamps out any sense of duty to the client or a personal conscience, and replaces it with a clear-cut obedience to the process and the determination not to question the establishment. Perhaps there is also some self-preservation in here, that if you upset the apple-cart, you are unlikely to progress through your career, and likely spend your days working in a profession that promised lots and delivered little. Is it any wonder that fewer than 20% of law graduates progress into a career as a solicitor or a barrister?

So much for the selfless legal officionado trumpeting the rights of the individual. Alongside this lack of self, it seems that the legal-eagles are inbred with the core belief that one must not challenge another, and that in times of strife, one should support ones colleagues. Questioning the practices of another barrister would be to impune the good word of that legal colleague, and to knock a couple of apples loose. Barristers and solicitors don't call each other friend and learned friend without there being some sort of connection. One wonders how barristers actually conduct court proceedings whilst being hamstrung by this inability to challenge a dear colleague.

As a prole, if is your duty to simply take a number and get in line, and hope that your wallet is thick enough to carry you through the mud.

It is with this in mind that you consider, albeit it in a shoehorned fashion, item number 3; the unsafe verdict.

The Unsafe Verdict

Unsurprisingly, this is the option that tends to be used the most frequent grounds for appeal. An unsafe verdict is exactly that – a verdict which is not safe, and probably should never have happened. In the case of Kristian, how the verdict of guilty was found in his case was beyond anyone, and it was clearly an unsafe verdict.

In order to challenge a verdict as being unsafe, it is the duty of the petitioning party to demonstrate to the court that the verdict was not cast iron. This can stem initially from the lack of a unanimous verdict (uncertainty amongst the jury), and move onto more serious matters of challenging the evidence itself.

In considering whether the verdict was unsafe, the judge at the pre-hearing must weigh up all the factors. One would like to believe that the judge will conduct a fair and balanced review of the material of the case, but it invariably comes down to something as simple as; was the original judge a close friend of the review judge? Cynical? Yes; add a corrupt police department to the wayward legal system, with a smattering of injustice and a tablespoon of lying deviants. Once baked you'll find a nice golden cynicism drizzled in a healthy sauce of disgust.

The Deciding Factor

Of course, the factor which decides whether you, as the prole can continue with your quest to seek legal truth and enlightenment is all down to a matter of cost. You are left with three choices in any legal fight;

1. Give up
2. Stump up the cost of the fight yourself; and accept that if you lose you could lose more than your pride
3. Seek legal aid, which gives everyone the access to justice, or so you would like to believe

Sadly, the majority of people choose option 1, as this is by far the least troublesome, and the one that is likely to result in the least pain. The prole resumes his/her place in society, and continues to cause the establishment no further trouble. This is the expectation the establishment gives, and hopes beyond hope that everyone will remain in their place in society and not rock the boat. God forbid that you shouldn't actually challenge the status quo and demand your own rights.

If this whole sorry saga has taught you anything it is that Justice and Freedom in England & Wales never really existed and that it was as much a fairytale as the Wizard of Oz, complete with evil witch, flying monkeys and a yellow brick road that seems to go nowhere.

You do have the option of stumping up the cost of the fight yourself. If you have a bank balance that makes the goblins of Gringotts smile, then naturally you would never need to worry about the cost of the litigation, and it comes down to who you can get to represent you, and how soon it happens. Back down to ground-reality with a thump, it's unlikely that you will have the cash to support such a worthy cause, and besides which, if you had the cash, you probably wouldn't have worked for the police and had to deal with opportunistic deviants (both within and outside of the force) looking for a way to ruin a life.

Barristers' costs alone could cause even the happiest bank manager to turn an unhealthy green tinge. Accepting that any appeal is likely to cost you somewhere between ten and one hundred thousand pounds is probably the first step, whilst accepting that you may never recover those costs in the future is your second.

That leaves firmly option number 3 – gaining legal aid funding for your fight for justice.

Legal Aid – the Quandry

Now getting legal aid funding certainly removes a larger concern for the immediate fight. Your fight on the journey of justice has taken one step closer to it's destination. Gaining legal aid however isn't as easy as you might think. There is a long fight, involving enough paper to make a civil servant explode in pleasure at the thought. Once you're through the first hurdle of actually gaining the funding, it's a victory in itself, where you can join the ranks of the few who can access justice. Lord Woolf, I'm sure you can rest easy knowing that an extra few people sneaked through into the arena of justice.

Your main fight of course will concern the type of support that you will gain at any appeal with Legal Aid Funding. Now the funding council itself will tell you that your legal representation will be as good (if not better) than that which is obtained by private funding, and implies that money is not a motivator for legal professionals. The funding council is shouting this over the cacophonous noise that the passing and squealing porcine herd is making some twenty feet overhead.

Thus are presented two very real concerns with legal aid funding:

1. There are a number of barristers and solicitors which will not accept legal aid work. This is usually born out of a desire to inflate the bank balance and avoid the proles. Whilst not pigeon-holing the profession as a whole, it is beyond belief that a profession which is centred around the concept of make money or fighting to gain money would have no interest in it.
2. Any person doing any form of work generally does so to gain some form of recompense, and will do everything that they can to increase the overall holding of money. Less money means less effort required and so on. As legal aid pays legal professionals the going rate it is not something that they are likely to be eager to progress with.

Knowing that your legal aid funding fight is beset with such hurdles, you need to be strong of character to progress this far.

And finally......

It is with a stack of forms to please the greedy-eyed bureaucrat and the suitably gained legal counsel that you progress on with your fight.

Step over the hurdles that are encouraged through due process and you'll find yourself back at the start, where your trial is to happen all over again.

The question that is worth asking when all of this is over, and your fight is won: was it all worth it? From start to finish, through trial and appeal, the likely total cost of the proceedings will no doubt be somewhere between £500k and £1million. And one has to question whether even Clouseau and the elusive Pink Panther would have brought it this far. I suspect not.