Wrongful convictions hit the headlines every now and then: the Guildford Four, Barry George and Sally Clark. But those who successfully appeal the length or nature of their sentence receive very little attention.
- Sketch by Isobel Williams, of public gallery in Supreme Court, see HERE
Yet someone who receives a disproportionate sentence can suffer hugely. They can be imprisoned, when their crime merited a community sentence or spend way longer doing a community sentence than they deserved.
We need an appeals system that works. Lord Justice Auld (citing Lord Woolf) outlined the purposes of an appeal system:
“The first is the private one of doing justice in individual cases by correcting wrong decisions. The second is the public one of engendering public confidence in the administration of justice by making those corrections and in clarifying and developing the law”.
Only 0.5% of sentences decided in the magistrates’ courts are appealed. That tiny proportion could mean either that most people think their sentence has been fair, or that there are considerable barriers to appealing a sentence. Personal experience and evidence suggests to me that thousands of disproportionate sentences go unchallenged every year and that the human rights of offenders are compromised.
I used to visit Young Offender Institutions and could hardly believe the sentences some teenagers got, particularly for breach. Most said they had not appealed their sentence. My concern that this was a wider issue led to commissioning Dr Jessica Jacobson to do short review of the evidence – see HERE. Her initial investigation suggests that there are considerable barriers to appeals.
The odds are stacked against an offender wanting to appeal their sentence. In theory, if they appeal, their sentence could be increased. If they have been sentenced to a short prison sentence, it’s likely that their sentence will be practically over by the time the appeal is heard. And if they have a reasonable income, and are above the means test level for legal aid, they will have to pay up to £250 if they lose. These practical reasons put offenders off appealing, but there are also emotional barriers.
Many offenders are sceptical about judges’ willingness to overturn the decisions of their colleagues and weary of prolonging the court process. They just want to get their sentence over with, even if they consider it unfair.
The odds are also stacked against lawyers wanting to appeal a clients’ sentence. Of course, good lawyers will appeal disproportionate sentences come what may. But the rewards for doing so are meagre.
Solicitors are paid only £170 to prepare an appeal to a Magistrates’ Court sentence. Lawyers appealing from the Crown Court are paid by the hour but the rate has not gone up in 10 years. The legal aid reforms face solicitors and barristers with a 17.5% cut to their fees. Already they can end up working for very little on appeals. This cut may make working on appeals one of the worst paid aspects of their work. Less scrupulous lawyers may only pay lip service in telling clients of their right to appeal.
Successful appeals benefit the individual who has their sentence reduced. But they should also help the judiciary learn from their mistakes. In any other walk of life, if your decision was overturned by your superior, you would certainly know about it and have an opportunity to discuss the reasons why.
Not so in the courts. Magistrates and District Judges consider themselves fortunate if they are told that an appeal to their sentence is coming up and, even more so, if they are told the result. There is no system for informing judges in the magistrates’ courts that their sentences (or convictions) have been successfully appealed. Magistrates and DJs learn about appeals by accident. So the opportunity to use appeals to improve sentencing is lost.
We have an effective and fair appeals system in theory but not in practice. But evidence is still scarce. Transform Justice and the Institute for Criminal Policy Research are seeking funding to do in-depth research into criminal appeals to sentence. So watch this space.