Appeal of the new court

Court 5 in the Lawnmarket building of the High Court of Justiciary used to be a court for preliminary hearings. With small modifications to the court itself, the Sheriff Appeal Court now sits there.

It is not a particularly significant change of use of the court, but certainly a significant change of the appeal process. The actual procedures remain almost the same, except for the decision makers deciding the appeals. I had the honour of presenting the first ever appeal before the court on 4 November 2015. It is a new court that will take a little time to bed in, but it is quite clear that in the months that have followed the court has settled and has, in my opinion, become a welcome addition to the appeal procedure in Scotland.

First requirements

Without doubt the most important aspect of any appeal is to ensure that the time limits are strictly adhered to. The time limits are clearly and simply laid out in the Criminal Procedure (Scotland) Act 1995 and the Act of Adjournal (Criminal Procedure Rules) 1996. A failure to meet a time limit can have severe consequences for the appeal, including dismissal. Not a happy subject to broach with your client. Meet the time limits.

The Scottish Legal Aid Board (SLAB) has changed the system for legal aid in appeals. This niggardly change has resulted in many unpaid fees both for solicitors and those appearing in the appeal courts. At the outset of the appeal, reg 15 cover must be obtained. Only what is specified in that cover will be paid, nothing else. If leave to appeal is granted a further (and quite frankly unnecessary) application must be made to SLAB for a full legal aid certificate. If that is not done, any work after the granting of leave is not covered and will not be paid. Make sure you apply for legal aid after the granting of leave, as many solicitors are falling foul of this futile and pernickety regulation.

Preliminaries

In conviction (stated case) and sentence appeals, the first interaction of the solicitor with the Sheriff Appeal Court will be at a hearing for interim liberation, if appropriate. These occur in chambers opposite court 3 in the Lawnmarket building and start at 9am. There is a simple queuing system outside the court, the “bail queue”, a source of entertainment and legal discussion. A single sheriff deals with the interim liberation appeals. If leave to appeal has not been granted, it would only be very short sentences or compelling grounds that would lead to interim liberation being granted. If refused and leave to appeal is granted at a later date, a further application can be made.

If leave to appeal is refused, you will receive a letter stating why. You have 14 days from the date of the letter to appeal against that refusal.

If leave is granted, a date is given for the hearing. At that stage a print of the stated case needs to be prepared, or alternatively a form 19.18 lodged in respect of a sentence appeal. Form 19.18 can be found in the Act of Adjournal (Criminal Procedure Rules) 1996. The form must be lodged 14 days or more before the appeal hearing. Meeting this time limit is very important as the appeal papers are sent to the appeal sheriffs at that stage. Form 19.18 is the basis upon which you would argue the appeal, and should refer only to grounds of appeal that have been granted leave to appeal. It should be relatively brief and to the point.

Lodge three copies of the form 19.18, and three copies of all documents or authorities referred to (if the authority is in Justiciary Cases, the citation must be from that set of authorities). In stated cases either send the authorities in with the print or take five copies with you (one for you, three for the court and one for the Crown).

Appearing at the appeal

On the day of the appeal the court will normally sit from 10.30am, although you should check the rolls that are sent to you to ensure that the timings are correct. Some continued appeals are fixed for 10am. At court, speak to the clerk before the court starts and tell them who you are appearing for. There may be information that the clerk needs to tell you.

If your client is on interim liberation or has had a sentence suspended in terms of s 193A of the 1995 Act, they must attend the hearing. Bring a letter of intimation just in case.

The Sheriff Appeal Court is similar in structure to that of the Criminal Appeal Court: two sheriffs for sentence appeals and three for conviction appeals. To ensure that you are properly understood and your appeal is properly argued, you should make sure that your points are made clearly and backed by authority where appropriate. The appearance should be formal and indeed will be. If you refer to a case or legislation, cite the full title of the legislation or the full citation of the case. Questions will be asked of you and you should be prepared to answer all questions, whether in relation to the factual aspect of the case or your argument or any authorities used by you. The appeal process should not be daunting or concerning, but you should be properly prepared for a detailed and robust argument.

The process is not a retrial, nor is it resentencing of your client. The process is an appeal against a decision made by a sheriff or justice of the peace on the basis that the fact finder or decision maker was wrong or erred in the exercise of her/his discretion. You need to explain why the fact finder or decision maker was wrong, and if you are successful in that, a miscarriage of justice will have occurred and you win the appeal.

Depending on the nature of the appeal, a judgment can be given there and then. If that is the case you obviously wait for that judgment and at that point you may require to deal with the consequences if the judgment is partially in your favour, for example an alteration of the sentence.

Perhaps the most important thing is to enjoy the court and, given that all solicitors have the right to appear in the Sheriff Appeal Court, engage in it and appear – but adhere to the time limits!