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Grounds of Appeal in Criminal Cases - Research Findings

DescriptionThis research was commissioned to inform the Committee about factors affecting the success of appeals against conviction.
ISBN0 7480 5487 1
Official Print Publication Date
Website Publication DateDecember 29, 1998

Crime and Criminal Justice Research Findings No. 12 (1996)

Grounds of Appeal in Criminal Cases
Peter Duff and Frazer McCallum


ISBN 0-7480-5487-1 Publisher The Scottish Office Price £5.00

The Sutherland Committee on Appeals Criteria and Alleged Miscarriages of Justice was set up in 1994 by the then Secretary of State for Scotland to examine the criteria governing the consideration of criminal appeals against conviction and the procedures for dealing with alleged miscarriages of justice. This research was commissioned to inform the Committee about factors affecting the success of appeals against conviction and was carried out during 1995 by analysis of appeal records held by Crown Office and the Scottish Legal Aid Board (SLAB), as well as through discussions with lawyers involved in criminal appeals. Factors affecting appeals against sentence were not considered. Some of the main findings are summarised below.
Main findings
  • Most appeals (65%) were abandoned before the Appeal Court passed judgement on their merits; of the remainder 25% were refused and 10% were allowed.
  • Most abandonments (85%) took place before the first Appeal Court hearing: 48% were abandoned through a Notice or Minute of Abandonment; 27% through failure (whether intentional or not) to comply with various procedural deadlines; and a further 10% were deemed abandoned owing to the appellant's failure to appear at the first hearing. The remaining 15% of abandonments occurred at or sometime after the first appeal court hearing.
  • Defence agents thought that several factors influenced the abandonment of appeals. Some were related to the quality of the appeal and were often interlinked (these were: a realisation by the appellant that the initial impulse to appeal was misconceived; an unhelpful stated case or charge to the jury; an unfavourable counsel opinion; and, closely related to the latter two factors, a refusal of legal aid.) Other factors not related to the quality of the appeal but which were thought to lead to abandonment were the refusal of interim liberation and a perceived greater propensity to appeal, regardless of the strength of the case, by people sentenced to custody.
  • The success rate for appeals ranged from 5% of all appeals lodged against decisions of the High Court to 15% of appeals lodged from district courts. In between were appeals from sheriff court solemn (11% allowed) and sheriff court summary procedures (10% allowed).
  • Around half of the appeals were based on multiple grounds and a total of 30 different grounds were identified. Many of these were used only occasionally but there was an extremely high use of a small number of grounds, with the five most popular accounting for 68% of all grounds cited. Most of these grounds raised questions about the quality of the evidence rather than being based upon technical points of procedure.
  • Although the more frequently cited grounds of appeal tended to have higher abandonment rates, they did not generally appear to have different success rates.
  • Applications for Legal Aid were more likely to be granted for appeals against decisions of the higher courts which reflects the fact that these were the most serious cases. Where legal aid was refused, the appeal was abandoned in three quarters of cases; where legal aid was granted, however, abandonments occurred in less than one-third of cases.
  • The refusal of interim liberation did not affect the rate of abandonment although it made an early abandonment more likely.
Abandonment of appeals
Table 1 shows that there was a high rate of abandonment (65% overall) amongst the appeals in the current research sample. The category of abandoned appeals includes cases where the appellant simply failed to attend an appeal hearing or abandoned the appeal at the outset of a hearing. (In the official statistics issued by The Scottish Office such cases are categorised as 'refused' because they do come before the Appeal Court).
Table 1 - Outcome of appeals (%)

Appeals from

Abandoned

Refused

Allowed

High Court

57

37

5

Sheriff courts

64

25

11

solemn

Sheriff courts

67

22

10

summary

District courts

71

14

15

All appeals

65

25

10

The high abandonment rate, and the fact that most abandonments preceded the first Appeal Court hearing, may partly reflect the views of most interviewees that defence agents should follow clients' instructions to initiate even those appeals which appear to have very limited prospects of success. This was justified on the basis of allowing the prospects of success to be fully investigated without having to worry about running out of time in which to lodge the appeal. Thereafter, it was agreed, the defence agent had a duty to withdraw from spurious appeals. (It should be noted that the research considered the position prior to the various changes relating to appeals which were introduced by the Criminal Justice (Scotland) Act 1995. These changes include a requirement of applying for leave to appeal).
Success of appeals
It can also be seen from Table 1 that the success of appeals against decisions of the various courts ranged from 5% (High Court) to 15% (District Courts). The different rates can probably be explained by: (a) the greater chances of a case from one of the higher courts being appealed and the corresponding weakness of many such appeals; (b) the greater likelihood the appellant has of receiving Legal Aid in more 'serious' cases and thus continuing with a borderline appeal; and, perhaps, (c) the greater expertise and experience of personnel in the higher courts which might lead to fewer mistakes. It is, however, difficult to account for the similarity between the sheriff solemn and sheriff summary rates in these terms.
The Crown did not oppose the appeal in 42% of cases where the appeal was ultimately allowed. This mainly related to appeals from cases which had been dealt with under summary procedure.
Use of grounds of appeal
Around half of the appeals in the sample were based on more than one ground which were often difficult to disentangle. Appeals against sheriff summary cases were least likely to involve multiple grounds, while appeals against sheriff solemn cases were most likely. Table 2 shows that there was an extremely high use of a small number of grounds of appeal. The five most frequently used grounds were cited in 68% of cases. Overall, broader grounds relating to the quality of the evidence were much more commonly used than those relating to more specific irregularities in the proceedings. A possible reason for this might be that the former grounds are sometimes used in cases where there is a general dissatisfaction with the verdict rather than any more specific complaint.
Claims of insufficient evidence were split by the researchers into two categories: (a) appeals which appeared to be based on legal insufficiency ('insufficient evidence'); and (b) appeals concerned with too much/little weight being given to certain evidence or a general disagreement with the verdict ('perverse verdict'). Both types of ground were often framed in the language of insufficient evidence.
Table 2 - Most frequently used grounds of appeal and outcomes (%)

Appeal Result

Ground of appeal

Frequency of
use

Abandoned

Refused

Allowed

Insufficient
evidence

23

68

26

6

Refusal of no case to answer submission

18

64

24

12

Perverse verdict

12

75

24

1

Wrongful admission of evidence

8

65

29

5

Misdirection on evidence

7

57

37

6

Total

68

67

26

7

All other grounds

32

55

37

8

Results for grounds
The more frequently cited grounds were generally abandoned in around two-thirds of cases, except for 'perverse verdict', which had a higher rate of abandonment (75%), and 'misdirection on evidence' where the abandonment rate was closer to the lower figure found for 'all other grounds' (see Table 2). It was difficult to draw conclusions about the success rates because so few appeals were allowed. It did, however, appear that 'perverse verdict' was extremely unlikely to succeed, although this (as well as the higher rate of abandonment) was connected with the researchers' definition of the ground (see above). The less commonly used grounds had lower abandonment rates but were no more successful.
Legal representation
The proportion of appellants who were legally represented when drafting grounds of appeal was around 90%, except as regards appeals from the High Court where it was only 66%. Large numbers of appellants were unrepresented at their appeal hearings: around 25% to 30% in cases deriving from the High Court and sheriff courts, rising to 45% for those from district courts. Appellants unrepresented at either of the above two stages were extremely unlikely to succeed in their appeals. Their high failure rate probably reflected earlier judgements about the weakness of their appeals by, for instance, SLAB, in refusing Legal Aid, or a defence agent, in withdrawing from the case.
Legal aid
In those cases where there was an application for 'full' Legal Aid for an appeal against conviction (approximately two-thirds), it was clear that this was much more likely to be granted in appeals from the higher courts. Considering only those cases where SLAB had come to a decision on the matter, Legal Aid was granted in the following proportions of appeals from: (a) the High Court - 75%; (b) sheriff courts (solemn procedure) - 67%; (c) sheriff courts (summary procedure) - 42%; and (d) district courts - 21%. Such a trend is not surprising given that cases from the higher courts tend to be more serious.
Table 3 sets out the results of appeals where an application for Legal Aid was either abandoned, refused or granted.
Table 3 - Legal Aid and appeal result (%)
Legal Aid

Appeal Result

Abandoned

Refused

Allowed

Abandoned

89

4

7

Refused

73

24

3

Granted

32

46

22

Sentence and interim liberation
Almost 90% of solemn appeals and just over 20% of summary appeals were brought by persons given custodial sentences. As the severity of the sentence increased, the success rate of appeals decreased. This probably reflected the greater motivation to appeal produced by more severe disposals. The abandonment rates were relatively similar across the various sentences.
The proportion of appellants seeking interim liberation from a custodial sentence was the same whichever court was initially involved. Surprisingly, given the general view amongst lawyers interviewed that appeals were often initiated in an attempt to obtain interim liberation, the refusal of interim liberation had no effect upon the abandonment rates. More predictably, it did affect the time of abandonment. Where interim liberation was refused, abandonment tended to be early; where interim liberation was granted, abandonment took place at the last minute.
Offences and offenders
It was not possible to determine from the data collected whether particular types of offence produced more (or less) than the average number of appeals but the success rates for appeals against the more frequent offences (violence and dishonesty) were reasonably similar at 8% and 13% respectively. Abandonment rates were fairly consistent across the various types of offence, although there was a slightly greater likelihood of appeals concerning sexual offences and miscellaneous offences being abandoned (71% and 73% respectively), and slightly less likelihood of appeals against crimes of dishonesty being abandoned (60%).
A large proportion of appellants had lengthy criminal records. Approaching half (41%) had 16 or more previous convictions, while just 17% had no previous convictions. Not surprisingly, appellants against cases heard in the High Court tended to have more convictions than appellants against cases heard in the district courts. Those with no previous convictions were slightly less likely to abandon their appeals which may reflect greater motivation deriving from a desire to maintain a clean record.
The full report entitled 'Grounds of Appeal in Criminal Cases' is published as part of the Central Research Unit series of reports, copies of which are available from HMSO at a cost of £7.00 each.
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